During the July meeting of the Mayor and Board of Aldermen in Mendenhall a decision was made to hire Whit Fortenberry as the city’s public defender at a rate of $7,000 a year.
City attorney Wesley Broadhead explained during the meeting that new criminal rules went into effect on July 1 that call for more representation for criminal defendants as well as some changes in the issuance of summons and warrants.
Criminal defendants have a right to legal counsel. If the defendants cannot afford legal representation, it is to be provided for them.
Broadhead explained that it is assumed that criminal defendants receiving any form of government assistance are below the poverty line and considered indigent. He reported that nearly 85 percent of the people currently encompassed in the court system receive government aid.
Broadhead suggested that the most cost effective way to comply with this new rule was to hire a public defender. The rule changes also call for first appearances where defendants are informed of their rights.
These changes in court rules are presumably in response to a pair of lawsuits filed by the American Civil Liberties Union against the cities of Jackson and Biloxi in 2015.
The lawsuits accused the two cities of running debtors’ prisons and jailing impoverished people for unpaid fees and court costs, and for not providing legal representation.
According to the lawsuits, if a person does not pay court fees or other fines, the cities would often issue warrants for their arrest and charge them with contempt of court without holding a hearing before they were jailed or determining their ability to pay. If the defendants were not able to pay the full amount of the fine at the time of the arrest they were jailed.
This led to the birth of phrases such as “pay or stay.” Defendants would have to sit in jail until their fine was paid or their time incarcerated covered their debt.
Cases have been reported detailing prisoners serving nearly 18 months for unpaid fines, and getting lost in the “pay or stay” system. This practice led to overpopulation of prisons in some areas and has cost taxpayers money in addition to being a civil rights violation.
The United States Supreme Court ruled nearly 30 years ago that incarcerating people because they cannot afford to pay court fines is contrary to American values of fairness and equality.
The court made clear that judges cannot jail someone for failure to pay without first considering their ability to pay, efforts to acquire money, and alternatives to incarceration.
Court Clerk Lorie King explained that the city is under a consent decree and must comply with the rules. The lawsuits against Jackson and Biloxi have brought forth a lot of changes in how court is run.
According to the Rules of Criminal Procedures, “on arrest without a warrant the accused shall be taken without unnecessary delay, and in no event later than 48 hours after arrest before a judge for an initial appearance. If the person arrested is not taken before a judge as so required then, unless the offense for which the person was arrested is not a bailable offense, the person shall be released upon execution of an appearance bond in the amount of the minimum bail, and shall be directed to appear at a specified time and place.”
The rules also state that every person in custody and not under indictment shall receive an initial appearance. During the initial appearance defendants will be informed of their charges, and if it was a warrantless arrest the judge will determine whether there was probable cause.
The City’s recent hiring of Fortenberry addresses Rule 5.2 (a) (4), which states that during the initial appearance if the defendant is unrepresented, the judge shall advise of the right to assistance of an attorney and that if the defendant is unable to afford an attorney, an attorney will be appointed as required by law.
An indigent defendant shall be entitled to have an attorney appointed in any criminal proceedings which may result in punishment by loss of liberty.
These changes are what led to the hiring of a public defender, but Mendenhall has also added a second court date to facilitate initial appearances. Court will be held twice a month with initial appearances being the first Monday of the month starting at 4:00 p.m. Court Clerk Lorie King explained that the late start time was set to accommodate people who may be getting off work. Trials will still be held on the third Wednesday of the month. Dates are subject to change due to holidays.
The changes that were to be implemented have been seamless for the city of Mendenhall due in large part to them being prepared. Board Attorney Wesley Brodhead said, “There are some more things we will have to address in the future, but we knew this was coming.”
The City of Magee and the Board of Supervisors have also had discussions about hiring a public defender.
