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Despite Public Outcry Over Pay-to-Play Justice, Prosecutors Just Don’t Get it

Mecklenburg County Courthouse. By Upstateherd
Wikimedia Commons [CC BY-SA 3.0]

Despite Public Outcry Over Pay-to-Play Justice, Prosecutors Just Don’t Get it


Mecklenburg, North Carolina District Attorney R. Andrew Murray doesn’t seem to understand the problem with the county’s deferred prosecutions system, even after a group of faith leaders held a press conference Monday morning, arguing that the current system discriminates against the poor most in need of help.

The protest was timed with a hearing in the case of Charlotte resident Rahman Bethea, who was arrested and charged in March 2016 for stealing audio-visual components from his workplace. Bethea, who already was paying over $500 monthly for child support, found himself in a crushing financial situation — he lost his home and was forced to ask his mother to take care of his young son while Bethea was homeless. He applied for other jobs, but no one would give him a chance because he had a pending criminal hearing that appeared on background checks.

Then the DA’s office offered Bethea a chance at redemption: he was eligible for a deferred prosecution program whereby Bethea would be able to go on probation for a set period of time and avoid a conviction on his record. The program theoretically offers a second chance for people to avoid a criminal conviction, which has serious collateral consequences and can affect someone’s ability to go to school or get a job.

But redemption came with a price — $900. Before he could qualify for the deferred prosecution program, Bethea needed to pay down the restitution he owed to $1,000 or lower. (It was set at around $1900.) That was $800 too much. While Bethea managed to scrape together $100, he couldn’t afford any more without a new job. Trapped in the cycle common to many, Bethea wasn’t sure where to turn.

Deferred prosecution agreements are available to first-time offenders with no previous convictions. Similar to the same deferred prosecutions agreements regularly used with corporate defendants, a deferred prosecution agreement allows an individual to pay a fee and go on probation for two years (usually) in lieu of pleading guilty. Once the probation period ends, the slate is wiped clean. It is as if the crime hadn’t happened at all.

But it’s not that simple for people who cannot afford to pay. Bethea, for example, struggled to come up with the money required to enter the diversion program. Although there is no exact figure on how many people cannot afford deferred prosecution programs, almost half of Americans, according to one study, cannot cover an unexpected $400 expense. Across the county, advocates and civil-rights attorneys have drawn attention to these formal and informal debtors’ prisons — and exposed the many ways that our justice system relies on money and ensnares the poor, from cash bail, to fines and fees.

At a hearing last Wednesday, Elizabeth Gerber, Bethea’s public defender, argued that Mecklenburg’s deferred prosecution program discriminates against the poor, pointing to the fact that someone able to easily pay the money can access a benefit that a poor person cannot. Deferred prosecution programs and diversion programs almost always require some form of payment in order to participate. Less obvious are the ways that this pay-to-play system disadvantages people who cannot afford the payments. When the poor fail to pay, they end up facing even more serious consequences and greater barriers to reentering society post conviction.

In Mecklenburg County, the prosecutors decide who is or isn’t eligible for deferred prosecutions based on the statute. And, while the program overall is innovative and works well for those who can afford to pay, Gerber has argued that it still denies a second chance to those who probably need it most — the poor, who simply don’t have the money to pay for a second chance.

The Charlotte Observer reported on Bethea’s plight, and several people volunteered to donate money to help Bethea cover the $800 he couldn’t afford. Religious leaders called out for reform, calling the current system unethical. Said Rev. Rodney Sadler, “The courts have a middle-class standard and when poor people get caught in that system they get ground up we need to find a way for poor people to have adequate access to the division program.” Despite the public outcry, a judge denied Bethea’s motion this week, and he faces a trial in November for a felony.

DA Murray appeared to be unmoved in the press. He said in a press statement, “Without [the restitution limit], the DA’s office would be turning its back on innocent victims of crime.” He shucked any responsibility on the part of his office to give the poor access to diversion programs — arguing that religious organizations should set up their own way to fund the poor.


Update: In Justice Today received the following comment from the Mecklenburg County District Attorney’s Office:

The Mecklenburg County District Attorney’s Office created our deferred prosecution program to allow for restorative justice. This program gives eligible offenders the opportunity to take responsibility for their actions and earn a dismissal of a non-violent crime, avoiding the long-term consequences of a criminal conviction. A crucial aspect of this program must consider the rights of innocent crime victims.

Many victims experience severe financial hardships as the result of the crimes committed against them. Someone who steals lawn equipment from a landscaper struggling to make ends meet has deprived that person of their means to earn a living. A single mother whose car is stolen loses her transportation to the job that provides for her children. Those are the kinds of incidents that can push families — by no fault of their own — deeper into poverty. They are innocent victims facing financial hardships caused by those who made the decision to commit a crime.

The DA’s Office must weigh its duty to protect victims with the understanding that there are offenders who should be given a second chance. The program requires the balance of restitution to be no more than $1,000 before they can participate in deferred prosecution. Without this requirement, the DA’s Office would be turning its back on innocent victims of crime. This office routinely allows offenders who cannot immediately meet this requirement lengthy periods of time so that they can become eligible for the program. This office does not handle any funds involved in this program and all restitution goes directly to the crime victim.

The DA’s Office remains open to conversation about the deferred prosecution program. We have, and will continue to engage the Public Defender’s Office and other community leaders in conversations about the deferred prosecution process and how, as a community, we can all work toward a fair system for both victims and defendants.

The Mecklenburg County DA’s Office is not blind to inequities in the criminal justice system. In fact, this office has been working for years to address these issues. From implicit bias training for prosecutors to the office’s involvement in the national Safety and Justice Challenge, the office is a leader among prosecutors and the criminal justice community in working to combat inequities. Our deferred prosecution program is consistent with our commitment to fairness. This program is about restorative justice in which a victim’s losses must also be considered.