Two Rulings, One Conclusion: ‘User-Pay’ Court Funding Unconstitutional
In two landmark decisions this month, two federal judges declared that there is a clear conflict present when judges in New Orleans set bail amounts which in turn pad their court budgets. These rulings, brought against Magistrate Judge Harry Cantrell and the 12 Criminal District Court trial judges, will do two things: throw the courts’ discretionary budgets into question for the near future and present a unique opportunity to reform the courts’ longstanding practice of profiting off of the backs of poor people.
The Orleans Parish Criminal District Court receives 1.8 % of every commercial surety bond posted in the parish. In other words, bail and bonds paid by poor people – who have not yet been convicted of any crime – are providing nearly a quarter (20-25%) of the court’s discretionary budget each year.
The case against Judge Cantrell was brought by the MacArthur Justice Center and Civil Rights Corps. Though he had acknowledged the necessity of inquiring into a defendant’s ability to pay a certain bail amount, Judge Cantrell has also admitted that he does not set bail lower than $2,500; a prohibitively expensive amount, particularly in a city where a quarter of the population lives in poverty. Judge Cantrell has “an institutional incentive to find that criminal defendants are able to pay bail and to set higher bail amounts,” Eastern District of Louisiana Judge Eldon Fallon wrote. In 2015, Judge Cantrell’s court benefited to the tune of $1 million from bail and bond fees.
In his August 6 decision, Judge Fallon writes that a judge must be able to prove that there is “clear and convincing evidence” that an individual should be detained. That requires both inquiring into whether or not the individual has the ability to pay the set bail amount, as well as the consideration of alternatives to detainment.
“You can’t just throw money amounts at people,” Jon Wool, director of public policy at the Vera Institute of Justice’s New Orleans office, told The Appeal. “You need to say either you’re released on non-financial conditions or you’re detained either because you can’t pay money or as preventative detention, but only after a searching inquiry and a high standard of proof.” The Vera Institute of Justice is hoping to move towards a system where the New Orleans City Council funds the court.
No judge should have a financial incentive to impose bail. Nor should anyone be detained because they lack the resources to purchase their freedom. The question now becomes whether or not the city of New Orleans will fully divorce itself from a fundamentally unjust system which places the financial burden – both the cost of liberty as well as the revenue stream for the courts – on the defendant, or if they will simply make minute adjustments that satisfy constitutionality while maintaining the status quo.