By Matt Sledge | Nola.com | November 13, 2019
Orleans Parish Criminal District Court judges forcefully defended their response to lawsuits targeting their reliance on court fees during a sometimes heated City Council hearing Wednesday as they asked the city to keep sending them an extra $3.8 million a year.
The judges said during their annual budget presentation that neither they nor the council have the authority to wipe away monetary bail and conviction fees, as some advocates want them to do.
They got an earful from community activists who want the council to condition extra city funding for the court on doing away with the fees. But the judges insisted that the only way to change the current system of fines and fees is through the Legislature.
State law mandates money bail for many offenses. It also requires a plethora of fines and fees upon conviction. That money has traditionally been used to support about a quarter of the New Orleans court’s budget.
“If there were to be a fight about what people want to dictate to Orleans Parish judges to do, they have to have that fight in Baton Rouge,” Judge Karen Herman said. “We cannot legislate from the bench.”
The budget hearing came at a key moment during the long-running legal struggle over Criminal District Court’s reliance on money from poor defendants.
In August 2018, two federal judges found that under the U.S. Constitution, the state judges have a conflict of interest in directly collecting roughly $2 million a year in court costs.
Three months later, to make up for the endangered funding, the City Council sent the court an extra $3.8 million on top of the $3.1 million it had received in the past.
But the judges have continued to collect court costs — including about $540,000 in bail fees since the court decisions last year — while they figure out how to resolve the so-called “debtors’ prison” lawsuits. The funds are being placed in escrow or a restricted bank account.
The judges argue that the escrow account has solved the conflict of interest where the court was the assessor, collector and beneficiary of bail fees. But on Wednesday, Chief Judge Keva Landrum-Johnson presented it as an interim measure.
The judge said she’s been talking with Mayor LaToya Cantrell’s administration about seeking a long-term fix at the Legislature, which could include routing the fines and fees money to City Hall. Municipal Court already operates under a similar structure, where court fines and fees go into the city treasury and the city’s budget then supports the court’s operations.
Landrum-Johnson said the federal courts “did not say to eliminate fines and fees. What they said is you cannot be the imposer and the collector.”
The judges also expressed dismay at criticism from activists, who say the judges need to take more aggressive steps to curtail the use of fines and fees. The judges said they’ve already done as much as they can within statutory constraints to stop requiring money bail and to wipe away old arrest warrants for unpaid court costs.
“We are as proactive a bench as we can be. We continue to be painted as the villains in this conversation,” said Herman.
Yet some community members and activists objected to the notion that years of litigation could result in collections simply being routed through the city rather than eliminated altogether.
“People should not be detained simply because they cannot afford to pay,” said Michaela O’Connor Bono, a consultant for the Vera Institute in New Orleans. “Stop funding the system on the backs of poor New Orleans residents. I hope that a legislative fix is not just a money shuffle.”
Dolfinette Martin, an advocate for the formerly incarcerated, said that while the judges oppose conditions on their city funding, they impose conditions on defendants every day.
“I saw the defensiveness in the judges’ faces,” she said. “We’re on the defense every day, and if today is your only day to be defensive, then so be it.”
The Vera Institute, the Foundation for Louisiana and other groups have called on city leaders to do away with cash bail in favor of a system where judges decide only whether to release or detain defendants. They have also called on the courts to do away with all fees on convicted defendants.
They’ve found support from former U.S. Attorney Kenneth Polite, who noted in a letter that the federal court system has largely eliminated money bail. He said due process rights for defendants under the U.S. Constitution trump the state laws the judges are worried about violating.
But Metropolitan Crime Commission President Rafael Goyeneche said even the federal courts regularly impose fines and fees upon conviction. That money is routed through the U.S. Treasury rather than individual federal courts.
Despite advocates’ requests for swift local action, several council members expressed support for the court’s position that change needs to come through the Legislature.
Council President Helena Moreno proposed a task force to bring together judges, advocates and the city to agree on a legislative proposal.
Councilman Joe Giarrusso also pointed to Baton Rouge. “People think we can solve every problem — we can do minimum wage, we can do guns, we can do all these local things — that we don’t have the power to do,” he said.
Councilwoman Kristin Gisleson Palmer said she supports doing away with money bail and conviction costs. “You are an independent and separate branch of government, but a lot of folks believe very strongly that it is through the budgeting process that we can really help try to set the groundwork on how we want the criminal justice system to evolve,” she said.