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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.”

An Inside Look At An Ohio Police Force’s Race Problem

A white cop joked about bringing explosives to a Black Lives Matter protest in Columbus with no consequences. A black cop joked about ‘black on black’ crime and may be fired.

Lt. Melissa McFadden
Melissa McFadden/City of Columbus

An Inside Look At An Ohio Police Force’s Race Problem

A white cop joked about bringing explosives to a Black Lives Matter protest in Columbus with no consequences. A black cop joked about ‘black on black’ crime and may be fired.

“Anybody know where I can get some C-4???” asked Trent Taylor, a white police officer in Columbus, Ohio, commenting on a fellow officer’s Facebook post about a police shooting protest in July 2016. The post was reported. But Taylor told investigators that his reference to explosives was meant to be “humorous,” and the complaint was dismissed as “unfounded.” The year before, Taylor had been involved in a fatal shooting of a Black suspect, which the department deemed justified.

Six months later, Lt. Melissa McFadden, one of the department’s few high-ranking Black officers, also made a joke, according to police records. But she is now facing far more severe repercussions that reflect the disparities in how Black and white officers are treated, she told The Appeal. During a performance evaluation with a Black sergeant, McFadden said that she could have given him a poor rating, but that she did not believe in “Black on Black crime.” The department found that this rating was an act of favoritism and created a “hostile work environment.” For this, the Columbus police department has recommended McFadden be terminated.

McFadden believes the response to her comment has more to do with what she and other officers of color say is a pattern of systemic racial discrimination in the Columbus police department. Columbus’s population is nearly 40 percent non-white, yet the Columbus Division of Police’s top leadership is entirely white.

The investigation, McFadden argues, is racially motivated retaliation for her role in helping a younger Black officer file two discrimination complaints against a supervisor in 2016, in reporting a commander’s retaliation over these complaints to the chief of police, and later filing her own discrimination complaint.

After McFadden helped the younger officer accuse a supervisor of  discrimination, Columbus police commander Jennifer Knight, who is white, told a subordinate that she was going to “take [Lt. McFadden] out,” according to a lawsuit filed by McFadden. Records from the investigation show that Columbus police chief Kimberly Jacobs was informed of Knight’s comments, but then assigned a friend of Knight, Rhonda Grizzell, to oversee McFadden. In the month that followed, the lawsuit says, Grizzell, another white commander, began targeting McFadden.

Copies of emails and text messages, obtained by The Appeal, seem to support McFadden’s allegations. Some of the communications show Grizzell texting multiple officers about McFadden before they had formally filed any statements complaining about McFadden and later instructing them on how to compose a strong statement. The primary complaint against McFadden came from a sergeant nearly a month after the comment and after multiple conversations about the evaluation with Grizzell.

Another email shows a deputy chief recommending that McFadden, while under investigation, work in the property room “unless and until she is no longer either the subject or complainant in an EEO investigation involving Commander Grizzell.” McFadden claims that this email proves that the department has been punishing her for exercising her legal rights against discrimination, rather than solely for being the subject of an investigation.

McFadden filed her own discrimination complaint involving Grizzell and later filed a lawsuit against the department in response to this alleged retaliation.

In a phone interview, when asked about the department’s response to McFadden’s allegations, Columbus Division of Police spokesperson Denise Alex-Bouzounis said “I can tell you that quite a few of the complainants were African-American.” When pressed about the specific allegations, Alex-Bouzounis said, “I really can’t answer that because it’s part of her lawsuits against us, but I can tell you that Chief Jacobs stands by her decision to recommend termination.” The department did not respond to written inquiries submitted by The Appeal.

But four current officers and one retired officer told The Appeal that they believed McFadden’s allegations of discriminatory retaliation, and say they reflect a larger problem of racism in and outside of the department.

“They’re only going after her because she’s standing up for what’s right,” said one officer, who requested anonymity for fear of retaliation. Police investigators in the division “do this all the time,” said the officer. “If you’re a strong, opinionated Black officer, they’ll put you in your place quickly.”

Another current officer agreed, calling the investigation of McFadden a “witch hunt” in retaliation for McFadden helping the younger officer file a discrimination complaint. “Melissa since day one has always been outspoken and stood up for everyone’s rights, Black and white, if it’s wrong, you’re wrong, Black, white, purple, or green.”

“When you’re outspoken they treat you a different way,” said a third officer on the force. “They want you just to be quiet. If you’re not, they retaliate, that’s what they’re doing to Melissa.”

Officers say the alleged retaliation is not the only example of racially disparate treatment in the department’s disciplinary decisions.

In 2014, Eric Moore, a white officer, was accused of calling two Black officers the n-word and making statements about killing them. Colleagues interviewed about Moore said that he would also use the terms “apes” and “monkeys” when referring to Black people. Investigators in 2015 determined that Moore did use derogatory language but only gave him a written reprimand. At the time, Chief Jacobs, who is white and now calling for McFadden to be fired for her comments, said a written reprimand was sufficient for this racist language. “If I could prove a racist, sexist, homophobic mindset impacted an officer’s behavior, that’s something I can act on,” Jacobs told the Columbus Dispatch. “But it has to be actions, not thoughts.”

Last year, video emerged of Columbus police officer Zachary Rosen stomping the head of DeMarco Anderson, a young Black man. The beating took place two weeks after a grand jury declined to indict Rosen for fatally shooting a 23-year-old Black man. Jacobs recommended Rosen be suspended for three days without pay, but the city went further, choosing to fire him. Columbus’s police union, however, rallied behind the white officer and appealed the decision, getting him his job back this year.

“I promise you if that had been a Black officer, FOP [the police union] wouldn’t have rallied behind him, and he would have been fired,” said one Columbus cop.

Beyond overt retaliation, Black officers say racial disparities also manifest themselves in the department’s recruiting and promotion practices.

On the front end, officers, interviewed by The Appeal, alleged that Black applicants are being  ignored and weeded out by the division’s investigative unit. A 2012 memo obtained by Pacific Standard seems to support these claims. In the memo, a Black officer reported to Chief Jacobs that the division’s background vetting team was hand-picking candidates who “look like they will make it through the process,” rather than assessing recruits based on their exam score. Despite occasional rhetoric from the city about the importance of diversity, police recruiting classes have been overwhelmingly white in recent years.

This front-end disparity helps explain why no Black officers on the Columbus police force today make it into top leadership positions, a problem which is exacerbated by exclusive, predominantly white social networks, officers say. Several officers argued that the department has failed to hire enough Black officers, especially from the community, insteading bringing in white officers, who may have either a naive or white supremacist attitude toward Black civilians.

One officer claimed that white officers like to “inflict their own ways of justice” on Black neighborhoods, referring to violent police-civilian interactions. “It’s like a bidding war to get in on these Black precincts,” said one officer. “This their legal way to affect Black people,” said the officer.

Another argued that some officers, especially white officers, come with naive intentions about helping inner city residents, but then become violent once their expectations don’t match what they have seen on television. “You’re out there every day, and the majority of things you see are bad. This job changes you in ways that you can’t see, and you can be become an oppressor. That’s even for minority officers.”

If even veteran police officers are being punished for speaking against alleged racial discrimination, other cops are unlikely to speak against day-to-day police abuse of civilians, the officers argue. “If somebody uses excessive force because of who a person is, that’s a lot of pressure against going outside and saying ‘hey this officer said this or did this,’” said another officer. “This sends a message that if you open your mouth you better get ready, don’t say anything.”

“If I’m retaliated against as an officer, and it goes unchecked,” McFadden said, “of course I’m not going to complain about citizens getting mistreated. We know what happens if we speak out. Even we are retaliated against. We’re Black, but we’re supposed to be blue.”

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Milwaukee Candidates Clash In Race to Succeed The Infamous Sheriff Clarke

Several candidates are vying to become Milwaukee Sheriff in the wake of Sheriff David Clarke's resignation last fall. But will they truly spurn his legacy of jail deaths and cooperation with ICE?

Former Milwaukee County Sheriff David Clarke Jr. speaks at the NRA-ILA's Leadership Forum in 2017
Scott Olson/Getty

Milwaukee Candidates Clash In Race to Succeed The Infamous Sheriff Clarke

Several candidates are vying to become Milwaukee Sheriff in the wake of Sheriff David Clarke's resignation last fall. But will they truly spurn his legacy of jail deaths and cooperation with ICE?

On Tuesday, Milwaukee County will hold its first primary election for sheriff since David Clarke resigned from the position in September 2017 to join America First Action, a Trump-supporting SuperPAC. President Trump, Clarke said just before joining the SuperPAC, “does not have a racist bone in his body.” During his tenure, Clarke also said Black Lives Matter should be added to a list of “hate groups,” declared that “systemic racism in America is so rare today that some feel it necessary to make up stories to keep the lie about it alive” and, much more significantly, had three people die in his jail during his final year in office alone.

The Democratic primary election will have three opponents, including Richard Schmidt, who became interim sheriff when Clarke resigned, Earnell Lucas, who is head of Major League Baseball security, and Deputy Robert Ostrowski. Schmidt and Lucas say they’re opposed to Sheriff Clarke’s record on everything from jails to immigration, despite Schmidt serving as senior commander under Clarke and being named as a defendant in multiple wrongful death lawsuits from Clarke’s reign including the in-custody death of Terrill Thomas. In 2016, Thomas died of dehydration in the jail after guards shut off his water for one week. Several officers involved in the incident were charged with felonies by the county’s district attorney, including Major Nancy Evans who was accused of “withholding information from her superiors, lying to her superiors, failing to preserve evidence, repeatedly lying to law enforcement investigators and lying at the inquest.” The jail also faced sexual assault allegations under Clarke—one woman who filed a lawsuit claimed that she was raped five times by a guard while incarcerated at age 19.

In an interview with The Appeal, Schmidt insisted that he was not responsible for the jail deaths: “I cannot take responsibility for something I didn’t run.” He added that he has made significant changes to the jail’s operation—such as changing its healthcare administrator and hiring three wellness coordinators—since becoming acting sheriff last year.

But for some local activists, Schmidt’s proximity to Sheriff Clarke is troubling. “Schmidt does represent a continuation of the Clarke administration,” Christine Neumann-Ortiz of Voces de la Frontera, an immigrants rights organization and workers’ center in Wisconsin, told The Appeal, “He ran the day-to-day operations under Clarke.” Yesterday, Voces de la Frontera held a press conference at the county jail “to condemn Richard Schmidt’s role in deaths” there including James Perry, who died in 2010 after being violently restrained by law enforcement after he suffered seizures.  

And while Schmidt and Lucas claim to be criminal justice reformers, their policy positions reflect a more conservative stance. Schmidt says he doesn’t support the 287(g) program, which deputizes local law enforcement to enforce federal immigration laws. However, local nonprofits told The Appeal that when they asked Schmidt to withdraw the department’s 287(g) application, he did not do so. And under Schmidt’s leadership the Milwaukee County Sheriff’s Office honors ICE detainer requests—a continuation of Sheriff Clarke’s policy.

Lucas’s campaign, meanwhile, told The Appeal that he would not honor ICE detainers, except in certain cases. “An ICE detainer is a request, not a warrant,” a spokesperson from his campaign said. “Absent a warrant, Earnell will only honor ICE detainers if a rigorous screening process determines the person to be a threat to self, others, or to the community.  Otherwise, it will not be Earnell’s policy to honor ICE detainers.” In an interview with The Appeal, Lucas declared, “We have more pressing needs for holding persons in our jail than individuals who simply do not have the proper documentations.”

Neumann-Ortiz called ICE detainers “part of the ICE immigration machinery that undermines public safety [and] public trust” and cited Lucas’s commitment to not make ICE holds as one of the reasons Voces de la Frontera support him. “With such an aggressive assault and escalation of these policies that we’re seeing at the border and we’re seeing in the interior, it’s very critical that in every county and in every police department that we win these policies of non-collaboration with the sharing or holding of people [for ICE],” she told The Appeal.

Activists, organizers, and nonprofit organizations in Milwaukee have engaged in a years-long battle with Clarke and they believe that their organizing was a decisive factor in his abrupt resignation. Indeed, seven months before Clarke resigned, Voces de la Frontera organized a general strike called “Day Without Latinos,” which brought 80,000 people to the steps of the Milwaukee County Courthouse. The action garnered widespread media attention and inspired a national general strike called “A Day Without Immigrants.”

Now, organizers view the coming election as a chance for Milwaukee to truly close the book on Clarke’s civil rights-trampling reign. “It’s important we have our voices heard in this process because every day our communities are being over policed,” Angela Lang executive director of  Black Leaders Organizing for Communities (BLOC) told The Appeal. “We’re confronted with systemic and institutional racism on a daily basis …[and] we see Black and brown communities constantly being over policed and attacked for merely existing.”

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