You don’t rehabilitate a troubled bail system by breaking it. That’s what some New Orleans public officials and activists have done to the detriment of citizens’ safety.
Over the past two years, bad publicity, policy changes, and adverse judicial rulings have buffeted bail practices in Orleans Parish. Commercial bondsmen faced accusations that they bent the law to extort money out of clients. Also, the city changed laws to lower or eliminate bail for city offenses while moving to shift more bail determinations to Criminal District Court magistrates.
Recently, a federal court ordered magistrates to limit setting bail because its proceeds funded court operations. This creates a conflict of interest unless magistrates can show a “clear and convincing” risk of a defendant's failure to appear, known as FTA.
As a result, the use of bail and the amounts set for bail have plummeted. Not surprisingly, some suspects turned loose for a pittance have committed more crimes. In an extreme case, Daniel Bonney, held for aggravated assault, had a bail of $5,000 reduced to $1. Freed, he committed another assault months later.
But this doesn’t trouble Mayor LaToya Cantrell. She recently co-authored an opinion piece arguing against bail while touting a pretrial risk assessment she claimed rarely misfired in predicting who could be released without bail. She also asserted that bail made no difference in FTA compared to the pretrial release approach like the city had implemented.
In fact, the most comprehensive government-backed study reviewing FTA rates across different kinds of bail and pretrial services release showed commercial bail FTA rates are significantly lower than those of pretrial services release. That's in part because the latter approach requires that officials spend some serious money to oversee conditions of release, which New Orleans doesn't do. A city review of its reform even admits that “[d]efendants who were released with additional conditions ... had significantly higher failure to appear rates than defendants without conditions.”
And researchers have questioned the method the city uses to predict risk. A WWL-TV investigation uncovered several instances of those accused of major crimes who were judged as moderate risk and drew low bail, then reoffended. Others scored as higher risk, yet received low bail and then missed court dates.
To make matters worse, a charitable group formed last year called the New Orleans Safety and Freedom Fund has bailed out hundreds of defendants, further reducing the deterrent effect of bail. It paid the buck to spring Bonney.
Its leaders — one of whom now works directly for Cantrell — insist the people it frees, identified from Orleans Public Defender Office data, have a low FTA rate. They contend that any bond $5,000 or below denotes someone “not a threat to public safety.” They also dismiss critics who decry how the group has helped free defendants who quickly reoffend. The group says critics focus too much on “anomalies.”
However, the leading national charity bond organization the Bail Project grew out of a New York group that chose only those accused of misdemeanors with bail amounts below $2,000. And the New Orleans group has no expertise in determining FTA risk.
Low- to no-bail for all eligible cases, complicated by an amateur group’s intervention, is a recipe for too many “anomalies.” Elected officials should use bail when needed — and set it high enough — to keep the public safe.
Jeff Sadow is an associate professor of political science at Louisiana State University-Shreveport. He is author of a blog about Louisiana politics at www.between-lines.com and writes about Louisiana legislation at www.laleglog.com. Follow him on Twitter, @jsadowadvocate or email firstname.lastname@example.org. His views do not necessarily express those of his employer.