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BEYOND FERGUSON: COMMUNITY-BASED OR CASH-
REGISTER JUSTICE?
GINKOWSKI, RICHARD A.
Criminal Justice. Spring2018, Vol. 33 Issue 1, p14-22. 9p. 2
Color
Photographs.
Article

MUNICIPAL government
LAW enforcement
MUNICIPAL courts
FINES (Penalties)
SOUTHERN Poverty Law Center
The article reports that certain municipalities have turned to law
enforcement and the courts to fill municipal coffers with the
concurrent result often being cash-register justice that
particularly
and unconstitutionally impacts the economically disadvantaged.
It
mentions that court uses its judicial authority as means to
compel
the payment of fines that advance the City's financial interests.
It
presents information on Southern Poverty Law Center (SPLC)
which deals with municipal courts.
0887-7785
130198076
Criminal Justice Abstracts with Full Text
BEYOND FERGUSON: COMMUNITY-BASED OR CASH-
REGISTER JUSTICE?
for most people, the only contact they will have with police and
the courts will result from receiving a
citation for a traffic violation or a municipal offense such as
having an unleashed dog. With increasing
pressure to balance budgets, some municipalities have turned to
law enforcement and the courts to fill
municipal coffers with the concurrent result often being "cash-
register justice" that particularly -- and
unconstitutionally -- impacts the economically disadvantaged.
In other communities, municipal courts
reflect a commitment to "community-based justice" that
provides public safety and accountability while

respecting the rights of defendants and diverting appropriate
cases from the criminal justice system,
freeing up scarce resources. This article, written by a suburban
municipal court judge, discusses both the
problem and one state's model solution.
JUSTICE FERGUSON STYLE
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August 9, 2014, arguably is a watershed date in American
criminal justice. That is the day 18-year-old
Michael Brown was shot and killed by a police officer in the St.
Louis suburb of Ferguson, Missouri,
shortly after a robbery was reported nearby. The killing of an
unarmed black teenager by a white police
officer sparked days of rioting in Ferguson and calls nationwide
for increased vigilance of treatment of
minorities, including use of force, by law enforcement.
The following month, then Attorney General Eric Holder
announced the Department of Justice (DOJ)

would investigate not only Brown's death but also the Ferguson
Police Department. The federal probe
concluded with no charges against the officer, who claimed
self-defense (and was also cleared by a state
grand jury), but nonetheless offered a stinging indictment not
only of discriminatory police practices but
also of a municipal court that functioned more as a cash register
than a forum for justice:
Ferguson's law enforcement practices are shaped by the City's
focus on revenue rather than by public
safety needs. This emphasis on revenue has compromised the
institutional character of Ferguson's
police department, contributing to a pattern of unconstitutional
policing, and has also shaped its municipal
court, leading to procedures that raise due process concerns and
inflict unnecessary harm on members
of the Ferguson community.
(U.S. DEP'T OF JUSTICE, INVESTIGATION OF THE
FERGUSON POLICE DEPARTMENT 2 (2015)
[hereinafter FERGUSON REPORT].)
Poring through thousands of pages of city documents and
hundreds of interviews with city residents (and
some police officers who complained of being pressured to
write tickets), the DOJ investigation found that
Ferguson "budgets for sizeable increases in municipal fines and
fees each year, exhorts police and court
staff to deliver those revenue increases, and closely monitors
whether those increases are achieved."
(Id.) The investigation revealed numerous communications
where city officials leaned on the police chief
to increase revenue through enforcement and bragged when
positive results were achieved. For
example, in January 2013 the police chief wrote: "Municipal

Court gross revenue for calendar year 2012
passed the $2,000,000 mark for the first time in history,
reaching $2,066,050." The city manager
responded: "Awesome! Thanks!" (Id. at 13.) Even after Michael
Brown's death and while the federal
investigation was underway, Ferguson's city finance director
vowed to use municipal enforcement
revenue to plug an anticipated $1 million hole in the city
budget. (Kate Smith, Ferguson to Increase
Police Ticketing to Close City's Budget Gap, BLOOMBERG
NEWS (Dec. 12, 2014), https://tinyurl.com/
y89wnktu.)
This emphasis on "policing for profit" can be illustrated by a
comparison of Ferguson, a St. Louis suburb
with a population of 20,846 (67.4 percent African American),
and the author's community, Pleasant
Prairie, Wisconsin, a Chicago suburb with 20,400 residents (2.5
percent African American). In 2013 -- the
year before Michael Brown was shot -- Pleasant Prairie's gross
court revenue was $338,248. In
Ferguson, it totaled $2,571,000. The DOJ concluded:
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Ferguson has allowed its focus on revenue generation to
fundamentally compromise the role of
Ferguson's municipal court. The municipal court does not act as
a neutral arbiter of the law or a check on

unlawful police conduct. Instead, the court primarily uses its
judicial authority as the means to compel the
payment of fines and fees that advance the City's financial
interests. This has led to court practices that
violate the Fourteenth Amendment's due process and equal
protection requirements. The court's
practices also impose unnecessary harm, overwhelmingly on
African-individuals, and run counter to
public safety. (FERGUSON REPORT, supra, at 3.)
The investigation excoriated numerous less than "user friendly"
court practices, including:
"It is often difficult for [a defendant] in Ferguson to know how
much is owed, where and how to pay the
ticket, what the options for payment are, what rights the
individual has, and what the consequences
are for various actions or oversights." (Id. at 45.)
Information provided "is often incomplete or inconsistent . For
example, speeding tickets often fail to
indicate the alleged speed observed, even though both the fine
owed and whether a court appearance
is mandatory depends upon the specific speed alleged." (Id.)
"Communication with municipal court defendants is haphazard
and known by the court to be
unreliable." (Id.)
Court "procedures and operations are ambiguous, are not written
down, and are not transparent or
even available to the public on the court's website or
elsewhere." (Id.)
"[T]he court's fine assessment procedures do not adequately
provide for a defendant to seek a fine

reduction on account of financial incapacity or to seek
alternatives to payment such as community
service." (Id. at 3-4.)
"Ferguson does little to ensure that persons who have missed a
court date are properly notified of the
consequences such as arrest or losing their driver's licenses, or
that those consequences have
already been levied." (Id. at 46.)
As a cost-cutting measure, the Ferguson Municipal Court in
2012 stopped sending notices to defendants
who had arrest warrants issued after missed court appearances,
a practice some court employees
thought useful as some defendants came in to clear up their
warrants; federal investigators "spoke with
several individuals who were arrested without ever knowing that
a warrant was outstanding." (Id. at 47.)
These defendants also were never advised that an additional
charge of failing to appear in court was
filed. (Id. at 47 n.25.) And those consequences could be severe.
The report cities examples of added fees
and costs for missed appearances that in one instance had an
African American woman still owing $541
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after paying $550 on two old parking tickets that originally
were a fairly steep $151. (Id. at 4.) Another

common occurrence was suspension of driver's licenses for
failing to pay traffic fines and then,
regardless of indigence, refusing to allow licenses to be
reinstated unless the fines were paid in full. (Id.
at 50.)
CASH-REGISTER JUSTICE BEYOND FERGUSON
Though Ferguson became the lightning rod, the scourge of
"policing for profit" is widespread. City of
Minneapolis 2007 budget planning documents showed that
police traffic officers were "assumed to
recover 50% of their salary in fine revenue," and parking
enforcement agents were not only expected to
pay their own way by writing tickets but were subjected to
monthly meetings "discussing the importance
of keeping numbers up." (Traffic Control Agents -- Revenue
Shortfall, MINNEAPOLISMN.GOV (2007),
https://tinyurl.com/y9dnz4nt.) The documents also showed that
Minneapolis anticipates $119,000 in ticket
revenue during each snow emergency and laments that in mild
winters "the opportunity for this revenue is
lost." (Id.) "Montgomery, Ala., collected nearly $16 million in
'fines and forfeitures' in 2013 -- more than
five times the amount collected by other similarly sized
Alabama cities, according to a suit filed on behalf
of jailed indigent residents." (Policing for Profit Perverts
Justice: Our View, USA TODAY, Mar. 11, 2015,
https://tinyurl.com/yblfypdy.)
It's not just larger cities like Minneapolis or Montgomery or
suburbs like Ferguson. In 2009, the Mayor's
Court in tiny Hanging Rock, Ohio (population 221), reported
$401,218 in court revenue, while an even
smaller community, Linndale (population 179), brought in
$490,320. (Justin Conley & Rebecca McKinsey,
Ohio's Mayor's Courts, Big Business, COLUMBUS DISPATCH,

July 12, 2012, https://tinyurl.com/
ydcb8p99.) The DOJ Ferguson investigation noted that profit-
oriented law enforcement has a severe
impact not only on the credibility of the justice system but also
for those of limited means: "Minor offenses
can generate crippling debts, result in jail time because of an
inability to pay, and result in the loss of a
driver's license, employment, or housing." (FERGUSON
REPORT, supra, at 4.) In a 22-page analysis, the
Ohio American Civil Liberties Union (ACLU) labeled these
courts purveyors of "debtors' prisons" and
urged reform. (AM. CIVIL LIBERTIES UNION OF OHIO, THE
OUTSKIRTS OF HOPE: HOW OHIO'S
DEBTORS' PRISONS ARE RUINING LIVES AND COSTING
COMMUNITIES (2013),
https://tinyurl.com/blrwy7k.) The Ohio ACLU found that in
two-thirds of the local "mayor's courts," studied
indigent defendants were jailed without meaningful hearings on
whether they had the ability to pay
delinquent fines. The Ohio Supreme Court responded by issuing
"bench cards" reminding judges of the
rights of indigent defendants and judicial responsibilities and
recommending appropriate procedures to
ensure compliance.
The Southern Poverty Law Center (SPLC) challenged dozens of
Alabama municipal courts that failed to
afford indigent defendants required hearings before seeking to
imprison them for failure to pay fines.
Even after the City of Montgomery agreed to resolve the SPLC
lawsuit and comply with state and federal
laws protecting indigent defendants, on January 5, 2017, the
presiding municipal court judge, Armstead
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Lester Hayes III, was suspended by the Alabama Court of
Judicial Conduct for 11 months. The inquiry
found that Judge Hayes violated seven canons of judicial ethics,
including incarcerating poor defendants
without making appropriate determinations of ability to pay. On
the flip side, the Mobile Municipal Court
proactively took several measures to reduce the number of
people incarcerated for failing to pay court
obligations, and the local sheriff's department implemented a
"work crew" program where indigent
defendants avoid jail by performing community service work.
(Lawrence Specker, Mobile's Municipal
Court Reforms Bring Swifter Justice, Jail Savings, AL.COM
(Aug. 9, 2016), https://tinyurl.com/yath29xk.)
"Policing for profit" also attracted the attention of the US
Commission on Civil Rights, which issued a
report in September 2017 encouraging the DOJ to continue to
pursue monitoring of local courts to guard
against practices that can lead and have led to discrimination
and inequitable access to justice when not
exercised in accordance with the protections afforded under the

due process and equal protection
clauses of the United States Constitution. (See U.S. COMM'N
ON CIVIL RIGHTS, TARGETED FINES
AND FEES AGAINST LOW-INCOME COMMUNITIES OF
COLOR: CIVIL RIGHTS & CONSTITUTIONAL
IMPLICATIONS (2017) [hereinafter STATUTORY
ENFORCEMENT REPORT].) "Dependence on traffic
citations to fund local governments creates an incentive for law
enforcement to issue as many citations
and fines as possible, regardless of the severity of the offense.
Such revenue systems can result in
abuse when raising funds replaces public safety as the primary
goal of law enforcement." (Id. at 12.)
The Commission noted that municipal fines and fees accounted
for 12.9 percent of Ferguson's operating
budget, "whereas other Missouri municipalities collected less
than three percent, and other comparable
United States cities collected less than two percent from fines
and fees." (Id. at 22.) But Ferguson was
hardly alone. A neighboring suburb, Saint Ann, Missouri, made
up 30.4 percent of its budget from fines
and fees, and even College Park, Maryland, a Washington, D.C.,
suburb that is home to the University of
Maryland, raised 13.6 percent of its municipal budget from fine
revenue -- more than Ferguson. (Id. at 21-
22.)
THE LAW
"The primary purpose of an ordinance cannot be the raising of
revenue in lieu of taxation ." (Village of
Sister Bay v. Hockers, 317 N.W.2d 505, 508 (Wis. Ct. App.
1982).) But monetary sanctions may "at least
pay the cost of enforcement of ordinances and regulations" and
"be imposed to effect compliance and
deter violations." (Id.) "Revenue production is not a legitimate

basis for imposing a fine." (State ex rel.
Pedersen v. Blessinger, 201 N.W.2d 778, 781 n.2 (Wis. 1972).)
Excessive fines or civil forfeitures may
violate the excessive fines and penalties clause of the Eighth
Amendment. (Austin v. United States, 509
U.S. 602, 609-10 (1993); see also State v. Hammad, 569
N.W.2d 68, 70-71 (Wis. Ct. App. 1997).) "It
must be remembered that courts generally, and traffic courts in
particular, are not collection agencies and
should not be made such." (Blessinger, 201 N.W.2d at 784.)
Despite the frequency of its observance in the breach, the law is
clear that it is unconstitutional to jail a
poor person unable to pay a fine. (See Bearden v. Georgia, 461
U.S. 660 (1983); Tate v. Short, 401 U.S.
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395 (1971); Williams v. Illinois, 399 U.S. 235 (1970).) "[T]he
State cannot 'impos[e] a fine as a sentence
and then automatically conver[t] it into a jail term solely
because the defendant is indigent and cannot

forthwith pay the fine in full.' In other words, if the State
determines a fine to be the appropriate and
adequate penalty it may not thereafter imprison a person solely
because he lacked the resources to pay
it." (Bearden, 401 U.S. at 667-68 (alterations in original)
(citation omitted).)
The Bearden Court made it clear, however, that "[a] defendant's
poverty in no way immunizes him from
punishment." (Id. at 669.) "For example, the sentencing court
could extend the time for making payments,
or reduce the fine, or direct that the [defendant] perform some
form of labor or public service in lieu of the
fine." (Id. at 672.) "[O]ur holding does not suggest any
constitutional infirmity in imprisonment of a
defendant with the means to pay a fine who refuses or neglects
to do so." (Id. at 668.) "[F]ailure to make
sufficient bona fide efforts to seek employment or borrow
money in order to pay may reflect an
insufficient concern for paying the debt to society," and the
state is "justified" in using imprisonment. (Id.)
"Ownership of, or equity in, property indicates that a defendant
is not constitutionally indigent and that his
or her failure to pay a fine is contumacious." (State v. Johnson,
315 P.3d 1090, 1100 (Wash. 2014).)
Property ownership "allows the defendant to 'borrow money or
otherwise legally acquire resources in
order to pay his court-ordered financial obligation.'" (Id.)
As the Wisconsin Supreme Court explained some 45 years ago,
the law is neither complicated nor
confusing:
If the defendant has ability to pay the fine and will not, then
imprisonment is a proper means of
enforcement. In such case, the defendant has a key to his

imprisonment and it is only his contumacy
which keeps him from enjoying his liberty.
But what about the person unable in fact and in truth to pay a
fine? In such a case, we hold it would be
discriminatory to imprison him to coerce a performance he is
unable to give. Under such conditions he is
imprisoned because of his poverty. The inability to pay a fine is
not different than the inability to pay
alimony and support in civil cases. The failure must be
contumacious. But the inability to pay and the
question of indigency are relative terms and in the case of a
fine, the trial courts should take a long and
hard look upon the argument of inability to pay in our affluent
society.
Too many people claim indigency when there is no indigency in
fact. Too many claim an inability to pay
when they consider the payment of a fine to be in the lowest
order of priority. In traffic cases it is difficult
to find inability to pay when a defendant owns an automobile
and seemingly has money to buy gasoline
or has the ability to borrow. Nevertheless, the constitution we
believe forbids the imprisonment as a fine-
collection method when the court knows it cannot work.
Reduced to its bare essence, the law is clear that before a person
may be imprisoned as a sanction for
failing to pay a fine, he or she is entitled to have a hearing on
his or her ability to pay, and if indigent,
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courts may not impose jail as a sanction. Judges can, however,
reduce the amount owed, extend the
deadline for payment, allow installment payments, or allow a
defendant's financial obligations to be
satisfied by performing community service work. Indeed,
conserving jail space to house prisoners who
pose a threat to the community is simply smart law enforcement
and a judicious use of scarce resources.
Providing alternatives to defendants of limited means promotes
accountability and public safety: "The
State is not powerless to enforce judgments against those
financially unable to pay a fine; indeed, a
different result would amount to inverse discrimination since it
would enable an indigent to avoid both the
fine and imprisonment for nonpayment whereas other
defendants must always suffer one or the other ."
(Williams, 399 U.S. at 244.)
THE WISCONSIN MODEL: COMMUNITY-BASED JUSTICE
For most citizens, the only contact they will have with police
and the courts is receiving a citation for a
minor traffic or municipal ordinance violation such as having an
unleashed dog or shoplifting. For those
defendants, their experience may often be likened to Forrest
Gump's box of chocolates where "you never
know what you're going to get" -- community-based or cash-
register justice. This depends in large
measure on whether policing is predicated as a means of
promoting public safety or raising revenue, the
latter being an increasing concern as cash-strapped communities
seek to balance their budgets. Properly
utilized, however, municipal courts can be an effective means of

preserving scarce criminal justice
system resources for defendants whose cases require them.
One such example of a community-based justice alternative is
Wisconsin's nearly 240 municipal courts
(only Milwaukee and Madison have full-time judges) that have
exclusive jurisdiction over municipal
ordinance violations ranging from speeding and shoplifting to
first offense driving under the influence. The
Wisconsin system stands out as a model of justice that is both
community-based and an alternative to
criminal courts, allowing diversion of appropriate cases.
More than 40 years ago, the Wisconsin Supreme Court cited
with approval the American Bar Association
Criminal Justice Standards for the Prosecution Function
encouraging diversion for some offenders:
The American Bar Association Standard 3.8, relating to the
prosecution function, charges a prosecutor
with the responsibility of exploring: " the availability of non-
criminal disposition, including programs of
rehabilitation, formal or informal, in deciding whether to press
criminal charges; especially in the case of a
first offender, the nature of the offense may warrant non-
criminal disposition."
The diversion of a case to noncriminal channels may in many
instances substantially further the ends of
justice . [D]iversion properly employed has had substantial
success in avoiding recidivism and
rehabilitation may, in some cases, be accomplished much more
successfully by a diversion of a putative
defendant and at far less cost than a substantial period of
incarceration.

(Thompson v. State, 212 N.W.2d 109, 112 (Wis. 1973).)
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The ability to divert a defendant from the criminal justice
system in Wisconsin begins with the definition of
a crime: "A crime is conduct which is prohibited by state law
and punishable by a fine or imprisonment or
both. Conduct punishable only by a forfeiture is not a crime."
(Wis. STAT. § 939.12.) In addition to general
authority to enact ordinances, municipalities with few
limitations are specifically authorized to adopt as
ordinances almost all portions of the criminal code. (Id. §
66.0107.) Municipalities may also adopt state
traffic violations that are not crimes (including first offense
operating under the influence) as ordinances
so long as they are "in strict conformity" with state statutes. (Id.
§§ 349.03, .06.) Municipal ordinance
violations -- including those that parallel the state criminal and
motor vehicles codes -- are civil
"forfeitures." (State ex rel. Keefe v. Schmiege, 28 N.W.2d 345
(Wis. 1947).) "An action to recover a

forfeiture for violation of an ordinance is thus a civil
proceeding ." (City of S. Milwaukee v. Schantzen, 44
N.W.2d 628, 629 (Wis. 1950).) The burden of proof necessary
to support a conviction is the "middle"
standard of "clear, satisfactory, and convincing evidence." (City
of Madison v. Geier, 135 N.W.2d 761, 764
(Wis. 1965).)
Cities, villages, and towns may create municipal courts to
adjudicate violations of local ordinances. (Wis.
CONST. art. VII, § 14; Wis. STAT. § 755.01(1).) Municipal
courts are a "coequal branch of the municipal
government" with "exclusive jurisdiction over an action in
which a municipality seeks to impose forfeitures
for violations of municipal ordinances." (Wis. STAT. §§
755.01(1), .045(1).)
Half of Wisconsin's municipal judges are lawyers, and all are
subject to mandatory judicial education
requirements. (Id. § 755.18(1).) Court employees may only be
appointed, supervised, and removed by
the judge. (Id. § 755.10.) Court sessions are to be held in a
public building and "shall be located in an
area separate from the police department by design or signage."
(Id. § 755.17(2).) Similarly, court staff
"shall be located in an area separate and distinct from the police
department." (Id. § 755.17(3).) Court
clerks while performing court-related duties "may not wear
anything that implies or indicates that he or
she is a law enforcement officer." (Id. § 755.17(1m).) These
provisions are designed to ensure that
municipal courts and judges are independent and not under the
supervision and control of other local
officials and that judges and staff are independent of the local
police.

"[V]iolations of municipal ordinances are minor offenses for
which a forfeiture is the only permissible
direct punishment." (State ex rel. Prentice v. Cty. Court, 234
N.W.2d 283, 289 (Wis. 1975).) A key
component in Wisconsin's criminal diversion scheme is that
municipal ordinance violations are
considered "civil forfeitures" instead of a crime, so anyone
convicted in a municipal court does not get
tagged with a criminal record and the resulting legal and social
disabilities. This often turns out to be a
"win-win" for both the public and defendants -- violators are
held accountable without getting a criminal
record (or a jail or probation sentence), while taxpayers are
spared the cost of cases that otherwise would
contribute to a bogged-down criminal justice system and
correctional resources are conserved for those
offenders who need them.
For example, a high school senior is caught shoplifting $25
worth of cosmetics at Target. At age 17, she
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could be charged with misdemeanor retail theft punishable upon
conviction by a fine not to exceed
$10,000 and/or up to nine months in jail. (Wis. STAT. §
943.50.) She could also be put on probation for
one year. (Id. § 973.09(2).) As a first offender, it is unlikely
that she would be jailed or placed on probation

for shoplifting; but because she is accused of a crime, she is
entitled to a jury trial and, as most high
school students are indigent, she would qualify for public
defender services. Even if the case were
resolved with a guilty plea, it would not be uncommon for there
to be at least three court appearances
before the case is concluded. At the end, the defendant would in
all likelihood face a fine far less than the
$10,000 maximum and might eventually have her conviction
expunged if she satisfied her sentence
without further violations. In short, thousands of dollars of
resources would be poured into a case that is
likely to end with a small fine -- and the defendant, unless her
record is expunged, would have a lifetime
criminal record.
Instead of referring the case for criminal prosecution, the
arresting officer gave her a municipal ordinance
citation. She appeared with her parents in the Pleasant Prairie
court at an evening session (cases for
juveniles and students are usually heard at night so they do not
miss school and parents can be present).
She was told that her citation was merely an accusation and she
had an absolute right to have a trial to
the court. She was also told that if convicted she could be
ordered to pay up to $691 ($500 plus costs)
but she would not have a criminal record. On her guilty plea,
the defendant was ordered to do 18 hours of
community service work in the next 30 days or pay $187 ($100
plus costs). In the Pleasant Prairie court,
community service work is the norm in such cases because it
levels the playing field between young
defendants of limited means and those who can afford to pay
monetary penalties (or, worse, avoid
accountability by having parents pay). The defendant was
warned that failure to pay or seek an extension

or modification could result in being jailed, although in this
county the sheriff's department has a public
service work crew program where defendants may avoid actual
jail time by performing community service
work.
In another example, an 18-year-old college freshman studying
to be a physical therapist was arrested for
possession of marijuana by a police officer investigating
underage drinking. First offense simple
possession of marijuana is a misdemeanor criminal charge, but a
conviction could under federal law
exclude him from receiving student financial aid. A criminal
conviction also might make it more difficult for
him to receive a professional license. The officer, however,
issued a municipal citation for possession of
marijuana and warned him for underage drinking. The
defendant, who worked a summer job, pleaded
guilty and was assessed $250 ($150 plus costs), saying that he
would be able to pay it by the end of the
summer. He was given 60 days to pay and told that if he was
unable to do so he should come back to
court to ask for an extension or an installment payment plan.
The defendant was also warned that failure
to comply could result in incarceration as a sanction but he was
entitled to perform community service
work as an alternative if he was indigent and could not afford to
pay.
In Wisconsin, a municipal court finding an adult defendant (age
17 or above) guilty may impose a

of
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monetary penalty (civil forfeiture), community service work,
suspension or revocation of a driver's license,
or other dispositions authorized by a particular statute. (Id. §
800.09(1b).) (In juvenile cases, municipal
courts have some of the same powers as juvenile courts,
including referring a child for counseling or
substance abuse treatment or ordering a truant to attend school.)
Restitution may be ordered.
Defendants performing community service work in lieu of
paying court obligations must receive credit
against the amount due for at least the hourly minimum wage.
(Id. § 800.09(1j).)
Wisconsin law requires municipal judges when imposinj a
sentence to "inform the defendant, orally and in
writing of the date by which restitution and the payment of th
forfeiture, plus costs, must be made, and of
the possibl consequences of failure to do so in timely fashion,
includinj imprisonment or suspension of the
defendant's motor vehicl operating privilege." (Id. § 800.09(1g)
(citations omitted). Further, the court must
"inform the defendant, orally and i writing, that the defendant
should notify the court if he o she is unable
to pay the judgment because of poverty and tha he or she may
request community service in lieu of
paymen of the judgment." (Id. (citation omitted).) If the
defendant i not present (a default judgment may
be ordered or the judgi may issue a summons or arrest warrant
for a nonappearinj defendant), "the court
shall ensure that the information is sen to the defendant by
mail." (Id.) If the defendant is indigen due to

poverty -- usually considered to be someone whosi income is
below the federal poverty level or who
receive needs-based public assistance (such as food stamps o
medical assistance) -- "the court shall
provide the defendan with an opportunity to pay the judgment in
installments taking into account the
defendant's income, or to perform community service in lieu of
payment of the judgment. (Id.) If a
defendant's driver's license was suspended dui to nonpayment of
court obligations (limited to one year o
until payment is received), the court "may" in hardship case and
"shall" if a defendant is unable to pay
due to povert terminate the suspension and give the defendant
an installmen payment plan or allow a
community service alternative. (Ia §§ 800.09(3), .095(1)(a).)
The judge may also reduce (to zero if
appropriate) the amount due if a defendant is unable to pay
There are only two circumstances in
Wisconsin where ¡ municipal judge may imprison a defendant as
a sanction. Th first is for no more than
seven days for contempt (misconduc in the presence of the court
that interferes with the cour proceeding
or with the administration of justice or that impair the respect
due the court). (Id. § 800.12.) The second is
fo no more than 90 days (with credit of at least $50 per da
incarcerated toward the amount due) for
nonpayment of cour obligations -- but only after the judge
follows the mandate i Wisconsin Statutes
section 800.095(1)(b)(2):
No defendant may be imprisoned [for nonpayment] unless the
court makes one of the following findings:
a. Either at sentencing or thereafter, that the defendant has the
ability to pay the judgment within a
reasonable time. If a defendant meets the criteria [for poverty],

the defendant shall be presumed unable
to pay under this subsection and the court shall either suspend
or extend payment of the judgment or
order community service.
b. The defendant has failed, without good cause, to perform the
community service [alternative].
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c. The defendant has failed to attend an indigency hearing
offered by the court to provide the defendant
with an opportunity to determine whether he or she has the
ability to pay the judgment.
d. The defendant has failed, without good cause, to complete an
assessment or treatment program
related to alcohol or drugs that was ordered in lieu of a
monetary forfeiture.
The Wisconsin procedure is designed to be efficient, "user
friendly," and respectful of the right of
defendants. For example, unless a court appearance is mandated
(such as in driving under the influence
or juvenile cases), a defendant may avoid coming to court if he
or she either pays the scheduled violation
amount or pleads not guilty in writing (the author's court also
accepts e-mailed pleas) before the initial
appearance. (Id. § 800.035.) If the defendant does neither, he or

she may be deemed to have entered a
"no contest" plea and found guilty by default, with the court
mailing the defendant a notice of the
judgment and amount due along with an explanation of what to
do if he or she is unable to pay it in a
timely manner. (Id. §§ 800.035(9), .09(1g).) The court may also
issue a summons or warrant upon
nonappearance, but in the latter case a person cannot be held in
custody for more than 48 hours. (Id. §
800.035(9).) Any proceeding, including a trial, may be held and
any "party, witness, or interpreter may
appear by telephone or by audiovisual means" if the court
approves. (Id. § 800.085.) (The Pleasant
Prairie court has had entire trials by audiovisual means.) If a
defendant appears in court in response to a
citation, the judge must, pursuant to section 800.035(2)(a),
either orally or in writing:
1. Inform the defendant of each charge and explain the range of
penalties for each charge.
2. Inform the defendant that he or she may plead guilty, not
guilty, or no contest or may request a
continuance.
3. Inform the defendant of the right to a jury trial [in circuit
court] on charges [of operating under the
influence].
4. Inform the defendant that if he or she is unable to pay the
forfeiture, costs, fees, or surcharges due to
poverty, he or she may request an installment payment,
community service, or a stay of the judgment.
A defendant may plead guilty, not guilty, or no contest or
request a continuance. If the defendant pleads

not guilty, the case may be scheduled for a pretrial conference
or trial. If the defendant does not plead or
request a continuance, the court will treat it as a "not guilty"
plea. (Id. § 800.035(2) (c).) A defendant who
pleads guilty or no contest may be immediately sentenced, and
judges are encouraged to use this
opportunity to ascertain the defendant's ability to pay: "Much
time could be saved if trial courts would
follow the practice of ascertaining the defendant's ability to pay
a fine at the time of sentencing."
(Blessinger, 201 N.W.2d at 784.)
Procedural safeguards in Wisconsin's municipal courts do not
stop there. A recent amendment to judicial
conduct rules suggests that judges "make reasonable efforts,
consistent with the law and court rules, to
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facilitate the ability of all litigants, including self-represented
litigants, to be fairly heard." (Wis. SUP. CT. R.
60.04(1)(hm).) Most municipal court defendants are
unrepresented, so the practical effect of this
amendment is to encourage and allow judges to, within
reasonable bounds, relax court procedures to
assist pro se defendants. (For example, the author routinely
considers at trial the lawfulness of an
officer's stop of a defendant or arrest even in the absence of a
formal motion.) Anyone convicted at trial

must be advised of the right to appeal to the circuit court, which
will review the matter on the record, or at
the request of either party, hold a new trial (which may be to a
six-person jury if a timely written demand
is made). (Wis. STAT. § 800.14.) Further, a defendant found
guilty by default for failing to appear in court
or who otherwise wishes to reopen a case may, within six
months of disposition, "move for relief from the
judgment because of mistake, inadvertence, surprise, or
excusable neglect." (Id. § 800.115.) Municipal
courts may also reopen judgments outside of the six-month
window upon accepting a stipulation of the
parties or in the furtherance of justice. (Id.) Such motions are
not uncommon in cases of identity theft or
where a defendant with a lengthy history of traffic convictions
(often the result of missed court
appearances) is trying to reinstate his or her driving privileges.
The Wisconsin municipal court model of community-based
justice is a commonsense approach that
benefits defendants, taxpayers, and the community, and by
diverting more than 500,000 cases annually
from circuit courts conserves increasingly strapped criminal
justice and correctional resources for those
defendants and cases that require additional attention.
Defendants benefit from a system that is
convenient, safeguards their rights, avoids a criminal record,
and, contrary to the "cash-register justice"
model, is even more affordable -- a basic $30 speeding ticket
issued by a local officer is $98.80 with
costs in municipal court, but the same ticket if issued by a state
trooper or deputy sheriff costs $175.30 in
circuit court. Municipal court procedures allow even dilatory
defendants an opportunity to be heard if they
are unable to afford to pay court obligations and mandate
additional options if a defendant is

impoverished. A party unhappy with a municipal court verdict
may appeal to the circuit court on the record
or ask for a new trial. And incarceration is not an option (except
for contempt of court) unless a defendant
willfully refuses to pay his or her court obligations after being
given an opportunity to be heard on whether
he or she is able to pay.
Communities benefit by providing accountability and promoting
public safety in an efficient and cost-
effective manner. For example, in many rural areas the county
seat could be a 60-mile (or more) round-
trip. Removing police officers from patrol for such an extended
period of time -- which would happen if
there were no municipal court -- is costly and could leave a
community unprotected. Defendants and
witnesses would likewise bear the cost and burden of traveling
to the courthouse in cases that could be
handled more efficiently and effectively at home. This is
particularly so in cases with juvenile and young
offenders where, for example, the hometown court may be able
to work more effectively with school
officials and counselors to resolve a truancy or substance abuse
case (and noncompliant juveniles can
be referred to the juvenile court). For the criminal justice
system -- and taxpayers -- municipal courts
allow critical and costly resources to be reserved for offenders
and cases requiring them.
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DUE PROCESS AND ACCOUNTABILITY
Whether local courts dispense community-based or cash-register
justice depends on whether the focus is
on promoting public safety and accountability in the community
as opposed to revenue production.
Judicial independence and impartiality is also an important
factor, as evidenced by statutes requiring
municipal courts and staff to be segregated from police
departments.
Defendants are not jailed or deprived of their driver's licenses
for being unable to pay a citation, but a
scofflaw may be sanctioned because he or she willfully
disobeyed a court order (sentence) without
showing just cause (inability to pay) after having been given a
chance to explain and ask for relief -- and
even then the sanction may be purged by compliance. Pleasant
Prairie and many of its sister courts have
an interactive online presence where defendants may receive
guidance on court procedures and access
to state statutes and local ordinances, and may request a
continuance or plead not guilty online. Pleasant
Prairie police officers receive multicolored citation information
cards to give to defendants that provide
basic information "in plain English" such as how to plead not
guilty or request a continuance without
coming to court, contest a disputed citation, explain extenuating
or mitigating circumstances, seek
additional time to pay, or avoid incarceration or a driver's
license suspension if they are indigent. In short,
had Ferguson or similar communities where policing for profit
is the norm followed the procedures
Wisconsin's municipal courts are required to follow, they would
have likely avoided the DOJ's stinging

indictment in the Ferguson Report. Even the most severe
sanction -- imprisonment -- passes
constitutional muster if correctly applied.
Gerard Haas, a landlord in Racine, Wisconsin, ignored multiple
municipal code citations. Being found
guilty by default and subsequently failing to pay thousands of
dollars in fines, he was arrested on
commitments (warrants) issued by the Racine Municipal Court.
Instead of seeking a determination of his
ability to pay, Haas sought habeas corpus relief in the circuit
and appellate courts. The Wisconsin
Supreme Court affirmed denial of habeas relief, as Haas failed
to show that he exhausted other available
remedies. (State ex rel. Haas v. McReynolds, 643 N.W.2d 771
(Wis. 2002).) Haas renewed his battle in
federal court, adding claims that imprisonment for nonpayment
of a civil municipal court forfeiture
amounted to an unconstitutional imprisonment for a debt.
The district court sided with the Wisconsin Supreme Court on
the habeas issue and further rejected
Haas's attack on his imprisonment for failing to pay municipal
citations that he had repeatedly ignored,
holding that he "was not incarcerated because he owed a debt;
he was incarcerated because he ignored
the direct orders of a court. '[A] duty imposed by the court' is
not a 'debt' even if it requires the payment
of money." (Haas v. Wisconsin, 241 F. Supp. 2d 922, 934 (E.D.
Wis. 2003), aff'd, 109 F. App'x 107 (7th
Cir. 2004), cert. denied, 543 U.S. 1053 (2005).) The district
court further rejected Haas's argument that
incarceration for failing to pay municipal court obligations was
involuntary servitude.
He could have paid the forfeitures or demonstrated to the

municipal court that he was financially unable
to pay. Indeed, had plaintiff shown that he was unable to pay,
[the judge] could not have lawfully ordered
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his incarceration. Rather than choose either of these routes and
avoid jail, plaintiff chose to ignore the
court's orders and warnings. Plaintiff's eventual imprisonment
was, therefore, not involuntary.
(Id. (emphasis added) (citations omitted).)
Haas demonstrates that if courts afford defendants the
protections and due process mandated by Tate,
Williams, and Bearden (and absent in Ferguson), they can
survive the challenge that imprisonment for
nonpayment of court obligations is an unconstitutional attempt
to collect a debt or involuntary servitude.
Similarly, the loss of driving privilege for nonpayment of traffic
fines and forfeitures may also be upheld if

due process rights are observed:
[License] suspensions ensure procedural due process because
the sanction is not imposed unless all of
the following occur: (1) the defendant is notified that failure to
pay may result in suspension; (2) the
suspension is rescinded and the operating privilege reinstated
once the fine is paid; (3) the suspension
will not be enforced against any individual who is able to
demonstrate an inability, for good cause or
indigence, to pay the fine; and (4) the suspension is limited in
duration .
(City of Milwaukee v. Kilgore, 532 N.W.2d 690 (Wis. 1995).)
Both Haas and Kilgore recognize that the sanctions are not
imposed -- nor should they be -- if a
defendant is impoverished and cannot pay. The sanctions of
incarceration or a license suspension flow
from a defendant's willful disobedience of a court order. A
concern raised in the Ferguson Report is
whether a defendant whose license was suspended for
noncompliance should be required to pay his or
her court obligations in full before he or she is able to get
driving privileges reinstated. The Wisconsin
procedure addresses that by giving defendants whose licenses
are under suspension an opportunity to
request a review at any time based on ability to pay, with judges
mandated to hear the request and, if the
defendant is impoverished, substitute a community service
alternative or other modifications. (Wis. STAT.
§§ 800.09(3), .095(1) (a).) Even if a defendant is unable to
establish "poverty" (statutory indigence), the
court has the discretion to terminate a suspension and allow for
alternatives due to hardship (one
example may be where a defendant was unemployed and only

recently returned to work).
COURTS ARE IN THE JUSTICE BUSINESS, NOT THE
REVENUE PRODUCTION BUSINESS
The success of a community-based justice alternative, of course,
depends on the willingness of judges to
recognize both their legal and ethical duties to serve justice, not
the financial expectations of the
municipal government. Similarly, municipal boards and
administrators must respect judicial independence
and the coequal status of the municipal court. Although
undoubtedly revenue is raised as the result of
police enforcement and judicial imposition of monetary
penalties, courts nonetheless are in the justice
business, not the revenue production business. Still, judges are
often pressured, as in Ferguson, to
achieve financial goals; and even in the absence of such efforts,
courts may be asked as part of the
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budgeting process to estimate revenue, a speculative task at best

and at worst one that may create both
an unrealistic expectation as well as a public perception that the
courts are there to fill municipal coffers
as opposed to dispensing justice and promoting public safety.
(There are times, too, when public safety
and rehabilitative concerns take precedence over imposing a
fine. For example, Pleasant Prairie and
some neighboring courts partnered with the local substance
abuse council to provide an alcohol and
other drugs assessment and education program for juveniles and
young offenders who may need such
services. This is predicated on the belief that it is more
important to the community to intervene as soon
as possible if there is a problem to be addressed than to collect
$187 for an underage drinking ticket.
Defendants who complete the program usually have their
citations dismissed.)
While the bulk of defendants in routine traffic and municipal
violation cases are unrepresented, lawyers
nonetheless can play an important role in assisting indigent
defendants. For example, many communities
have driver's license restoration projects assisting defendants to
reinstate driving privileges. Often they
are unaware of what they need to do to get their licenses back --
and sometimes even that they are
eligible to do so. Lawyers can volunteer to either directly assist
participants or train project volunteers on
how to assess reinstatement eligibility and develop a checklist
for defendants to follow.
"Driver's license suspensions can perpetuate poverty and
increase recidivism by forcing individuals to
either lose their job, take a lower paying job that does not
require driving, or drive illegally. This prevents
people from supporting themselves and their families and

improving their own lives." (STATUTORY
ENFORCEMENT REPORT, supra, at 74.) The Pleasant Prairie
court -- and many others -- give
defendants arrested for driving while suspended or revoked or
without a license a reasonable chance to
reinstate or acquire driving privileges. Judges are often able to
determine reinstatement eligibility in court,
and in some cases defendants were immediately able to reinstate
online in the courtroom. The "carrot" in
such situations is that a defendant who gets or reinstates a
license may be found guilty of a lesser charge
that does not impair his or her driving record. Having drivers
operating legally benefits the public interest
as well, because to be driving lawfully they will also need to
have insurance in the event of an accident.
Judges can also provide reasonable guidance to unrepresented
defendants who may not know, for
example, the criteria for lawful stops (reasonable and
articulable suspicion) or arrests (probable cause),
or even such basic legal nuances as traffic signs must conform
to the Manual on Uniform Traffic Control
Devices or practical and scientific ones as a police officer's
radar "gun" is far more likely to "clock" a big
truck than a tiny Toyota Yaris driving in a sea of tractors and
semi-trailers on a busy highway. Judges can
also educate defendants (and sometimes police officers, too)
that while there may have been sufficient
grounds to justify a stop and arrest for a violation, it does not
necessarily follow that there is enough
evidence to convict. Doing so can promote an understanding of
and respect for the rule of law.
Respecting the rights of the defendants, particularly indigent
ones, isn't just "the right thing to do" for
judges -- it's the ethical thing to do as well as the law. "The

Canons are not merely guidelines for proper
judicial conduct. It is well-settled that the Canons of Judicial
Ethics have the force and effect of law." (In re
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Sheffield, 465 So. 2d 350, 355 (Ala. 1984).)
[A]lthough mere legal error "normally" does not and should not
subject a judge to charges of judicial
misconduct, the overriding concern is the capacity of judicial
behavior, objectively viewed, to undermine
public confidence in the judicial system. Judicial conduct,
including conduct in the form of legal error, that
has the capacity to undermine public confidence in the integrity
and impartiality of the judicial process can
be the basis for charges of judicial misconduct and can lead to
the imposition of discipline.
(In re DiLeo, 83 A.3d 11, 24 (N.J. 2014) (citations omitted).)
The recent 11-month suspension of Judge Armstead Lester
Hayes III cited above is but one example of
how judges are being held personally accountable for failing to
protect the rights of defendants.
CONCLUSION
At the end of the day, municipal courts can either be the
gateway to "debtor's prison" or an effective

community-based alternative to a clogged and resource-strapped
criminal justice system that promotes
public safety and accountability while respecting the rights of
defendants and encouraging respect for the
law. The Wisconsin model, if statutes and procedures are
adhered to, is a good working blueprint for the
latter. Most defendants are good people who simply made a
mistake, and there is no need to use the
proverbial sledgehammer to kill a fly. But while seemingly
trivial in the grand scheme of things, their
cases are important to them and to the community. How they
(and their cases) are treated goes a long
way in achieving either respect for the law and courts or the
lack thereof.
PHOTO (COLOR)
PHOTO (COLOR)
~~~~~~~~
By RICHARD A. GINKOWSKI
RICHARD A. GINKOWSKI, vice chair of the Criminal Justice
editorial board, is a municipal judge in
Pleasant Prairie, Wisconsin, elected in 2013 after serving more
than 30 years as a state prosecutor.
Judge Ginkowski has been an instructor in law enforcement, a
prosecutor, and an instructor for judicial
training programs. In addition to being a member of the
Criminal Justice Section, he also belongs to the
ABA Judicial Division and the National Conference of
Specialized Court Judges. In 2017, Judge
Ginkowski moderated a judicial ethics panel at the ABA Annual
Meeting in New York on how judges can
"Ferguson proof" their courts to promote accountability and
public safety while safeguarding the rights of

indigent defendants.
Copyright of Criminal Justice is the property of American Bar
Association and its content may not be
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copied or emailed to multiple sites or posted to a listserv
without the copyright holder's express written
permission. However, users may print, download, or email
articles for individual use.

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