By Marsha McLeod | May 21, 2019

"While routine traffic violations are not criminal in their nature – say, for example, rolling through a stop sign – driving if you know, or should have known, your license is suspended is considered a crime.

From 2014 to 2017, Buffalo police charged more than 14,000 drivers with driving with a suspended license. Add the rest of Erie County and that climbs to almost 33,000. And the number has been growing.

“Those are pretty staggering numbers. I personally didn’t even realize it was that high,” said State Assembly member Patrick Burke, who represents South Buffalo, Orchard Park, Lackawanna and West Seneca.

Since the 1990s, state legislators have cracked down on suspended driving: increasing criminal penalties, as well as expanding the number of ways the state can suspend drivers’ licenses and the fees that go along with them.

The laws are making criminals out of tens of thousands of residents and straining court systems; yet in the case of debt-related suspensions, several experts said they provide little to no public safety benefit.

“We are taking people who are already on the economic edge, we are criminalizing them and increasing the burdens and hardships on their lives,” said Henry Louis Taylor Jr., a professor who studies race and class issues at the University at Buffalo.

Each year, a torrent of people with suspended license charges wind up in Buffalo City Court, clogging up judges’ dockets and bogging down public defenders.

The flood of suspended license cases vexes judges, but there is little they can do. Some judges, when they get fed up with a defendant — usually because they missed a court date or got caught driving while suspended, again — set bail on them.

From 2014 to last fall, City Court judges have sent more than 900 people charged with driving on a suspended license and other low-level traffic charges — but no others — to the Erie County Holding Center, according to an analysis of sheriff’s office booking data.

The majority were black residents of Buffalo’s poorest neighborhoods.

Suspended motorists told Investigative Post that without driving, they didn’t have another way to get to work, drop their kids off at school, or, paradoxically, to get to their court dates.

This story is based on an analysis of several government databases, review of hundreds of pages of court records and reports, and interviews of nearly 40 drivers, attorneys, advocates and legislators.

The upshot: state laws are driving the numbers, and City of Buffalo policies are exacerbating the situation locally.

Buffalo’s inflexible approach
From 2014 to 2017, the state suspended the driver’s licenses of more than 37,000 Buffalo residents, according to data from the Department of Motor Vehicles. As of April, about a third were still suspended.

A driver’s license can be suspended for reasons like not paying state taxes or child support or getting a DWI. But the most common reasons — not paying a traffic ticket or appearing in court over it — made up 62 percent of all suspensions in Buffalo.

A single driver can easily rack up multiple suspensions. If they’re issued five traffic tickets during one stop and pay none, that’s five separate suspensions.

Buffalo police are writing more traffic tickets than ever — rising from 32,000 in 2014 to more than 52,000 the following year.

And added fees are making tickets more expensive. Last year, the Common Council approved the creation of 13 new fees, which, once fully in place, will add $100 to the cost of virtually all traffic cases.

“It’s like they’re trying to squeeze lemon juice out of a rock,” said Steffon Fonville, who created a Facebook group in 2015 to help alert drivers to the location of traffic checkpoints in Buffalo. “We’re the poorest people and we pay the most tickets in this city.”

City Hall also refuses to allow drivers to pay their traffic fines and fees in installments.

Ashly Wright, a mother of three, has long wished the city would allow her a payment plan. She owes at least $400 in traffic tickets, which resulted in suspensions on her license. With a part-time job as a waitress and bartender, Wright said she could afford to pay back about $20 a week.

“National Fuel lets you have a budget plan — like if your income is this much, you can pay this much toward it,” she said. “They don’t give you anything to help you get [your license] back,” she added, referring to the city.

Last month, Burke, the State Assembly member, introduced a bill that would require municipalities offer payment plans and allow courts the flexibility to reduce fees on traffic and parking tickets.

State Sen. Tim Kennedy, who represents Buffalo, Cheektowaga and Lackawanna, proposed a broader bill last month. His would stop the state from issuing suspensions for unpaid traffic tickets and wipe those types of suspensions from drivers’ records, while also ushering in payment plan options.

“Drunk driving, aggravated driving, vehicular homicide, reckless endangerment, those very horrific crimes are not on par with a failure to pay a ticket and they shouldn’t be treated the same,” Kennedy told Investigative Post.

How the process works
Buffalo police generally don’t take people into custody for driving while suspended. Instead, they issue the driver an appearance ticket, which directs them to appear in criminal court on a specific day, and may impound their car.

Here’s how these cases play out: Before offering a plea, the Erie County District Attorney’s office requires drivers clear up their license — which usually means paying off outstanding traffic tickets. Each month or so, drivers are called back to court to give an update on what they’ve paid.

The faster a defendant pays, the better the deal they’re offered — it’s sometimes as favorable as an outright dismissal or plea to a parking ticket. For that, the fine maxes out at $150. While most cases are resolved without a criminal conviction, people who can’t pay their tickets within a few months are often fined between $200 and $500.

The district attorney’s policy is considered lenient, several experts said, but it does take a lot of time.

In 2017, low-level license suspension cases made up about 15 percent of the Legal Aid Bureau of Buffalo’s total caseload. Yet one public defender estimated that they take up half her working hours. Though not complicated, the cases often involve a lot of court appearances and time with the client.

This usually entails helping defendants sort out their unpaid traffic tickets — often owed to different municipalities, and issued years, or even decades, earlier.

“Some of these cases just come back so frequently, you’ll have days where you’re just sitting in court all day, not able to go to your desk and work on a motion or go investigate a more serious case,” said Rebecca Town, a staff attorney with the Legal Aid Bureau.

Chief City Court Judge Craig Hannah acknowledged that suspended license cases can run longer than “serious cases,” but added: “We’re not a collections agency.”

Scott Levy, special counsel at the Bronx Defenders, a public defender nonprofit in New York City, disagrees.

“The court system in these cases is really trying to extract money from these clients,” he said. “It doesn’t serve any public safety function.”

There is a correlation between poverty rates and suspensions lasting more than one year, according to an analysis by Driven by Justice, a statewide coalition.
An extra hurdle
In Judge Diane Wray’s court, defendants are required to try to get a valid driver’s license — in addition to paying off their outstanding traffic tickets — before she’ll resolve their case.

The policy stands even if the district attorney is willing to dismiss the case at the defendant’s first appearance.

If a case drags on, Wray agrees to a plea, but pushes off sentencing until the defendant gets their license or is clearly unable to do so — all while telling defendants she’ll give them the smallest possible fine if they get it.

In court, Wray cited one benefit of her policy: If properly licensed, drivers will stop racking up court fines and fees for the same offense.

But five defendants told Investigative Post they were frustrated that the policy required more court appearances than under other judges. For some, it was simply too costly to restore their driving privileges; others had never had a license to begin with.

Anson Whitted was one. Owing more than $5,000 in child support payments at the time, getting his license seemed like a distant possibility.

So one morning in January, he showed up in court with plans to challenge Wray on her policy.

On the stand, Whitted said he couldn’t afford to make the payments necessary to get a license. Wray told him that she could give him a sentence of 15 days in jail.

Whitted said he had custody of his son that day.

“Then I’ll see you back here 2/13 in the A.M. Come with your toothbrush,” Wray replied — referring to needing one in jail.

Whitted protested that he didn’t want any jail time.

“Well, then that’s really too bad, isn’t it, because it’s up to me, not up to you,” the judge replied. “If you want no jail time, go get a license and then I’ll be happy.”

“I can’t afford a license, ma’am,” Whitted responded. “I don’t have thousands of dollars.”

Then, Wray took a moment to look up Whitted’s record. She offered him the choice of jail or a fine. He opted for the fine. With that, his case was closed — almost a year after his first appearance and four months after he pled guilty.

“I actually got kind of nervous, I thought she was going to put me in jail,” Whitted said outside the courtroom, thinking about his son at daycare.

Whitted’s fine was $200, plus a mandatory $88 surcharge. He’s currently unemployed, though managed to pay both — with help from his girlfriend’s tax refund. Several months ago, he stopped getting shifts at the barbecue restaurant where he worked after he kept needing to take time off for his monthly court dates.

By “staying on you,” Wray thinks she’s helping you, Whitted said, “but it’s taking people from their job and [she] ain’t paying that no mind.”

Hannah said it is within a judge’s discretion to set such a policy; Wray declined to comment.
 

Insha Rahman, a program director at the Vera Institute of Justice, a national research non-profit for criminal justice issues, said she understood the idea behind the judge’s policy, but nevertheless found it troubling.

“It is no small imposition on people to drag them back and forth to court for multiple court dates over the course of a year, only to miss work and have to find childcare,” Rahman said. “Why enhance the punishment by requiring this particular, final hoop to be jumped through?”

Two weeks ago, Whitted did get his license — after nearly four years of trying.

First, he arranged payment plans for his missed child support. But Whitted’s license was also suspended because of an insurance lapse in 1999 — when he was 16 years old. To lift that, he paid a $600 penalty to the DMV. (The state charges drivers between $8 and $12 for each day their insurance lapses).

The state’s role
Debate over Wray’s policy points to a wider issue: State laws make it easy for drivers to accumulate suspensions, but challenging to remove them from their records.

For one, the state Legislature has increased the number of reasons why it can suspend drivers’ licenses, including unpaid state taxes and missed child support payments.

For some drivers, their unpaid tickets — which are known as “scoffs” — are from years or even decades earlier. But even if the issuing municipality no longer has a record of the tickets, state law has no limit on how long scoffs can stay on a driver’s record.

When drivers finally pay off their outstanding traffic tickets, the state charges $70, per suspension, to lift each one from their records.

Since the 1990s, New York legislators have increased both the cost and the sheer number of fines and fees in the court system, including making surcharges mandatory.

Around the same time, state legislators decided more needed to be done about people driving with suspended licenses. Several pedestrians had been struck and killed by suspended drivers and the media was cranking out stories about the issue.

Until 1993, the offense was a traffic violation — like running a red light. But that didn’t seem like it was stopping anyone. So, legislators made it a crime. At the lowest and most common level, it now carries a threat of up to 30 days in jail and a minimum $200 fine.

“To tell you the truth, I don’t have an unlimited confidence in tougher sentencing,” Daniel Feldman, a state Assemblymember who pushed for the change, told the New York Times in 1993. “But here is a possibility where we might produce a change in consciousness.”

Earlier this month, Feldman, who is now a professor at the John Jay College of Criminal Justice, said he was “surprised” and “sorry” at the volume of suspended license cases in Buffalo City Court.

“The impact of the criminal justice system with respect to poor people wasn’t really in our consciousness at the time,” he said.

Assembly Member Joseph Lentol of Brooklyn, who introduced the legislation that first criminalized the offense, said that prior to that change, there wasn’t “enough of a deterrent” for people who continued to drive. 

But do harsher laws deter people from driving?

“It’s really hard to tell that,” Lentol said, adding that efforts in New York City to reduce speed limits were probably more effective in making roads safer than criminal penalties.

Hundreds jailed
Occasionally, judges in Buffalo City Court will set cash bail on drivers charged with driving on a suspended license, along with other low-level traffic misdemeanors or violations.

More than 900 drivers charged with these offenses were shipped to the Erie County Holding Center between Jan. 2014 and Oct. 2018, presumably after being unable to post bail.

Cash bail is a monetary deposit that secures a defendant’s release pre-trial (or more likely, pre-plea).

In Buffalo, judges have a history of setting high bail on misdemeanor charges — traffic-related and otherwise. A study done last year by the Partnership for the Public Good, a non-profit research center in Buffalo, pegged the median amount at $5,000.

John Young saw this first hand.

After unintentionally missing a court date over his suspended driver’s license, a warrant was issued for his arrest. It wasn’t until several years later, however, that he was pulled over at a traffic stop and arrested on the warrant.

At his arraignment, bail was set at $5,000 and Young was jailed at the holding center over the weekend.

“It’s not something that you want to lock someone up behind bars and make them change their clothes, and be totally dehumanized as if you went out and shot somebody,” Young said. “Most of this is just about money.”

All the charges were dropped, Young said, after he paid off several outstanding traffic tickets on the day he was released.

This coming January, changes in state law take effect that will limit judges’ ability to set cash bail on most misdemeanor and non-violent felony charges.

Criticism of cash bail has long centered on the racial bias in its application. Of the more than 900 people jailed on bail from City Court, nearly 75 percent were black, though African Americans make up only 37 percent of Buffalo’s population.

Asked about this, Hannah, the City Court Chief Judge, pointed out that the majority of people who come into the court — on any charges — are black or brown.

Prosecuting these cases is a costly undertaking. One nationwide study estimated that diverting low-level suspended driving cases from criminal courts would save more than $1 billion annually. (Even jailing a person for a single night at the holding center costs about $295).

Across the U.S., some resource-strapped district attorneys‘ offices, including the country’s second largest in Cook County, which includes Chicago, are choosing not to prosecute suspended driving cases if the reason for the defendant’s suspension was financial.

“We are trying to shift as many resources as we can into the gun cases, the murder cases, the things that really impact public safety,” the first assistant state’s attorney told the Chicago Sun Times in 2017.

Erie County District Attorney John Flynn told Investigative Post he would not follow this route because it would be like condoning the offense."

To read the full article on the Investigative Post website and examine the live maps, links, and images, click here.