By Matt Sledge | Nola.com | November 12, 2019
When the judges of Criminal District Court went before the New Orleans City Council last year, they warned of a gaping hole in their budget from federal court decisions rejecting their practice of raising millions of dollars from fines and fees on mostly poor defendants.
The judges said they realized they could no longer balance their budget on the backs of poor defendants and asked for a massive increase in city funding.
The council came through with a 124% boost amounting to $3.8 million — but indigent defendants are still feeling the pinch. The court continues collecting fines and fees, only now it’s putting them into escrow or the bank.
The court’s chief judge says she is waiting on the Legislature to devise a new funding system for Criminal District Court that doesn’t violate the U.S. Constitution. In the meantime, the judges say their hands are tied by state laws that require the imposition of fines and fees.
But in the days leading up to Wednesday’s council hearing on the court’s 2020 budget, critics of the local criminal justice system have launched a series of attacks on the status quo. They have filed two more federal lawsuits and lobbied the City Council to make most of the court’s city funding contingent on doing away with fines and fees entirely.
The result would be a dramatic shift from the practices of years past that even proponents concede might run afoul of state law. But they maintain that the U.S. Constitution represents a higher law, and that the local court’s current system still hobbles those who can least afford it and jails people simply because they’re poor.
The state pays Criminal District Court judges’ salaries, but defendants and convicts have historically coughed up about a quarter of their operating budget. The money came in two forms: fees tacked on top of bail for defendants before trial, and a constellation of fines and fees upon conviction. Both have come under attack in separate federal lawsuits.
In August 2018, a federal judge ruled that Orleans Parish Magistrate Judge Harry Cantrell has a conflict of interest in determining whether defendants have the ability to make bail, which contributes to the court’s operating budget through a 1.8% fee. Federal judges said that while there was no sign of impropriety on Cantrell’s part, there was too much temptation to ignore defendants’ general right to pretrial release.
But nearly every weekday morning since then, Cantrell has continued to take the bench and set monetary bail for defendants appearing in court after their arrest. The court has collected more than $540,000 in bail fees since the federal court’s decision last year.
That money hasn’t gone back into the court general fund as in years past, however. According to Criminal District Court Chief Judge Keva Landrum-Johnson, it’s being placed in escrow. “Until the laws are changed, we are not using that money,” she said.
A separate court decision, also in August 2018, faulted the judges of Criminal District Court for generating significant revenue from fines and fees imposed upon conviction. Landrum-Johnson said that money from conviction costs is now held in a “restricted” bank account and is left untouched. The court has collected about $100,000 in those costs since the start of the year, she said.
While the court’s lawyers have maintained the escrow account cures the court’s conflict of interest in the matter of bail, civil rights lawyers say the arrangement now soaks the poor and taxpayers alike.
“They control that escrow account, and the only statutory purpose under Louisiana law for that money is to fund the operations of the court. It’s not as if they could use that money for other things. It’s bewildering,” said Alec Karakatsanis, the director of the Civil Rights Corps, which helped bring the funding lawsuits against the court.
Meanwhile, advocates say that even if there were no conflict of interest, Cantrell is ignoring his constitutional obligation to consider whether defendants can actually make bail.
In a federal court petition filed Friday, they cited the case of Miles Moran, a 28-year-old homeless man from Bay St. Louis, Mississippi, who’s accused of unauthorized entry into a Walgreens drugstore on Canal Street.
Cops say Moran has a history of shoplifting at the store. On this occasion, they claim he walked out with four Bud Light Lime-a-Ritas, two bags of Lay’s potato chips and two Cokes. The total cost of the goods was $21.28 — but the unauthorized entry charge is a felony.
Cantrell set Moran’s bail at $1,250, then slashed it to $300. Still, attorneys from the Orleans Public Defenders say Moran, who’s been unemployed since December, can’t afford any cash bail. They’ve asked the judge to release Moran with no bail to Odyssey House, which offers residential treatment for people with substance abuse problems.
In a written ruling, Cantrell stood by his decision to impose a money bail, citing a pending municipal attachment and warrant for Moran from Kenner. Public defenders said Kenner wouldn’t even have bothered to pick up Moran from the New Orleans jail.
“That’s what he’s standing by — the facts of the case,” said Norman Robinson, a spokesman for the judge.
In writs to the state 4th Circuit Court of Appeal and the Louisiana Supreme Court, the public defenders said Cantrell never considered alternatives to cash bail, or found that Moran was a public safety risk, as they contend he should have had to do under federal court rulings.
State jurists declined to consider those writs, which Robinson called a vindication for Cantrell. But the federal courts may yet again have the last word. In a petition filed last week, civil rights lawyers call Moran’s continued stint in jail a violation of his right to pretrial release.
The lawyers at the MacArthur Justice Center in New Orleans filed another lawsuit on Monday, asking the federal courts to expand their decision against Cantrell on bail fees to the other 12 judges of the New Orleans criminal court.
“It’s improper for any of them to set financial bail as a condition for pretrial release,” Karakatsanis said. “They continue to do that every single day.”
Until recently, advocates have pressed their case in federal court. They found receptive ears this summer at the 5th U.S. Circuit Court of Appeals, which upheld the federal district judges’ decisions that the Magistrate Court and Criminal District Court judges have conflicts of interest.
Now the advocates are switching their attention to the New Orleans City Council, which on Wednesday will hear a request from the judges to keep their funding at last year’s increased level of $6.9 million.
Advocates including the Vera Institute of Justice and the Foundation for Louisiana have asked the council to make the court’s extra $3.8 million in funding contingent on doing away with bail fees and conviction costs.
“We are in this position of having one opportunity for the city to get our court in line with the Constitution,” said Jon Wool, the director of justice policy at the Vera Institute’s New Orleans office. “The city should not be standing idly by while its court violates defendants’ rights day in and day out.”
Seventeen criminal and constitutional law professors at Tulane and Loyola universities wrote last month that the state judges “continue to flout” instructions from higher courts.
The professors argued there is also a moral problem.
“Struggling New Orleanians are forced daily to pay money they and their families cannot afford to avoid being jailed. Those who cannot come up with cash are incarcerated, with devastating effects on them and their families and communities. People who are jailed are not able to maintain their employment, provide for their children, or seek appropriate healthcare,” the group said.
Advocates would like the city to do away with money bail altogether and replace it with a system where judges decide only whether someone can be released or not, based on their danger to the public and their risk of flight. Where state law requires money bail but judges are inclined to release someone, the advocates say the judges should impose a nominal bail amount.
Meanwhile, they argue the court system should also simply do away with conviction fines and fees. While there’s no constitutional issue with imposing fees on defendants who can pay them, the advocates say there’s no point in doing so in a city where about 85 percent of defendants are poor and the City Council has already stepped in to fill that part of the court’s budget.
Landrum-Johnson maintains that the judges’ hands are tied by the state laws requiring fines and fees, however. She says that since the lawsuits, the judges have altered their procedures to take into account defendants’ ability to pay court costs.
“Regardless of someone’s opinion about money bail or conviction fees, the way to eliminate those things would be through Baton Rouge and the state Legislature, and not the local City Council,” she said. “We don’t operate on a quid pro quo. I would never want anyone to think that decisions that are being made by judges, the way we conduct things in Criminal District Court, would be contingent upon any funding.”
One option the court is considering is to ask the Legislature to pass a law that would direct money raised from bail fees to the city, which would continue to make up for the resulting revenue shortfall. The money in escrow could also be sent to the city.
Rafael Goyeneche, president of the watchdog Metropolitan Crime Commission, said he thought that would solve the conflict of interest problem.
Karakatsanis, the civil rights attorney, called it a “fancy fix.”
“I think that it’s very telling that all of these system actors are trying to figure out any way they can to bend over backwards to preserve the status quo,” he said.
Mayor LaToya Cantrell’s administration has asked the council to keep the court’s funding at its higher level. Her office made no mention of conditions in its budget proposal.
Tenisha Stevens, the city’s criminal justice coordinator, said that even without pressure from the council, the judges have started moving in the right direction by releasing more pretrial defendants on their own recognizance, without bail.
“I do believe it’s something that needs to be taken up by your state Legislature,” Stevens said.