A Washington federal judge refused an opportunity to shed light on the “trial penalty”—the consequences defendants face when they choose to go to trial reported, The National Law Journal.
Attorneys sought to unseal a PowerPoint presentation that prosecutors prepared in the case against Kevin Ring, a former lobbyist convicted in the Jack Abramoff scandal.
A jury convicted Ring in late 2010 of trading things of value—including meals and trips—in exchange for favors from public officials. It was his second trial. A jury hung following his first trial in 2009. Ring is serving 20 months in prison.
Ring’s lawyers at Miller & Chevalier asked the court in December to unseal portions of a PowerPoint document the government used during a reverse proffer session—a meeting where the government tells a defendant about the case to force a decision over whether to plea or go to trial. Ring’s lawyers argued there was a strong presumption in favor of public access to judicial proceedings and court records.
The presentation, Miller & Chevalier partner Andrew Wise wrote, would educate public interest groups, academics and others “about how pleas and charging decisions can work and how prosecutors’ actions can affect the criminal justice process.”
But U.S. District Judge Ellen Segal Huvelle noted in her June 10 decision that the PowerPoint presentation was never filed with the court; it was provided to Ring and his lawyers before Ring was indicted in September 2008. As a result, the judge said, the presumptive right of public access didn’t apply.
“A document is part of the judicial record if it is filed with the court and plays a role in the adjudicatory process,” Huvelle wrote. “If a document is not filed with the court, it is not part of the judicial record and is not subject to a common law right of access.”
Wise declined to comment.
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Since 1996, Florida added more than 20 new categories of financial obligations for criminal defendants and, at the same time, eliminated most exemptions for those who cannot pay. The process of cranking up fees to pay for courts became known as “cash register justice.”
In fact, some states apply "poverty penalties," such as late fees, payment plan fees and interest, when people are unable to pay all their debts in a lump sum, reported CBS News Moneywatch.
Alabama charges a 30 percent collection fee, for instance, while Florida allows private debt collectors to add a 40 percent surcharge on the original debt. In North Carolina people are charged for using a public defender, so indigent defendants who cannot afford an attorney are forced to face jail time without counsel.
According to a 2013 report prepared by the ACLU, The Outskirts of Hope, the inability to pay a fine in Ohio is “the beginning of a protracted process that may involve contempt charges, mounting fees, arrest warrants and even jail time.”
In some Ohio counties offenders are being jailed because they are too poor to pay fines. That is a violation of federal and state law and the perpetuation of “debtors’ prison.”
All of this, in spite of a 30-year-old U.S. Supreme Court ruling that courts cannot properly revoke a defendant's probation for failure to pay a fine and make restitution, absent evidence that the defendant was willfully refusing to pay.
Like Eileen DeNino, men and women, across the country are being sent to jail simply because they don’t have money. The ever-increasing court fees and costs are not about deterrence, retribution or rehabilitation -- they’re about creating revenue. America has created the “punishment tax” -- and jail cells are routinely being used to collect it.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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