New Orleans has dramatically downsized its jail population and reduced the use of cash bail over the past decade — and now a coalition of advocacy groups wants the city to go even further.
The Vera Institute for Justice and other organizations that focus on criminal-justice reform issued a proposal on Wednesday that if enacted would reduce the monetary burden on defendants by essentially eliminating both cash bail upon arrest and fees charged to defendants when they are convicted. The proposal also calls for the release of hundreds of local pre-trial inmates deemed a low risk to public safety.
If followed, the proposed policies would upend New Orleans’ decades-old practice of supporting the cost of running the criminal courts through fines and fees paid by mostly poor and black defendants.
But they will likely face stiff opposition from the bail bond industry, which earned an estimated $5.1 million in local fees in 2017, and from some law enforcement officials, who see dangers in releasing more people ahead of trial.
Nevertheless, Jon Wool, the Vera Institute’s director of justice policy in New Orleans, described the plan as a necessity for Orleans Parish Criminal District Court judges wrestling with twin federal court rulings assailing their funding structure, which relies heavily on fines and bail fees paid by defendants. Those rulings are on appeal at the 5th U.S. Circuit Court of Appeals.
“Something has to change. There’s going to be a reckoning with the federal courts,” Wool said.
Other groups endorsing the report included the American Civil Liberties Union of Louisiana, the Foundation for Louisiana, the Innocence Project New Orleans, the New Orleans Safety and Freedom Fund, the Louisiana Center for Children's Rights, the New Orleans Workers' Center, the Orleans Public Defenders, the Urban League of Louisiana and Women with a Vision.
For decades, Louisiana’s criminal justice system has balanced its budget with the legal equivalent of squeezing blood from a turnip.
Wool also cast the suggested changes as a moral necessity aimed at a system that disproportionately impacts people of color. He pointed to his group’s finding that black defendants and their families pay for 88 percent of money bail fees in felony cases and 69 percent of fees imposed upon conviction.
He said the city has reached a rare moment of opportunity for reducing its addiction to fines and fees paid by defendants. Last year, the New Orleans City Council voted to give the court system an extra $3.8 million in its 2019 budget, more than making up the roughly $2 million gap that would be created if the courts collected no revenue from court costs or bail fees.
The extra money could blunt opposition to the plan from judges. Pointing to the city’s decision to bankroll the courts, Vera suggests the city also pony up an annual $484,000 to the District Attorney’s Office and $377,000 to the Orleans Public Defenders to make up for their losses in fine and fee revenues.
Vera, which formerly ran the pre-trial services program that assesses recent arrestees’ potential risk to public safety if they are released, has proved to be an influential voice in the criminal justice debate in recent years.
City leaders followed some recommendations in a previous Vera report to reduce the number of people being held in jail because they can’t pay bail or because they have not forked over fines and fees imposed upon conviction.
However, the chief judge at Criminal District Court said that while she appreciated Vera's suggestions, further changes would likely need to pass through the Louisiana Legislature.
"The court has taken proactive action as to bail reform and fines and fees; however, any major overhaul as to either of those would take legislative action," Judge Keva Landrum-Johnson said. "Those are written into the law."
The city and the District Attorney's Office declined to comment.
As it did in a report two years ago, Vera argues that jailing fewer people and sparing them from bail and court costs would ultimately save the city money.
On an average day in the second half of 2018, the city had 1,225 people locked up. Vera says that the cost of incarcerating one person for a year at the city jail was $59,190 — thousands of dollars more than tuition at Tulane University.
Vera says implementing its plan could lead to the release of anywhere from 304 to 687 people from jail out of the daily average. That could translate to a net savings of $900,000 to $5.5 million a year, even with more money directed toward local criminal justice agencies, the group says.
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Vera’s latest, 12-point plan casts an even wider net to end what the group calls “money injustice.”
Magistrate Judge Harry Cantrell and court commissioners should apply a “presumption of innocence” to recently arrested people making their first appearance in court, the group said.
That would entail releasing without bail almost everyone who does not merit a high score on a risk assessment conducted by the court’s pre-trial services division, or who has not been arrested on a violent crime that requires prison time.
State law requires judges to set a cash bail for some offenses. The coalition proposes that local judges adopt a work-around plan, floated by U.S. District Judge Sarah Vance during the fines and fees litigation, of setting nominal money bails of $1 or even 10 cents.
The plan also calls on Cantrell and court commissioners to conduct a lengthy detention hearing on the evidence when someone is accused of a charge that requires prison time or who is labeled a high risk. Anyone the judges deem a risk would be held on no bail or on a bail so extreme it would be clearly unreachable, like $10 million.
Vera and its allies also want the state Division of Probation and Parole to end the use of “detainers” to hold people who were arrested while on probation for another crime. The group estimates that on any given day last year, about 220 people, or 18 percent of the New Orleans jail’s population, were being held because of those detainers.
The plan’s final recommendation is for Criminal District Court judges to stop imposing fines and fees upon conviction and to wipe away old ones.
Some of those fines and fees are required by state law. But Wool argued that the federal court rulings on fines and fees from last year trump those laws, and the judges should act to implement those rulings.
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Such a step from the judges could face a legal challenge from the District Attorney’s Office and the Louisiana Attorney General’s Office, however.
Meanwhile, the politically powerful bail bonds industry is likely to challenge any unilateral step to end or reduce the use of cash bail in New Orleans.
Bondsmen have argued that the pre-trial risk assessments touted by Vera are biased against African-Americans.
"The Vera Institute proposes the elimination of private choice and to replace it with hidden, taxpayer-funded, unaccountable risk assessment algorithms and preventive detention," Matt Dennis, a retired bondsman, said in an email.
The industry recently convinced an overwhelming majority of state legislators to back a bill absolving the industry of an order to pay $6 million in refunds to New Orleans customers for alleged overcharges. Gov. John Bel Edwards signed the bill into law on June 1.
Wool’s group has stopped short of calling on the Legislature to take action to do away entirely with cash bail, which could neutralize legal challenges but would face an uphill battle against the industry’s sway in the statehouse.
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Other critics have voiced increasing skepticism about Vera’s calls for reducing the jail’s population. Orleans Parish District Attorney Leon Cannizzaro lambasted efforts to significantly reduce the number of inmates in a speech earlier this year.
The district attorney said he believed some officials were “experimenting on us as a society to determine how much more violent crime we are willing to tolerate in (order) for them to boast of lower incarceration.”