Veteran’s Case Shows How Diversion Courts Punish Poverty

    Joseph McCabe, a military veteran from Montgomery County, Pennsylvania, fell on hard times. In a bout of desperation, he stole “a tackle box containing various pieces of precious metals, including gold coins” from a retired dentist, according to an appellate brief from local prosecutors.

    After his arrest, he entered and successfully completed the Montgomery County Veterans’ Treatment Court Program—roughly analogous to drug courtswhich took years. During that time, he was able, according to an appellate brief by the Montgomery County Public Defender’s office, to “make regular appearances in Veterans Court, make regular contact with probation, follow through with treatment goals, comply with urine drug and alcohol screens as requested, increase community participation or service, and make regular required restitution payments.”

    In exchange, he expected that his charges would be dismissed.

    But McCabe, who was represented by the Public Defender’s office, is poor. His initial judge had demanded $30,000 in restitution, and MCabe managed to pay $1,000 of this, according to his attorney, Katherine Ernst. That was not good enough for Judge Cheryl L. Austin, herself a veteran and a former prosecutor, who on December 3, 2018 issued a conviction on a third-degree theft charge because of his failure to pay in full.

    Nor was it good enough for elected District Attorney Kevin R. Steele and his chief deputy Ed McCann, who wrote in a November 7, 2019 appellate brief defending the conviction that “no one is absolutely entitled to dismissal of all charges against them even if they successfully complete veterans treatment court.” They added that “The Commonwealth does not have to nolle pros [dismiss] an entire case when restitution is outstanding,” and that “the court did not sentence defendant because of his indigence, but because of the nature of his criminal offense.”

    Our justice system was not developed with humanity in mind, but there are a few demographics that most Americans want to shield.

    Clearly, neither of those men read Les Misérables in high school, as they are playing the role of Victor Hugo’s single-minded law enforcer, Inspector Javert, treating McCabe as a modern Jean Valjean.

    Our justice system was not developed with humanity in mind, but there are a few demographics that most Americans want to shield from the harshest forms of retribution, at least in theory. Kids, who frequently (but not always) are prosecuted in juvenile and family courts, are one. Combat veterans, who by mainstream narratives risked their lives to keep us safe and sometimes leave the service with PTSD or other serious mental impairments, are another.

    That is why, in 2008, the first Veterans Court was opened in Buffalo, New York. Back then, Erie County Judge Ronald T. Russell described the concept as “a hybrid of drug and mental-health treatment courts.”

    But these “treatment courts” are a very mixed bag. They give judges with no mental health or psychological training absolute authority over decisions that should be made by physicians or other health care professionals. And they exist in a grey area of law where, in the name of supposed treatment and forgiveness, prosecutors humiliate people who commit minor crimes then backstab them at willregardless of compliance. And as McCabe’s case shows, they penalize poverty.

    In drug courts, prosecutors and judges enter into quasi-contracts with people accused of low-level offenses, only to toss them into cells at the tiniest infraction. People with substance use disorders are frequently denied gold-standard medication-assisted treatments.  Non-payment of fines or fees, or an objective inability to pay, will get you into hot water.

    In some areas of the country, penal servitude can be the price of avoiding a conviction that hurts your ability to get a job and escape poverty. For example, in a 2011 report from the DOJ’s Bureau of Justice Assistance, Magistrate Judge Jeanine Blakely in Michigan’s Luce and Mackinac counties said people in drug court who can’t afford their own case manager may “work community service to off-set fees at $7.40 per hour.” (Blakely also works in the district as a Court Administrator and a Probation Officer.)

    Civil rights activists have been fighting back against these indignities, whether in the form of suing to end cash bail or spotlighting how court fines and fees keep people subjugated.

    DA Steele, like most US prosecutors, may be fighting against basic criminal justice reforms because he does not think the “progressive prosecutor” wave will catch up to him. With no real big city in Montgomery County, it is not in a particularly sexy county for national-level figures to play politics with, and he went unchallenged for reelection this year.

    But one would expect his First Assistant, Ed McCann, to know better, considering he picks fights with Philadelphia DA Larry Krasner’s supporters and former staffers online.

    Instead of fighting the tide of decarceration, they should hurry up and welcome it.


    Photo by Benjamin Faust on Unsplash.

    • Rory Fleming

      Rory is the founder of Foglight Strategies, a campaign research services firm for forward-thinking prosecutors nationwide. He previously worked for the Fair Punishment Project, which was founded as a joint project of Harvard Law School’s Charles Hamilton Houston Institute and its Criminal Justice Institute. Rory is a licensed Minnesota attorney.

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