The reliance in some cities on the cycle of arrest, jail, bail, plea, fine and possibly jail again if you don’t pay up has caught the unflattering attention of the U.S. Justice Department.
Just how all that money is divvied up in New Orleans, and to what extent unfortunate arrestees get caught up in government agencies’ demand for it, is the subject of a study now underway by the Vera Institute of Justice.
The aim, Vera says, is to show which agencies take a cut of the money, see how much lands where and “tally the fiscal impact of these practices, including from increased jail time, on the city’s budget.”
In New Orleans, different types of fees are split differently among various agencies, and issues over collections from Traffic Court and Municipal Court once prompted a lawsuit by Chief Public Defender Derwyn Bunton’s office.
It can be hard to keep up with all the fees, particularly when you’re not the one collecting them. The Plaquemines Parish Public Defenders Office not long ago realized that no one in that parish had been collecting a $10 increase in fees meant for the office under a state law that went into effect in 2012.
The Orleans Parish Criminal District Court judges also were criticized a few years ago and forced to stop using money they collected in criminal fines and fees to pay for bonus insurance policies for themselves.
Vera, which runs a pretrial services program through Magistrate Court in New Orleans, assessing arrestees’ risk level for use in setting their bail, has seen in New Orleans how a “user-pay” system has naturally resisted reform, said Jon Wool, director of Vera’s New Orleans office.
“We’ve been aware of that from the very beginning of our work here,” Wool said. “We’ve not until recently figured out a way to very directly address it.”
Wool said the work began a few months ago and will provide a detailed study of all revenues, before and after a conviction, in the criminal and municipal courts.
“We’re essentially trying to document the revenues: to whom they go, what part of the agency’s budgets they make up,” Wool said, adding that the study also will be looking at the cost in dollars and in jail time from the inability of many arrested people to make bail or pay fines.
“We’re not so much focused on whether the system is delivering what it’s supposed to deliver, but on the consequences of the system,” Wool said.
Whether Orleans Parish judges break the law by threatening to arrest people without a hearing for failure to pay court fines is the subject of a federal civil rights lawsuit filed last year.
That lawsuit has survived a bid by the criminal court judges for its dismissal, though U.S. District Judge Sarah Vance has dismissed Sheriff Marlin Gusman’s office, the city and the court itself from the lawsuit.
Wool described the New Orleans study as “just moments ahead of the curve nationally,” given how courts and law enforcement agencies around the country are facing tough questions about the cost of “protecting and serving” when it’s paid for on the backs of poor defendants.
A scathing report from the U.S. Justice Department last year concluded that the municipal court system in Ferguson, Missouri, “primarily uses its judicial authority as the means to compel the payment of fines and fees that advance the city’s financial interests.”
A year later, in March, the head of the Justice Department’s Civil Rights Division declared that the U.S. Constitution bars jailing people “solely because they cannot afford to pay for their release.”
That means no issuing of warrants or suspending of licenses to coerce payment without a hearing and due notice first. A person’s failure to pay needs to be found to be willful, wrote Vanita Gupta, the principal deputy assistant attorney general.
Gupta and Lisa Foster, director of the department’s Office for Access to Justice, said straying from those tenets in a way that results in discrimination based on race or nationality would violate the Civil Rights Act.
The Criminal District Court judges deny any wrongdoing in how they assess fines and fees.
In court filings, they claim they don’t need to ask about a person’s financial status after the person agrees in a guilty plea to pay a fine and that they give deadbeats a chance to come in and plead poverty but those notices get ignored.
The judges also note that many of the fees they assess are mandatory under state law.