Orleans Parish Criminal District Court. (Michael Isaac Stein/The Lens)

Civil rights lawyers with the MacArthur Justice Center and Civil Rights Corps earlier this month filed a motion in a federal lawsuit asking a judge to hold New Orleans Magistrate Judge Harry Cantrell in contempt of court for failing to inquire into defendants’ ability to pay and considering alternatives to detention when setting bail. 

If their motion is granted, Cantrell could face a fine or be put in jail himself.

The attorneys also filed a motion last week in the same lawsuit asking the judge to order Cantrell to stop setting cash bail at all, due to a conflict of interest that stems from a portion of the bail fees going into a court fund — called the Judicial Expense Fund — that Cantrell and the other judges control. The fund, which is used to finance court operations (though cannot be used for judicial salaries), is set up by state law.

Cantrell is also required by state law to set cash bail for certain offenses, but attorneys argue that an order by a federal judge would outweigh those statutory requirements.  

Both motions are part of a 2017 class-action lawsuit that challenged the constitutionality of Cantrell’s bail practices. 

In 2018, U.S. District Court Judge Eldon Fallon ruled against Cantrell in the case, finding that he was not inquiring into defendants’ ability to pay or considering alternatives to detention when he set bail. Cantrell agreed to voluntarily reform his bail practices, though he appealed other parts of Fallon’s ruling. 

But months later lawyers with MacArthur and Civil Rights Corps filed a motion arguing that Cantrell had still not changed his procedures.  In June of 2019, the two parties entered into an agreement that outlined a specific protocol Cantrell must follow when setting bail.  

That protocol involves six steps, and if Cantrell decides that he must detain someone despite their inability to pay the bail amount, it mandates that he “explain by clear and convincing evidence on the record why the government has demonstrated that no other alternative conditions of release are sufficient” 

Now, seven months later, lawyers are once again saying Cantrell still hasn’t changed his unconstitutional behavior, and is in violation of the consent agreement. 

 “He continues to impose secured money bail who cannot afford it, without first making findings — by clear and convincing evidence — that nonfinancial conditions of release would be insufficient to ensure appearance at future proceedings or the public’s safety,” the motion reads. 

“This is not fun for us,” said Jim Craig, Director of the Louisiana Office of MacArthur. “It would be much easier for everyone if he would just accept these rulings and actually go to court every day asking people, ‘How much can you really afford in a bond?’”

“That’s what bond is supposed to be,” he continued, “if you are going to use it at all.”

Neither Cantrell nor his attorney were available for comment. 

Among the evidence presented to show Cantrell has not been following the agreement was the bail hearing of Timothy Sparkman, who was alleged to be in illegal possession of a stolen automobile. During the hearing, Cantrell asked the prosecutor whether the state had any evidence that he was a danger to the community or a flight risk. 

“Only, Judge, is that there’s an out-of-state address in Florida,” the prosecutor replied. “Other than that there doesn’t seem to be any concerns on the part of the State.” 

According to protocols Cantrell agreed to in the lawsuit, an out-of state address alone can not be used to determine that someone a flight risk. Cantrell determined that he was anyway, and set his bond at $1,500, which Sparkman could not afford to pay. 

Sparkman’s lawyer objected, noting that Cantrell was “violating specifically the exact language” of the agreement. 

“The State didn’t even argue he was a flight risk,” she protested. “He doesn’t have a record. There’s just nothing here to support that.” 

Conflict of interest

In addition to finding that Cantrell was not following constitutional procedures when determining bail amounts, Fallon also ruled that Cantrell has an “institutional conflict of interest” because a portion of bail fees go into the Judicial Expense Fund. Cantrell appealed that aspect of the ruling, but it was upheld by the 5th Circuit Court of Appeals. Cantrell is seeking an appeal from the U.S. Supreme Court.

Neither Fallon nor the appeals court mandated a specific course of action to address the conflict of interest, and Cantrell has continued to set cash bail when defendants appear in front of him. 

Following the ruling of the appellate court, however, Cantrell’s lawyer said Cantrell would recuse himself from all administrative duties involving the Judicial Expense Fund. 

But now, lawyers in the suit against Cantrell are asking for a more serious judgement in their conflict of interest claim, known as injunctive relief, in which the court would mandate that Cantrell stop setting cash bail altogether until state law is changed. 

“Specifically, they ask the Court to order Judge Cantrell not to require a secured financial condition of pretrial release so long as state law provides for a portion of fees paid based on that financial condition to be deposited into a Judicial Expense Fund whose statutory function is to fund the operations of Judge Cantrell’s court,” the motion reads. 

If the court orders Cantrell to stop setting cash bail, he would have the ability to release defendants without any conditions—known as release on recognizance, or  R.O.R—or he could put conditions on their release, such as supervision, ankle monitors, and drug testing. 

If Cantrell deemed a defendant too much of a risk to be released at all, he could have them kept in jail until their court date. 

‘Disguised political attack’

The case against Cantrell is one of two major suits that have argued that some of the day-to-day operations taking place at the Orleans Parish Criminal District Court are unconstitutional. 

Another suit alleges that all New Orleans criminal court judge have a conflict of interest when conducting ability-to-pay hearings on fines and fees — such as conviction fees — assessed against criminal defendants. Like the case against Cantrell, both the district court and the 5th Circuit Court of Appeals have ruled that the judges do in fact have a conflict of interest.

The two cases have been joined together in a Supreme Court petition.  

The judges have argued that not only does the current situation not rise to the standards of unconstitutional conflict of interest, but their hands are tied by state law that mandates that they assess fines and fees, and also that a portion be put into the Judicial Expense Fund. 

They have also said that court revenue generated from bail and other fines and fees is now going into an escrow account and won’t be used until state laws are changed. 

The two lawsuits are being used as a tool by advocates who are hoping to end the practice of cash bail and a “user-pay” criminal justice system. Organizations like the Vera Institute of Justice argue that not only are the financial costs incurred by people entangled in the criminal justice system harming the community — and specifically black people, who typically represent more than 85 percent of the jail’s population, in a city that is about 60 percent black — but they have also now been declared unconstitutional. 

In their petition before the Supreme Court, lawyers for the judges characterize the lawsuits as “disguised political attack” on the “general failings of the criminal justice system.”

“However noble or well-intentioned Respondents’ political goals may be, the structure and funding of Louisiana’s criminal justice system is controlled by the State’s legislative and executive branches, not the judicial branch,” the petition to the Supreme Court reads. 

The notion that the funding structure of the Criminal District Court creates an unconstitutional conflict of interest for the judges is not a new one. 

“Fines and fees are a bad way of financing the criminal justice system when the judges expenses are paid by the defendants that appear in front of them,” William Wessel, a prosecutor under then-District Attorney Harry Connick, told the New Orleans States-Item in 1977. He noted the system had been able to survive up to that point because it was “so well entrenched.”

In 1985, Connnick sued the criminal court judges himself over collecting fees from defendants on probation. “We feel the statute (permitting the fees) is unconstitutional,” Connick told reporters. “The judges are not able to make impartial judgements because they’re directly benefited.” 

The suit was thrown out because the court ruled that Connick did not have standing to sue. 

In their ruling against Cantrell in August, the 5th Circuit Court of Appeals noted the need for structural change as well, suggesting in their decision that “it may well turn out that the only way to eliminate the unconstitutional temptation is to sever the direct link between the money the criminal court generates and the Judicial Expense Fund that supports its operations.”