When the judges of New Orleans 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 assessed 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 percent 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 state 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.
In the most recent phase of a long-running legal struggle over the court’s reliance on money from poor defendants, critics of the local criminal justice system launched a series of attacks on the status quo in November.
They 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.
If they had been successful, 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 percent 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,” said Alec Karakatsanis, the director of the Civil Rights Corps, which helped bring the funding lawsuits against the court.
“It’s not as if they could use that money for other things. It’s bewildering.”
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 last month, 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.
Help From 5th Circuit
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.
Advocates switched their attention to the New Orleans City Council, which heard 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.”
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.
[Partisans on both sides of the issue are bracing for more months of litigation, following another lawsuit filed over the city’s bail practices. But most observers believes resolution will likely require a new law from the Louisiana Legislature.]
“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,” said Judge Karen Herman.
“We cannot legislate from the bench.”
But even a legislative solution may not satisfy everyone.
“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.”
Editors Note: For additional stories on how “cash register justice” affects jurisdictions across the country, please click here.
Matt Sledge, a staff writer for The Advocate and Nola.com, is a 2019 John Jay/Arnold Ventures Justice Reporting Fellow. This is a condensed and abridged version of recent articles produced as part of his fellowship project. The full articles can be accessed here.