New Orleans Magistrate Judge Harry Cantrell and civil rights attorneys for the MacArthur Justice Center entered into a legal agreement in federal court on Thursday that lays out specific protocols Cantrell must follow when conducting bail hearings. The protocols are meant to ensure that Cantrell is considering alternatives to detention and inquiring into pretrial defendants ability to pay bail before sending them to jail — requirements that were mandated in a ruling by federal court Judge Eldon Fallon last year.

If Cantrell fails to abide by the agreement he could be held in contempt of court and fined — or put in jail himself.

“These protocols will ensure that no one is being detained on a bail they can’t afford unless there is a determination they can’t be released because they are a danger to society or a flight risk,” said Eric Foley, an attorney with the MacArthur Justice Center. “Our position all along is that if you are going to detain someone it has to be for reasons that are constitutionally valid.”

Foley said that if the protocols outlined in the agreement are followed it would constitute a “giant sea change” in how bail is set at the Magistrate Court. Previously, Foley said, bail amounts amounted to an “essentially arbitrary number that was imposed without any consideration of whether a person was going to be able to afford it or not.”

“Both parties worked really hard together to craft this consent order,” said Mindy Nunez Duffourc, a lawyer for Cantrell. “There was a good-faith disagreement about whether Judge Cantrell’s bail hearings complied with the earlier declaratory judgment from Judge Fallon.”

Duffourc said that Cantrell has in fact been considering defendants’ ability to pay when setting bail, but it wasn’t always visible in the court records.

“There was a lot that the judge would be considering silently,” said Duffourc. Now, with the new protocols, she said, Cantrell “will articulate more on the record about why he feels this person is a danger to the community, why he feels they’re a flight risk, and why there’s not any alternative condition of relief.”

The agreement is part of a drawn-out battle over Cantrell’s bail practices, which started with a federal class-action lawsuit filed in June 2017 on behalf of pretrial defendants in New Orleans.

In 2018, Fallon ruled in favor of the plaintiffs, finding that Cantrell was violating their due process rights by not inquiring into their ability to pay bail nor consider alternatives to detention.

“Judge Cantrell’s bail procedures have not provided notice of the importance of the issue of the criminal defendant’s ability to pay, inquiry into the ability to pay, findings on the record regarding ability to pay and consideration of alternative conditions of release, or application of a legal standard in the determination of the necessity of pretrial detention,” the decision said.

Cantrell declined to appeal that portion of the decision, and the federal judge commended his “expressed willingness to mend the bail procedures in his court to comply with due process requirements.” (Cantrell did, however, appeal another part of the ruling that found that because bail fees make up a part of the court’s budget, setting bail amounted to a conflict of interest for the judge.)

But months later, lawyers for MacArthur said that in fact nothing had been mended. In a motion for injunctive relief, filed in March, they argued that Cantrell had not substantively changed his practices “and has failed to comply with this Court’s order setting forth the minimum constitutional requirements of a bail hearing.”

“As a result,” the motion said, “Plaintiff Class members languish in jail solely because they do not have enough money to buy their release. “

The agreement entered on Thursday is a response to that motion.

The new protocols dictate that Cantrell must allow both the government and defense counsel to present evidence related to a pretrial defendants’ potential danger to the community and the likelihood that they will fail to appear for court, and also what conditions of release could mitigate those risk factors.

They also require that Cantrell inquire into defendants’ income, assets, expenses (including rent, dependents, and medical expenses), and also ask the defendant what amount of bail he would be able to afford.

If the defendant objects to the bail amount set and has additional evidence to present, the hearing will remain open and the defense attorney will be given 72 hours to produce the new evidence. Once the defense is prepared to present evidence, the court has 48 hours to have a hearing.

Despite his view that Cantrell was unwilling to abide by the initial declaratory judgement in 2018, Eric Foley said that this consent agreement was different, because now if Cantrell fails to comply there could be real consequences.

“There are teeth to this order, and the ability to enforce,” Foley said. “So I have utmost hope that we will see a change in behavior and compliance of the protocol has been set out.”

Nick Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...