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

In 2018, a federal judge called the way New Orleans Magistrate Judge Harry Cantrell set bail for criminal defendants “disturbing.” 

The comment came in a ruling on a civil rights lawsuit brought against Cantrell the year before by defendants who had appeared in front of him in court. In the lawsuit, Cantrell was accused of failing to inquire if a defendant had the ability to pay bail amounts, threatening to hold lawyers in contempt of court for seeking lower bonds, refusing to set cash bonds that would allow defendants to avoid paying non-refundable fees to bail bond companies, and having an institutional conflict of interest. At one point, a court transcript shows, he told a lawyer that he never set bail under $2,500.

The federal judge — Eldon E. Fallon — ruled against Cantrell in the case, finding that his bail practices were unconstitutional and that he held an institutional conflict of interest. Since then, Cantrell has become a representative case study for critics of the money bail system as a whole in New Orleans, which they say keeps people in jail just because they are poor, and sucks money out of already struggling communities.   

Cantrell, despite his best efforts, won’t be up for re-election this year. But money bail is still a key issue in the race between candidates for magistrate judge in the Nov. 3rd election, Juana Marine Lombard and Steve Singer. 

There is a reason the bail debate in New Orleans is centered around Magistrate Court: it is where criminal defendants first appear in front of a judge after arrest, and a preliminary determination is made whether or not they will sit in jail awaiting trial — the judge and commissioners at Magistrate Court have the ability to set a bail amount, dictate how it can be paid, and mandate conditions of release. 

Lombard has experience at the court, having sat as a commissioner at the court from 2010 to 2016. Commissioners at Magistrate Court perform most of the same duties as the magistrate judge, such as setting bond and signing warrants. But unlike the magistrate, they do not preside over state misdemeanor cases. Commissioners are appointed to six-year terms by the judges at Criminal District Court, along with the magistrate. 

More recently, Lombard served as commissioner of the Louisiana Office of Alcohol and Tobacco Control under Gov. John Bel Edwards. Early in her career, she worked as a defense attorney with the Orleans Indigent Defender Program — a precursor to the Orleans Public Defenders office. She has gained the endorsements of both Edwards and New Orleans Mayor LaToya Cantrell. (Harry Cantrell is the mayor’s father-in-law.)

Lombard told The Lens in response to emailed questions that the “surety bail system like many other parts of the Criminal Justice System is often unfair to the poor and under-privileged,” and that has “always believed that there should be low bonds or no bonds for non-violent misdemeanors and low risk offenders.”

But Lombard appears to be running primarily on her experience, and a promise of hard work and efficiency. There is nothing on her website regarding money bail.  And to The Lens, Lombard expressed concern about violent offenders being released if the current system is done away with. She has also said that Louisiana state law, which requires some form of financial bail to be set in certain circumstances, means that the issue of cash bail will ultimately be decided by legislators, not judges. 

Her opponent, Steve Singer was a long-time public defender, and was instrumental in creating the new public defenders office following Hurricane Katrina. More recently he worked at the Capital Assistance Center, but was fired on May 16, according to an article in the Times-Picayune/New Orleans Advocate

He views the current bail system as not only unjust to the poor, but also detrimental to public safety. And he has a more radical reform agenda: Do away with bail bondsmen, and end money bail altogether. 

Singer is not the only one in New Orleans pushing for an end to money bail. In 2019, the Vera Institute of Justice put out a report urging criminal court judges to stop setting money bail. The report argued that bail requirements often end up jailing people just because they are poor. In 2018, the report found, 1,756 people were incarcerated in the New Orleans jail because they couldn’t afford bail before their case was resolved. Following the conclusion of their cases, they weren’t given any jail or prison time — they were released.  Eighty percent of those people were black.

Mayor LaToya Cantrell, along with a 2020 candidate for Orleans Parish district attorney, City Councilman Jason Williams, penned an op-ed in 2018 touting a data-driven risk assessment tool that provides judges with information on a defendant’s likelihood of failing to show up for court or committing a crime when released pretrial.

“We all want a safe city, but financial bail does not make us safer,” they wrote. “Unnecessary detention does not make us safer. And our community pays the cost. New Orleans has the opportunity to be a leader in the South and in the nation in promoting equity and justice in our courts.”

They noted that while the risk assessment tool would not altogether prevent people released pretrial from committing serious crimes, but that “is a price we pay to live in a free society.”

But some in the local criminal justice system, including outgoing Orleans Parish District Attorney Leon Cannizzaro, even more modest efforts at bail reform that are already underway at Orleans Parish Criminal District Court — such as the risk assessment tool and an increased use of releases without bail — are a threat to public safety. They have argued that the assessments often produce risk scores that are out of line with the offenses that defendants have been charged with, and judges end up setting bail amounts that are too low. 

The issue of money bail in state criminal courts — while determined by local or state laws — is also being debated on the national scale. In his criminal justice platform outlined on his website,  Democratic presidential nominee Joe Biden calls cash bail a “modern-day debtors prison” and says that he “will lead a national effort to end cash bail and reform our pretrial system by putting in place, instead, a system that is fair and does not inject further discrimination or bias into the process.”

President Donald Trump, on the other hand, has criticized a controversial move in New York  to significantly reduce the use of cash bail, warning on Twitter last year that the New York City Mayor Bill de Blasio and state Gov. Andrew Cuomo were “letting out 900 Criminals, some hardened & bad, onto the sidewalks of our rapidly declining, because of them, city.”

Simone Levine, Director of Court Watch NOLA, a watchdog group that monitors proceedings at Tulane and Broad, told The Lens that the magistrate race is “one of the most important electoral races on our ballot.”

“We should be looking for a candidate sufficiently courageous to make hard decisions,” she said, “sufficiently intelligent to comprehend real risk factors of whether the defendant will return to court or not, and sufficiently constitutional to finally allow us out of all of these expensive lawsuits.”

“When people hear ‘end money bail,’ they think…”

“When people hear ‘end money bail,’ they think, ‘Oh, you’re just going to let everybody free.’” Singer said in an interview with The Lens. “Well, no.”

Singer said that he will determine whether or not someone stays in jail prior to trial in a way that is similar to how it works in federal court, where financial conditions of release aren’t imposed up front. Rather than set a bail amount that a defendant must pay — either through a bondsman, or a deposit directly to the court — Singer said he would ask police and prosecutors to make the case that there’s a risk the person won’t show up again for court, or that they would endanger public safety if released. 

“What we do is, we sort of do this one-size-fits-all of carpet bombing where we set these money bonds on everybody regardless of their circumstances and you end up with a huge jail population for no reason,” he said. “Instead, what the police and the DA’s office needs to do is identify who are the real danger to the community, who are the real flight risks.”

In Criminal District Court, Singer said, there are very few actual flight risks. More often people fail to show up to court because they have other issues in their lives, such as drug addiction, mental illness, and poverty. 

But Singer said that in cases in which someone is an actual danger to society, or an actual flight risk, they shouldn’t be released no matter how much money they have. 

“My position is, look, if you’ve got a dangerous person, someone who is a real danger, ask for a hold without bond,”  Singer said. “You get a five day hold, put together your case, have a hearing and present evidence that shows this person is a danger. If they are a real danger, I don’t care if they’ve got a million dollars.”

Often times, when he was practicing as a public defender, Singer said that he saw dangerous people with lots of money able to pay relatively high bonds to get out of jail before trial, while poor defendants who were often dealing with drug addiction or mental illness were kept in jail on relatively low bonds that they couldn’t afford. 

“I’m like this is exactly the opposite — talk about ass-backwards right? The dangerous people were out, and the people who weren’t dangerous were in,” Singer said. 

For people who are released prior to trial, Singer said that he would work to develop a more robust pretrial services program that would connect defendants to drug treatment, social services, and  employment. There is currently a pretrial service in New Orleans that produces a risk assessment score for each defendant which it provides to judges in order to provide guidance on release decisions, and some defendants are assigned to a pretrial services officer who does check-ins and can refer them to social services. 

Lombard was not available for an interview with The Lens, but responded to several questions via email. She said that releasing “low risk” offenders back to their families would “better serve the public and the economy.”

She also expressed an interest in expanding pretrial services programming, particularly for  “marginal risk offenders with no history of violence” who she said “should be released with supervision or conditions, like counseling or drug treatment.”

“Part of my platform is to expand pretrial services to include screening questions to look for victims or trafficking and abuse,” she said. She also plans to develop what she calls a “pre-diversion” program in Magistrate Court, though she did not expand on what exactly that program would entail.  

But she said that she has “real concerns about dissolving the system without a plan for those listed as violent offenders.”  

“If we don’t address these issues when we end the current system we will have violent offenders being released back onto the streets or we have a whole category of defendants that are not eligible for release and will therefore languish in jail,” she said.

She also claimed that Singer wouldn’t have the authority to end money bail on his own as magistrate judge, pointing to legislation that requires commercial surety bonds to be set for certain crimes. 

“Please note, my opponent’s assertion that he can end money bail is false,” she said. “This system was created by the lawmakers and only the lawmakers can end the Commercial Surety bail system.  One magistrate does not have the power to accomplish this, it takes legislation, it will take a massive effort not just the use of buzz words and failed promises.”

But Singer said believes that he can functionally end money bail — in his court at least. In instances in which there is a defendant that is not eligible for an ROR under state law, Singer says he would set bail at one dollar — which is the solution that was proposed in the report by Vera for getting around state law. 

“What you need to do is make people in the system do what they’re supposed to do, instead of all these work arounds that have all these unintended consequences that destroys our neighborhoods and our families by putting people in jail just because they are poor,” Singer said. 

Singer said that he was hopeful that the commissioners at Magistrate Court would follow his lead. 

“If you show them this stuff works, they’ll follow suit,” he said. 

Lombard said that she would gain consensus among the commissioners before implementing  court policies that would “alter the bail requirements on non-violent misdemeanors and low level low risk offenders.”

“Whatever policy Magistrate court adopts must be done with agreement of the judges en banc to maintain consistency and fairness throughout the court,” she said.

Bail bond industry

To Singer, the undeserving beneficiaries of the money bail system are bail bondsmen, who bring in around $5 million per year in New Orleans. Singer said they have no place in the criminal legal system, and serve only to allow judges to set higher bail amounts — in order to look tough on crime. 

“If you or anybody can explain to me what bondsmen do in the system, I would love to hear it,” Singer said. “If you can tell me what value they add to the system, have at it, I’d love to hear…What do they do? Other than collect money and give it back to legislators and judges?” 

In Louisiana, when a defendant purchases a commercial bond through a bail bond company, they pay a 12 percent of whatever their bail was set at. Two percent of that is passed on to various criminal justice system actors — such as the DAs office, the public defenders, the Sheriff’s office, and the court. The rest is kept by the bail company. That payment is non-refundable. 

Singer says that because the payments are non-refundable, it actually disincentivizes defendants to return to court, because they won’t be getting their money back regardless. 

Both Singer and Lombard pledged not to take money from the bail bond industry — and reviews of each candidate’s campaign finance reports by The Lens did not immediately reveal any contributions from the bail industry.

But in an interview Singer called Lombard the “candidate of the bondsmen,” claiming that during her time as commissioner she set money bail in “almost every case, including marijuana possession” and that “she did nothing to change the system.”

Lombard called the allegation “baseless,” and noted that she considered a wide range of factors when determining bail amounts — including the alleged offense, the pretrial risk assessment, the severity of the crime, the defendant’s financial situation, as well as “extenuating circumstances such as mental health issues, health conditions, school etc.”

“Personally, I think my opponent may be the bail industry candidate, he is pushing a bail reform platform that he knows he cannot deliver,” she said. “He may be using this to get elected and then do nothing and blame the legislature.”

Nicholas 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...