Some Prosecutors Are Outsourcing Alleged Bad Check Cases to Private Debt Collectors, With Predictable Due Process Problems

With many people still struggling in our current economy, debt collection has become a big business. Credit card companies, mortgage companies, and other creditors often retain private companies to pursue unpaid accounts and other debts. In some jurisdictions, prosecutors are entering into arrangements with debt collection companies for certain types of cases, such as alleged theft by check. Problems may occur in cases where a prosecutor has never brought criminal charges, raising not only ethical questions, but constitutional questions about due process and the right to a trial.

The New York Times reported last year on prosecutors that hire debt collectors for bad check cases. In some cases, the debt collectors send notices to alleged bad-check writers on the prosecutor’s letterhead. Many of the letters give people a choice between paying the amount of the bounced check and other fees, or being subject to criminal prosecution. Some letters may even hint that the next step would simply be a jail sentence, without any actual prosecution. The additional fees may not be related to the actual criminal prosecution process at all. The Times reported on a California woman who received a notice that she owed $280.05 for a $47.95 bounced check. Part of the total was reportedly a “financial accountability” class costing $180 that is not required by law.

Merely writing a check with insufficient funds, often known as “bouncing” a check, is not a crime in and of itself. Texas presumes that a person has committed the offense of theft by check in only two situations: the person did not have an account at the bank from which they wrote the check at the time they wrote it; or the person did not pay the amount of the bounced check within ten days of receiving notice, provided that the bank refused the check within thirty days of its issuance. Tex. Pen. Code ยง 31.06. In all cases of theft by check, the burden is on the state to prove beyond a reasonable doubt that one of those situations applied, or that other circumstances show that the check writer intended to commit theft. The options reportedly offered by debt collectors allow prosecutors to sidestep many or all of these procedural requirements.

The Times‘ story and other media coverage seem to have had an impact. The Boston Globe reported earlier this year that several district attorneys in Massachusetts suspended their contracts with debt collectors after the Globe began an investigation. The practice reportedly continues around the country, however, with people still receiving letters that strongly hint, if they do not state outright, that the recipient could go to jail simply for failing to pay the demanded amount. Many of these cases have never been subject to even a minimal investigation by law enforcement or assessment by prosecutors, creating serious concerns about the basic constitutional rights of the people who receive these letters.

Defendants in criminal cases have rights protected by the U.S. Constitution, federal and state law, and court procedural rules. These include a right to due process of law, a right to trial by jury, and a right of a defendant to confront their accuser. If you are facing a charge for an alleged offense, you should consult with an experienced criminal defense attorney in order to ensure that those rights are recognized and protected. For over twenty years, criminal defense attorney Michael J. Brown has fought for west Texas defendants. Please contact us today online or at (432) 687-5157 to schedule a confidential consultation to discuss your case.

More Blog Posts:

Constitutional Challenges to Civil Forfeiture Meet with Only Limited Success, Texas Criminal Lawyer Blog, August 2, 2013
DA’s Use of Private Contractor in Highway Drug Seizures and Forfeitures Causes Controversy, Texas Criminal Lawyer Blog, July 26, 2013
Court Reviews Proof Requirements in Prosecution for Honest Services Fraud, Texas Criminal Lawyer Blog, March 25, 2013

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