Civil rights lawyers have once again asked a federal judge to hold Orleans Parish Magistrate Judge Harry Cantrell in contempt of court over his bail practices, which they argue are unconstitutional and in violation of a legally binding agreement that the two parties entered into in a federal lawsuit last year. That agreement outlines protocol that Cantrell must follow when setting bail amounts.
The lawyers, with the MacArthur Justice Center and Civil Rights Corps, claim that Cantrell is not doing enough to consider alternative conditions of release to money bond — such as ankle monitors, drug-testing, and other forms of supervision — and not inquiring how much money defendants are able to afford when setting bond amounts, which the agreement mandates.
“There are still a large number of people who are detained because of these financial conditions for appreciably no good reason,” said Eric Foley, an attorney with MacArthur. “At least from what you see in the hearings — because there hasn’t been an appropriate finding of danger or flight risk or that there is no other condition that would suffice to make sure that person comes back to court.”
If U.S. District Court Judge Eldon Fallon, who is presiding over the case, rules that Cantrell is in contempt of court, he could face financial sanctions or jail time.
The allegations against Cantrell are not anything new. The most recent motion is part of a 2017 class-action lawsuit challenging Cantrell’s bail practices, which Fallon ruled unconstitutional in 2018.
Cantrell did not appeal that part of the ruling, and instead agreed to reform his bail practices.
But months after the ruling lawyers argued that Cantrell had not done enough to bring his practices into compliance. Eventually, in June of 2019, the two parties entered into an agreement that outlined specific protocol Cantrell must follow when setting bail.
And lawyers already asked for Fallon last January to hold Cantrell in contempt of court for violating that agreement. At the same time, they asked the judge to force Cantrell to turn over hundreds of hours of audio recordings of bail proceedings. In his ruling, Fallon ordered Cantrell to turn over the recordings, but declined to hold him in contempt “until more conclusive evidence” emerged.
Now, after reviewing a portion of the recordings, the lawyers with MacArthur and Civil Rights Corps think they have that conclusive evidence. They found that in a random subset of 298 first appearance and bond reduction hearings, Cantrell set a money bond in 65 percent of cases. In none of those cases, the complaint alleges, did Cantrell do enough to explain why alternative conditions to money bond were insufficient for releasing a defendant.
“In the 190 cases reviewed, Plaintiffs found no case in which a specific finding was made as to why an alternative condition was insufficient,” the motion reads. “Instead, Judge Cantrell simply uses boilerplate language to pronounce that ‘alternative conditions do not satisfy my concern for flight risk and danger to the community and the victim’ or some variation thereof.”
According to the protocol agreed to by Cantrell, if a person says that they cannot afford to pay bond, he is mandated to “explain by clear and convincing evidence on the record why the government has demonstrated that no other alternative conditions of release are sufficient to reasonably guard against the person’s flight from prosecution or to reasonably ensure the safety of the community during the pretrial period.”
The filing also alleges that Cantrell isn’t following protocol when inquiring about a person’s financial status in order to determine how much a person can afford in bond. The agreement requires Cantrell to inquire into a defendants income, assets, and expenses, as well as asking the defendant to name a specific amount of money they could afford to pay.
For a while, the lawsuit alleges, Cantrell was following the agreement by having defendants fill out a financial declaration form. But at some point, the question asking how much a defendant was specifically able to pay got removed from the form.
The attorneys said that wouldn’t have been a problem if Cantrell was asking them orally at the hearing — but he wasn’t doing that, either.
“Plaintiffs would not object to its removal from the form if Judge Cantrell instead asked each arrestee orally whether they could afford the amount of secured bond he was imposing,” the motion reads. “But in recent hearings, no inquiry is made into an amount that the arrestee could afford.”
A lawyer for Cantrell, Mindy Nunez Duffourc, said that the evidence presented against Cantrell was underwhelming.
“Plaintiffs had access [to] court audio for hundreds of cases heard by Judge Cantrell in the span of over 8 months,” she wrote in an email to The Lens. “In their renewed motion, they present a mere 18 cases in which they erroneously claim Judge Cantrell violated the consent order; however, like their previous unsuccessful claims of contempt, this motion also contains no evidence to support those claims. In fact, the court audio reveals the opposite: that Judge Cantrell is following the order and releasing defendants who don’t present a flight risk or danger to the community without requiring money bail.”
The 18 cases Duffourc mentions appear to reference the number of illustrative examples presented in the filing, of which there are 16.
Until recently, it seemed likely that the challenges to Cantrell’s bail practices would come to a natural end in December, when his term on the bench is set to end. According to the Louisiana constitution, at 72 years old, Cantrell is two years over the age limit to seek reelection.
But in April, Cantrell filed a lawsuit against the Louisiana Judiciary Commission in hopes of having that restriction thrown out. If he is successful, he appears intent on holding on to his seat.
“He’s going to be a candidate, he’s going to run for his seat and he’s going to get re-elected,” Darlene Jacobs, a lawyer for Cantrell told The New Orleans Advocate/Times-Picayune. “His heart and soul is in that job. He works tirelessly for it.”
Foley at MacArthur said that because Cantrell was sued in his official capacity, whoever is elected Magistrate judge in November will still be subject to the terms of the lawsuit.