- The unrepresented individual is not given any chance to ask questions, put up a defense, answer questions or otherwise speak and/or participate during the hearing.
- The Judge may not jail defendants for an inability to pay, because an inability to remit payment is not willful contempt. (I.e. If your a mother, who has the choice between feeding your kids or paying a traffic ticket (that IS NOT JAIL-ABLE “willful contempt”)
- The associated restitution, court fines, costs and fees are automatically assumed, without question, and the party being sentenced cannot question the accuracy of them. This could result in thousands of dollars they are responsible for, when the Judge has not even assessed their individual cases.
- The “criminal defendants’ are not afforded the representation of counsel to speak on their individual behalf for the circumstances surrounding their cases.
- The Judge may not add on additional court fees and costs to recoup after incarcerating an individual for unpaid fees and costs, and go on to profit or collect those fees in costs, using them as “judicial expenses” or putting them in judicially owned accounts.
Essentially, Judge Tamara Bernstein gathered 54 individuals in her courtroom that day, and she treated these human beings like cattle, and broke the law by mass sentencing them without allowing to hear any defenses. Arrogantly, she presided without allowing defense counsel any words, and imposing prison sentences uniformly across a crowd as if she were Hitler ordering mass executions, because like Hitler she put all of these individuals into a “category” and was flippantly unconcerned as to the individual facts or stories of their cases.
What did these 54 people do to be lined up like a pack of cattle and sent to jail without a hearing? They were debtors!
Hundreds of years ago, debtors were sent to colonies in Australia by European countries where they had to work their way out of debt through HARD slave labor, being paid a fraction of the wages. Eventually after performing slave labor, they were free of their debt and allowed to obtain citizenship. Unlike these debtors from hundreds of years ago, Judge Bernstein also purportedly added on additional costs. There would be more fines and fees for forcing her to go through the inconvenience of sentencing them, and many of these added fines purportedly would go directly into her judicial account to be spent at her discretion. It is institutionalized slavery. Can’t pay your bills? Congratulations, we are selling you as a slave, and furthermore “pay me for having to make you one.” Totally appalling.
Fortunately, we have a constitution in place, as well as a plethora of supporting laws in this country that prohibit such rampant abuses by the judiciary to re-institute “debtor’s prison.” The Superior Court Judges were aware of such laws and equally appalled by the actions of Judge Tamara Bernstein in Cambria County: The Pennsylvania Superior Court ruled that a Cambria County judge violated the U.S. Constitution and Pennsylvania’s Rules of Criminal Procedure by imposing a mass prison sentence on 54 individuals who were behind on their costs, fines and restitution payments. CITATION
Where is the judiciary conduct board investigation?
What the ACLU filings in this matter reluctantly seem to skirt around, is the question as to whether Judge Bernstein’s violations of the US constitution were something she did knowingly, and this delicate wordings in the ACLU filings is an abject (probably intentionally careful) failure to address her “wanton disregard” of the legal process.
It is very disappointing. What do I suspect? I suspect that Judge Bernstein engaged in a mass sentencing to save herself time, so instead of sitting in 54 “boring” hearings, she got those cases done in an hour. She told the defense lawyers present, that if they had a problem with it “talk to the clerk.” She washed her hands of those poor broke bastards. Probably celebrated all the free time now in her calendar, and as they were being booked did something outrageous, like went and got her nails done.
The American Civil Liberties case focuses on Judge Bernstein’s treatment of one particular Defendant, Gregory Mauk, a 50 year old painter. He had been sentenced in the “mass sentencing procedure” and recieved (like everyone else) two weeks in jail for Failing to pay fines. One of the luckier defendants, he was one of the first to appeal to the Superior Court which quickly vacated his sentence.
According to a court opinion written by Judge Deborah A. Kunselman, Pennsylvania rules provide “a court shall not commit the defendant to prison for failure to pay fine or costs unless it appears after hearing that the defendant is financially able to pay the fine or costs.” CITATION
54 people had been sentenced to jail, without the individual circumstances of their case being heard. After Mauk had his sentence overturned, and was released from jail, the true absurdity and outrage set in. It should be noted that Judge Bernstein never to this day has issued any apology. Unlike the Ohio Judge who recently apologized for duck taping a defendants mouth shut, or the Florida Judge who wrongfully jailed a rape victim to force her to testify, Judge Bernstein remained obstinately silent.
Cowardly and obstinate, the only communication she provided was through her secretary that she could not comment publicly concerning the ruling. CITATION
While Cambria County District Attorney Kelly Callihan was most certainly at least aware of the mass sentencing, she failed to appear in court and failed to address the constitutional concerns such a judicial action might incur. The county was represented by Assistant District Attorney Scott M. Lilly, CITATION and Callihan was no where in sight and appeared to have given her Assistant District Attorney no instruction as to contest the constitutionality of the proceedings.
Notably, shortly after this disaster of a human rights DISGRACE in Cambria County, Assistant District Attorney Scott M. Lilly resigned. He was either disgraced and took the blame as Callihan’s “fall guy” for this debacle, or nervous about the lack of ethics in the Cambria County D.A.’s office and concerned for the integrity of his law license.
After sentencing a room full of 54 people who couldn’t pay court fines and fees, Judge Bernstein instructed that she would not be available to hear these individual cases should their be any argument from defense lawyers. She instructed: If there was any disagreement with the judge’s order, they could meet with a clerk to explain their respective positions or with their attorneys. CITATION
Mauk and others were freed via Superior Court ruling, adding insult to injury the Kelly Callihans office filed an emergency motion to dismiss the appeals. Her office claimed that since these Defendants had been “freed” they had lost their right to appeal any issues in their original cases.
The Superior Court was unamused, and in a strongly worded opinion, wrote when a trial court allegedly acts beyond its authority by failing to afford procedural due process, the appeal is not considered moot. CITATION
Tamara Bernstein remained quiet, still not issuing any apology or providing any comment. After all, it seemed that District Attorney Kelly Callihan was siding with her. Despite efforts from multiple media outlets to contact her, she refused to even issue a press release addressing her actions, or even “speak through her secretary” as she had previously done.
Superior Court Judge Kunselman’s opinion stated, “This high speed sentencing violates the Due Process Clause of the 14th Amendment for it has been said, ‘The fundamental requisite of due process of law is the opportunity to be heard.’”The opinion, joined in by Judge Mary Jane Bowes and Judith Ference Olson, went on to explain the failure to pay arrears must involve legal intent to violate the payment order. CITATION
The Superior Court’s opinion addresses this idea of “debtor’s prison.” As in, do we jail people if they cannot afford to pay court fees and costs? Is that legal or does that constitute a violation of the 14th amendment. (SPOILER ALERT: The answer is Yes). Repeatedly, courts across the nation have ruled against this concept of debtors prison being in compliance with constitutional law, and the matter has been well settled with overwhelming case precedent outlawing “debtor’s prisons.”
One of the most notable courts to address this issue came out of Ferguson Missouri, where the number of unpaid traffic violations exceeded the population, and the number of issued warrants for these violations included over a third of the populations. After the police shooting of an unarmed black man in Ferguson, many of these issues within their local criminal justice system were under national scrutiny. In comparison to national averages, they found tickets for routine traffic violations or small infractions such as expired registration, were abnormally steep. The majority of the defendants in arrears court or debtors court, who had outstanding warrants for unpaid traffic tickets, were African Americans living and/or individuals living well below the poverty line, and struggling to get by. It was unlikely that most of these defendants, who if picked up by an out standing warrant, would even have the means to make bail. So as a result most of them just sat in prison, did their time, and let the fines accrue.
During the recent District Attorneys race in Ferguson, this idea of jailing debtors who simply lacked the ability to pay was a hot topic of discussion during the debates. But as I previous mentioned this had already been settled across the country by much case precedent, and the leaving District Attorney’s arguments fell flat. Essentially it was a sophisticated racketeering job, lining the pockets of the court system, and leaving defendants worse off than they previously were. There was no decrease in crime as a result of these practices, in fact, statistics showed there had been a continuous increase in crime statistics despite these cruel practices and misapplication (or just arrogant disregard) of constitutional rights/law. They have since reformed their policies, even going as far as to create amnesty programs.
Louisiana is another good example in which the courts lost their footing on the battleground of “debtor’s prisons.” The state of Louisiana issued a pretty strong ruling via federal judge after a New Orleans civil rights lawyer slammed county courts in New Orleans with a lawsuit, after he had noted the alarming number of incarcerated individuals who were picked up and sitting in jail due to unpaid fines. It was a contentious litigation, that was eventually moved to federal court. New Orleans and the state of Louisiana had been engaging in these practices for year. They were literally jailing defendants over unpaid parking tickets. On top of the abuse of jailing people for unpaid fines, these Judges were additionally adding MORE costs after incarceration. Included within these costs were “court fees” that an audit report they were pocketing into judicial expense accounts, and spending at their discretion. It was essentially a ponzi scheme.
After much squabbling in local criminal courts between defense lawyers, judges and prosecutors, at last the issue was removed to federal court via law suit in 2017.
Early this year, Louisiana Federal Court Judge Sarah Vance (who likely was reading the rulings of other federal Judges across the country) issued a ruling that was much in line with the status quo. “The undisputed evidence in this case establishes that the Judges have a policy or practice of not inquiring into criminal defendants’ ability to pay before those individuals are imprisoned for nonpayment of court debts,” Judge Vance writes. CITATION
This federal ruling by Judge Vance occurred in what is one of the most conservative and hardest states for any criminal defendant, and that is the importance of this ruling. If Louisianna is outlawing this idea of “debtors” prison, despite their pro-jail, pro-death penalty culture, then HOW IN THE WORLD is some arrogant, inexperienced and ill reputationed Judge (that almost nobody has heard of) instituting these clearly illegal practices? Why? I think its because Judge Bernstein thought she could get away with it, Ms. Bernstein thought she could take some of the “grunt work” out of being a Judge, by engaging in mass sentencing.
I looked for a case pre-2017 in Louisiana where a Judge had engaged in mass sentencing of individuals as a punitive measure for unpaid court costs, and I was unable to find even a SINGLE Case. While Judges in Louisiana prior to 2017 may have been jailing defendants for unpaid fines and fees, they at least gave the Defendants the dignity and their constitutional right to an individual hearing (with their counsel allowed to respond in that hearing). Further, as Vance opines: Vance also said it is unconstitutional under the 14th Amendment for judges to order people to pay monies that the court itself will spend. Some of the proceeds of court fines and fees go directly into the Judicial Expense Fund, which garners up to $1 million er year to pay for judges’ expenses. CITATION
On that note I would be specifically, interested in noting how many of these court costs by the 54 incarcerated individuals were to be pocketed by Judge Vance, for her judicial expenses. And did the “inconvenience” of her having to jail them in a mass sentence cause each of these individuals to accumulate more court costs?
Vance said the 14th Amendment “prohibits a state actor from arresting or detaining a criminal defendant solely for failure to pay a court-imposed debt absent a determination of ability to pay.” CITATION
The anger and outrage over Judge Tamara Bernstein within the defense community, and bolstered by Superior Court Opinion, likely comes from the fact that she had to be aware of massive case precedent. She had to have studied the fourteenth amendment. And she had to be aware that sentencing 54 people to debtors prison without even them letting them speak at their hearing would have caused a civil uproar. Probably thinking that these were poor nameless people, the most who could not even afford legal counsel, she thought she could “slip one under the rug,” or “slip one past.” Heck by using the mass sentencing approach, she had saved herself 54 individual hearings, and probably bought herself some free time.
So while those 54 people were confined, after she cleared her calendar, and before the Superior Court got a hold of this madness, what did she do with her free time? Perhaps she went and got her nails done.
The Pennsylvania Superior Court Judge Kunselman did not mince words in Bernstein’s total abuse of the process, and reckless disregard of constitutional law and basic human rights, writing:
“To decide if a refusal to pay is willful, the finder of fact (the judge) must examine the totality of the defendant’s life circumstances.” It said the “impossibility of performance of the court-ordered act is an absolute defense.” The opinion went on to explain that judges must hold separate hearings for each person accused of contempt to determine if his noncompliance was willful and stressed this must be done every time someone appears for a costs and fines proceeding. “This mass incarceration presumed that all failures to pay arose from (the individual’s) deliberate disregard of the court’s order,” wrote Kunselman. CITATION
A spokesperson for Callihan’s office subsequently spoke out after the strong worded order by the Superior Court. Astonishingly enough they DENIED even being present for the mass sentencing hearing (though there are varying accounts to the integrity of the truthfulness of that statement). The press release further read that Callihan made a promise that from now on the D.A. would be present at all of these hearings, implying that judges arbitrarily incarcerating defendants without any representation from a commonwealth attorney to represent voters had been standard operating procedure in Cambria County. Pretty disgusting.
The Mirror was unable to contact Cambria County Court Administrator William J. Valko for further explanation about the county’s revised procedures for costs and fines hearings.
If you have been recently in 2018, JAILED in Cambria County for unpaid court fees & costs, I would like to hear from you. If you incurred more court fees as a result of being jailed for non-payment, I would ESPECIALLY like to hear from you. While Cambria County claims they have changed their procedures, I have seen enough corruption in that county to know that some of these Judges (and particular the District Attorney) behave one way when the cameras are on them, and another way when they think nobody is watching. You can reach me at firstname.lastname@example.org
Tamara Bernstein behaved disgracefully in this mass sentencing, please remember these flagrant constitutional and human rights violations, when you go to the polls for her retention vote. This type of lazy, disrespectful and flagrant disregard of the law is not acceptable for an elected Judge. Fire her accordingly.
FINALLY: In conscious effort to keep local journalism FAIR and behaving as WATCHDOGS to the readers that BUY their PAPER, and KEEP THEM IN CIRCULATION, WITH JOBS: I would like to point out that the Tribune Democrat NEVER covered this story, and it was up to outside papers and activists like John DeBartola to keep the voters informed. In an effort to promote responsible journalism, I would like to remark that the Tribune Democrat behaved reprehensibly like sycophantic irresponsible lap dogs, instead of REPORTING THE NEWS to the loyal readership that buys their rag of a paper and keeps them in business. I hope the political “sucking up” was worth keeping your county in the dark over a very serious display of sheer disregard for human rights, perpetrated on your turf by this barely minted Judge. Perhaps your readership should take their monthly subscriptions and invest those into a more responsible paper like the Altoona Mirror.