Crime & Courts

DA drops ‘pay to play’ requirement for program that helps defendants avoid trial

Mecklenburg District Attorney Spencer Merriweather announced this week that his office will drop a financial requirement that kept some indigent defendants from avoiding convictions and possible jail sentences.
Mecklenburg District Attorney Spencer Merriweather announced this week that his office will drop a financial requirement that kept some indigent defendants from avoiding convictions and possible jail sentences. Meghan McDonald

A Mecklenburg County initiative to help eligible offenders avoid a felony conviction, stay out of jail and eventually cleanse their criminal records was quietly opened this week to all qualified applicants.

Not just those who could afford the price of admission.

In a change that could affect dozens of criminal cases each year, District Attorney Spencer Merriweather announced that his office’s “deferred prosecution” program will no longer require nonviolent, first-time defendants to pay down court-assigned restitution to $1,000 or less.

Merriweather’s office said in a statement that the move “will enable more first-time offenders to have a chance of keeping their records clean, instead of excluding some merely because of a lack of financial resources.”

The number of individuals who stand to be affected is unclear. A spokeswoman for the district attorney said Friday that up to now the office has not tracked the number of persons offered deferred prosecution.

Mecklenburg Assistant Public Defender Elizabeth Gerber estimates that hundreds of defendants are admitted into the program each year. Those with court-ordered restitution of $1,000 or higher, she says, run into the dozens.

The program, long considered progressive, began drawing public criticism last fall after the Observer highlighted the case of Rahman Bethea.

Prosecutors revoked the Charlotte man’s participation in deferred prosecution because he did not pay down the restitution in his embezzlement case to the mandatory level. Because of his arrest, Bethea said, he lost his job, his home and his car and could not come up with the $800 needed.

After Observer readers helped raise the money, Bethea was readmitted to the two-year program. If he successfully completes it – including paying off what he owes his former employer – the arrest will be scrubbed from his record.

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Donations by Observer readers helped keep Rahman Bethea in the deferred prosecution program that might help him avoid a felony conviction and possible jail time. Now the Mecklenburg District Attorney’s Office is dropping the program’s financial requirement because it discriminated against poor defendants. Observer staff

Religious and community leaders cited his experience as proof of how deferred prosecution and the justice system in general are weighted against the poor.

Gerber, who took then-District Attorney Andrew Murray to court after Bethea had been expelled from the program, said this week that the policy change by Merriweather offers an example to other North Carolina prosecutors of legal fairness and equity. But she added that the Mecklenburg courts still have too many “pay to play” programs in place.

“Mr. Merriweather recognized that public safety, justice for victims and fairness to defendants rich and poor are not conflicting values,” she said.

Likewise, Jake Sussman, managing director for Harvard University’s Fair Punishment Project and a former Charlotte defense attorney, called the move “a significant victory in the ongoing battle for equal access to justice in Mecklenburg County and throughout North Carolina.”

Charlotte rabbi Judy Schindler says the district attorney’s decision to drop the mandatory restitution payment required for first-time offenders to avoid a felony conviction is an important step toward economic justice. Observer file

The policy change is the latest internal reform within the Mecklenburg courts, which have been examining policies and programs for economic and racial bias.

Last year, the county’s District Court judges began formally considering a defendant’s ability to pay before assigning fees and other monetary penalties. Before then, hundreds of county residents were jailed on any given day because of overdue payments to the courts. That led some critics to say prosecutors and judges were running a debtor’s prison.

Merriweather, who was appointed district attorney in late November, told the Observer on Thursday the change in deferred prosecution arose in recent weeks from internal conversations driven in part by public questioning on judicial fairness.

He said greater participation in the program should make it easier for participants to stabilize their lives, find jobs and pay off their victims. Those who still owe restitution after two years will appear before a judge to explain why.

“Ultimately we decided expanding access to this second chance will put first-time offenders in a better position to make victims whole,” he said.

Merriweather met Wednesday with six religious leaders to announce the change.

Charlotte Rabbi Judy Schindler, who helped organize the meeting, said the group was impressed by the district attorney’s seeming commitment to treat indigent defendants more fairly.

“This new policy appears to address that problem head on,” she said, “and it will enable eligible defendants the opportunity to get back on track without devastating their lives.”

Michael Gordon: 704-358-5095, @MikeGordonOBS