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VOL. 41 | NO. 47 | Friday, November 24, 2017

Wiping slate clean is now less about who can afford it

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The scales of justice in Tennessee are slowly tipping back toward the poor – and not so poor – helping them regain traction lost to often-minor transgressions.

Change is taking place in court battles and in the Republican-controlled Legislature, believe it or not.

On one front, Rutherford County and Providence Community Corrections has settled a class-action lawsuit over private probation practices for $14.3 million this year, a move compensating nearly 30,000 Tennesseans for fees the company allegedly extorted from low-income probationers.

The Washington, D.C., firm that brought the lawsuit called the case “a tragic illustration of what happens when for-profit companies are allowed to turn the criminal legal system in a mechanism for making money.”

A group of law firms filed a similar class action lawsuit this summer against Safety Commissioner David Purkey, Rutherford County, Wilson County, Lebanon and their criminal court clerks contending the suspension of poor people’s licenses traps them in a cycle of “traffic debt.” So far, a U.S. District Court judge ordered the state to renew the licenses of two plaintiffs.

In the General Assembly, legislation brought by state Rep. Raumesh Akbari passed into law this year reducing expungement fees for felony convictions to $180 from $350 plus a $100 court fee. And Akbari is ready to take another step in 2018 to make the same cut in expungement fees for people placed on court diversion, a measure that would help thousands of people clear their records.

Akbari, a Memphis Democrat, hit a wall on the idea previously because the entire $350 goes to the Tennessee Bureau of Investigation. But she says TBI contacted her this summer, instead of vice versa, and is willing to work toward a lower fee.

The reduction makes sense because it enables more people to wipe the slate after minor offenses. Two minor charges and, bam, you’re looking at $900. Most young people don’t have that kind of money lying around. Come to think of it, most older people don’t either.

Cutting the fee shouldn’t do irreparable harm to TBI, either.

When the fee was $50, TBI was processing 9,000 expungements a year. Since the Legislature authorized the increase to $350, it’s handling only 3,000 cases annually, Akbari says.

She says she’s hoping for some flexibility with TBI, as well as some help from Gov. Bill Haslam in his final budget to make up for any losses, which would be sort of a seismic shift because the Legislature has put more emphasis on offenders funding criminal justice than taxpayers.

“The bottom line to that for me is giving people their lives back, not holding them responsible for the rest of their lives for a decision that they made on their worst day,” explains Akbari, who is also considering a run for state Senate in 2018.

“If more people can afford it, they can get their records expunged, they can get back to work. They can take advantage of some of these educational opportunities that we’ve passed in the state Legislature.

“And I just think it can have a tremendous effect on our community, because a person who’s working is not a person who has to engage in other activities. It helps for education, it helps our neighborhoods, so I think the impact will be huge.”

Just City, a Memphis-based nonprofit organization advocating a more humane justice system, is one of the key backers in Akbari’s efforts. It didn’t hurt, either, that Senate Majority Leader Mark Norris, a key Republican leader from Collierville, sponsored the Senate version of her expungement fee-reduction bill.

The group is taking up a three-pronged legislative effort in 2018:

Reducing the fee for diversion expungements, the second half of the bill it introduced last year to help people clear their records of low-level, first-time offenses after they complete diversion.

Allowing expungement of eligible convictions even in cases where people have non-eligible convictions. Under current law, a single conviction ineligible for expungement disqualifies a person from expunging any convictions.

Examining alternatives to money bail, an area in which the Pretrial Justice Institute gave Tennessee an “F” for relying on a money bail system to ensure people show up for court. In too many cases, people are staying in jail for days, weeks and months because they can’t afford bail, the group states.

“Many states are finding creative, data-driven ways to reduce or eliminate the use of money bail altogether, and we think Tennessee can be next. We propose that the state study alternatives and make recommendations to create a fairer, more sensible alternative,” the group says.

Some folks call criminal bonding a scam. But that’s a story for another day.

First things first

Just City focuses on policies creating barriers to the criminal justice system for people mired in poverty, notes Josh Spickler, Just City executive director, and expungement fees are a “very clear example” of those hurdles.

By law, expungement fees are assessed to people who’ve committed one or two low-level, non-violent offenses after they complete everything required of them by the court, including probation, payment of court costs and avoiding trouble in and out of the state.

“There are thousands of Tennesseans across the state who are eligible to have their case erased from their record, which is what expungement is. But for many of them, $450 is too much. So, they continue to struggle to find good employment,” Spickler acknowledges.

Just City has helped more than 230 people pay expungement fees over the last few years, and once people clear their record, their lives tick upward.

Job prospects improve “drastically,” Spickler adds, housing gets better, and children start to excel in school because their parents are home at normal hours.

“Sometimes they get benefits and health care insurance because they can get a better job, because they can answer no to that question: Have you ever been convicted of a crime? So, opening up more opportunities for expungement by lowering that fee is one of our chief priorities this year,” Spickler says.

Just City also is interested in changing the fate of minors convicted of serious offenses, including murder, by enabling them to go before a judge after a decade or two in prison to see if they are fit for release.

Brain development science suggests young people, when they commit such offenses, aren’t making decisions the same way as an adult, Spickler says.

“So, there’s an interest in this state and many, many other states in making sure that we’re not just throwing people away because of youthful mistakes,” Spickler points out.

Spickler contends the matter is not a partisan issue, but one all people could rally around because the idea doesn’t involve letting them out of prison immediately.

“We’re talking about taking them before a judge decades after they’ve entered the prison system and letting a judge decide if he should consider them for parole,” he says.

For this situation, groups such as Just City often cite the case of Cyntoia Brown, a woman convicted of killing a man when she was 16 and sentenced to 51 years in prison.

Advocates for justice system changes say she was a victim of sexual abuse and sex trafficking and killed the man because she was afraid he would kill her. Prosecutors contended she was trying to steal from the man.

Whatever the case, while in prison the woman has earned an associate’s degree from Lipscomb University and become a model inmate for other women to change their lives, according to reports.

The other side

State Rep. William Lamberth, chairman of the House Criminal Justice Committee, says he has no problem with reducing expungement fees. A clean record shouldn’t be available only “to those that have the financial means to pursue it,” he says.

That will be good news for Just City and Akbari when they take their bill through Lamberth’s committee early next year.

Yet Lamberth is leery when it comes to legislation affecting the case of Cyntoia Brown.

He points out previous legislation in that vein has not been part of a sentencing reform initiative but a standalone bill to deal with the one issue.

In addition, the Sumner County Republican, a former assistant district attorney, says making such a change would have to be retroactive.

“Which means all of those families who’ve had a loved one murdered by someone are all of a sudden going to get notices from the state that they’ve got to go back to court and beg the judge to keep that person in prison,” Lamberth explains. “That’s a tough thing. I just think that’s something we should be very cautious about.”

Instead of “cherry-picking” certain crimes and circumstances, Lamberth says he wants a thorough review of Tennessee’s sentencing laws, something not done since the late 1980s.

“I think it’s going to take the strength and will of the Legislature and the governor, either this governor or the next one, to genuinely go top to bottom in our sentencing code. And I’m ready to go any time somebody wants to have that conversation,” Lamberth adds.

Taking things a giant step further, Lamberth says Tennessee needs to quit skimping on criminal justice spending.

He contends the state should make a “significant investment” in the criminal justice system next year, not just millions, but tens of millions for new assistant public defenders, new assistant district attorneys, more counsel for indigents, additional treatment options, TBI agents, probation officers and parole officers.

Such a move could spur better discussion about how to cope with hundreds of people flooding courtrooms each day, enabling the state to look at them as “individuals” and “not just numbers on a spreadsheet,” Lamberth says.

“We really need to have an individualized assessment of each individual coming into the court system, misdemeanor or felony, and say: Why is this person here? How do we make sure they never come back to court again? Do they have mental health issues? Do they have drug addiction issues? And what sentences should be associated with that?” he asks.

Lamberth points out the Legislature reformed sentencing in 1989 only in response to a federal lawsuit brought to stop prison crowding. It was done with an eye toward letting people out of prison fast enough to escape federal scrutiny, he says.

Instead, he would like to hear discussion on making Tennessee a safer place to live rather than how people can get out of prison quicker.

“It’s gonna cost money, but it’s worth it,” he adds.

The analysis

Anyone who’s been in a courtroom lately is likely to agree with Lamberth. Just about any day in General Sessions or Circuit Court is like grinding sausage. There’s simply no way the DAs and public defenders can give all these cases the attention they deserve, especially in Tennessee’s biggest counties.

Sure, more drug courts, DUI courts and veterans’ courts are starting to delve into mental health problems and drug addictions to help people steer onto a better path. But they’re only starting to scratch the surface across Tennessee.

Oddly enough, while Lamberth may disagree with groups such as Just City and legislators such as Akbari on some issues, he almost sounds like a left-wing liberal when he talks about helping people suffering from mental health problems and drug addiction.

But maybe more legislators should stand accused of having bleeding hearts. It’s easy to say, “Lock him up and throw away the key,” until one of your loved ones is affected.

Getting to the root of the problem is the problem, and as Lamberth says, it’s going to be expensive. To make changes, though, the Legislature will have to make a 180-degree turn away from requiring offenders to fund the criminal justice system and spreading the love to all taxpayers.

Maybe then we won’t see class action lawsuits over shady probation practices and suspended licenses as well as thousands of people battling to clear their record.

Sam Stockard is a Nashville-based reporter for the Nashville Ledger, Memphis Daily News, Knoxville Ledger and Hamilton County Herald. He can be reached at sstockard44@gmail.com.

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