| The Lens | July 23, 2019
The Vera Institute of Justice — along with the ACLU Louisiana, the Foundation for Louisiana and Stand With Dignity — on Tuesday made their case for eliminating cash bail and conviction fees to the New Orleans City Council’s Criminal Justice Committee.
The presentation was based on a report that Vera released last month arguing that cash bail and conviction fees constitute a system of “money injustice” that harms poor and black families and doesn’t make the city safer. The report suggests a $2.8 million increase direct city funding to various criminal justice entities — including the district attorney and public defender’s office — to make up the money they now receive from bail and conviction fees.
“We’re feeling good, like we’ve got a council that is interested in hearing and matching the urgency of the matter,” said Jon Wool, Director of Justice Policy at Vera’s New Orleans office, at the meeting.
City Council members on the committee appeared to be largely supportive of the plan.
“I think that New Orleans can be the leader in this if we get our ducks in a row and move as expeditiously as we know we need to,” said Councilman Jason Willimas, who is planning a run for district attorney in 2020.
Williams praised Vera and other advocates for “laying the foundation for the eradication of the oppressive and strategic money injustice that has crippled the most vulnerable people, families, and neighborhoods in the city of New Orleans.”
Alanah Odoms Hebert, executive director of the ACLU of Louisiana, compared a public shift in sentiment surrounding the harmful effects of money bail to previous shifts in opinion around the harms of tobacco, or failing to wear seatbelts.
“This is not the first time that we’ve had a situation where something is very prevalent in our system, but we know it has got to change and we have to end our reliance on it,” she said.
The proposal has its critics, however.
“I think their advocacy is for the offender, and they ignore citizens, victims, and witnesses safety,” said Rafael Goyeneche, president of the Metropolitan Crime Commission and a former Orleans Parish prosecutor.
Implementing the Vera plan would not only require a funding increase from the city, but a commitment from the judges in municipal and criminal district court to adopt new bail procedures that would presumptively release the majority of defendants — with varying levels of supervision — and require a detention hearing for those determined to have a high risk reoffending or failing to appear for court.
For some crimes, however, state law requires judges to set cash bond. The Vera report argues that the judges can get around these laws by setting a nominal bail, as low as a dollar or ten cents, to ensure that the bail amount is not the determining factor of someones pretrial release.
Goyeneche said that it doesn’t make sense to ask judges to circumvent state law in order to achieve a desired outcome.
“They are ignoring Louisiana law,” he said. “They ought to be making a presentation to the legislature, not the New Orleans City Council, because the laws they are talking about changing are state laws.”
Chief Criminal Court Judge Judge Keva Landrum-Johnson has also said previously that while she appreciates Vera’s report, any major overhall of the bail system in New Orleans would require legislative action.
Jon Wool, of Vera, disagrees.
“It is critical that this report does not require any state law change,” he said at the meeting. “While state law may mandate some fees, because of the U.S. Constitution and the federal courts’ pronouncement, those fines and fees should not be imposed.”
Wool was referencing two current federal lawsuits that are challenging the constitutionality of money bail and conviction fees in New Orleans. District Judges in both of those lawsuits found that judges have a conflict of interest when assessing bail and conviction fees, because a portion of those fees go to funding court operations.
“In fact, it is necessary to not impose them,” Wool said, “because of the primacy of federal law, and protecting the rights of those who have been arrested and convicted here in New Orleans.”
Both decisions were appealed and are awaiting rulings from the 5th Circuit Court of Appeals.
Vera’s report has spurred a debate over the best way to maintain public safety when making decisions regarding pretrial release. In order to determine which defendants would require a detention hearing, the Vera recommendation suggests judges partially rely on the pretrial assessment tool — called the Public Safety Assessment — that calculates a risk score that predicts a defendant’s likelihood committing another crime or failing to appear for court.
Judges already use the PSA, and the Metropolitan Crime Commission, along with District Attorney Leon Cannizzaro, have been critical of the tool for assigning risk scores that are too low.
Last month, the Metropolitan Crime Commission released a critical report on the PSA, finding that the assessments recommended release without bail for 75 percent of violent crime suspects. The assessments rated one-third of defendants accused of violent crime at the lowest risk level, which comes with a recommendation of bail-free release without supervision. The report recommended redesigning the assessment to account for a broad range of potential risk factors, including mental illness and substance abuse problems.
Cannizzarro aired his frustration last month when two men accused of armed robbery and getting into a shoot-out with police were given a risk score of one. Magistrate Judge Harry Cantrell and Magistrate Commissioner Albert Thibodeaux, however, ignored the recommendations and set their bonds at $1.15 million and $1.7 million, respectively.*
“Some city and outside foundation officials have been frustrated by my refusal to embrace this risk assessment tool and its high-profile role in reducing jail population,” said Cannizzaro. “But results such as this show this program’s complete disregard for the public safety needs of our community.”
Under Vera’s recommendations, despite their low risk scores, the men accused of armed robbery and attempted first degree murder of a police officer — considered crimes of violence with mandatory prison time under Louisiana law — could have still received a detention hearing due to the severity of their charges.
Vera has also argued that the current system of money bail is not keeping people safe, because it allows truly dangerous offenders to purchase their freedom.
“In New Orleans, 65 percent of people arrested for the most serious crimes or who are flagged as high risk for other reasons avoid jail by paying bail,” their report says. “Although only a small number of them pose an imminent threat, the current system lacks the capacity to reliably identify and detain those who do.”
At the meeting, the Criminal Justice Committee also unveiled a new dashboard on their website, developed by crime analyst Jeff Asher, that shows the amount of bonds paid in the criminal district court during 2018, which can be broken down by crime and averaged over time.
“This dashboard is very much of the moment,” said Jason Williams. “We hope that this can be a tool to assist the public and our partners with us today in creating an end to money bail in the city of New Orleans. I think it’s important that we bring the public along for this whole ride, so they understand why this is happening and the ills that it has caused for generations.”
*Correction: As originally published, this story incorrectly reported that Cantrell set the bonds for both suspects. In fact, Cantrell set the bond only for one of them, Richard Sansbury. Magistrate Commissioner Albert Thibodeaux set the bond for the other suspect, Alan Parson. (July 23, 2019)