By Nicholas Chrastil | The Lens | January 20, 2021
Public defenders in Orleans Parish are hopeful that a new reform-minded district attorney, Jason Williams, will help them come up with innovative ways to address the thousands of open cases that are clogging the dockets at Criminal District Court due to months of COVID-19-related court closures and suspended jury trials — namely, by dismissing nonviolent, low-level cases, or sending defendants into a diversion program, which allows them to complete a court-ordered program in exchange for a later dismissal.
In New Orleans criminal court, along with courts across the country, the pandemic has created a situation where juries can no longer be convened, much of the proceedings are taking place via Zoom, and many cases are stalled. In 2019, the Orleans Public Defenders office (OPD) closed out over 4,000 felony cases and nearly 8,000 misdemeanors. In 2020, those numbers declined to just over 2,000 felony cases and only 1,300 misdemeanors. The result is that the office has over 10,000 open cases pending.
Since the start of the pandemic, the public defender’s office and criminal justice reform advocates have urged restraint by law enforcement in making low-level arrests. Those efforts have primarily centered around keeping people out of jail, where they have an increased risk of being exposed to COVID-19. But now, the same advocates are looking for ways to quickly handle the cases of people who may not be in custody in order to deal with the overwhelming backlog.
“The system is at a breaking point,” said Danny Engelberg, chief of trials for the Orleans Public Defenders. “There are a lot of cases where no one is a threat — where there really is clearly no public safety threat. We need to break the logjam and think of creative ways to address cases that doesn’t put a strain on our community.”
Last month, Chief Defender Derwyn Bunton said that his office was putting together an inventory of cases — primarily stemming from drug charges, he said, but also some property offenses, such as trespassing — that the office felt should be dismissed or diverted.
“For those folks who haven’t had any new arrest, or any problems — particularly for folks who are out of jail, out of custody — we believe those are cases ripe for diversion, or dismissal,” Bunton said last month.
He argued that many of those defendants have managed to avoid more legal trouble for the better part of a year while their cases were stalled, and that they are “clearly not a safety risk.”
“Cases where no one was hurt, no one was threatened,” Bunton said. “They’ve been out of custody and haven’t any problems whatsoever.”
Newly inaugurated DA, Jason Williams, for his part, has said that his office is looking back at open cases that were accepted by his predecessor, Leon Cannizzaro, and re-screening them to determine if they should continue with prosecution.
Williams has long been critical of Cannizzaro’s high case acceptance rate, and during his campaign he was outspoken about having a more stringent screening process. And at his inauguration he promised that the office would “no longer clog up court dockets with cases that arise out of addiction, and mental illness, and homelessness.”
“Simply put, cases have not been screened,” Williams said in an interview last week. “Everything was basically accepted, which means that there are a number of things that would not have made it past screening in every other parish in the state. And so we are endeavoring to deal with that.”
But Williams has not made any announcements about whether any broad categories of cases will be dismissed outright.
A case-by-case basis
At least one law enforcement representative has expressed concerns about Williams broader disinterest in going after low-level cases. Not long after Williams’ election, Mike Glasser, the president of the Police Association of New Orleans, told The Lens he was worried that failing to enforce laws on the books would have a negative impact on public safety.
“You know, I’ve never been in favor of reducing crime by eliminating the law,” Glasser said. “I mean, you can easily do that— we stopped making things a criminal act, then we have less crime. You know, if you don’t make robbery a crime, then robberies will go down because it’s no longer illegal. I don’t know if that’s necessarily the right way to handle these things.”
But Williams has said that his administration will focus on violent crime — such as armed robberies, murders, and rapes — and that by not prosecuting or diverting lower level offenses the office will be able to commit more resources to more serious offenses.
“I’m not even sure if that’s 100 percent legal for him to do that,” Glasser said. “I don’t think the DA has the ability to ignore the law entirely. I’m not an attorney. So I’m not prepared to discuss at this point, but I do have some concerns that we can’t just nullify a law, simply because the DA decides he doesn’t like it.”
In an interview, Rafael Goyeneche, director of the Metropolitan Crime Commission, stressed that while the focus should be on prioritizing serious cases— particularly when the person is in custody — any decisions to dismiss or refuse charges should be made on a case by case basis and take into consideration a person’s criminal history.
Goyeneche also said that for many people the criminal justice system could provide a way for them to get help such as mental health care or addiction treatment — and that diversion, as opposed to dismissal, was a better option.
“Rather than just refusing the case, and putting the person back out on their own, and saying, ‘Don’t come back,’ there is, I think, more resources that could be made available to them, and an incentive for the offender to take advantage of some of the help that is available in the community,” Goyeneche said.
But Engelberg, from the public defenders office, said that the courts were not a good stand-in for a support system that should be operating outside of criminal prosecutions.
“Hopefully, going forward, there can be a better safety net to help pick them up if they’re really struggling,” Engelberg said. ”But the criminal legal system is not going to be able to accomplish that.”
Simone Levine, executive director of the criminal justice watchdog group Court Watch NOLA, told the Lens that the problem of the backlog extends beyond the decisions of the DA’s office. She said that the system and institutional actors need to do a better job of moving forward on cases that can be handled virtually
“Judges won’t appear. Court won’t start on time. And defense attorneys, also we’ve seen — specifically private defense attorneys — we’ve seen a number of times not appear, and not show up, not know that their cases were on.”
She also said that the court doesn’t have a sufficient system in place to inform defendants, witnesses, and victims, about their pending cases.
“In other courts, you have a system that has already been set up pre-COVID, where defendants will receive a text message to inform them that their case is proceeding, and the date their case is going to be on, and the section that their case is going to be in, and what is really expected of them as far as their appearance goes,” Levine said. “We do not have that. Even though all of the best practice studies have shown that this is absolutely the best way to ensure that a criminal defendant will actually appear, and mitigate the risk that they’ll fail to appear, we don’t have that communication system in place.”