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On the morning of Sept. 4, 2004, Lafayette Ricks made a trip to a dollar store and left with a newspaper, a can of soda, and a honey bun. A working commuter-bus driver who was homeless at the time, Ricks parked himself on a bench in Dunbar Park in Shaw to enjoy his early lunch. A church across the street was handing out clothes to the needy that day, so Ricks was one of several homeless people who’d taken up seats in the park.
A police cruiser pulled up to the park at around noon. An officer stepped out and told everyone to beat it, Ricks recalls. Most of the homeless did just that. Ricks, however, demanded to know why he was being told to leave a public park in the middle of the day when nobody seemed to be doing anything wrong. “‘Because I said so,’” Ricks remembers being told. The officer, identified in court papers as Tommy Barnes, demanded that Ricks address him as such.
“‘I’ll call you ‘officer’ when you act like an officer of the law,’” Ricks recalls replying. Ricks was taken to the ground, handcuffed, and hauled off in a paddy wagon to a holding cell at the 3rd District station, ostensibly for disorderly conduct. Because it was a Saturday, Ricks was told he’d be spending the whole of Labor Day weekend in jail before he could see a judge on Tuesday.
And yet Barnes told him that he was a “lucky man,” according to Ricks. Per protocol, police had seized Ricks’ wallet, which held $32, before locking him up. Barnes offered Ricks the opportunity to “post and forfeit” $25 to get out of jail. A decades-old and ill-defined quirk in police procedure, post-and-forfeit allows many misdemeanor arrestees to resolve their situations by simultaneously “posting” $25 or $50 of collateral and “forfeiting” it to the city. The payment is like a fine, but without the typical finding of guilt, and there is no record of conviction. After it’s paid, the arrestee goes home and the government considers the case resolved. It’s almost as if nothing happened.
Ricks forked over the cash.
With their cases closed, most arrestees who post and forfeit simply go away, never to be heard from again, as cops inform them is their right. Instead, Ricks sued Barnes and the city through the American Civil Liberties Union (ACLU). (A department spokesperson says Barnes cannot comment.) Among its complaints, Ricks’ suit takes aim at the very procedure that got him out of jail. By resolving cases at the station house and discouraging follow-up, it alleges, post-and-forfeit allows cops to sweep improper arrests like Ricks’ under the rug.
Collateral is typically set by a court, but a provision in D.C. law allows a police officer to “act as a clerk of the court” under certain circumstances and collect the $25 to $50 fees. Later, “the case simply is not re-called and inconspicuously ‘disappears’ from the docket,” a Superior Court judge once wrote, analyzing the institution. The idea is to flush out petty court traffic that would otherwise clog the system. It’s also an easy sell—pony up just a few bucks and get out of that filthy holding cell. A lot of cops love it: They get credit for the lockup and later don’t have to worry about trekking to Superior Court to see their arrestee with a lawyer.
“It’s a mysterious piece of the system,” says Fritz Mulhauser, the ACLU attorney working the case. “Post-and-forfeit is in effect the way the system doesn’t get completely shut down [by a glut of minor cases]. But as good a thing as that is, from many arrestees’ viewpoint, it also entirely evades court scrutiny of many cases that on a closer look might show questionable police conduct.”
Along with the drunk and obstinate, demonstrators are ideal candidates for post-and-forfeit receipts: They’re typically arrested in large numbers and sometimes under questionable circumstances—as in the mass arrests at political protests in April 2000 and September 2002. In the latter case, detainees were mistakenly told that post-and-forfeit was their only option to avoid a jail stay—presumably, their lawyers concluded, so that they’d leave the station without a court date to contest the charges. Those who told cops they wanted to challenge their arrests were advised they’d have to wait days in jail; in reality, they could have opted for a procedure known as “citation release,” in which an arrestee can reserve a court date and be freed. It’s an option for many misdemeanor arrests.
“[T]hey want you to put up 50 bucks and say, ‘You’ll never hear from me again,’” says Mara Verheyden-Hilliard, of the Partnership for Civil Justice, who helped complainants sue the city over the 2002 mass arrests. “Frequently, you’re held under appalling or painful conditions of confinement. If you want to challenge it, they say the only way is to remain in jail, locked up or tied up. They’ll lie and say you can’t see a judge for several days.” The department has recently tried to remedy this problem by spelling out the arrestee’s rights on the post-and-forfeit form.
Although police could not furnish statistics on post-and-forfeit, it is common knowledge among cops that the procedure is used most often in disorderly-conduct arrests, which can encompass such crimes as public drunkenness and pushing back a bit when told to leave a public park. There’s no shortage of opportunities to use the procedure: A 2003 report from the city’s police-complaint board found that, over a three-year period, D.C. cops made about five times as many disorderly lockups as officers in other large cities—more than 10,000 in 2000 alone. Those constituted far and away the single largest category of arrests for the department, and the frequency of citizen complaints disputing them “may be a warning sign of a larger problem,” the report stated. According to Superior Court figures, misdemeanor post-and-forfeits collected at police stations yielded $196,301 in fiscal 2005.
The complaint board suggested that this larger problem may stem from the post-and-forfeit procedure itself. Post-and-forfeit resolves more than half of all disorderly arrests, according to the report, which examined figures from 1995 to 2000. When a cop knows that even a baseless collar stands a good chance of being resolved at the station house within the hour—the citizen $25 lighter but glad to be out of jail—he can arrest with impunity.
“The danger is when there’s no basis for the arrest to begin with,” says David Huitema, a lawyer also working on Ricks’ case. “Not only does the arrest avoid court review, it also avoids any administrative or internal review. There’s no paper trail.”
In an effort to cut back on the use of post-and-forfeit, the department has suggested to officers that they no longer offer the option to repeat offenders. That way, habitual drunks and the like will be forced to go through the court system, says Officer Andrew Zabavsky.
Coming on the heels of the 2002 mass-arrest lawsuit, a 2004 D.C. Council bill called for more transparency regarding post-and-forfeit, as well as more training on the procedure for officers. It demanded that the department publish on its Web site a list of all charges that can be resolved through the procedure and the respective collateral amounts. No such list can be found on the site, though, according to a police spokesperson, placards explaining the process have been put up in the city’s district stations.
Visits to five of the seven district stations turn up no public literature on the process. “We do have something, but we can’t show it to you,” says a 5th District officer. Another officer refers any questions on the process to the department’s general counsel. A cop at the 7th District station offers to explain the system himself, though he incorrectly says that forfeiting collateral indicates an admission of guilt.
Most arrestees probably don’t care what they’re signing or what their rights are, anyway. As Ricks found out on the day he was arrested, even those who might have been locked up improperly are more concerned with getting out of the holding cell and putting everything behind them. “If it’s $25 to get myself out of jail…and get out of my soiled clothes, then I’ll pay the money,” he says. CP
Art accompanying story in the printed newspaper is not available in this archive: Illustration by Robert Meganck.