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Case number 16-7066, Patrick Kincaid on behalf of himself and all other assembly situated at L Appellants, Rashad Bug Bay versus government of the District of Columbia.

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Mr. Light for the appellants, Mr. Lederstein for the appellee, D.C.

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Good morning.

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May it please the court?

[00:00:21] Speaker 05:
Good morning.

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This case involves the question of whether the government's post and forfeit system violates the unconstitutional conditions doctrine.

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this court's decision in order versus pritzker set forth guidance as to how this court analyzes such questions uh... and that before that uh... b the person to be deprived of something in the way of the process what are they being deprived of here they're being deprived of their property interest in their money without having due process don't they have a full right

[00:01:01] Speaker 04:
to a hearing if they choose.

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They choose to waive it when they post the money and go along with the post and release, don't they?

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There's no hearing to waive unless you're referring to a criminal trial.

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Yeah.

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What happens if they don't take the deal here?

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They don't take the deal.

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Then they go through the court process.

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The court process.

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That's what we call due process.

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Right.

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Due process doesn't mean you force process on people.

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It means you make it available.

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What process isn't available here?

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When you go in and plead guilty, you don't get a jury trial.

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But if you haven't been deprived of a due process, you waive the jury trial.

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If you get a speeding ticket and you go down and you pay it at the courthouse, you don't have a trial.

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Because you waived that due process.

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What's the difference here?

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How are they being deprived of anything by being given the opportunity to waive it?

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Well, by going through the criminal process, you have protections in the form of a judge, a prosecutor.

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And don't they have every opportunity to do that here?

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They are being coerced into waiving that.

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How are they being coerced?

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They're being offered.

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You can opt out of that very difficult, very expensive system for paying a relatively small amount of money.

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You can opt out of due process.

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You always can opt out of the process.

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It's always difficult.

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Not all that difficult, but it's always got some expense to it.

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If you plead guilty or if you pay a traffic ticket, you're doing the same thing.

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You're electing to be deprived of your money without any further process.

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Well, Your Honor, I don't agree that you can always... I think your theory here would take so much ground with it, we'd have no system left if we hold this as unconstitutional.

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But Your Honor, I disagree that one can always waive due process.

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Certainly, one couldn't consent to have a trial before a biased judge or a tribunal without any power to adjudicate them, or for that matter, before a police officer instead of a judge.

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So there are some limits to what kinds of things are waivable.

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in terms of due process.

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And this is precisely one of those things.

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If somebody chooses the judicial option, they do get due process.

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They don't get any due process if they go through the post-informed procedure.

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What about plea bargaining?

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How would you distinguish that or can you?

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So plea bargaining is distinguishable because in that system, there are procedural safeguards.

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A judge has to accept the plea of guilty.

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It's not as if somebody goes in, says, I'm guilty, and then the prosecutor just takes them off to jail.

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How about paying a traffic ticket?

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How do you distinguish that?

[00:03:51] Speaker 05:
Well, there's due process when you deal with traffic and infractions as well.

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When you just sign a ticket, what process is different than what you're doing here in the posting?

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When you get a traffic ticket, there's a potential for a hearing, even though it may not be... There's a potential for a hearing here.

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You just have waived it when you post and go on.

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But there's no hearing being offered to waive, and the traffic infraction... Whoa, whoa, whoa, whoa.

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You're the very person, I think, who told me just a few minutes ago that if you didn't accept the posting process, you're going to wind up having a hearing, right?

[00:04:31] Speaker 05:
Perhaps I'm not being clear.

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I'm distinguishing between a hearing and a trial.

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Right.

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I don't think we make that distinction between hearing and hearing in due processes.

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Sure.

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You pay the traffic ticket, you don't have a hearing.

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When you pay the traffic ticket... You post and forfeit, you don't have a hearing.

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Right?

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Either one of them.

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Well, when you have a traffic ticket, you have an option of you can admit that you're guilty or you can deny it and have a hearing sometimes.

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Post and forfeit.

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You can decide that you don't want to post and forfeit, and you can get a hearing.

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You've been stopped, arrested, or ticketed for a misdemeanor, and you can choose the hearing or you can choose post and forfeit.

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I'm not understanding the distinction you're making between that and the traffic ticket.

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Well, with a traffic ticket, there is no option to just pay money, right?

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Yes, there is.

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Typically, there is, yes.

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The option is, I admit guilt, and therefore I'm paying money.

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So it's an abbreviated process.

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Because you're admitting guilt, there isn't much to decide.

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You're not denying.

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You're not denying it.

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Not necessarily the equivalent of a guilty plea.

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It can be the equivalent of a no-load.

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Sure, you're admitting it, and that's why.

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And you can do the same thing under the post and forfeit.

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You can pay your money and take your liberty.

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Well, post and forfeit doesn't ask whether you're guilty or not, whether you admit anything.

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Neither does the traffic check.

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You send your check in, you've no-loaded.

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Well, you are, with the traffic ticket, it is an abbreviated process when you are admitting that you did it.

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But with the post and forfeit, it's not just an abbreviated process.

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There is no process.

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There is no determination whatsoever.

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It would be one thing if... Isn't this analogous or, in fact, maybe part of prosecutorial discretion?

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The police officer has the discretion whether to arrest somebody for misdemeanor, and so the police officer presents after the arrest an option to the individual at the officer's discretion.

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The part of the problem is that the difference between a police officer and a prosecutor is that the prosecution's office has

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additional safeguards to guide that discretion.

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For example, if somebody believed that the discretion is being exercised inappropriately as a violation of the Constitution, that would all be something that could be part of the judicial system.

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And that kind of oversight within the prosecutor's office is not analogous to the oversight within the police department?

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That's right.

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There's not even any standards for when the police department are to offer this.

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It is completely unfettered decision-making on their part.

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But I think another... But there are... The police chief has to promulgate the list of misdemeanors.

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that will qualify for this post-it form thing, right?

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Right.

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There's no guidance as to which things go on that list, but they promulgate a list and then sort of arbitrarily set dollar values for it.

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And then the police officers are given no guidance as to when to offer it and why not.

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But I think even if you...

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Wouldn't the vast majority of arrestees be thrilled to have this option?

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And your suit, if successful, would take away something that allows quick, speedy, efficient resolution of arrests?

[00:08:49] Speaker 05:
Well, I think it's not really a question of what

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whether people would prefer a system that if there's constitutional problems with it, it doesn't matter if both sides are happy with it.

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The issue is I think people would be even happier to not go to trial and not pay the money because they are not guilty.

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Your reaction is to do away with misdemeanors?

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That seems to be what you just said.

[00:09:18] Speaker 04:
No, no, what I'm saying is if the... The situation that exists here is somebody has committed, or at least the police think somebody's committed a misdemeanor.

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Right.

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Something's gonna happen.

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Right.

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One thing could happen would be they'd arrest him, take him to jail.

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Right.

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And then they would have mentioned they have a trial.

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Right.

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Or one thing could happen is they'd post him for it.

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Right.

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And in the post, it wouldn't take away the post and forfeit option.

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It would add a procedural safeguard.

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What are you wanting us to do that adds a procedural safeguard?

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Well, the choice of procedural safeguards needs to be up to the council.

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The issue here is... You're a council right now.

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You're a legal council.

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What is it that you think can be done to keep post and forfeit and make it constitutional?

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at least some sort of minimal... No, no, don't tell me some sort of.

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Tell me something that can be done.

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Okay.

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For example... Give me an example of what would be something that can be done.

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Right.

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For example, like with a parking ticket, you can schedule, if you want, a hearing, or you can fill out a form and say, I did it, but at least then there would be some opportunity within that system that

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whether or not the council had to create it, there would at least be some opportunity to make your case using that option.

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You can go through, subject yourself to the criminal process.

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But what's different here is

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If the government wants to offer two tracks, both of them need to comport with due process.

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It's not enough to say, on the one track, the government can offer something with no procedural safeguards because you can always not choose it.

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That would allow the government to create any sort of process, regardless of how arbitrary it is, as long as the government said, well, you can always have a criminal trial if you want one.

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That would allow, essentially, the government to impose whatever conditions they want.

[00:11:30] Speaker 02:
The criminal process is filled with decisions of that sort.

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end of the line in clemency, where it's just totally discretion and total discretion and there aren't any particular standards.

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The prosecutor can charge a felony or the prosecutor can charge a misdemeanor, or he can charge maybe both.

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The prosecutor can plea bargain, but he doesn't have to.

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The prosecutor can accept the plea to a lesser included offense, but he doesn't have to.

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The jury can dispense its version of justice and acquit, even though the evidence of guilt is overwhelming and on and on and on.

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The entire criminal process is built on it.

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Which leads me to another question.

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I don't see that Matthews versus Elbridge is the standard here.

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The Supreme Court decided that when it comes to the criminal process, the Medina case controls, and that case asks whether whatever the procedure is, whether it violates some well-grounded fundamental fairness recognized in the history of the country.

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And I don't see any claim of that sort on your point.

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Sure.

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Well, as far as the issue of discretion, the analogy here, I think, would be the police have the discretion to offer post-in-forfeit or not.

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But what is unique about here and what never occurs in the criminal process is you never get to say,

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prosecutor, I'll give you $50 if you make it a misdemeanor instead of a felony.

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Or I'll give you $100 if you just drop the case.

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And that's essentially what's happening there.

[00:13:19] Speaker 02:
Well, if you look at the amount of money that's being posted, by the way, what is the highest amount

[00:13:29] Speaker 02:
I don't know.

[00:13:32] Speaker 05:
I know it goes over 100 to at least 250 for certain things.

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There are a lot of obscure crimes on the list.

[00:13:40] Speaker 02:
Yeah.

[00:13:41] Speaker 02:
But if you view that as a fine, then the analogy that Judge Santel was drawing is perfect.

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Is it not?

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Well, the problem is- You can pay the fine.

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Right.

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Or you can contest it.

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in a trial.

[00:14:01] Speaker 05:
But before anybody pays a fine, there is a finding of some form of another.

[00:14:08] Speaker 02:
Well, there is here.

[00:14:08] Speaker 02:
The person's been arrested, so at a minimum, there's probable cause that the person committed a misdemeanor.

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That's a finding.

[00:14:15] Speaker 05:
Well, it's a finding of probable cause, but that's not an adjudication.

[00:14:20] Speaker 04:
There's not a finding one way or the other on a traffic ticket when you're saying adjudication.

[00:14:24] Speaker 04:
There is no finding.

[00:14:25] Speaker 04:
This is exactly like paying your traffic ticket without going to court.

[00:14:30] Speaker 05:
Well, it's a finding in the same way that any administrative procedure would have a finding.

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If I end up with a civil infraction, I can go before the administrative judge.

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And it's not a finding before.

[00:14:43] Speaker 04:
Well, very often you can pay a fine in an administrative procedure without having the judge adjudicate anything.

[00:14:49] Speaker 04:
Well, the administrative... It happens every day, all the time.

[00:14:53] Speaker 02:
In fact, this is even more lenient than the traffic ticket situation because you pay the traffic ticket and points may be added to your record.

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But here, if you follow the post and forfeit procedure, the statute itself specifically says that it doesn't go on your criminal record.

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It can never be used against you.

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I think that's actually more lenient than the traffic ticket.

[00:15:18] Speaker 05:
I think that's actually part of the problem.

[00:15:19] Speaker 05:
It's so lenient that it has a coercive effect.

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There's no reason for anybody to ever choose the criminal process.

[00:15:27] Speaker 05:
And that is what makes the unconstitutional conditions doctrine so powerful here.

[00:15:32] Speaker 03:
Okay.

[00:15:32] Speaker 03:
We'll give you some time back on rebuttal.

[00:15:34] Speaker 05:
Thank you.

[00:15:36] Speaker 01:
Hopefully it'll be brief.

[00:15:41] Speaker 01:
Good morning.

[00:15:42] Speaker 01:
May it please the court, I'm Jason Lettersign for the District of Columbia.

[00:15:46] Speaker 01:
We just want to emphasize that this is a piece of legislation that the Council has adopted to try to meet its demands for an urban municipality in trying to resolve misdemeanor cases versus more serious cases.

[00:16:00] Speaker 01:
They've enacted a very fair procedure that benefits everyone, the district community as well as those who are arrested on these low-level misdemeanors.

[00:16:09] Speaker 01:
You have a possibility of not having to go through the inconvenience of a trial and whatever might result from that.

[00:16:15] Speaker 01:
You're able to pay a small fine, which is a sort of a fine in retrospect, and be able to go on your way.

[00:16:22] Speaker 02:
In the list of misdemeanors, are they all just

[00:16:26] Speaker 02:
Is the maximum punishment all just a fine, or is there possibility of jail time?

[00:16:32] Speaker 01:
In the collateral offenses that are eligible?

[00:16:34] Speaker 01:
Yeah.

[00:16:35] Speaker 01:
There's possibility of jail time in some of these collateral offenses, yes.

[00:16:39] Speaker 02:
Can you tell me, I'm not sure I have a complete grasp of how this system works.

[00:16:47] Speaker 02:
First of all, the prosecution of misdemeanors in the District of Columbia is not by the U.S.

[00:16:53] Speaker 02:
Attorney?

[00:16:55] Speaker 01:
I think one could generally make the distinction between misdemeanors and felonies.

[00:16:58] Speaker 01:
I can't say it's a perfect separation, but the District of Columbia does prosecute these low-level crimes.

[00:17:05] Speaker 02:
The Office of the Attorney General?

[00:17:08] Speaker 01:
That's right.

[00:17:08] Speaker 01:
I'm sorry, the District of Columbia Office of the Attorney General.

[00:17:10] Speaker 02:
The Corporation Council?

[00:17:12] Speaker 01:
Right.

[00:17:13] Speaker 02:
And if someone gets arrested out on the street,

[00:17:19] Speaker 02:
for a misdemeanor and has handed a citation rather than being put in handcuffs and taken down to the police station.

[00:17:29] Speaker 02:
Is that person arrested on the street eligible for this post-importance?

[00:17:35] Speaker 01:
Absolutely.

[00:17:36] Speaker 02:
But how does that work?

[00:17:38] Speaker 02:
He doesn't hand the money to the police officer on the street.

[00:17:42] Speaker 01:
No, no.

[00:17:43] Speaker 01:
This is the field arrest process.

[00:17:45] Speaker 01:
It's actually been in the statute, DC code for a long time, but it was recently sort of rejiggered and codified by the council.

[00:17:54] Speaker 02:
It's a. Right.

[00:17:59] Speaker 02:
What are the next steps?

[00:18:01] Speaker 01:
Well, they get this citation that tells them to report to the local precinct.

[00:18:05] Speaker 01:
I think it identifies the station you're supposed to go to, and I think you have about 15 days to come there and do what you're going to do next.

[00:18:13] Speaker 01:
In most cases, if you're eligible for citation release at that point, in other words, you're not a danger of some kind.

[00:18:19] Speaker 01:
and you're not going to be held, you will likely have the option of post and forfeit, or you can determine to go to trial, and there's preset dates for those citations that the court has already indicated are the dates for a hearing.

[00:18:33] Speaker 01:
And that's broken up, I think, by precinct level.

[00:18:35] Speaker 01:
So it's all very routinized and in advance, and you can make the choice at that point.

[00:18:41] Speaker 02:
But if you're arrested, if the person is arrested and handcuffed and taken to the precinct, and they don't do the post and forfeit thing, what's the next step?

[00:18:56] Speaker 02:
Are they jailed overnight until they close bond?

[00:19:00] Speaker 01:
Most likely, they would have to wait until the next court hearing.

[00:19:03] Speaker 01:
And most likely, that would mean about a night in jail.

[00:19:05] Speaker 01:
Now, just on that note, the counsel amended the law in 2015 regarding post and forfeit.

[00:19:14] Speaker 01:
So the option for post and forfeit is no longer available for those who are not eligible for what they call the citation release, in which you would not be held overnight.

[00:19:23] Speaker 02:
OK, so only the citation relief.

[00:19:24] Speaker 02:
If the post and forfeit are only a part of the citation.

[00:19:27] Speaker 01:
release or I mean, theoretically, it could apply if you're taking if you're taken into custody off the street, but you come to the station house and it's determined that we're not going to hold you and that you have the option to then leave.

[00:19:39] Speaker 01:
I think you would be eligible for post and forfeit.

[00:19:41] Speaker 01:
I don't know how often that would occur.

[00:19:42] Speaker 03:
How many other jurisdictions have something like this or a product?

[00:19:48] Speaker 01:
You know, we we've scoured the states and we didn't find a lot, but there are some.

[00:19:52] Speaker 01:
Um,

[00:19:55] Speaker 01:
It's my understanding that you could find something equivalent to it in Idaho with regard to misdemeanor traffic cases, although it looks like the prosecutor's involved, rather than just the police in that situation.

[00:20:08] Speaker 01:
In Wyoming, there's forfeitures considered, forfeiture of your collateral is considered no lo contendere.

[00:20:15] Speaker 01:
And then Georgia seems to have something for bad checks, where you can no contest a cash bond.

[00:20:24] Speaker 01:
It has to be a low-level check, I think, and it's a guilty plea.

[00:20:28] Speaker 01:
I would note that the federal system has something similar, but not exactly.

[00:20:32] Speaker 01:
If you look at Criminal Procedure Rule 58 on the federal level, it authorizes magistrates for certain misdemeanors to allow post and forfeiting.

[00:20:42] Speaker 01:
If you forfeit collateral there, however, it's likely to be a guilty finding of some kind, and all I could find

[00:20:49] Speaker 01:
was really the federal rule just allows local district courts to enact something.

[00:20:55] Speaker 01:
And at this point, Michigan and Pennsylvania seemed to be the most explicit about the post of England forfeiting.

[00:21:00] Speaker 03:
Why don't other jurisdictions have something like this, do you think?

[00:21:05] Speaker 01:
I actually think it's possible they do, but it's hard to find them.

[00:21:08] Speaker 01:
South Carolina at least used to have this procedure for traffic offenses.

[00:21:12] Speaker 01:
I think I did see something for South Carolina.

[00:21:14] Speaker 04:
I think I can tell you that.

[00:21:16] Speaker 01:
I think you're right, and I defer completely.

[00:21:20] Speaker 01:
My wife and I both can separately tell you.

[00:21:24] Speaker 01:
That's great.

[00:21:26] Speaker 01:
You know, really, I think

[00:21:29] Speaker 01:
Maybe I'm just a poor researcher, but I think there likely are more statutes.

[00:21:34] Speaker 01:
It's very difficult to find because the terminology is so local specific.

[00:21:38] Speaker 01:
And when you do searches of bond and collateral, you're going to get into the basic criminal procedure of posting bond.

[00:21:45] Speaker 01:
But to the extent they haven't used it, they just may not have the type of urban municipality that we have.

[00:21:50] Speaker 01:
I don't know.

[00:21:53] Speaker 01:
In any event, really, what this law is is a very beneficial law for everyone.

[00:22:01] Speaker 01:
The District of Columbia is allowed to preserve its resources for those very serious crimes.

[00:22:05] Speaker 01:
Keep in mind, if any of these cases go to trial, you're likely going to have a police officer have to come in and testify.

[00:22:12] Speaker 01:
that's going to take that person off the street.

[00:22:13] Speaker 01:
You're going to have to devote a prosecutor to that particular day.

[00:22:16] Speaker 01:
I mean, there's a lot of resources that are spent on any trial.

[00:22:19] Speaker 01:
So this is a way to preserve those resources, but to maintain some deterrence.

[00:22:23] Speaker 01:
And it allows criminal defendants for these low-level crimes to just sort of understand that this isn't something that they can just get a free pass on, but at the same time be able to find a way to get out of a situation that perhaps they just mistakenly got into.

[00:22:39] Speaker 01:
and not have to worry about all of this criminal process that can occur.

[00:22:43] Speaker 01:
It's beneficial to everybody.

[00:22:45] Speaker 01:
It's rationally related to the district's interest.

[00:22:48] Speaker 01:
There's just no reason to strike this law down.

[00:22:51] Speaker 01:
There are no other questions.

[00:22:53] Speaker 01:
Thank you.

[00:22:54] Speaker 03:
Give you a minute for rebuttal.

[00:22:59] Speaker 05:
Thank you, Your Honor.

[00:23:01] Speaker 05:
I understand the government pointing out some of the policy benefits of this post and forfeit procedure.

[00:23:08] Speaker 05:
They say that everybody benefits.

[00:23:11] Speaker 05:
But because of the lack of oversight, there is a problem that's created for society.

[00:23:18] Speaker 05:
To give an example, both the government and an individual might be happy if the government said, we'll offer you $50 not to criticize the president.

[00:23:30] Speaker 05:
And somebody who doesn't want to criticize the president say, great, I'm making $50.

[00:23:35] Speaker 05:
And both sides are happy.

[00:23:37] Speaker 05:
But that takes away an important public interest in the exercise of

[00:23:43] Speaker 05:
free speech.

[00:23:44] Speaker 05:
Similarly here, taking away due process undermines the system in a way that having an actual adjudicatory finding wouldn't.

[00:23:54] Speaker 03:
There would be some oversight in that case.