Fighting Against Being Jailed Because of Poverty
TUESDAY, AUGUST 23, 2016

Yesterday, Manhattan Supervising Attorney Michael Perkins and colleagues Robert Pomeroy, Nikki Adams and Terry Davidson obtained a huge victory for a client who was sentenced to 6 months jail for being unable to finish restitution payments.

When our client took a plea in 2012 to Grand Larceny in the Third Degree, she was ready, willing and able to make restitution payments over five years.

Over the next two years, our client made every effort to maintain her restitution obligations. She had significant difficulties making payments on several occasions and fell behind, but each time managed to make up the arrears. She was able to pay back $9,705 before becoming disabled in 2014. Her disability forced her on leave without pay for over a year and caused her and her daughter to become homeless. Only through the compassion of their family and friends were they managed to avoid the shelter system. Even once she was finally able to physically return to the workforce, she earned less than $250 a week. This simply was not enough money to both make restitution payments and care for her daughter and herself. Despite remaining homeless and often penniless, our client stayed completely out of trouble while she struggled to get back on her feet.

The Prosecutor, despite our clients hardships, recalendared the case and asked the Court to sentence our client to a six month jail/probation split. We argued that the client was unable, not unwilling to pay, and, under Bearden v. Georgia, 461 US 660 (1983) and People v. Amorosi, 96 NY2d 180 (2001), the Court must look for a punishment other than incarceration for an indigent person.

Unfortunately, the Judge imposed a six month jail sentence, seemingly ignoring the disparate outcome based on economic condition, and denied our application to continue release pending appeal to the First Department. Not being willing to accept the Court's decision, we applied to the First Department for a stay of the execution of the sentence and for release on recognizance pending appeal. The Court granted both the stay and ordered our client released. The client was released today with the help of Special Litigation.

This case is a tremendous example of the Criminal Defense Practice’s advocacy —day in and day out—to protect clients from the permanent consequences of involvement in the criminal justice system.