By Heather Nolan, NOLA.com | The Times-Picayune
Criminal justice advocates look at New Orleans’ successful reduction in jail population — 1,200 inmates now compared to more than 6,000 pre-Katrina — as the first step in a movement toward reform. Now, they’re pushing for local policy changes that would eliminate money bail, a practice they say unfairly targets the poor and exacerbates poverty and racial inequality.
“We’re locking up folks just because they’re poor and that has to stop,” said Jon Wool, the director of justice policy for the Vera Institute of Justice’s New Orleans office.
In a report released last week, Vera laid out a 10-point plan, recommending changes Criminal District Court could implement that would eliminate money bail in New Orleans. Wool authored the report with Alison Shih and Melody Chang.
The city has tools in place to support the changes, Wool said, including a pretrial services program and a public safety assessment, or PSA – a risk assessment tool used by judges that makes release and detention decisions based on factors including age, criminal history and flight risk. Wool said eliminating money bail could reduce the city’s jail population even further, save taxpayers millions, and would not require any changes in state law.
How eliminating money bail could look in New Orleans
Vera’s recommendations call for people with the lowest PSA risk level, levels 1 and 2, to be released without supervision, and only receive calls or texts from pre-trial services to remind them of their next hearing – a program that’s already in place.
The lowest risk level people are “very likely” to meet their obligations, Vera said, and imposing unnecessary conditions of release increases their chances of messing up.
People with risk levels 3 and 4 should be released, but under the condition they comply with individual requirements set by the pre-trial services supervision team, or participate in a community supported release program. Vera said in its report that program is in the works but not yet running.
People who fall under the highest risk level 5 would be entitled to a hearing before a judge within three days of arrest. The judge would make a decision on whether to detain the person or release them after being presented evidence and hearing from witnesses.
Vera recommended the judge make an on-the-record finding laying out why they feel someone is a serious and imminent danger before recommending detention.
Defendants wouldn’t pay for any mandatory conditions of release in Vera’s plan.
The plan is in line with a consent judgment a federal judge approved last week, in a lawsuit against Magistrate Judge Harry Cantrell.
However, the plan also has detractors: Metropolitan Crime Commission president Rafael Goyeneche said it lacks consideration for crime victims.
“They’re advocating for the offenders that have been arrested for felony offenses, and they’re ignoring the law-abiding citizens that those offenders have victimized,” he said. “Victims of crimes are invisible and voiceless, and the villain now is the criminal justice system.”
Goyeneche also questioned where funding for supervision and other mandatory conditions described under the plan would come from.
Vera said the city now has four supervision case managers in its pre-trial services division after adding two this year. And the mayor’s office has committed funds from the Safety and Justice Challenge to develop a community-supported release program, with a goal of getting community members to help their neighbors get to court. This could include giving them a ride, watching their children or providing emotional support during a difficult period.
Risk tool is flawed, critics say
The Metropolitan Crime Commission evaluated the PSA tool’s results in the third and fourth quarters of 2018 and found 37.6% of the 962 people arrested for violent felonies in that time frame were assessed at the lowest risk level, 1, while 13.4% were assessed at the highest risk level of 5.
Specifically, 32.4% of the 34 people arrested for homicide, which includes first- and second-degree murder and manslaughter, were found to be a risk level 1, while 14.7% were a risk level 5. The Metropolitan Crime Commission’s analysis also showed 36.5% of the 52 people arrested for rape were the lowest risk level, while 7.7% were the highest risk.
“This tool is something that is flawed, and I think the judges are taking a hard look at it,” Goyeneche said. “The instrument itself is devised to facilitate the free release and unsupervised release of people that are potentially dangerous.”
District Attorney Leon Cannizzaro on Tuesday criticized the PSA, after a man arrested in connection with an Uptown armed robbery and shooting that injured a police officer was found to be a Risk Level 1.
“The absurdity of this defendant’s risk assessment speaks volumes about what is wrong with the criminal justice system in the City of New Orleans,” Cannizzaro said. “That such an individual should be scored at the minimum risk level and be recommended for unsupervised release by this tool and the people administering it demonstrates how skewed, faulty and utterly naïve these assessments can be.”
Vera said in its report they realize the PSA alone is not enough to determine risk, and said should be used in conjunction with a decision-making framework that considers risk level and failure to appear before determining release and supervision recommendations. Currently, judges and commissioners receive a copy of the risk assessment, but are ultimately advised to use their discretion when setting bonds.
According to Vera’s report, one-third of the cases closed in Orleans Criminal District Court in 2018 involved defendants who were detained from the moment of their arrest because they couldn’t afford bail, but went on to be released because their cases were refused, dismissed, they were acquitted, or they were sentenced to time served or probation.
Matthew Dennis, a retired bail bondsman, called the risk assessment tool an “unaccountable boondoggle,” and said Vera’s plan to eliminate money bail is a plan to eliminate private citizens’ choice.
“The claim they are removing money from the process is false,” Dennis said. “They are simply smashing a private industry so as to allow their taxpayer-funded monopolies to grow.”
He referred to the case of Akein Scott, who was arrested in March 2013 and released seven weeks later after he posted a $15,000 bond for gun and drug charges.
His risk score was three, having one prior misdemeanor conviction for a municipal simple battery offense.
Almost two months after his release, Scott, then 19, was accused of being one of the gunmen in a Mother’s Day second line shooting that injured 20 people. Scott was sentenced to life in federal prison for the shootings in 2016.
Will Snowden, the director of Vera’s New Orleans office, said Scott’s case is an example of why people might be apprehensive about eliminating money bail, but further shows money does not ensure safety.
“We have the same risk with money bond,” Snowden said. “That money doesn’t do anything to ensure this person allegedly doesn’t commit another act. If we can convince people the risk is the same with or without money bail, that is a way to get (the conversation) started.”
Read Vera’s full report here, or read a two-page summary here.
Correction: An earlier version of this story incorrectly stated Matthew Dennis was a bail bondsman who ran a monitoring company. Davis is retired from his job as a bail bondsman and does not run a monitoring company.