Federal appeals court says Orleans judge owes $300K tax bill _lowres

Harry Cantrell

Days after a federal judge ruled that the fines and fees system at Orleans Parish Criminal District Court is unconstitutional, a second judge has issued a similar ruling against Magistrate Judge Harry Cantrell.

Cantrell has an unavoidable conflict of interest when he sets bail amounts that help pay for his court's operations, U.S. District Judge Eldon Fallon declared Monday. The result is a “substantial” violation of the constitutional rights of poor defendants who remain behind bars solely because they can't make bail, the judge said.

Advocates have long argued that Louisiana’s “user pays” court system disproportionately punishes the poor. They have called on the state Legislature to find some other way to fund the courts.

The federal judge's preliminary ruling strikes a major blow to the system used for setting bonds in Orleans Parish, but Fallon did not lay out an alternative process in his 30-page order.

Instead, it will likely be up to Cantrell to implement a new process, just as it will be up to the criminal court's trial judges to come up with an alternative scheme for assessing fines and fees. U.S. District Judge Sarah Vance struck down the existing fines and fees system on Thursday.

Fallon said that in each case Cantrell will need to find "clear and convincing" evidence that pretrial detention of a defendant is necessary, which would be a sharp break from current practice.

The New Orleans judges' responses to the two rulings will likely have a major financial impact on court operations, which rely heavily on a smorgasbord of fees forked over by criminal defendants. One attorney for the plaintiffs in the lawsuit over bail policies estimated that Fallon's ruling would cut off a quarter of the court's discretionary budget.

It's not clear whether Cantrell will seek to appeal the ruling. 

Attorneys for the plaintiffs at the MacArthur Justice Center in New Orleans said they were pleased with the judge’s decision. The nonprofit legal firm brought the suit along with the Washington, D.C.-based Civil Rights Corps.

“In New Orleans, for too long we have locked up people just because they’re poor,” lawyer Katie Schwartzmann said. “What the court’s order today does is require a more individualized determination for people so there’s a thoughtful, meaningful hearing on what will actually serve the safety of our community more broadly, and whether somebody should be detained.”

Fallon’s ruling comes a little more than a year after two people filed suit against the magistrate judge, who oversees the initial bail-setting for defendants upon their arrest.

Cantrell maintained a blanket policy of setting a $2,500 minimum bail on every count, without considering the facts of the case or if a defendant earned enough to make that bail, the lawsuit alleged.

Cantrell set a $5,000 bail for one woman who worked at McDonald’s without asking if she could pay it when she was arrested on simple battery, for instance.

The judge also forced defendants to post bonds through a commercial surety company, the suit said. Under state law, a cut of the bond money wound up paying for the court's operations, although not Cantrell’s salary.

Cantrell argued in his response to the lawsuit that the federal courts had no power to overrule a state criminal judge. But he promised to mend his ways by ending automatic bail minimums and by inquiring into a defendant’s ability to pay for a bond.

Fallon said Cantrell’s response was the legal equivalent of being a day late and a dollar short. He said Cantrell presented no evidence that he has actually changed his procedures, and that the proposed policy shifts also failed to lay out how alternatives to commercial bail would work in practice.

There was no evidence of personal greed, Fallon said, but "Judge Cantrell’s institutional incentives create a substantial and unconstitutional conflict of interest when he determines (defendants') ability to pay bail and sets the amount of that bail."

Eric Foley, another attorney at the MacArthur Justice Center, said the ruling should apply equally to magistrate commissioners and to Criminal District Court judges when they set bail amounts.

Foley said he was excited that Fallon also held that defendants are entitled to a lawyer at pretrial detention hearings. Although public defenders usually represent defendants at initial appearances in New Orleans, the practice is not common elsewhere in the state.

Efforts to contact Cantrell and his attorney, Dennis Phayer, were not immediately successful on Monday.

Criminal District Court Chief Judge Keva Landrum-Johnson, who oversees the magistrate commissioners, said she was still reviewing the decision.

Follow Matt Sledge on Twitter, @mgsledge.

msledge@theadvocate.com | (504) 636-7432