Last November, the Orleans Parish Criminal District Court transferred more than $850,000 of bail and conviction fees paid to the court by criminal defendants over several years to the city of New Orleans.
For decades, the court had used those fees to fund its operations. But in 2018, a federal court ruled that judges levying fees against defendants and using the money to pay their own expenses was an illegal conflict of interest. In response, the Louisiana State Legislature in 2020 passed a law requiring that the money go instead to the city, which was to use it for “defraying the expenses of the criminal justice system in Orleans Parish.”
But so far, the money has not been allocated — to the frustration of some criminal justice reform groups and New Orleans City Council members, who say the funds should be returned to the defendants who paid it in the first place, or at the very least invested in community resources.
“We can’t let vital resources sit on the sidelines when there’s so much work to do,” Councilwoman Helena Moreno. “Considering our challenges with public safety, I think we need to return this money to the people through expanded services, and specifically for our kids, by boosting the City’s summer jobs program.”
City Councilman Oliver Thomas, who chairs the Council’s Criminal Justice Committee, said that he was unaware that the funds had not been distributed by the city, and said he was going to send a letter to the city regarding their status.
In a statement, a spokesperson for the city cited “legal concerns with funding the criminal legal system with fines and fees imposed on defendants” and the council changeover in 2020 as reasons for not yet spending the money, but did not provide any insight into what it might be used for, or when that would be determined. “We look forward to working with the Council to determine the highest and best use of these funds, in accordance with state law.”
‘Modern debtors’ prison’
Until the court ruling in 2018, money from bail and conviction fees was kept by the court and put into a judicial expense fund that could be used to cover staffing and court resources — as dictated by state law. It constituted a significant portion of the court’s revenue. (In 2017, according to a report from the Vera Institute of Justice, the court collected nearly $2 million in bail and conviction fees, which was about a quarter of its overall funding.) Other parts of the criminal legal system also got money from the fines and fees — including the public defender’s office, the DA, and the sheriff.
In 2015, a class-action civil rights suit was filed against the city and the court on behalf of a group of people who had faced conviction or bail fees in New Orleans. The plaintiffs said that judges levied the fees against poor people who could not afford to pay, then jailed them, or at the very least threatened jail, to collect.
“The result is an illegal, unconstitutional, and unjust modern debtors’ prison,” the suit said.
In August 2018, U.S. District Court Judge Sarah Vance ruled in their favor. Vance found that the criminal court judges had “a policy or practice of not inquiring into criminal defendants’ ability to pay before those individuals are imprisoned for nonpayment of court debts” and also had an “institutional conflict of interest” when assessing bail and conviction fees that were then used, in part, to fund court operations. Following the ruling, the court began holding fines and fees money in a special escrow account, where it sat unused.
They also began collecting much less of it. In 2019, the first full year Criminal District Court began diverting the money to the escrow fund, the total came to about $414,000, according to records obtained by The Lens. In 2020, with much of the court’s activity on hold due to COVID-19, it dropped down to around $131,000. The total for the first eight months of 2021 came to about $121,000.
In an attempt to fully relieve the judges of their conflict of interest, the legislature in 2020 passed House Bill 842, which directed the court to transfer the money from the escrow account to the city.
Criminal justice advocates — who have long argued against the state’s user-fee-based criminal justice funding scheme — said that the change didn’t go far enough, and that bail and conviction fees should stop being assessed completely. And the New Orleans City Council in August 2020 passed a non-binding resolution saying that instead of transferring the money to the city, the court should instead return it to the defendants who paid it in the first place.
The resolution did not distinguish between bail fees and conviction fees. While both are required to be collected by state law, judges have more discretion with regards to conviction fees, which are assessed based on ability of defendants to pay.
‘The goal with these funds should be to return them’
“The goal with these funds should be to return them to the individuals who paid them,” said attorney Will Snowden, of the Vera Institute of Justice.
“We think about the amount, we think about the ways in which our criminal legal system extracts money from vulnerable communities, that how that perpetuates more harm,” Snowden said. “By returning these funds we’re injecting resources into communities that certainly need that money returned.”
But Snowden said that if it was “difficult from a record-keeping perspective to return the funds to the people who paid them,” then he was primarily concerned that the money be used for public safety investments that didn’t involve police or prosecution.
That is in line with what the city has previously suggested the money could be used for. In June 2020, a spokesperson for the city told The Lens that the funds would likely be used to “fund community-oriented programs such as programs for victims and for drug treatment and education.”
“I would love to see that,” said Sarah Whittington, with the Justice Accountability Center, an organization that works with people impacted by the criminal legal system. “But where is it right now? They’ve been sitting on this money from November to May. It’s been six months, and they’re not discussing it or how to disperse it.”