That’s when McCutcheon noticed the Houston Police Department cruiser parked down the street. She saw an officer seated inside, staring in her direction. Not long after the two made eye contact, McCutcheon says, the officer pulled into her driveway, exited the cruiser and asked McCutcheon if she knew why he was there. By the time she responded “Yes, sir,” the kids had stopped playing.
McCutcheon was at once mortified and relieved. The officer, as she remembers it, tried to be discreet and did his best to assure the kids that Grandma hadn’t done anything wrong. “She just got a few traffic tickets, and we need to take her down to the station to talk to her about it,” she recalls him saying. McCutcheon’s son quietly asked the officer not to arrest her in front of the children. “He waited until they couldn’t see me no more,” McCutcheon says of the officer who arrested her. “That was very nice of him.”
Speeding tickets are usually nothing more than a minor nuisance for people who can afford to pay them. Not so for people like McCutcheon, who municipal court records show was twice jailed because of traffic citations she says she couldn’t afford to pay off on her limited income — which, owing to a series of back surgeries that has made it difficult for her to find regular work, typically amounts to about $390 a month in Social Security income.
Municipal court judges who handle traffic violations and other Class C misdemeanors — the lowest type of criminal offenses that carry fine-only punishments — aren’t supposed to send you to jail because you can’t pay. Prohibitions against jailing indigent debtors are contained in the constitutions of both the United States (under the Fourteenth Amendment’s Equal Protection Clause) and the state of Texas (“No person shall ever be imprisoned for debt”), as well as explicitly written into state statute.
Under Texas law, if you fail to pay, miss your court date and get arrested on an outstanding municipal court warrant for that no-insurance ticket you couldn’t afford to quickly pay, a municipal court judge (or, if you’re in the county’s jurisdiction, the local justice of the peace) is supposed to hold a hearing to determine why you didn’t pay. If the judge finds that you’re too poor and can’t afford the fines against you, you’re supposed to be given some options, like a reduced fine or community service, to pull you out of the red.
That rarely happens in Houston, according to a report by Mayor Sylvester Turner’s transition team tasked with studying the city’s criminal justice policies. According to that report, of the 168,948 Houston municipal court convictions in 2014, community service was offered in lieu of fines in only 2,759 cases. In only six cases did a judge deem someone poor enough to justify reducing or partially waiving fines. That means that while nearly a quarter of Houstonians live below the poverty line, the alternatives for low-income people struggling to pay tickets are used in fewer than 2 percent of cases before Houston’s municipal court judges. The mayor’s transition team report calls Houston’s Municipal Courts Department a “profit center” designed to rake in as much in fines and fees as possible, disproportionately punishing the city’s poor in the process.
Despite reforms her department has implemented in recent years, Presiding Judge Barbara Hartle says a number of factors can lead to someone’s arrest over simple municipal court fines, from overwhelmed judges and court staff to defendants who aren’t forthcoming to the court about the problems they have paying their fines and instead skip their court dates. Plus, she says, it’s not always up to the court who lands in jail for fine-only offenses. Hartle says she’s explicitly asked that Houston police officers stop arresting and jailing people with only class C warrants and instead bring them to an on-call judge. Hartle says that both state and local politicians have for far too long looked to municipal courts as revenue-generators — Hartle’s court, the largest in the state, sends millions of dollars to both the state of Texas and Houston’s general fund every year.
While groups like the ACLU have for years called municipal courts modern-day versions of debtors’ prisons, the pay-or-jail issue has gained renewed attention as part of the continued discussion on race and policing in the United States. After an investigation into law enforcement in Ferguson, Missouri, last year, the U.S. Justice Department issued a report saying that city’s predatory municipal court system helped fuel the unrest following Michael Brown’s death at the hands of a police officer. DOJ investigators said they found “overwhelming evidence of minor municipal court violations resulting in multiple arrest[s], jail time and payments that exceed the cost of the original ticket many times over” — all of which eroded community trust in the entire criminal justice system. Lawsuits filed in cities such as El Paso, Amarillo and Austin claim municipal courts are also illegally jailing poor people. One Austin woman says a judge sentenced her to 45 days in jail when she couldn’t come up with $1,000 to pay down her municipal court debt.
It’s unclear how long Houston courts are sending people to jail — it appears neither the city nor the state tracks that number. Researchers studying the issue, however, say the city’s own records indicate that people are sent to the city jail for unpaid fines at an alarmingly high rate — approximately 3,000 a year, or about eight per day.
For Rosie McCutcheon, it appears to have been two traffic stops — one in 2006, the other in 2007 — that led to her yearslong slog through Houston’s municipal court system, complete with two trips to jail. While McCutcheon insists she told a judge she couldn’t afford the fines and mounting fees on her outstanding warrants, documents that the Houston Municipal Courts Department provided to the Houston Press detailing McCutcheon’s trip through the system contain no record of a judge’s ever making a determination on her ability to pay — even though by law that’s supposed to be put in writing.
After the officer arrested her in front of her house, McCutcheon says, she stayed in the city jail for nearly three days (the city’s Municipal Courts Department couldn’t provide records showing how long she served in lockup or exactly how much credit she received for it and for which tickets). McCutcheon says she breathed a sigh of relief when she got home, thinking she’d finally paid off her debt.
She hadn’t. Three weeks later, a judge signed another warrant for her arrest on a separate ticket McCutcheon somehow hadn’t squared away during her first trip to lockup.
Court records show McCutcheon was put on a deferred-payment plan that granted her a two-month extension but only added to what she owed in late fees and other penalties. McCutcheon soon fell behind on payments. On April Fools’ Day 2014, McCutcheon turned herself in at the municipal court complex downtown, where she was then sent to the city jail to make up for what she owed.
When Tate’s case reached the U.S. Supreme Court, his lawyers argued that jailing him violated his Fourteenth Amendment right to equal protection under the law, since a wealthy man would have easily avoided jail. The high court justices unanimously agreed, saying defendants must be offered some sort of alternative to jail if they truly can’t pay off the punishment on a fine-only offense.
The same year Tate’s landmark case was decided, his home state passed reforms allowing judges to offer payment plans for people who can’t afford to quickly pay for fines. In later years, the Texas Legislature added community service as an alternative to fines as well as a requirement that judges determine whether someone is indigent before locking that person up for failing to pay. A law passed in 2007 requires judges to make that determination in writing.
Lawsuits filed across the state contend that’s not happening. Last year, Austin was added to the growing list of cities across the country that have come under fire for municipal court practices, with a class action lawsuit filed in federal court by the Texas Fair Defense Project alleging the city “operates a debt-collection scheme that jails dozens of people each month because they are too poor to pay.” Earlier this year, attorneys in Amarillo filed a similar lawsuit saying that city’s collection practices amount to a “modern-day debtors’ prison.” According to the lawsuit, Amarillo’s courts dispose of cases by assessing jail time over alternative punishments (like community service, a waiver or a fee reduction) at a ratio of about 47 to 1, despite the city’s 17.1 percent poverty rate. The Texas Civil Rights Project sued the city of El Paso following a Buzzfeed News investigation that uncovered several Texas courts, including one in El Paso, that had failed to give defendants a legally required indigency hearing before jailing them.
There’s no record that a judge actually considered whether McCutcheon could pay the nearly $800 in fines that followed her traffic stops in 2006 and 2007, when she got tickets for speeding, no insurance and an expired registration. Trisha Trigilio with the ACLU of Texas, who reviewed McCutcheon’s record for the Press, said McCutcheon’s case is “pretty good evidence that the constitutionally required hearing is not happening” in Houston’s courts. “I don’t see how on earth you could make a determination about whether someone is able to pay without asking lots of detailed questions about how much money they make, whether they’re getting government-issued benefits, how many kids they have, what their debt is and so on,” Trigilio said. “If you don’t know any of that, how can you make a determination on whether someone is able to pay?”
It’s unclear how many of the thousands of people Houston municipal courts have sent to jail in recent years couldn’t pay or simply would not pay. However, Mary Schmid Mergler, with the advocacy group Texas Appleseed, says there’s pretty good evidence the city is jailing people who should obviously qualify as indigent. Mergler, who is compiling a report due out next month on municipal court practices across the state, says data she pulled from Houston’s Municipal Courts Department show that between the start of 2012 and the end of 2015, 12,132 people were jailed for failure to pay fines or to otherwise comply with a municipal court judge’s orders. That averages out to approximately 3,000 per year, or about eight per day. According to Mergler, more than 1,000 of those defendants were listed as “homeless.”
McCutcheon would seem to fit almost anybody’s definition of indigent. Born and raised in Acres Homes, McCutcheon says she came from a family of abuse and never made it past the eighth grade. While her mother was absent from her childhood because of her own drug problems, McCutcheon says she started using when she reconnected with her mother while in her thirties.
McCutcheon says she bounced in and out of homeless shelters while she tried to get back on her feet and gain custody of her kids. While working as a baggage handler for Continental Airlines at Bush Intercontinental Airport in the 1990s, she had hurt her back lifting a heavy bag of golf clubs — an injury that would eventually lead to several painful back surgeries and a lingering dependence on prescription pain meds.
McCutcheon was fired from that job in 1995, when, Harris County District Clerk records show, she was arrested and convicted of welfare fraud. McCutcheon claims she bought a $700 Lone Star card for $300 from a friend she had met during her homeless-shelter days, who later reported the card stolen. McCutcheon took a plea deal that granted her four years’ deferred adjudication. She says she wound up in prison because she fell behind on her probation fees; district clerk records available online show a judge sentenced McCutcheon to serve three years in a Texas Department of Criminal Justice facility ten months before her probation was set to end.
Finding any amount of work after that was hard with a felony record, McCutcheon says. When her kids couldn’t care for their own kids, McCutcheon became the sole provider for many of her grandchildren. Finding enough work to make rent, pay the bills and feed the kids was a constant struggle.
McCutcheon says she was working as a home health-care aide for $8.50 an hour when a Houston cop stopped her on June 22, 2006, for speeding. Records show McCutcheon showed up to court the next month, pleaded guilty and was ordered to pay $168 she says she couldn’t afford at the time. She didn’t renew her vehicle registration when it expired that same month. When she was pulled over again, on February 22, 2007, she was cited for no insurance and driving with expired tags. Judges issued warrants for her arrest in August and September of that year — by that time, records show, McCutcheon owed at least $540 in fines and fees. She was also hit with a failure-to-appear charge, which added $161 in fines and court costs. Meanwhile, McCutcheon says, she struggled to bring in steady income because of her health problems.
Records indicate McCutcheon appeared before a judge on August 26, 2009, and was put on a payment plan that granted her a three-month extension (but also tacked on an extra $25 in late fees in addition to a 30 percent “collection fee”). McCutcheon never met the court’s deadline to pay up. Four days after Christmas 2009, a Houston municipal court judge signed a warrant for her arrest. McCutcheon remembers the gnats crawling on her inside the cell when she was arrested and taken to jail the following year. Or maybe it was the methadone withdrawal. “I felt nauseous, weak,” she says. “‘Helpless’ would be the word.”
In 2012, Barnett was stopped for speeding on his way to work as a part-time security guard. One stop became two citations — one for speeding, and another for dealer tags that had recently expired. All told, Barnett owed close to $800. Paying within 30 days wasn’t an option, Barnett says. “I wouldn’t have been able to make rent.” As a single father, he regularly struggled to find enough work hours to pay the bills.
Barnett says he tried to but couldn’t reset his first court date over the phone after his manager at another part-time job threatened to fire him if he missed any hours. It didn’t matter when he tried to explain that he couldn’t pay within the 30-day deadline or make the court date; as the ACLU writes in a know-your-rights sheet, “By signing your ticket, you promised to show up at your court date.” For Barnett, one missed court date birthed two failure-to-appear charges, one for each offense, which ultimately led to an arrest warrant. Barnett called to see if he could get his hearing reset to appear before the judge and clear things up when he realized the gravity of the situation; Barnett says he was told to show up and pay the amount, or face arrest.
Barnett suspects the police were looking for him during the “2016 Great Texas Warrant Roundup” in March. “We do everything possible to encourage individuals to resolve their court matters well before they become delinquent, but when all else fails, we turn to law enforcement to execute outstanding warrants,” Municipal Court Presiding Judge Hartle told the media ahead of the roundup, which she said would help “bring about greater public awareness, which will hopefully encourage people to resolve their case or cases before they are arrested.”
Fearing he’d soon be arrested in front of his son, Barnett chose what he called “the least worst option” earlier this month. On May 10, he turned himself in to the Houston city jail. It wasn’t until the next day, he says, that he appeared in front of a TV monitor in the jail for his hearing before a municipal court judge, who Barnett says tossed the two failure-to-appear charges and let him go with time served.
The court was finally willing to work with him, he says. “All it took was a night in jail.”
Tarsha Jackson, Harris County director for the Texas Organizing Project, is in the process of gathering stories from people like Barnett who somehow wind up in jail for fine-only offenses. Jackson, who was herself once arrested for outstanding municipal court fines she couldn’t pay many years ago, sat on Mayor Turner’s transition team that earlier this year drafted the report criticizing Houston’s municipal court operations.
Jackson says that when she and another team member met with Hartle and Associate Presiding Judge Elaine Marshall before writing the report, she questioned why anyone would be sent to jail in municipal court without a record that a judge had conducted a hearing to determine whether the person could pay — as required by state law. Why, she asked, would someone listed as “homeless” in court records be sent to jail without a poverty hearing?
“They couldn’t give me a good explanation for why we don’t see indigency applications in these files,” Jackson told the Press. “I left with the impression that it’s just not being done.” The report Jackson and her team submitted to the mayor’s office concludes that “the city uses its municipal courts as a profit center” that disproportionately punishes the poor “due to intense pressure from the City of Houston to collect as much revenue as possible.” A recent state analysis sent to Houston’s Municipal Courts Department states that “for every $1 spent on your collection program, it is estimated you collected $20.86 for your city and $12.84 for your state.”
The feds have recently begun to warn of the dangers posed by local courts that, under pressure to collect as much as possible, prey on low-income people who can least afford the fines, fees and court costs levied against them. In fact, earlier this year, a Deputy U.S. Attorney involved in the investigation into Ferguson’s municipal courts presented the DOJ’s findings to a group of stakeholders — judges, policymakers and academics — at the University of Texas School of Law in Austin.
Judge Hartle in Houston, who has attended those stakeholder meetings, says her court has come a long way since she started as a judge in 2006, when, she says, defendants would line up to turn themselves in to jail on a Friday night to serve out their fines over the weekend. “That was allowed; that was the habit. It was going on all the time.”
Now, the court has at least one judge available at all times. She’s given HPD the court’s schedule so that officers always know how to find a judge instead of arresting and booking someone who has only class C warrants. Earlier this month, Hartle says, she emailed an assistant chief, again urging department higher-ups to tell their officers to quit throwing people in jail who have failed to clear up their Class C tickets. “Those people never get an indigency hearing because of how quickly it happens. We’ve tried to be very generous with time served, so we can get them out of there as quickly as possible.” Still, she says, “we all agree that anytime somebody goes to jail, we’ve failed.”
That Houston cops would jail someone for outstanding municipal court warrants isn’t surprising, not when you consider the language printed on each of those warrants commanding “any peace officer of Houston, Texas” to take the defendant into custody “and place him in the jail of your city until the said amount due upon said judgment and the further costs of collecting the same are paid or until the said defendant is otherwise legally discharged.” Trigilio with the ACLU called the wording of those warrants “problematic.”
Hartle also insisted that often the question is more complicated than simply whether a defendant can or can’t pay. “We get a whole lot of people who don’t want to do community service because that takes time…Some of them feel like it’s easier to get credit for time in jail.” At a rate of $12.50 for every hour of community service, it would take some 40 hours to work off a $500 fine. While some advocates and defendants insist courts aren’t working with them, Hartle says some defendants just won’t work with the court. “At some point, you sort of have to consider the fact that we’ve dismissed hundreds of dollars against you and only left you this one thing to pay. And then you didn’t do that. What are we supposed to do in that situation?”
Reformers in Texas, including San Antonio’s municipal court presiding judge, John Bull, who says his courts no longer send anyone to jail for class C warrants, insist that pressure at both the state and local levels put municipal court judges under constant pressure to bring in revenue. In a letter Bull sent the state Office of Court Administration earlier this year, he contends that state rules handed down to courts perpetuate collection practices “that might be relevant for banks and credit card companies, [but] are simply not realistic when applied to the courts.” In his letter, which was first reported on by Buzzfeed News last month, Bull writes that many judges have quietly worried that the state’s rules for collections are too strict and unrealistic and cross the line “into an area reserved to the purview of judicial discretion and independence.”
“Courts are not a Pay-Day Loan Company,” he writes.
Despite his criticism, Bull says the state is now moving in the right direction. OCA director David Slayton told the Press that his agency is currently drafting “a full revision of the rules” pushed down to courts in order to “provide clarity to judges and court staff to ensure that due process occurs.”
Slayton says part of the problem is that there’s currently no good way to ensure that judges, especially in busier courts like Houston’s, consider whether someone can pay before that person’s default triggers an arrest warrant. This is reflected in the numbers gathered by Slayton’s office — statewide, for fine-only punishments, community service or alternative punishments were handed out in fewer than 5 percent of cases, despite the fact that almost 15 percent of the Texas adult population is below the federal poverty line. Perhaps that’s why, statewide, municipal court warrants were satisfied through jail credit in some 18 percent of cases. Slayton says his office is hoping better guidelines to judges can help flip those numbers.
“Right now, I’m afraid we’re wasting resources trying to collect from people who will never be able to afford what’s being asked,” Slayton said.
Rosie McCutcheon no longer drives — which, considering her medical issues, she concedes is probably a good thing. Even if she could, she says she’d probably take the bus anyway. “I’ll never have the money to pay for any of those tickets,” she says.
A year after McCutcheon first landed in jail for tickets, her sister died from what McCutcheon says was a prescription drug overdose. The death frightened McCutcheon enough that she entered a rehab program for her own dependence on narcotic pain meds (McCutcheon’s medical records show she was being treated by a doctor later disciplined by the state medical board for over-prescribing addictive pain drugs to patients). She says she’s since kicked the methadone, but still uses fentanyl patches to relieve lingering pain from her back surgeries.
McCutcheon was bewildered when the collections firm contracted by the city kept sending her letters for fines owed, even after she spent time in jail in 2010. Records indicate a family member bonded her out, which may explain why she left lockup with some fines still unresolved. The dollar amount kept climbing, she says. McCutcheon considered her options. “I wasn’t gonna get picked up in front of my grandbabies again, no way,” she says.
On April 1, 2014, McCutcheon took the bus from Acres Homes to the municipal court building downtown on Lubbock Street to turn herself in in lieu of paying some $500 in outstanding fines and fees. McCutcheon says they transferred her to the city jail off Mykawa Road, on the far southeast side of the city.
Two days later, McCutcheon says, a municipal court judge dismissed her fines because of time served in jail. Ever since, she’s called the municipal court department every month or so, just to confirm that she no longer owes the city of Houston anything, not anymore.