Criminal justice reform advocates gathered at City Hall on Wednesday to argue that the New Orleans City Council should leverage its power over the city’s budget to force the city’s Criminal District Court to change how it sets bail and levies court fines and fees.

Employees, members and supporters of the Vera Institute of Justice, Stand with Dignity, and Voice of the Experienced argued that for the 2020 budget, the City Council should make a portion of the court’s funding conditional on certain reforms, including setting bonds as low as 10 cents when state law requires one. 

“We’re here this morning to talk about conditions for getting this money,” said Dolfinette Martin, the operations manager at Operation Restoration, a organization that serves formerly incarcerated women and girls.* “I wrote down some things, conditions that these judges put on everyday citizens.”

Martin’s list included restrictions on where formerly incarcerated people can live and who they’re allowed to live with, parole, travel restrictions, and drug testing. 

“And all of that is with a zero-dollar budget, imposed on us,” said Martin, who served a seven year prison sentence on a shoplifting charge. 

Vera released a report this summer outlining how criminal district court could stop relying on cash bail and conviction fees to fund the system, a system that falls hardest on poor and black people in New Orleans, the report argued. 

The report found that in 2017, New Orleans residents paid $6.8 million dollars for bail fees and premiums and $1.9 million in conviction fees. The majority of those costs — 88 percent of bail premiums and 69 percent of conviction fees — were paid by black families. Criminal district court received 925,000 from bail bonds, according to the report, and $1 million from conviction fees. 

Most of the fight to end this “user-pay” system has taken place in federal court system. In late 2018, two federal judges found that the city’s criminal district court judges had an inherent conflict of interest when setting bail and levying fees that will flow back into their operating budget.

Following those rulings, the City Council allocated an additional $3.8 million to the court for 2019 to make up for the expected loss in revenue. That more than doubled the court’s general fund allocation from 2018 to 2019, from $3.1 million to $6.9 million. 

But the court didn’t stop collecting money from bail and fees. The court has collected $540,000 from bail this year, according to The Times-Picayune/New Orleans Advocate. Criminal District Court Chief Judge Keva Landrum-Johnson told the paper this week that the funds would be in an escrow account that wouldn’t be touched “until the laws changed.” The paper also reported that the court had racked up $100,000 from conviction fees in a “restricted account,” that also isn’t being used by the court.

Landrum-Johnson presented the court’s 2020 proposed budget to the City Council on Wednesday. The meeting was part of the council’s annual budget process, which includes hearings on Mayor LaToya Cantrell’s proposed 2020 budget on a department by department basis. The Council has to pass a final budget before Dec. 1. 

Landrum-Johnson said that while the court wasn’t yet in compliance with the federal rulings from 2018, some of the changes being sought by Vera were out of the court’s control. She said that in certain situations, their hands are tied by state law.

“It’s a very tricky conversation when you’re asking judges not to follow state law,” she said. “The reality is that this fight… they have to have that fight in Baton Rouge.”

She said that the state mandates conviction fees for certain crimes, and that appeals courts have sent cases back to district court in the past when they haven’t levied those fines. 

Simone Levine, the director of Court Watch NOLA, argued that district court judges are still setting bail at higher rates than required by state law for defendants, especially those charged with a felony. Vera advocates, meanwhile, argued that the 12-step plan they set out in their June report does not clash with state law. 

“Absolutely every aspect of this plan can be achieved without help from the state legislature,” Jon Wool, Vera’s director of justice policy, told The Lens. “And that’s because there’s no evidence that we would get help, at this point in time, from the state legislature.”

In a letter to the council, former U.S. Attorney for the Eastern District of Louisiana, Kenneth Polite, said that even if the reforms violate state law, the court still must follow the judgments from the federal courts. 

“Even if the judges would have to violate state statutes in following the federal court rulings, they in fact must do so under the Constitution’s Supremacy Clause,” the letter said. “I strongly urge you to provide the additional funding for the court necessary to replace every dollar lost from ending money bail and conviction fines and fees, but that you do so only with the understanding that the court will fully implement the 12 recommendations set out in” the Vera report. 

The criminal justice reform advocates want the council to put restrictions only on the additional $3.8 million that the city is now providing the court. Cantrell’s proposed 2020 budget extends the increase into next year. 

“We’re simply saying if you’re going to give them another $3.8 million for a second year in a row, designed solely to replace the dollars they would lose from the money drawn down from the fines and fees system, we the city expect you to replace those systems with a better one,” Wool said.

The exact mechanism for setting those conditions is still unclear. Wool said he’d been in talks with Councilman Jason Williams’ office and Councilwoman Kristin Palmer’s office.

“I don’t know what they’ll figure out the best mechanism is, but there are paths to doing it,” he said. 

Landrum-Johnson also had a suggestion for how the court could get into compliance with the federal judgments — ask the state legislature to make the city the collector of the fines and fees rather than the court. That, in theory, would alleviate the conflict of interest that was at the heart of the federal judgments.

To Wool, that’s a way for the court to technically get into compliance without addressing the core issues. He said that route “would reify all the present harms of the current system and simply inoculate that system from constitutional challenge.”

“In other words, it would mean that people still have to pay the same amount of money,” Wool said. “The money would simply be laundered through some other entity.”

None of the council members explicitly staked a position on potential conditions for the court’s funding. Some seemed swayed by Landrum-Johnson’s argument that state legislative action is necessary.

“Ultimately the fight is in Baton Rouge,” Councilwoman Helena Moreno said. She added that the council should lobby the legislature to make reforms in the 2020 legislative session. 

*Correction: this story originally incorrectly reported that Martin was an employee of the Vera Institute of Justice. She has changed jobs and is now the operations manager at Operation Restoration. (Nov. 13, 2019)