New Orleans City Council women Helena Moreno and Kirsten Palmer at a September 2019 meeting.

The New Orleans City Council last week passed a non-binding resolution urging the Orleans Parish Criminal District Court to return over half a million dollars to defendants who paid out bail and conviction fees over the past two years. The resolution also encouraged Criminal District Court judges to stop assessing some of those fees in the future.

While the resolution does not carry the weight of the law, it includes a warning to the judges: If they do not follow through, they can expect a smaller city appropriation in next year’s budget. 

But the instructions appear to be in tension with long-standing state laws that mandate judges collect certain fees.

In addition, the council says it will refuse to act as a pass-through for the funds collected in a recently created fine and fee account. The council will not accept the money, the resolution says. But a state law passed this year says the court must disburse that money to the city. 

The law, Act 110, was passed as an attempt to relieve the court of a decades-old conflict of interest on the fees imposed by judges. Traditionally, a portion of bail and conviction fees paid by defendants was deposited into the court’s Judicial Expense Fund, which was controlled by the judges and used for funding court operations and paying staff (excluding judicial salaries).  In 2018, federal judges in two lawsuits ruled that the arrangement was unconstitutional.

Since the rulings in 2018, the court has been depositing that money in a special escrow account instead of the Judicial Expense Fund, and has received increased funding from the city to cover court costs. As of June, the account had around $600,000, according to Rob Kazik, the court’s judicial administrator.

Act 110 codifies that arrangement into law, mandating that the funds from the escrow account should be retained for a year then transferred to the city, then used in “defraying the expenses of the criminal justice system in Orleans Parish.” The idea was that putting the fine-and-fee-generated revenues under the city’s — and not the judges’ — control would eliminate the conflict. 

But some criminal justice reform advocates, including civil rights attorneys who represented the plaintiffs in both lawsuits, were critical of the bill for not going far enough. While it may have resolved the conflict of interest, they said, it did nothing to alleviate the burden of fees on poor defendants who move through the criminal legal system — which in 2017 amounted to nearly $2 million, according to a report from the Vera Institute for Justice.

“Our view of the legislation is that ultimately whether it solved the conflict or not really depends on what the city does next,” Eric Foley, an attorney with the MacArthur Justice Center, told The Lens in June. “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.”

In the resolution, passed during last Thursday’s council meeting, City Council members said that they want nothing to do with the money. 

It’s possible to take the money, it’s gotta be possible to give it back’

The resolution says the council will reject funds from the escrow account, and encourages judges to stop assessing conviction fees. They also issued a threat: For every dollar that was placed in the escrow account, the resolution said, they would reduce the court’s annual city allocation — nearly $7 million in this year’s budget — by two dollars.

And as for the money the court has already in the escrow account? The council’s resolution instructs them to “return the funds back to the individuals from whom the money was collected.”

The resolution is non-binding — it just formally states the council’s intention. But the intention was clear: to get the judges’ to stop assessing fines and fees, and to return the fines and fees already assessed.

That goal has long been a focus of criminal justice reform advocates who want to move away from the so-called “user-pay” court system, in which money paid by defendants and their families funds the workings of the criminal court. 

But despite the strong language of the resolution, council members seemed to acknowledge that there could be some logistical and legal complications in what they are suggesting. And the implications of the resolution likely won’t be resolved until budget negotiations later this year. 

State law requires that judges assess certain fees following someone’s conviction, unless that person is found to be indigent. Advocates argue that because around 85 percent of criminal defendants in New Orleans are represented by public defenders — assigned to them because they can’t afford to pay an attorney — judges should not assess those fees in the vast majority of cases, and thus they should not be contributing to the escrow account.

But judges have less discretion when it comes to bail bond fees, which are two percent of whatever someone pays to a bail bondsman. (Technically, that money is paid by the bondsmen, but it’s passed on from a 12 percent premium they can charge defendants.) A portion of that money also goes into the new escrow account.

At a City Council Criminal Justice Committee meeting last week, prior to the passage of the resolution, Councilwoman Helena Moreno wondered what would happen with the money judges do not have discretion over collecting. 

“So let’s say that the judges say, OK, the city isn’t going to collect, so it’s not worth imposing some of these additional fines and fees,” Moreno said. “But for those that through state law — statutorily — they have to, and it ends up in the escrow account, what do we do with the money in the escrow account?”

Will Snowden, executive director of the Vera Institute of Justice’s New Orleans office, said that money from mandatory fees would go to the city, as is prescribed by state law. 

“This resolution can’t address those mandatory fines that the judges are required to assess on an individual. I know specifically, the bail fee is not something they have discretion in not imposing. That’s a fee that is assigned to every bail that is already set. So my understanding is those funds going into the escrow account — those bail fees — that escrow account will go on to the city as it is currently prescribed.”

“So then it would be up to [the annual city budget passed by the council] on how we use the escrow account, is that right?” Moreno asked.

“I think you’re absolutely right,” Councilwoman Kristin Palmer said.

But the resolution itself in fact says that the city will reject both non-discretionary bail bond fees and the more discretionary conviction fees being deposited into the escrow account, and says it will penalize the court’s budget regarding the total amount of money in the account — without distinguishing between the two types of fees. 

Later in the meeting, Snowden acknowledged that fact, and said that further work needed to be done to determine how exactly the city would reject the non-discretionary bail fees.

“I do need to clarify that the resolution — and this is to councilmember Moreno’s point, about what the city council will do in terms of the budget appropriation — the resolution talks about refusing money from the bail bonds fees,” Snowden said. “Now there’s going to have to be a different structure outside of this resolution that will need to be ironed out in order to make that process happen, but that’s what this resolution has put forward.”

Judicial Administrator Rob Kazik said he had heard about the resolution, but had not seen it. But his initial impression was that the resolution was at odds with state law.

“I was a little shocked to see they would go against state law on it, but we’ll see what approach we’re going to take,” he said. 

Kazick said the judges would meet later this week to discuss the resolution. 

“I think we’re going to probably follow state law, I would imagine, since we’re a district court. I’m sure we’ll go through the motions, and try and send the money. If they reject it we’ll worry about what happens after that.”

Palmer said that despite the fact that state law says the money should go to the city, they have the option of rejecting it. 

“We don’t have to take it,” Palmer told the Lens. “Just because it statutorily says the money goes to the city, we can decide what we want to do with it. We can say we’re giving it back.” 

Snowden later told The Lens that there would be more work to be done to figure out the exact mechanisms for how the city would handle the escrow account during budget negotiations later this year. 

“We will certainly have to do more work to figure out the budgetary specifications of how the money collected associated with fines and fees can stay with those families — and particularly understanding the accounting of the funds that are already in the escrow account,” he said. “This resolution is a good first step, but we still have many more to take.”

Kazik didn’t respond to follow up questions about whether or not the court had the ability to return the money to defendants. 

Palmer said that it might be tricky, and require some research, but she believed it could be done. 

“It’s possible to take the money, it’s gotta be possible to give it back,” she said. “Everything is based on receipts. People know who they paid and who paid into it. I would hope that there are records when they receive money.”

“If the will is there then we should be able to find a way of doing it,” she said.

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...