Until recently, when judges set bail amounts in Orleans Parish Criminal District Court, the amount they set was directly tied to the amount of money they could potentially collect to fund court operations — things like paying their staff, purchasing supplies and travel expenses. The same was true of fines and fees they imposed after a defendant was convicted. A portion of both commercial bond fees and conviction fees were deposited into a Judicial Expense Fund, which the judges controlled. That was all dictated by state law.
But last October, a federal appeals court upheld rulings in two class-action lawsuits that those arrangements were unconstitutional. They found that Criminal District Court judges — when levying conviction fines and fees — and Orleans Parish Magistrate Judge Harry Cantrell — when setting cash bail — had conflicts of interest when determining if a defendant had the ability to pay those amounts.
A panel of judges on the U.S. Fifth Circuit Court of Appeals reiterated the district court’s ruling against Cantrell that his “institutional incentives create a substantial and unconstitutional conflict of interest when he determines [the class’] ability to pay bail and sets the amount of that bail.”
But the federal judges offered a potential solution: cut the tie between the bail, fines and fee amounts and the Judicial Expense Fund.
“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,” they wrote.
Now, a bill recently signed into law by Gov. John Bel Edwards from the 2020 legislative session will do just that, by directing the money from bond and conviction fees to the city of New Orleans rather than directly to the judges themselves. The bill was supported by the Criminal District Court judges, and sponsored by state Rep. Stephanie Hilferty, a New Orleans Republican. It goes into effect on August 1.
“We are the first judicial district, as far as we can tell, ever, that has made a point of alleviating the burden on indigent defendants,” said Karen Herman, Chief Judge of Orleans Parish Criminal District Court. “Now, as a result of HB 842, we are funded strictly through the money we receive through the state and the city of New Orleans.”
As written, the bill will cease to be effective in July 2022. Herman said the legislation was meant to “dovetail” with a more permanent solution being worked on by the Louisiana Commission on Justice System Funding, which was set up by the Louisiana Legislature in 2019.
A January report by the commission found that criminal justice system funding structures in Louisiana are overly reliant on fines and fees, ineffective and unreliable, lack accountability and transparency, harm vulnerable communities and jeopardize public safety.
“Not only is Louisiana’s user-funded justice system bad public policy, it has also been found unconstitutional,” the report said.
“It’s a stopgap measure aimed at responding to the adverse federal judgment,” Herman said, referring to the new law. “But also being mindful that this is a statewide problem that needs to be resolved statewide.”
Some advocates, however, were more pointed in their criticism of the bill’s limitations and the overall funding structures in place at Orleans Parish Criminal District Court and throughout the state.
Alec Karakastanis at Civil Rights Corps, who represented the plaintiffs in the two lawsuits against the judges, wrote in an email to The Lens that the “new law removes some of the most egregious judicial incentives, but it does little to change the core injustices at the heart of the New Orleans criminal court bureaucracy.”
“The prosecutors, judges, sheriff, and the entire system will continue to extract as much money as possible from the poorest people in New Orleans, disproportionately Black people,” he wrote. “The shameful legacy will continue.”
The “user-pay” justice system that is set up in New Orleans and throughout the state — in which fines and fees collected from criminal defendants are used to finance nearly every aspect of the criminal justice system, including the District Attorney’s Office, the Public Defenders Office, the Sheriff’s Office — has been criticized by advocates for years as putting an unnecessary financial burden poor and primarily black citizens.
A report put out last year by the Vera institute of justice found that in 2017, 88 percent of money bail and 69 percent of conviction fees were paid by black families. It recommended doing away with conviction fees and the setting of money bail altogether.
‘There is no quid pro quo’
There have been at least three federal lawsuits in recent years that have addressed, among other issues, various aspects of New Orleans judges’ conflicts of interest.
In 2015, plaintiffs in the class action suit Cain v. City of New Orleans argued Criminal District Court judges had a conflict of interest when making ability-to-pay determinations when assessing conviction fees. Another, filed in 2017, argued that Magistrate Judge Harry Cantrell had a conflict of interest when setting bail amounts. Those cases resulted in the two rulings against the judges.
More recently, in a suit filed in late 2019, that same argument was applied to the rest of the criminal court judges when they set bail amounts. The judges have filed a motion to dismiss, which is currently pending before U.S. District Judge Eldon Fallon.
The new law will have some impact on those suits. In the suit against Cantrell, lawyers for the plaintiffs had filed a motion for permanent injunction that was intended to stop Cantrell from setting cash bail amounts altogether due to the unresolved conflict. They have signaled that they will withdraw that motion in light of the new legislation. Similarly, in the bail case against the rest of the judges, plaintiffs have said the claims relating to the judges conflict of interest would be dropped. (Litigation in Cain v. The City of New Orleans seems to have mostly ended.)
Mindy Nunez Duffourc, a lawyer who has represented the judges in the federal lawsuits, said in a press release that the passage of the legislation “proves what the Judges have been saying all along in response to the misplaced attacks levied against them in recent lawsuits: that they never created and had no power to independently change the state laws creating the old fines and fees and funding systems.”
But Eric Foley, an attorney with the MacArthur Justice Center, who represents the plaintiffs in all of the conflict-of-interest cases, said it has yet to be determined whether or not the legislation has truly resolved the conflict of interest issue.
“Our view of the legislation is that ultimately whether it solved the conflict or not really depends on what the city does next,” he said. “If it ends up being a situation where the city just reappropriated back to the court a similar amount of money that the bond fee is generating every year, I wouldn’t consider the conflict to have been solved.”
Foley said that “time will tell, basically.”
“If it’s just going to be a pass-through — for lack of a better term, money-laundering — we don’t consider that to resolve the conflict. Because if the judges know that that money is going to come to them, after the money passes through the city, then they would still have the temptation that creates the unconstitutional conflict to begin with.”
But Beau Tidwell, a spokesman for New Orleans Mayor LaToya Cantrell, said that the money wouldn’t be going back to the court.
“HB 842 ensures that any assessments collected in accordance with applicable criminal procedure will not remain with the Court, but instead will fund community oriented programs such as programs for victims and for drug treatment and education,” he said in an email.
Judge Herman also dismissed the idea that the judges were coordinating with the city to have the money returned to them.
“One thing that the advocates seem concerned with is that there is some kind of back door measure, or quid pro quo, wink and a handshake type deal with the city that we collect money on their behalf and we get that money back,” she said. “That is incorrect. There is no quid pro quo. We are truly taking a leap of faith here that we are funded as requested. There is no malicious intent here.”
She said the judges had expressed their desire to the city for the money to be “used for the purposes of the criminal justice community as a whole.”
“There’s so much need within the criminal justice community,” she said, “but it’s not coming back to us.”
Foley said he specifically hoped that the money from bond fees would be turned around and used for actively dismantling the money bond system by funding alternative conditions of release “that the city might not be able to fully afford now, or that they could expand if they have more money.”
He pointed to things like “pretrial services, text message reminders, counseling, drug treatment, and all the other conditions that can be put on a person for their release, that don’t necessarily involve a payment of a fee to the court.”
Even prior to passage of HB 842, the court had stopped using money from fines and fees to directly fund their operations. For the last two years, they have instead received an increased direct budget appropriation from the city, and put all the money from fines and fees into an escrow account. Currently, according to Criminal District Court Judicial Administrator Rob Kazik, that account has around $600,000.
Foley, at MacArthur, said he thinks that money should go back to people who paid it to begin with.
“Our view is that what the city should be doing with that money — the money that was collected while there was still a constitutional conflict when it was unclear what was going to happen to the money and whether the judges were going to be able to keep it or not — in an ideal world that would go back to the people it came from, which was ultimately the people who were paying bond,” Foley said.
Herman stressed that the judges at Criminal District Court have been receptive to any innovation or program to move away from a user-pay justice system. But she also said they were caught in their own bind, between the federal orders and state law.
“We are constantly walking on eggshells trying to comply with the multitude of federal lawsuits filed against us, and also being mindful of the judicial canons under which we are required to swear an oath to abide by the statutes that we work under,” Herman said. “If a statute requires us to impose a fine, we have an ethical responsibility to comply with our judicial cannon. We’re not making a political statement here, we’re just trying to comply with the laws under which we work.”