The Justice Department has neither the authority nor the staffing to expand its investigation of unconstitutional police and court practices from Ferguson to surrounding municipalities, legal experts say.
But that doesn’t mean that the Justice Department is powerless. Nor is the Justice Department the only player that could bring about change.
ArchCity Defenders and Saint Louis University law professors have filed lawsuits against Ferguson and Jennings for operating “debtors’ prisons.” The Municipal Court Improvement Committee is pushing incremental changes in municipal court procedures. And bills sponsored by state Sen. Eric Schmitt, R-Kirkwood, could force the worst police departments out of business.
Attorney General Eric Holder said in announcing action against Ferguson that the Justice Department would press surrounding municipalities to fix their unconstitutional police and court practices, too. Lawyers and police say a dozen north county municipalities are worse than Ferguson.
But legal experts say the Justice Department can’t just insist on compliance in all of the surrounding municipalities.
David Harris, a law professor at the University of Pittsburgh, says, “There is no way to drag another municipality into Ferguson’s case. The investigation is of Ferguson. But what this will do is to communicate very sharply to these other municipalities what the limits are with the Department of Justice and if they want to avoid their own investigations they ought to fix these things.
Samuel Walker, a professor and police accountability expert at the University of Nebraska, agrees. Both he and Harris point out that the Special Litigation Section of the Civil Rights Division is a small operation that lacks the resources to expand its investigation of patterns of unconstitutional policing to neighboring municipalities.
“DOJ, as a practical matter, could not investigate all the jurisdictions in the metro St. Louis area,” said Walker. “There are just too many, requiring too many DOJ people. Perhaps the best approach would be for Holder or the new AG to use the proverbial ‘bully pulpit’ and give a well-publicized speech about the problem and possible remedies – and do it in St. Louis. This would help to energize local civic leaders.
“Local civil rights and civil liberties groups should also immediately begin calling loudly for a comprehensive solution to the broader problem. I recommend a Miami-Dade/LA County solution where the county law enforcement agency begins contracting to perform law enforcement services for small municipal governments.”
Ferguson in the middle of the pack
Stephen M. Ryals, a St. Louis County civil rights lawyer, says he has seen first-hand the experiences of some poor defendants in Ferguson’s municipal court. In fact, he had his own run-in with Municipal Judge Ronald Brockmeyer – a run-in detailed in the report without naming Ryals.
“We had a trial and I was trying to cross-examine the officer,” Ryals recalled. “The judge kept interrupting me. At one point I said, ‘Judge, there’s been no objection.’ He went on and on about wasting everyone’s time. He said something about grandstanding. I said, 'Judge, I object to you characterizing my cross examination in that manner.' He said, ‘Be careful what you say. I’ll hold you in contempt and lock you up.’ It absolutely killed my adversarial zeal.”
But Ryals says that Ferguson isn’t the worst of the north county municipalities. “No, I don’t think they’re worst,” he said. “They probably are better than some and not as good as most.”
Ryals already has heard court personnel in other municipalities talking about how they don’t want to make the headlines like Ferguson.
“If I was in charge of one of these other municipalities that has not been targeted by the Justice Department, I think I’d be inclined to initiate a pretty careful review of my practices. I’d look at charging practices and the fine structure.
“Now that we have a template for what is good and not so good, with the imprimatur from the Justice Department, I think it will be easier for lawyers from other jurisdictions to mount challenges. You have ArchCity Defenders and Saint Louis University Law School who are already active and motivated to build on the Justice Department, so I’m hopeful there will be changes.”
ArchCity is the public-interest legal organization that led the way in bringing the abuses of municipal courts to public attention around the time that Michael Brown was killed in Ferguson last August.
Thomas Harvey, its director, praised the Justice Department for validating the group’s criticism of municipal courts. But he also said that solving Ferguson alone will not make much of a dent in the overall problem.
“Without comprehensive and transformational change or the abolition of the municipal court system, individual reform in single municipalities will never truly change the lives of the most vulnerable among us,” Harvey said.
Harvey said his group intends to continue its civil rights lawsuits. Last month, ArchCity and Saint Louis University Law School lawyers sued Ferguson and Jennings for running Dickensian “debtors’ prisons” where poor people are locked up if they can’t pay court fines.
The class-action lawsuits on behalf of 15 citizens claim that the towns violated the constitutional rights of the citizens because the Supreme Court says people can’t be imprisoned for failing to pay fines.
Harvey believes that the only way to fix the municipal court system is to abolish the municipal courts altogether. Brendan Roediger, a Saint Louis University law professor who worked on the debtor prison suits, put this way in a Tweet Wednesday:
“The municipal court system does not need to be fixed. It is fundamentally and intentionally oppressive. It simply needs to go.”
Frank J. Vatterott, the municipal judge in Overland who heads the Municipal Court Improvement Committee, says he has a message for Roediger: “It isn’t going to happen.”
Vatterott thinks the lawsuits filed by Harvey and Roediger are misleading.
“It tells this unbelievable story and it reads like that Charles Dickens novel about debtors’ prisons, but it never mentions the main fact that they are in jail because of they didn’t show up in court.
“Roediger goes for Defcon 4 right away,” adds Vatterott. “He’s a good guy, but we live on a different planet.”
Asked if he was surprised by the Justice Department report on Ferguson, Vatterott said he knows there are “unnecessary incarcerations for petty stuff.”
Turning to the portion of the report that suggested ticket fixing among municipal court clerks, Vatterott said, “I had heard all of those stories before. They say clerks fix stuff in between themselves, and I’ve always heard that. But a traffic ticket is not an ax murder, and in the old days they were fixed all over the world.
“You can make a big deal out of it, but most prosecutors look at it this way: If you have a guy with a lot of points but the guy gets a ticket because he is late for mass or something, they let him pay a bigger fine and avoid the points.”
Vatterott says his committee is making modest reforms, but ones that can make “a big improvement in our courts.” Among them:
- An “amnesty” program in December allowed about 3,000 people to get out from under warrants. But that still is a small percentage of the estimated 200,000 warrants outstanding, he said.
- A new uniform fine schedule (see below) went out to municipal courts this week for their consideration. It would substantially lower fines in some of the smaller towns, Vatterott said. High fines in Ferguson were a target of the Justice Department report.
- Community service may be proposed as an alternative for those who can’t pay their fines.
- Bail reform to enable municipality A, which is holding a person under a warrant from municipality B, to take the bond for B and release the citizen.
- A new notice on tickets would inform citizens that they won’t be arrested if they come to court and don’t have enough money to pay the fine. The Ferguson report said that many poor people don’t go to court because they fear they will be arrested. Vatterott acknowledged, however, that some municipal courts check the docket against outstanding warrants and arrest those with warrants when they arrive. So the new notice may not entirely solve the problem.
- Volunteer lawyers providing free advice could protect the rights of poor citizens. But Vatterott said his committee’s proposal for volunteer public defenders got a cold reception from municipalities, which thought the free lawyers would bring court to a standstill. Harvey also criticizes the volunteer defenders saying permanent paid public defenders are needed.
Vatterott has high hopes for a big grant the county is seeking from the MacArthur Foundation to set up a central municipal court office. This office could more effectively implement the bail and volunteer public defender proposals, he said.
The University of Missouri-St. Louis has been “chomping at the bit” to help in Ferguson, Vatterott says. It is helping to put together the grant proposal.
Roger Goldman, an emeritus law professor at Saint Louis University, says the most effective way to reform north county police departments may be an indirect one – Schmitt’s bill, Senate Bill 5, putting a lid on the percentage of revenue a municipality can raise from fines.
Schmitt’s bill could bankrupt some small municipalities that now collect up to 30 percent of the income from court fines; the bill would set a 10 percent lid by 2017.
Goldman said, "It’s too much to expect the federal government to come in and reform each of those small communities.”
Instead, Schmitt’s bill “would be a much more effective way because you are going to put 30 or 40 out of business. That is much more efficient than saying, Ferguson has to do this and Pine Lawn has to do that.”
Goldman notes that St. Louis County police took over policing in Jennings in 2011 and that since then serious crimes like homicides, stabbings and rapes are down by a third, based on state statistics.
Vatterott isn’t taking a position on Schmitt’s bill. But he is concerned about a couple of related proposals he says Schmitt is pushing. One would limit a person to being a municipal judge in just one town, and the other would bar criminal defense lawyers as judges.
“What do you want, someone who does railroad work?” asked Vatterott. “I think that a defense lawyer is more empathetic than a big guy with a corporate practice at Bryan Cave.”