An ambitious plan to end the so-called “user-pay” justice system in New Orleans was released by the Vera Institute of Justice on Wednesday. The report, “Paid in Full: A Plan to End Money Injustice in New Orleans,” lays out recommendations for the city that would end the use of money bail, eliminate fees charged to defendants when they are convicted, and increase city funding for the criminal justice system in New Orleans — while reducing the jail population by as much as 56 percent.
The report argues that money bail and conviction fees are unjust, disproportionately harm black people, do not increase public safety and end up unnecessarily costing taxpayers.
“The extraction of wealth is a terrible suppression of economic and racial equity in this city,” Jon Wool, the Director of Justice Policy at Vera’s New Orleans office and one of the co-authors of the report, told The Lens.
According to the report, in 2017 New Orleans residents paid $6.8 million dollars for bail fees and premiums and $1.9 million in conviction fees. The majority of those costs — 88 percent of bail premiums and 69 percent of conviction fees — were paid by black families.
The current system of money bail also fails to keep the city safe, the report argues.
”We are using government’s most oppressive tool — incarceration — in circumstances where it’s wholly unwarranted.”—Jon Wool, Vera Institute of Justice
“In New Orleans, 65 percent of people arrested for the most serious crimes or who are flagged as high risk for other reasons avoid jail by paying bail,” the report says. Meanwhile, it claims, many are incarcerated simply because they can’t afford to bond out.
“We are using government’s most oppressive tool — incarceration — in circumstances where it’s wholly unwarranted,” Wool said. “And it singles out poor people and black people, all in the name of raising revenues for government agencies and politically powerful for-profit industry.”
“That’s morally wrong. Bad policy, and morally wrong.”
Aside from whether or not they are just, there are financial obstacles that would come along with eliminating bail and conviction fees in New Orleans: the court currently relies them for 25% of its operating budget, according to the report, and the offices of the public defender and the district attorney rely on them as well, to a lesser extent. In 2017 the court took in nearly $2 million in bail and conviction fees, while the district attorney’s office and the public defenders office took in around $500,000 and $400,000, respectively.
In order to replace that lost revenue, the Vera report suggests increasing city funding to criminal justice agencies by $2.8 million annually, split between the court the DAs office, and the public defenders. Those funds, they argue, would come from money saved by having fewer people in jail and a proportional reduction in the budget for the Orleans Parish Sheriff’s Office — most of which is paid by the city.
“Importantly,” the report says, “this does not represent a new cost to the city and its taxpayers because the city stands to save far more by no longer incarcerating people simply because they cannot pay bail.”
Vera estimates that the city would save between $3.7 million and $8.3 million annually by lowering the jail population. A spokesman for Mayor LaToya Cantrell declined to comment for this story.
The report comes amid a broader push by city officials to reduce the number of people locked up. Since 2015, the jail population has been reduced by more than 25 percent, and earlier this year the city was awarded a $2 million grant by the MacArthur Safety and Justice Challenge to reduce it by another 20 percent.
It also comes in the wake of two federal lawsuits challenging the constitutionality of bail practices and conviction fees in New Orleans. Rulings by federal judges in each case have found that setting money bail and the charging conviction fees by New Orleans judges both constitute conflicts of interest. They also found that judges in New Orleans have failed to adequately take into account a defendant’s ability to pay when assessing bail amounts and conviction fees.
While those rulings theoretically ban current bail- and fee-setting practices in the Criminal District Court, they did not mandate a specific course of action for the city’s judges. The court is appealing the portions of the decisions that find conflicts of interest.
The Recommendations
Vera has worked with the court in the past to adjust its bail practices. In 2012, the organization was contracted by the city to administer a pretrial services program, which provided risk-assessments of defendants meant to be used by judges to help determine whether or not they could be safely released without posting bond, as well as supervision services that were intended to make sure defendants showed up for court.
But the program was controversial among judges. Magistrate Judge Harry Cantrell, for instance, barred Vera assessments from the court record.
Then, in 2017, the administration of the program was transferred from Vera to the court itself. In 2018 judges began using the Public Safety Assessment (PSA), a data-driven risk assessment tool used by a number of states and jurisdictions around the country, along with a decision making-framework (DMF) that translates the PSA risk-score into a recommendation of whether or not a defendant should be released and what amount of supervision should be required of them.
Now, with the PSA and DMF infrastructure in place, the report argues, it is time for the judges to do away with money bail altogether.
Instead of setting a bail amount, the report recommends that judges should fully rely on the PSA and DMF to determine which defendants should be released and how much supervision — if any — should be required of them.
The only people who judges should even consider detaining, the report suggests, are those who are being charged with a violent crime that would result in a prison sentence if convicted, or those who are scored in the highest risk category. Everyone else would be released without having to pay any money.
“It would be inappropriate, for example, to consider detaining someone simply because he might miss a court date, or she might be re-arrested for a crime that doesn’t harm anyone,” the report says.
Using data from 2018, the report estimates that following their recommendations, judges would immediately release 73 percent of people arrested for a felony.
For certain types of crimes it is illegal under Louisiana state law for judges to release a defendant without setting a bail amount. In those instances in which a person would be released based on the risk assessment and decision making framework but can’t be legally released under state law without some money bail being set, Vera suggests setting a “nominal money bail amount of one dollar ‘or even ten cents’ to ensure their release without delay.”
For defendants who could warrant detention, the report recommends giving them a full evidentiary hearing within three days of their initial court appearance with a lawyer present and the ability to call witnesses.
“To actually detain someone,” the report says, “the judge must make a finding on the record, supported by clear and convincing evidence, that serious and imminent danger to a particular individual or the community exists that cannot be mitigated by applying conditions of release.”
Ending conviction fees would be more straight forward: the judges would just agree to stop charging them to defendants following a conviction. The report also encourages the judges to apply a “retroactive lens” by expunging all existing conviction fees and recalling any warrants related to unpaid fees.
‘A winning proposition’?
The plan, the report argues, “is a winning proposition for everyone but the for-profit bail bond industry.” In reality, however, there is likely to be significant political pushback against the idea, and getting the city and the judges to sign on could be a challenge.
Orleans Parish District Attorney Leon Cannizzaro, for one, has been highly critical of recent efforts to reduce the jail population, calling them a “social experiment espoused by sheltered academics and naive politicians.”
During a tense moment at a forum on criminal justice in New Orleans earlier this year, the chief judge of Criminal District Court, Keva Landrum-Johnson, accused Cannizarro of not being a “willing participant” in the pretrial services program and efforts to release non-violent offenders from custody.
The district attorney’s office did not respond to a request for comment for this article.
Despite his rhetoric, Jon Wool at Vera thinks the DA might in fact be on board with the plan.
“I think the district attorney would agree that if we really care about individuals and community and safety we have to take control of the detention decision,” Wool said. “The only way to do that is to not give people the keys to their jail cell— the ability to purchase their way out.”
”I think the district attorney would agree that if we really care about individuals and community and safety we have to take control of the detention decision.”—Jon Wool, Vera Institute of Justice
Ultimately, however, ending bail and conviction fees will come down to an agreement between the judges and the city. If that were to happen, it would likely come amid city budget negotiations that will take place later on this year.
As for the New Orleans bail bondsmen who would be out of work if Vera’s plan came to fruition? Wool suggested they could transition to supervision, or for-profit industries other than bail.
“Labor markets are changing for all of us,” Wool said. “It’s natural that they change for the bail industry as well.”
Stephen Adams, president of the Association of Louisiana Bail Underwriters and owner of #1 Bail Bond in New Orleans, did not immediately respond to a request for comment.