In New Orleans, Drug Testing Is Imposed More Frequently on People Released Without Money Bail

A report published Tuesday suggests that people released from Orleans Parish Prison without money bail are failing to appear in court because judges are placing more restrictions on their release.

The report, done at the request of the City Council by the data analytics firm AH Datalytics, shows that people released on their own recognizance (ROR) were much more likely to have to appear frequently in court for drug testing than those released on cash bail. Nearly a third of defendants released on recognizance were ordered to undergo drug testing, compared to less than 2 percent of people released on cash bail, according to the report.

People released pretrial on recognizance were roughly twice as likely to miss a court appearance than those who were released on cash bail. About 25 percent of people released on recognizance failed to make at least one appearance compared to about 13 percent for people released on cash bail, according to the report.

That finding “is kind of shocking if you don’t do any more digging,” Jeff Asher, co-founder of AH Datalytics and co-author of the report, told The Appeal. “If you do more digging, it starts to make sense.” Asher presented his findings to the City Council on Tuesday.

One case from the report shows that a judge required a defendant to appear for drug testing 15 times. The defendant appeared 12 times in a row and then missed two drug tests, which counts as two failures to appear, just like a missed arraignment or other court proceeding. The defendant appeared for one final test and tested negative. District Attorney Leon Cannizzaro’s office dropped the charges about a month later.

In another case, a man charged with simple burglary and misdemeanor possession of marijuana appeared nine times for drug testing, but an arrest warrant was issued after he missed his final test. The warrant was dismissed a day later when the district attorney’s office dropped the charges against him.

“The more appearances you tack on to a person, the more likely it is they are not going to appear,” Asher said.

The rate of failure to appear was nearly identical for both ROR and release on cash bail when the defendant was not required to undergo drug testing, Asher and his team found.

The drug testing requirement was only partially related to arrests for drug offenses and did not explain the discrepancy between ROR and cash bail, according to the report.

For example, Asher and his team found that nearly 40 percent of people charged with a felony drug offense who received ROR were required to appear for drug testing compared to just 3 percent of people charged with similar offenses but released after posting cash bail.

People who were released on recognizance were no more likely than those released on cash bail to be rearrested, according to the report, but had better case outcomes.

All charges were dismissed in 20 percent of cases where the individual was released on recognizance, compared to 14 percent for people released on cash bail and only 9 percent for people who were not released from jail pretrial, Asher and his team found.

Individuals who were released on recognizance were also released from jail more quickly. Nearly two-thirds of people released on recognizance were out within 24 hours and 80 percent were out within 48 hours. Conversely, only about 30 percent of people released on cash bail got out within 24 hours and less than 60 percent were released within 48 hours.

“It’s important not to set people up for failure,” Cherise Fanno Burdeen, executive partner of the Pretrial Justice Institute, told The Appeal. “As a system, we sort of dare them to keep the appointment rather than supporting them.”

Even short stays in jail can have long-lasting negative consequences. 

A 2018 study in Philadelphia, found that less than half of people who had cash bail set were able to post within three days. This led to these individuals being more likely to lose their jobs and to plead guilty. These people were also more likely to be arrested again after the disposition of their case. 

People who were able to pay bail within three days were 25 percent less likely to be convicted, and people who posted bail within three days were 25 percent more likely to find gainful employment.

On any given day, more than 460,000 people are being held pretrial in jails across the United States. A national report for the Prison Policy Initiative found that the median income for people who were unable to pay bail was about $15,600, and nearly 40 percent had an annual income of less than $10,000.

According to the Vera Institute of Justice, in 2017, roughly 80 percent of defendants facing a felony charge who were held in Orleans Parish Prison for at least two days because they were unable to pay bail were Black, and nearly 90 percent of cash bail in the parish was paid by Black families.