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New Orleans Court Ordered To Stop Funding Itself On The Backs Of The Poor

The criminal court was funneling millions of dollars a year from poor communities.

Paul Sableman/Flickr

New Orleans Court Ordered To Stop Funding Itself On The Backs Of The Poor

The criminal court was funneling millions of dollars a year from poor communities.


New Orleans courts will need to drastically revamp the way they treat poor defendants after two orders handed down by federal judges in the past two weeks struck down both the city’s bail system and a crucial funding structure. The two rulings found that jailing people if they can’t afford to pay court costs violates the constitutional guarantee of due process and equal protection. Both federal judges found that the current system, where criminal court judges control the revenue from bonds and fees they set for defendants, violates due process. Together, the invalidated funding schemes funneled millions of dollars a year from poor communities to the court.

Because of Magistrate Judge Harry E. Cantrell’s practice of refusing to release people on their own recognizance or set bail amounts they could afford, “[p]laintiffs have been deprived of their fundamental right to pretrial liberty,” Eastern District of Louisiana Judge Eldon E. Fallon wrote in his decision on Aug. 6. Given that “deprivation of liberty requires a heightened standard,” he stated that a judge has to prove that there is “clear and convincing evidence” that someone should be detained. That requires an inquiry into whether a defendant can pay the set bail amount and the consideration of alternatives to incarceration.

“You can’t just throw money amounts at people,” noted Jon Wool, director of public policy at the Vera Institute of Justice’s New Orleans office. “You need to say either you’re released on nonfinancial 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.”

That’s a “complete 180” from the way Judge Cantrell had been operating in the courtroom, said Eric Foley, a staff attorney at the New Orleans office of the MacArthur Justice Center. His organization and Civil Rights Corps brought the original case against Cantrell.

Though he is supposed to consider an individual’s ability to pay when setting bond, Cantrell has acknowledged that he refuses to give people bail amounts lower than $2,500—a hefty sum in a city where over a quarter of the population lives in poverty. This is partly because Cantrell has “an institutional incentive to find that criminal defendants are able to pay bail and to set higher bail amounts,” Judge Fallon found. The court gets a 1.8 percent cut of every bail amount Cantrell sets, thanks to Louisiana’s unusual “user pay” court-funding scheme.

In 2015, the court netted over $1 million from bail and bond fees, which could be used for basically any function other than a judge’s salary. Judge Fallon found that Cantrell violated due process by setting bail amounts that his court would later profit from. His opinion came after a final judgment on Aug. 3 in a case finding that judges in New Orleans were unconstitutionally jailing people who couldn’t afford to pay court debts, similarly indicting the funding system that allocated part of those fines and fees to the court itself. “[B]ecause of the Judges’ institutional conflict of interest,” Eastern District of Louisiana Judge Sarah Vance wrote, they “fail to provide a neutral forum for determination of criminal defendants’ ability to pay.”

Last week’s ruling could still be challenged. As the defendant in the case, Judge Cantrell has 28 days to move to alter or amend the judgment, or he could move to appeal it. “If they did in fact challenge it, we’ll go down that road,” Foley said.

But advocates and attorneys are already working to give the ruling teeth. For the Vera Institute of Justice, the immediate focus is getting the City Council to fund the court. “That’s always been the plan: to replace these funding structures…with some combination of city and state direct funding,” Wool said. He expects that the city will offer the court money in exchange for reforming the use of money bail and conviction fees. “Making change at the state level is simply out of reach—there’s too many forces allayed against reform,” Wool said.

The good news for New Orleans is that while the changes will require an upfront investment, the city should soon reap the rewards of lowered incarceration. Vera estimates that reforming bail-setting practices would result in at least 400 fewer people in jail, given that its previous work estimated that 548 jail beds on a given day are occupied by people held because they can’t afford their bail.

That would allow the city to close at least one floor of its jail, reducing staffing and other costs, which would net the city, Vera estimates, a savings of $4 million a year. “That can go back to replace the revenues lost from ending these practices,” Wool said.

“It can be a win-win for the court’s finances and for the city’s budget,” Wool noted, “and not insignificantly for the low-income people who are being targeted for taxation to fund the criminal justice system unnecessarily and inappropriately.”

“To the extent that we can get people who don’t need to be in jail out of jail and back into their daily lives and into their jobs and families while they resolve their underlying criminal charges,” Foley added, “it’s a net benefit for everyone.”

Changes in the courtroom might be slower to come to fruition. “The ball is in Magistrate Cantrell’s court,” Foley said. “Judge Fallon has said basically here is the floor, the bare constitutional minimum of what has to occur at a hearing. Now it’s on Magistrate Cantrell to figure out how he’s going to comply with that.” If he doesn’t comply, Foley’s organization will seek an injunction from Judge Fallon telling Cantrell what must be changed.

“I think [judges] will be reluctant,” Wool said. “But there’s been enough focus on these issues for long enough for them to realize that they need to look for solutions and not merely oppose changes.”

There is a system ready and available to replace money bail when judges are willing to avail themselves of it. Vera helped start up a pretrial risk-assessment tool five years ago that directs judges to base their decisions on whether to release someone not on money, but on the risk of flight or re-arrest. “That’s in place and the court is operating the system now,” Wool said. “Judges have…all they need to move away from money bail.”

The ruling should also reverberate beyond New Orleans. “It’s particularly significant because it goes beyond addressing preset bail schedules or release in misdemeanor cases,” Wool explained. “This is a comprehensive ruling.”

Foley agreed. “It’s a very well reasoned and scholarly opinion,” he said. “It’s an opinion other jurisdictions will be able to rely on.” Other judges may now cite it as a reason to strike down money bail regimes that don’t weigh whether defendants can afford it or court systems that are funded by fines and fees set by their own rulings. The latter “is a nationwide problem,” Foley said. “You have some particularly bad and egregious examples of it in Louisiana, but it is unfortunately a system that has come to prevail across many of the states.”

The decision also requires that defendants be represented by counsel at bail hearings. “The importance of the right to counsel is evident from its inclusion in the Bill of Rights,” Judge Fallon wrote. “Considering the already established vital importance of pretrial liberty, assistance of counsel is of the utmost value at a bail hearing.”

“That could have far-reaching implications for the provision of public defenders statewide,” Foley said. Defendants should soon find themselves represented by a lawyer when their bail is being set.

similar ruling against money bail was issued in January by a California state appellate court, declaring, “A defendant may not be imprisoned solely due to poverty,” and instructing judges to determine whether defendants can afford bail and whether they can safely be released before their trials. But it holds greater weight in Louisiana. “It’s even more [significant] because it shows that even in the South … there are federal courts that will apply the federal Constitution to outlaw these behaviors,” Wool said.

“We’re in a really unique and interesting period in this kind of reform that would even a few short years ago would have been almost unimaginable,” Foley added. But people have come to realize the injustice of jailing people because they are too poor to afford bail. “Whether your rationale is it’s not good because it’s morally wrong or it’s not good because it’s costing an arm and a leg, [the] end result is the same.”