How New Orleans Can Stop Using Its Most Vulnerable Residents to Fund Courts

This new report is something of a sequel to the Vera Institute’s 2017 report, ​“Past Due.” Can you talk a bit about that report and the reaction to it?

The genesis actually goes back to our early days in New Orleans. The Vera Institute was asked to come here by the then-chair of the criminal justice committee of the City Council, James Carter, about a year after Hurricane Katrina. I started coming down in 2007, and one of the most striking features of the system was the degree to which money played a role in so many respects, particularly in incentivizing judges’ practices. The revenue flows are a very significant factor in determining how system actors perform. With the help of the [then Laura and John] Arnold Foundation, we were able to do a significant accounting of bail, fines and fees. It was a research report. We linked the courts’ extraction of wealth and the inability to pay to the city’s high incarceration rates and then calculated the cost to the city of that incarceration. We found that the city could actually write a check to replace all of the revenues from bail, fines and fees and would come out ahead because it was so expensive to lock up those who couldn’t pay.

I’ve heard of jurisdictions imposing fees on convicted people to help defray court costs, but never of using bail bond fees for that purpose. Is that unique to Louisiana?

I don’t know of another state in which, in order to purchase one’s freedom, one has to pay the court that is setting your bail amount. That’s baked into Louisiana law, and it’s even worse in New Orleans because there’s an extra 1 percent bail bond fee that was tacked on in 2005. Bail bondsmen like the law because it makes the courts dependent on using their services — none of this money flows to the courts if judges stop using money bail.

Since Vera’s 2017 report, there have been a number of positive developments in New Orleans. Can you discuss those?

The report was something of a catalyst for the City Council passing a bail ordinance that eliminated money bail for municipal offenses, which is all the local government can legislate. And the New Orleans courts have engaged in a series of efforts to reduce the number of people who have to pay to get out of jail. In the juvenile courts, the judges eliminated conviction fines and fees, to the extent they were allowed under state law, and also stopped using money as a determinant of whether a juvenile is released or detained after being arrested for a delinquency violation. Partly as a result, we’ve had a quite remarkable decline in the city’s jail population.

How did you develop the recommendations contained in ​“Paid in Full?”

We worked closely with a collection of local organizations called the Alliance for Equity and Justice, which formed in April 2018 to address the issues of bail, fines and fees. We tried to talk to the judges as much as we could, although our access was limited because they are engaged in litigation over these issues. 

Why, in Vera’s view, is it so wrong for Louisiana’s courts to rely on fines and fees from defendants for their revenue?

It’s not just about the jailing that results when people can’t pay. The whole system is a massive tax on a set of people who are least able to afford it. Black families in New Orleans make 37 cents on the dollar compared to white families, and yet they pay 88 percent of the money collected by the court system. This is a huge inhibitor of economic equity. Even if there were no consideration of all the harms of incarceration, all the excessive cost to the city, or the undermining of public safety, it would still be important to disburden New Orleanians of this unfair tax.

In your 2017 report, I was struck by a quote from a New Orleans judge who said, in justification of the fees and fines, ​“The court’s gotta eat.”

It’s frank and honest. I don’t want to beat up on the judges, because they are largely put in this position [by the state legislators], but I do want to encourage them to change. We’re giving them a blueprint for how to break free from the position they’ve been put in. I don’t think they want to be going into court thinking, ​“The court’s gotta eat — now, how do I rule on bail?” One doesn’t have to remain a victim of this funding structure.

The City Council recently approved new funding for the courts, right?

That’s the biggest thing that has happened, and it makes the extraction of wealth from poor defendants who can’t pay unnecessary. That gives us an opportunity to reform the system. It’s now on the judges to take advantage of that and adjust their practices accordingly.

In April 2018, the New Orleans Criminal District Court adopted a Decision-Making Framework (DMF) based on Arnold Ventures’ Public Safety Assessment to help guide their decisions about pretrial release. How has that been working?

Every person who’s arrested for a felony charge and is therefore heading to state court has an assessment done and a report presented to the judge at the defendant’s first court appearance. I think it’s fair to say that the resulting bail decisions mainly don’t follow the DMF’s recommendations. The use of release on recognizance seems to have gone up some, but the DMF recommends it for all the people assessed as risk level 1 – 4. Judges certainly are not doing that. And judges are not using detention, as the DMF recommends for risk level 5. They’re simply using money bail. The underlying point of the DMF is that money not be the determinant of detention or release.

Can judges be encouraged to use the DMF? Or are you simply making recommendations that they can follow or ignore?

Most of the significant change in bail practice would need to happen at the state level with the enactment of a new set of statutes. We can’t do that at the local level. So what we’re urging is not that anyone force judges to do this, but that they collaborate with us to come up with a solution to something everyone acknowledges as a problem. And last year, two federal courts ruled it unconstitutional for judges to impose money bail and court fines if they themselves benefit from that money. So that’s a strong impetus to change. What we’re hoping is that the judges and the city and the community can come together to find a path forward.

It sounds like the main stumbling block is getting judges to think of release as the default option for people pretrial rather than detention.

Well, that is the law. In 1987, Supreme Court Justice William Rehnquist famously wrote in United States v. Salerno that ​“in our society, liberty is the norm, and detention prior to trial or without trial is the carefully limited exception.” You can’t detain a person before a trial without finding by clear and convincing evidence that it’s necessary. It certainly can’t be based on the economic status of the defendant.