Every night, more than 1,100 people are confined in the New Orleans jail. Since 2013, this facility has been subject to a federal consent decree because of its history of sexual assault, beatings, stabbings, lack of mental health treatment and medical care, and officer misconduct. This pain is compounded by the separation of children from their jailed parents.
The vast majority of people struggling to survive there each day are presumptively innocent but remain confined solely because they are too poor to pay money bail. Only poverty — not flight risk or danger to the community — prevents them from returning to their families.
For decades, other people have profited from this misery. The bail bond industry, of course, makes millions of dollars from families going into debt trying to get their loved ones out. And the court in New Orleans funds itself with millions in fees extracted at every stage of the process from poor families. A federal court recently struck down this funding system after a civil rights lawsuit exposed that the city’s jail had become a modern debtors’ prison for the benefit of the local court.
And New Orleans is unique because every official in the courtroom takes a cut of the money from money bail: the public defender, the district attorney, the sheriff, and, most of all, the judges who decide whether and how much someone must pay for their liberty. Everyone has a financial incentive to charge people for their freedom. This financial conflict of interest was also struck down in another federal civil rights case last year.
These two federal civil rights cases were upheld recently in unanimous decisions by the conservative 5th Circuit Court of Appeals. The unanimous decisions should end the yearslong efforts by local officials to avoid the inevitable. They offer a once-in-a-generation opportunity for city leaders to create a better system. And Mayor LaToya Cantrell and the City Council are on the verge of making one of the most important reforms to the criminal system in contemporary America.
The idea is simple. Because the federal courts ruled that the judges are no longer able to fund the court through extraction from poor people, the court now depends on the city for its budget. The mayor and council members understand that city funding must be matched by the court’s eliminating the use of money bail and ending the debtors’ prison. They have a detailed plan, supported by 32 local organizations, to address the unlawfulness, save families $9 million a year, better respect safety, and save all taxpayers money by lowering the jail population. The city’s low-income black families will be particularly impacted by their leaders’ decision because they have been disproportionately targeted by the predatory practices for years.
Unfortunately, although the mayor has been considering this plan, nothing has yet been passed, and more than a year has gone by since the federal courts held the present system unconstitutional.
Fully funding the court while doing nothing to eliminate money bail and other discriminatory wealth-extraction practices is unthinkable; it would make city leaders complicit in years of cruel practices that makes everyone less safe.
Meanwhile, the judges’ practices have not changed, and they continue to argue in court that they don’t have to change. Similar intransigence recently led to an election-day sweep of judges in Houston who had refused to make basic changes to the money bail system after a federal court order. The newly elected judges partnered in landmark bail reforms that are reverberating nationally.
After decades of leading the nation in incarceration and wealth-extraction from poor families, New Orleans has the opportunity to be a leader in genuine reforms. If New Orleans can step up, it could usher in a new era nationally of local leadership dramatically reducing the harm caused by the bureaucracy of mass incarceration.
Kenneth Polite was United States Attorney for the Eastern District of Louisiana, appointed by President Barack Obama, from 2013 to 2017. He now practices law in Philadelphia.
Alec Karakatsanis is founder of Civil Rights Corps, which has represented indigent individuals in federal civil rights challenges in New Orleans. He's the author of the forthcoming book “Usual Cruelty.”