by Derek Gilna
On August 6, 2018, Judge Eldon E. Fallon of the U.S. District Court for the Eastern District of Louisiana ordered the New Orleans Municipal Court system to reform its money bond system, stating in his opinion in a case filed by defendants that, “[p]laintiffs have been deprived of their fundamental right to pretrial liberty.”
Sentence reform advocates have long argued that the money bond system, which requires criminal defendants to post cash bonds before being released, regardless of their ability to pay, is a violation of due process.
In the case of the New Orleans courts, plaintiffs had alleged that in its system, criminal court judges control the flow of money from the bonds set, and use the proceeds collected to help fund the court system.
Plaintiffs had argued that those courts were siphoning millions of dollar annually from the poor, while depriving defendants of their liberty merely based upon their ability to pay bond.
According to Judge Fallon, the “deprivation of liberty requires a heightened standard,” and the municipal court judges must establish that “clear and convincing evidence” that a defendant should be detained.
Jon Wool of the Vera Institute of Justice in New Orleans, agreed, stating, “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. You can’t just throw money amounts at people,” he said.
The bigger problem, according to advocates, is the fact that the New Orleans municipal courts have—at least until now—had to rely on bail bond revenue to pay its bills. According to Wool, the City Council should fund its courts. “That’s always been the plan: to replace these funding structures … with some combination of city and state direct funding,”
Municipal Court Judge Cantrell has been under the spotlight for failing to give people lower bond amounts based upon their inability to pay, refusing to set amounts lower than $2,500. Judge Fallon criticized that practice in his court order, calling it “an institutional incentive to find that criminal defendants are able to pay bail and to set higher bail amounts,” since the court nets almost 2 percent of all bail posted.
Judge Sarah Vance, also of the Eastern District of Louisiana in a companion case with similar allegations, agreed, stating, “[B]ecause of the Judges’ institutional conflict of interest,” they “fail to provide a neutral forum for determination of criminal defendants’ ability to pay.”
Criminal justice advocates said reforming the bail process also would have the added benefit of reducing the prison population by over half, resulting in millions of dollars of savings for the city of New Orleans. “It can be a win-win for the court’s finances and for the city’s budget,” Wool said, “and not insignificantly for the low-income people who are being targeted for taxation to fund the criminal justice system unnecessarily and inappropriately,” and permit the accused to return to their daily affairs while awaiting the disposition of their case.
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