The obscenity of a single mother owing the county $15,000 after stealing $8 worth of makeup

Tony Messenger delivers Millstone Lecture at Saint Louis University Law School

By Tony Messenger

If you look on Missouri’s court website today, you’ll see that I have a bad muffler.

Or had one, anyway. In fact, the muffler on my 2016 Camry Hybrid is just fine. It’s pristine. The truth is, I have a lead foot. A couple of years ago, driving to my wife’s family farm deep in the Ozarks, I got pulled over for speeding. With my teen drivers laughing in the back seat, the state trooper wrote me a ticket.

Not wanting my insurance to go up, I did what most people in my circumstance would do. I called the prosecutor and asked for a nonmoving violation. I went to the DMV to get my driving record to fax to him. He found it satisfactory and adjusted my charge to driving with a bad muffler.

Why? Because the fine is $200. Douglass County wanted its money.

This is the reality in nearly every jurisdiction in America. Much of what happens in the court system has less to do with public safety than it does with money. It didn’t start that way, but over the years, state legislatures have been more willing to pass laws that add back door taxes to traffic and misdemeanor cases than they have been willing to admit they just voted for a tax increase.

The reality is that people who look like me and have some financial means can write a check and have no consequences. But that’s not true for most poor people, and that’s why the proliferation of fines and fees in our criminal justice system is such a tragedy. It criminalizes poverty and creates a cycle of debt that for many people leads to one place. To jail. To debtors’ prison.

That’s what my book, Profit and Punishment, is about. It examines all the different ways that our system – all three branches of it – conspire to criminalize poverty.

GARY OXENHANDLER

Judges play an important role in that process.  That was the point retired Judge Gary Oxenhandler made to me a couple of years ago, when my book first came out. At one of my book talks, in Columbia, Missouri, Oxenhandler asked me a question.

Why did you go after the judges so hard? He didn’t have a problem with it, mind you. I quote Judge Oxenhandler in the book, and he thinks many of his fellow officers of the court have been playing along with the fines and fees schemes for too long. 

The judge’s question, though, gave me a flashback to the time I almost caused a mistrial in his courtroom. It was a dog bite case. The president of the Missouri Tigers football fan club brought his pit bull to the Black and Gold game in the spring. The dog bit a girl. The owner refused to pay the medical bills. They ended up in court. During the trial, I had lunch at a regular haunt of mine, and on my way out saw one of the marshals. We made small talk, something along the lines of “interesting case, don’t you think?” As the marshal left, he noticed a juror sitting on the other side of the restaurant. Out of an abundance of caution, he told Judge Oxenhandler, who called in the attorneys.

The defense attorney flew out of his chair screaming: Mistrial! Judge, I demand a mistrial. 

If you know Judge Oxenhandler, you know he calmly sat the attorney down, mulled the situation, and asked the juror to come in. He didn’t see us or hear us, the juror said, but Oxenhandler dismissed him anyway and the trial continued. 

So, years later, here we were talking about my book, and briefly I wondered whether this was payback. Why did you go after judges so hard, he asked?

MATTHEW MUELLER

The answer is Matthew Mueller. Mueller was a young public defender who had been hired by the head of the system to file motions in courthouses all over the state. They were motions to retax costs. You see, in Missouri, as in most states, there is a statute that allows for a charge of room and board while people are in jail. A pay to stay bill. It is often worth thousands of dollars, and when people can’t pay, they are, or used to be anyway, sent back to jail. In 2017 and 2018, Mueller was filing motions in nearly every court in the state telling them they were doing this wrong, that state law didn’t allow such actions. There was no statute allowing payment review hearings, or allowing people to be put into jail for failure to pay their board bills. 

When I was writing my book, Mueller suggested I focus on the judges. There has been plenty of written in the criminal justice space about police and prosecutors, he said. When it comes to fines and fees, judges have the power to make a difference. 

BROOKE BERGEN

To understand how and why, let’s talk about Brooke Bergen. 

Brook Bergen stole an $8 tube of mascara from Walmart in Salem, a small town smack dab in the middle of Missouri. She ended up owing $15,000 in court costs, nearly all of it for her year in the Dent County Jail caused mostly by violations of probation alleged by the private for-profit probation company supervising her. She’d miss a check in phone call or fail a drug test. She didn’t have the money to pay the ever-increasing fees. So, she ended up back in jail and every time got another bill. 

When I first wrote about Brooke, I thought this was a math story. The obscenity of a single mother making minimum wage, ending up owing the county $15,000 after stealing $8 worth of makeup. 

In this roomful of legal minds, there may well be wide disagreement over what the proper sentence is for shoplifting. A year seems harsh to me, but some might disagree. I would guess none of us think that a bill for $15,000, that comes along with threats of jail time if you don’t pay, makes much sense. 

It sure didn’t to my readers. Especially one of them.

She sent me a Facebook message the day after I wrote about her. I never talked to Brooke for the column. The phone number in court records was no longer active. Her attorney had lost track of her. I didn’t take the extra steps to track her down.

But she found me. I was horrified. 

It turns out, Brooke wasn’t upset. Surprised maybe. But mostly happy that somebody cared about her story. You see, she was one of dozens of other people like her, all of them poor, many dealing with addiction issues, who had at one time or another been crowded into the Dent County Jail as part of the county’s egregious debtors prison scheme. 

That reality creates a sense of hopelessness that is palpable when you walk into the Dent County Courthouse on payment review days. That’s what I did the day after I met Bergen. The line is long, snaking down one hallway from the courtroom and leading outside. The bailiff lets only one person in at a time as they pass through the metal detector. There’s room for 30 or so people in the courtroom. 

Judge Brandi Baird’s game was no different than the one many other Missouri judges play. Once a defendant had served his or her time, and they received the bill for their time in jail, Baird scheduled monthly hearings to collect the debt. If the defendant paid a pittance, they’d be good for another month. If not, or if they missed their hearing, jail beckoned. 

On the day of Bergen’s hearing, the bailiff tried to stop me from observing court. I put my items, pen, notebook, wallet, keys, in the basket next to the metal detector and walked through.

“Wait here,” he said. Then he went into the courtroom, presumably to talk to the judge.

Follow me, the bailiff said. He was an old country deputy with a big white mustache and a country drawl. He walked me into a windowless room next to the courtroom. This is how it happens. I thought. This is how I end up in jail.

“You can’t come into the court today,” the bailiff said. “You didn’t follow the Supreme Court rules.”

There’s a rule in Missouri courts that says if you want to record or take photos or video you must ask a court coordinator for permission. It takes time. But I left my phone in the car. All I had was a pen and notebook. There is no rule that you can keep a reporter – or anybody else for that matter – out of court proceedings.

I told the bailiff that he and the judge were wrong. I was going to sit in the courtroom that day, and if he tried to stop me I would need time to call the newspaper’s attorney. 

He went back to the courtroom for a few minutes. Then he waved me in.

“Sit over there.”

On this day, nobody went to jail. Bergen paid her $100 and was sent on her way. Only $14,900 to go. 

The criminalization of poverty like we see in Brooke’s case doesn’t start with the board bill, but at the beginning of the process, where poor people end up in jail with bail they can’t afford, sometimes as little as $500 or so. They sit there for a week or longer because most states don’t fund their public defenders systems in the say way they fund prosecutor’s offices. When they get out, perhaps pretrial if a judge lowers their bond, they are often supervised by private, for-profit probation companies. In most states, those companies are pervasive, and they often lead to people like Brooke ending up back in jail because they can’t afford the fees, or they failed a drug test or they didn’t have $300 a month for their ankle monitor. Eventually, a poor defendant agrees to a deal that sounds good – time served on a suspended sentence – and then they get the bill, and they end up back in debtors prison. 

CORY BOOTH

That’s what happened to Cory Booth. I met him when he was 27. When he was 17, he stole a lawnmower, a teenage prank. But he ended up in jail, in Caldwell County. He smoked a little pot back then, and would fail his drug tests, and be sent back to jail, and his pay to stay bill kept getting larger. Once a month he’d be called back to court to pay what he could or explain why he couldn’t. He used to tell me he had to decide whether to pay Peter or Paul, medicine for his kids, or month for Judge Jason Kanoy. Ten years after stealing the lawnmower, he owed the court $7,000.

WILLIAM EVERTS

Then there was William Everts. He stole a computer from a church, where he had seen it when he went there to get food from the food pantry. Again, he did some time, but couldn’t pay his bill. He ended up in Kansas City, as an unhoused person, and every time he would get picked up for sleeping on the wrong steam grate, there would be a warrant out for his arrest. So the police would take him to Caldwell County, and he would do some more time in jail and his bill would grow again.

Eventually, a homeless advocate wrote the judge and explained they were trying to help William get on his feet. Would the judge let them bring him to jail, stay as long as necessary to pay off his debt, and then leave to rebuild his life? The judge said no. 

One of the people Brooke introduced me to in Dent County was a woman named Amy Murr. 

AMY MURR

“Why are you doing this?” Amy asked me. Why are you writing about poor people, drug addicts and felons? Why are you telling stories about people in rural towns all over the state who are having their civil rights trampled upon by local sheriffs and prosecutors and judges?

It’s the simple indignity of it all, I said, and I told her a story.

Many years ago, I got pulled over by police in the city where my daughter ended up eventually becoming a cop, in suburban Denver. I wasn’t speeding, and I didn’t have a bad muffler, but my tags were expired. Yes, in places other than St. Louis, you can get pulled over for that. The officer was taking a long time running my license information and another police car showed up. Then she asked me to get out of the vehicle and cuffed me. 

“Do you know why I’m arresting you, Mr. Messenger?” she asked.

I did not. It turns out there was a warrant out for my arrest. I had forgotten about a speeding ticket from about a year before, in a little town called Morrison, known for its speed traps, where the revenue was necessary to balance the city’s budget. 

The officer asked if I had any cash for bail. I had $80. She took me to the station, fingerprinted me, took my cash and let me go. 

On that day, three of my kids were home alone, with the oldest sibling watching the younger ones. Were I poor, and Black and in north St. Louis County, things could have turned out so much worse. Were I poor, and white and in rural Dent County, my life could have been turned upside down. But nothing happened to me. I paid for my mistake and moved on. 

It’s important to understand how we got here. How did a $50 traffic ticket become something that was keeping people in jail because they owed thousands of dollars in debt? It starts with a simple $3 fee. 

In the 1980s, rural sheriffs in Missouri came to the Legislature and asked for more money for their retirements. No lawmaker wants to say no to the local sheriff, but in Missouri and many other conservative leaning states, the lawmakers aren’t about to raise taxes for their pet projects either. So they found a back door. They would put a $3 fee on every court case in the state. Every traffic ticket. Every misdemeanor. Every felony. It would raise millions. 

Soon the prosecutors were in line, and the county clerks, and the domestic violence shelters and brain injury funds and law libraries and countless constituencies that wanted money from the legislature, but could only get it if they convinced lawmakers to add another fee to the court system. 

Eventually a group of municipal judges led by Frank Vatterott here in St. Louis realized the sheriff’s fee, and likely many others, were an unconstitutional “sale of justice,” and they stopped collecting the $3 fee. After a long and protracted legal battle, in 2021, the Missouri Supreme Court declared the $3 unconstitutional. The ruling was unanimous.

One fee down, many to go. Not just in Missouri but across the nation, where fees added to court cases have exploded since the last Great Recession in 2008, and those fees, when added to every traffic case, every misdemeanor, can have devastating consequences on people’s lives. 

KENDY KILLMAN

Here’s how bad the situation is: In Oklahoma, the judges and lawyers actually have a name for the dockets like the one that Bergen, Murr, Booth and Everts ended up in. They call it the revenue docket. They don’t even hide the fact that the entire reason people are in court on a given day is for a judge to collect their money.

That’s where Kendy Killman used to end up regularly. She had been arrested after a questionable traffic stop in which a police officer found a discarded marijuana pipe with residue in it after a search of the trunk. She ended up owing more than $1,000 in court costs. Kendy lived on disability payments, and she fell behind.

One of the days she ended up in court answering for one of those warrants, the judge called her name and asked why she was there. She owed money, she explained. The judge sent her to the jury box to sit for a while he dealt with other more serious cases. One by one he went through the cases. One by one, every defendant told the judge they were there because they owed money. He threw up his hands and canceled court that day. 

Many of us, myself included, first learned of these practices in August 2014, after the killing of Michael Brown in Ferguson. While much of the protest was around Brown’s death and police brutality, there was also an undercurrent about how many Black people in north St. Louis County had been nickle-and-dimed to death by small, cash-strapped municipalities who were using their police departments and municipal courts as virtual ATMs. 

There, just like in Dent County – but minus the bill for jail time – hundreds of people would line up outside municipal courts to stand in line to pay their fines and fees, or get arrested because there was a warrant out for their arrest because they couldn’t afford to pay on previous tickets. And they’d be shuffled around from debtors prison to debtors prison. It was the ArchCity Defenders, and lawyers and law students working for the SLU law school clinics that helped bring these abuses to light. 

It’s been a decade since Ferguson and just this year, the city is just now, finally starting to pay up for its past debtors prison schemes. 

But know this: Ferguson is everywhere. Last year’s Pulitzer Prize for local reporting went to the group of reporters in Alabama who told of their version of Ferguson, a town called Brookside, that has used its police department and municipal court to destroy the lives of some poor people there, all to raise money for the city. 

These practices can trap people in a cycle of poverty and have long-lasting impact. Take Sasha Darby.

SASHA DARBY

Sasha, who used to live in Columbia, South Carolina, is one of the main characters in my book. A few years back, she ended up owing about $1,000 fines and fees from a minor misdemeanor, an assault charge after a spat with a roommate over rent. Sasha had a job and a car and a place to live, but after expenses she barely made ends meet. When she missed a payment on her court debt a warrant was issued for her arrest. 

Not long after that, she hadn’t broken the law, but happened to be recognized by the police officer who arrested her. He ran her name in the computer and saw the warrant. He arrested her and took her to the judge, who gave Sasha a choice. Pay what you owe, or stay in jail until I determine the debt is paid. It’s a version of debtors prison that is common in many southern states. 

Sasha was 8 months pregnant at the time. She spent 21 days in jail, without adequate health care. The night after she got out, while sleeping on a friend’s couch, she lost her baby. 

The good news is that there is progress in the courts recognizing that they have been hijacked to become back-door tax collectors for state legislatures. In 2019, the Missouri Supreme Court ruled unanimously in the cases Mueller brought that it is illegal to send people to jail in Missouri for failure to pay their board bills. Two years later, the Idaho Supreme Court issued a similar ruling in a court costs case in that state.

Federal lawsuits challenging these schemes, in both Oklahoma and South Carolina are pending. 

How does this happen? How does the Missouri Supreme Court unanimously realize the practice is wrong? How does the Idaho Supreme Court, in a case much like Missouri’s, come to the same unanimous conclusion, while circuit court and municipal court judges across the country continue to put people in jail because they owe money?

Where is the disconnect? It’s not like the judges are going to different law schools. Look at the roster of judges in Missouri and they went right here, to SLU, or to Wash U or to Missouri or UMKC. They studied the same law books. So why the different conclusions on debtors prisons?

It’s the Missouri Plan vs. elections.

In 1940, a group of attorneys and judges in Missouri got together to beat back the corruption of the state’s political system, where a crime boss named Tom Pendergast was seeking to control judicial elections. They came up with the Missouri Nonpartisan Court Plan. One of its authors was Rush Limbaugh Sr., the grandfather of the deceased former radio personality. The idea is to remove politics as much as possible from the judicial system by adding an element of merit to the process. About 30 states have some version of the plan. It’s how all appellate judges in Missouri are chosen as well as those in St. Louis, Kansas City, and Springfield. 

Circuit court judges outside the major metro areas run in partisan elections alongside tough on crime prosecutors and sheriffs. There’s nothing tough on crime about putting poor people in jail because they’re poor, but that’s not how some judges see things. 

That leads to a situation like Brooke Bergen spending a year in jail for stealing an $8 tube of mascara and nobody batting an eye.

During much of the time I was writing my book, Brooke was in state prison. She didn’t steal again. It wasn’t a drug crime. She was there because she drove on a suspended driver’s license. Missouri is one of the shrinking number of states that can suspend your driver’s license if you get behind on court debt. It is the epitome of criminalizing one’s poverty. 

We talked quite a bit during that time and planned to get together when she got out. Not long after she got out she sent me another Facebook message, with a picture of her and her kids. She was smiling. I planned to go see her in a couple of weeks.

Two days later I got another Facebook message, this one from a name I didn’t recognize. It was a friend of Brooke’s. She had died of a drug overdose.

The mortuary where her funeral service was held was across the highway from the Walmart where she stole the $8 tube of mascara. It was almost too much to take. Brooke obviously had her demons she couldn’t escape, but the drugs didn’t kill her alone. The system never gave her a chance. 

And that’s why, in my book, as Judge Oxenhandler noticed, I do challenge judges. To hold ability to pay hearings. To waive fines and fees. To stand up for justice. To bring attention to the problems the legislative branch is forcing on the judicial branch. Mostly, to treat every defendant like their civil rights are just as valuable as mine, as yours, as people who can get a speeding ticket and turn it into a bad muffler. 

Brook deserved better. So did Sasha Darby and all of the people like them. 

The Constitution and more than 200 years of American history demands that we do better. 

Tony Messenger won the Pulitzer Prize for commentary in 2019 for his columns in the Post-Dispatch “for bold columns that exposed the malfeasance and injustice of forcing poor rural Missourians charged with misdemeanor crimes to pay unaffordable fines or be sent to jail.” This is the text of the lecture he delivered at Saint Louis University Law School March 27 to honor James C. Millstone, mentor to a generation of Post-Dispatch reporters.