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“The Price of a Second Chance”: NY Times Exposé on How the Rich Pay to Expunge Criminal Records

StoryDecember 15, 2016
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The New York Times has just published investigation into a program called pretrial diversion that’s meant to give criminal offenders a break, but often puts them in debt. Prosecutors across the country often offer deals to offenders to drop cases and expunge records in exchange for sometimes onerous fees. But the Times found that “in many places, only people with money could afford a second chance. Though diversion was introduced as a money-saving reform, some jurisdictions quickly turned it into a source of revenue.” We speak to Times reporter Shaila Dewan.

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NERMEEN SHAIKH: We end the show today with a look at a New York Times investigation into a program that’s meant to give criminal offenders a break, but often puts them in debt. The program is called pretrial diversion. Prosecutors across the country often offer deals to offenders to drop cases and expunge records in exchange for sometimes onerous fees. Marcy Willis, an Atlanta single mother of five, used her credit card to rent a car for a man in exchange for cash. The man disappeared with the car for four months, and after Willis found and returned the car, she was charged with a felony offense. As a first-time offender, Willis was offered pretrial diversion at a cost of nearly $700. She was unable to pay the full cost. Willis told her story in a video that accompanied the New York Times article, “After a Crime, the Price of a Second Chance.”

MARCY WILLIS: I felt like it was all about money. So, if you have the money, you can avoid prosecution, jail time, any of this, you know. I see every day how people can get away with DUIs and everything, because they can afford to pay for it, they have lawyers. I had to get a public defender. So, yeah, if I had money, it probably would have went away.

AMY GOODMAN: The New York Times investigation found, quote, “in many places, only people with money could afford a second chance. Though diversion was introduced as a money-saving reform, some jurisdictions quickly turned it into a source of revenue. Prosecutors exert almost total control over diversion, deciding who deserves mercy and at what price,” the article says.

Well, for more, we’re joined by the author of the piece, Shaila Dewan, national correspondent for The New York Times, reporter on the series “No Money, No Mercy.”

Welcome to Democracy Now!

SHAILA DEWAN: Thank you.

AMY GOODMAN: Really important series. Now, we just heard Marcy Willis. Talk about the contrast, in your piece, to Rebecca Horting.

SHAILA DEWAN: Rebecca Horting was a woman who was charged with texting while driving, and reckless endangerment, I believe, was the charge. She hit a girl who was riding her bicycle down the side of the road, causing brain damage and the loss of a leg. And she was offered pretrial diversion. She paid about $1,200, I believe, and is on course to have her case dismissed outright. So, this is a deal that the prosecutor will make with you: “Fulfill these conditions, and we’ll dismiss your case.” And, in general, it’s a pretty good, progressive idea to give defendants a way out of the huge consequences of getting a record.

AMY GOODMAN: Except when it’s related to money.

SHAILA DEWAN: Right. So when money enters the equation, you find a lot of inequities, like the difference between Marcy’s case, where she didn’t hurt anyone—

AMY GOODMAN: And talk about her years-long struggle after that.

SHAILA DEWAN: Yes, it was really gripping to talk to her just about the spiral downward. And the first thing that happened when she was charged was she lost her job. And even though she had diversion, meaning her case would ultimately be dismissed, it stayed there pending while she completed the program. She did the classes. She did the community service. She just couldn’t come up with this final amount of money that she was supposed to pay. So they said, “You know what? We’re returning you to court. We are going to prosecute your case.” And then, because of a backlog at the court, sat there for years as an open felony, while she cycled through homelessness, joblessness. And, you know, she is only now just beginning to get back on her feet.

NERMEEN SHAIKH: And do prosecutors have exclusive discretion in determining when to offer pretrial diversion and to whom? And how do they determine how much defenders need to pay?

SHAILA DEWAN: Prosecutors have so much discretion in this country. There is no oversight or higher authority often, so they have a lot of say over their diversion program policies—who can get it, who’s excluded. And often, not in every case, but often, they set the fee. So, some states will say you can’t charge more than X—$350, $500. Other times, they decide.

AMY GOODMAN: And then you have the prosecutors often requiring the defendants plead guilty before they can be offered pretrial diversion.

SHAILA DEWAN: That’s right. And there’s a lot of debate about this in criminal justice circles: Is a guilty plea necessary or not? But it’s essentially a matter of expediency. So, let’s say I give you diversion, and you then—a few months later, you screw up, and I want to prosecute you, because you haven’t done what you agreed to do. So I have to then mount the case against you, as I would have months before without diversion. But instead, I say, “I’m going to give you diversion, but, in exchange, you’ve got to plead guilty, so that if you screw up later, we just go straight to sentencing.” It’s a lot easier for the prosecutor. But those guilty pleas have a lot of adverse consequences for the defendants.

NERMEEN SHAIKH: And the money goes to the prosecutors themselves? Is that right? Or—

SHAILA DEWAN: It’s different in every jurisdiction, but we found many jurisdictions where, yes, the money is going to the prosecutor and often can be spent on almost any law enforcement purpose, which is very broadly defined.

AMY GOODMAN: Yet, you write that Chicago has a more successful program.

SHAILA DEWAN: Chicago has this incredibly well-thought-out program. The person who runs it has a clinical background, not a law enforcement background. And they have this wide range of available programs so that it’s really tailored to the defendant’s needs. You know, you got caught with cocaine once. Maybe you don’t need six months of rehab; maybe you just need a little drug class. You know, so they try to really calibrate the intervention to the defendant’s needs. And that includes connecting them to services like health insurance. And you also find, you know, in a lot of—there’s a lot of evidence that shows now that overpunishing people or even requiring them to do too much has negative effects and can create more crime. So, I think a lot of prosecutors that really believe in diversion would argue that it has a public safety goal. You’re not throwing people in jail who just don’t belong in jail, and instead you’re addressing their issues in a different way.

AMY GOODMAN: Very quickly, can you tell us the story of Jarvis Bracy?

SHAILA DEWAN: Oh, Jarvis. Jarvis was 21 years old. He was riding in a car with friends. He was drunk. Police officer thought he was underage drinking, so pulled him out of the car. And the police officer said that when he spelled his name, he spelled it wrong, and that when he gave his Social Security, he gave it wrong, two digits off. Now, that’s not a big deal. It could be just a misdemeanor. But Jarvis had unpaid traffic tickets. No criminal offenses, OK; we’re talking about traffic tickets. And so, he was arrested and charged with a felony.

AMY GOODMAN: How old is he?

SHAILA DEWAN: He’s now 25. He was 21 at the time that this happened.

AMY GOODMAN: We have 20 seconds.

SHAILA DEWAN: Hauled off to jail, and then he was offered diversion, because it was his first offense, but he could not come up with the money. It was more than $3,000 it would have cost him to do diversion. And so he ended up convicted and now is carrying a felony record around with him for this drunken episode.

AMY GOODMAN: Are there any national standards?

SHAILA DEWAN: There are national standards, but they’re not binding. I mean, people have been really thoughtful and come up with standards for how these programs should work. You shouldn’t have to plead guilty. Fees should not keep you out of it. But that doesn’t mean prosecutors have to follow them.

AMY GOODMAN: Well, we will link to your pieces in The New York Times, Shaila Dewan, national correspondent. The recent series, “No Money, No Mercy,” which examines how money undermines reforms to America’s criminal justice system.

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