by Mark Flatten

February 4, 2019

Here’s your dilemma: You get arrested for some “heinous” crime, something like spitting on the sidewalk or failing to return a library book. The judge thinks there is a high risk that you might spit again, or cling to that volume of city property, or commit some other crime like smoking in a restricted area or littering. So he imposes bail of a few hundred dollars just to make sure you don’t skip town. You are poor, too poor to even raise that minimal sum.

And so you sit in jail. If you stay there, you will miss work and lose your job. Your kids will have no way to get to school. You will be separated from your family for who knows how long. Then the prosecutor makes you an offer. If you plead guilty and agree to pay a fine, you will be released. If you fight the charges, you will remain in jail for weeks or months until your trial.

This is a choice that people across the nation face every day in municipal courts. It’s happening in Corinth, Mississippi, where bail practices are forcing poor defendants to languish in jail awaiting trial, even though they are accused of minor misdemeanors that probably would not result in jail time if the defendant is convicted.

It’s happening in St. Louis, Missouri, where civil rights and criminal justice reform groups have filed a class action lawsuit challenging that city’s bail practices, which effectively condemn people who have yet to be convicted to jail because they are too poor to pay. Across the nation there is an ever-growing concern that municipal courts have largely become revenue-raising tools for cities rather than impartial dispensers of justice.

And it’s happening across the state of Arizona, where certain city codes make spitting on the sidewalk and failing to return a library book criminal misdemeanors. The Goldwater Institute recently exposed the flaws in Arizona’s municipal court system in an eight-part series called City Court: Costs and Consequences—you can read the full series here. These investigative reports show that city courts are a significant source of revenue for cities, handling not just traffic offenses but also misdemeanors that carry penalties of up to six months in jail and $2,500 in fines for each conviction.

In Arizona, you probably are not entitled to a public defender to help you fight the criminal misdemeanor charges against you, even if you cannot afford one. And even though you are facing six months in jail, you most likely will not be entitled to a trial by jury, despite two specific provisions in the state constitution saying you are. And to top it all off, if you do try to fight the charges, your fate will be determined by a judge appointed by and completely beholden to the city council, not the voters. (The only exception is Yuma, where judges have been elected since statehood.) 

Criminal justice reform has become a hot topic in America. Last December, President Trump signed the First Step Act, an effort to give federal judges more leeway in dealing with those convicted of certain non-violent crimes, primarily drug offenses. The bill passed both chambers of Congress with near-unanimous support on both sides of the political aisle.

As bipartisan efforts at criminal justice reform are taking hold across the country, many are turning to the damage done by misdemeanor convictions and the inequities of municipal courts. In Arizona, the Legislature passed several reforms last year to mitigate some of the most abusive laws dealing with misdemeanors, an effort driven in large part by the Arizona Administrative Office of the Courts, the administrative branch of the state Supreme Court. Of particular note was a bill that made driving on a suspended license a civil offense, rather than a criminal misdemeanor, if the license was suspended for failing to pay traffic tickets or show up for a traffic court hearing. As noted in the Goldwater Institute reports, under the old law a person driving on a suspended license faced arrest and jail, even when the underlying crime was nothing more serious than an unpaid traffic fine. The bill passed both houses of the Legislature unanimously.

One significant reform the Legislature did not pass was a bill backed by the Goldwater Institute requiring municipal court judges to face voters through an election. The intent of the proposal is to ensure judicial independence by making city court judges answerable to the people, not city politicians, said Goldwater Institute Vice President for Litigation Timothy Sandefur. Similar legislation has been introduced again in the current legislative session.

Without reforms, Sandefur said, city courts in Arizona will remain the revenue-raising tools of cities, not impartial dispensers of justice answerable to the people. “When judges answer to the government, their ability to decide cases impartially is hampered—sometimes even without them realizing it—and citizens lose their confidence in the judicial system. Our courts need to be responsible to the people, not to the government—and to the law. Our city court system runs counter to this crucial limitation on government overreach, and it’s time for it to be set straight.”

Mark Flatten is the National Investigative Journalist at the Goldwater Institute.