Magistrate Judge Harry Cantrell is one of the most powerful officials in New Orleans that most people have never heard of.
In New Orleans, state criminal trials are conducted by the Orleans Parish Criminal District Court, which has 12 judges conducting criminal trials. Judge Cantrell, however, is the court’s only magistrate. That means that, if you are charged with a state crime in New Orleans, Cantrell will decide if you are entitled to bail, how much you must pay, and whether you must use a bail bondsman. Cantrell literally decides whether thousands of individuals will go free or not as they await trial.
And, according to a federal court’s opinion in Caliste v. Cantrell, Judge Cantrell also historically used his power in ways that effectively jailed many individuals for being poor. Cantrell allegedly “routinely sets a $2,500 minimum secured money bond without first considering the facts of the case,” meaning that defendants who cannot afford to pay this much are forced to remain in jail as they await trial.
He allegedly “requires the use of a bail bond from a commercial (for-profit) surety and does not allow arrestees to post cash bail,” even though bail bondsmen typically keep a percent of the full amount of the bail even if the defendant complies with the conditions of their bail.
In one instance, Cantrell agreed to release a defendant without requiring her to pay bail, “until he realized that her listed address was a homeless shelter” — the magistrate claimed that he had concerns regarding the “court’s ability to contact” a homeless defendant.
The holding of Judge Eldon Fallon’s opinion in Caliste is that Cantrell’s actions violated indigent defendants’ constitutional right to due process (Cantrell, it is worth noting, changed many of his policies while this litigation was pending). According to Judge Fallon’s opinion, “Judge Cantrell does not request much financial information from criminal defendants prior to determining the amount of their bail,” and Cantrell does not adequately consider “alternative conditions of release.”
In Bearden v. Georgia, the Supreme Court explained that a sentencing court may not “revoke a defendant’s probation for failure to pay the imposed fine and restitution, absent evidence and findings that the defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate.” Caliste holds that a similar framework should apply to bail.
Thus, a magistrate conducting a bail hearing must make “an inquiry into the arrestee’s ability to pay” and must consider “alternative conditions of release, including findings on the record applying the clear and convincing standard and explaining why an arrestee does not qualify for alternative conditions of release.”
Additionally, Judge Fallon also objected to a conflict of interest created by the way New Orleans’ criminal court conducts its finances. The court collects about $1 million a year in fees from criminal defendants who purchase bail bonds — an amount equaling about 20-25 percent of the court’s Judicial Expense Fund. Cantrell, moreover, has some control over how this money is spent.
This arrangement, according to Caliste, is an impermissible conflict of interest. Judge Cantrell has “an institutional incentive to find that criminal defendants are able to pay bail,” as well as an interest in setting higher bail amounts, because bail money helps fund his court’s work.
Such conflicts of interest are common in many jurisdictions, and they often create situations where poor people are used as ATMs to help fund basic government functions. In Ferguson, Missouri, the town where 18-year-old Michael Brown was shot and killed by a police officer, courts collected $2.6 million in fines and fees in 2013 — a significant portion of the town’s $20 million in total revenue. Often, these fees were collected from poor people who faced escalating costs if they were unable to pay a small fine imposed because of a minor traffic offense.
If Cantrell chooses to appeal Caliste, that appeal will be heard by the United States Court of Appeals for the Fifth Circuit, a notoriously conservative court dominated by George W. Bush and Trump appointees. Yet even the Fifth Circuit appears frustrated by excessive bails targeting indigent defendants.
Earlier this year, in ODonnell v. Harris County, Texas, the Fifth Circuit held that such bails result in unconstitutionally unequal treatment of poor defendants. “Take two misdemeanor arrestees who are identical in every way—same charge, same criminal backgrounds, same circumstances, etc.—except that one is wealthy and one is indigent,” Judge Edith Brown Clement wrote for her court. Under the practice the Fifth Circuit struck down in ODonnell, “both arrestees would almost certainly receive identical secured bail amounts,” but “one arrestee is able to post bond, and the other is not.”
That creates a world where “the wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration.”
Notably, all three of the judges who decided ODonnell were Bush appointees.