For Sale – Criminal Justice in America

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Imagine it’s 98¬∞ outside, you have company coming for dinner, and your building’s air conditioner is down. You rush out to the local appliance store, buy a $500 window unit, coax the super into installing it, and breathe a sigh of relief. In your hurry, you don’t realize that you’ve accidentally written the check on an old bank account. When the appliance store can’t reach you, they turn the matter directly over to a collection agency. A month later, much to your surprise, you receive a notice from the local District Attorney, threatening to send you to jail if you don’t repay the original amount, plus a hefty fine, and agree to another fee for financial responsibility school. Now the amount is well over $1,000, and the author of the letter won’t budge — pay up or go to jail.

Sound far-fetched? I wish. The fact is that district attorney offices throughout the United States have agreed to allow collection agencies to use their official letterhead to dun creditors regardless of the circumstances surrounding a returned check. No due process, just threats of prosecution and jail. Not to mention additional costs including a bogus school charge.

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In a stunning example of outsourcing one’s responsibilities, state prosecutors have allowed collection agencies to use official government stationary to pursue citizens who have allegedly written a bad check. The New York Times reports that over 300 district attorneys have sold their letterheads in this fashion. These “partners,” as prosecutors like to call them, not only harass individuals to pay up or go to jail, but also impose fees and extra costs for “financial responsibility” or “restitution” classes.

The Times article also points out that these alleged “hot checks” are seldom reviewed by the prosecutor’s office to see if they even rise to the standards required for prosecution. This failure to review is a clear violation of a Prosecutor’s Model Rules of Professional Responsibility, which requires prosecutors to “refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.”

Prosecutors in every state are required to make sure they don’t pursue a case that is not supported by probable cause and that a potential defendant has been advised of his right to counsel. Prosecutors in every state are bound by a long list of ethical obligations, but under the typical agreement with the collection agencies, a returned check, without any opportunity or investigation into the circumstances, is legitimate grounds to tell a debtor to pay up and pay exorbitant fees in excess, or go to jail.

When a prosecutor sells his letterhead and signature to a debt collector, it’s entirely likely that governmental immunity passes to the collection agency. Knowing he has the same immunity from lawsuits and prosecution as the local prosecutor, the debt collector can pursue his targets with unusual vigor, using tactics of harassment or even physical abuse free from concern of state and federal laws governing collection tactics.

Should people who knowingly write bad checks go free without any consequence? Should people and businesses be allowed to pursue legally contracted debts in civil proceedings? The answer used to be that criminals are pursued by legally elected or appointed prosecutors, and debtors are pursued by creditors in the civil courts. The selling of a prosecutor’s office to collection agents brings confusion to the distinction.

In the United States we aren’t supposed to have debtors’ prisons; they have been prohibited since 1833, and we have time-honored rules regarding criminal prosecution and due process. Prosecutors’ letterheads in the hands of bill collectors substitutes deception and strong arm tactics for prosecutorial judgment, and returns to our country the very real possibility of debtors’ prisons.

The word “outsourcing” has been much in the news during this election cycle. The practice has clearly caught on, not just in big business, but in our government. The Internal Revenue Service uses private collection agencies. The Defense Department hires private mercenaries. Prisons are operated by private corporations who profit from human suffering. So I guess the reasoning continues–Why not allow collection agents or hired vigilantes to handle arrests and act as judge and jury?

Who is looking at the results and the future consequences of this practice? Money already plays too big a role in politics. When we allow our criminal justice system to be for sale, we no longer are a government of the people, but of the pocketbook.