The conflict of interest at the heart of New Orleans’ courts

A new report details how much money is being taken out of poor black communities to fund the criminal justice system.

CREDIT: Flickr/Creative Commons
CREDIT: Flickr/Creative Commons

NEW ORLEANS, LOUISIANA — There’s one major principle that sums up New Orleans’ criminal justice system, in the words of one city judge: “Court’s gotta eat.”

Being accused of a crime is expensive in New Orleans. The city operates on a “user pay” framework that requires the criminal justice system’s “users” — predominantly poor, black people — to fund the court’s operations.

“You have to fund yourself in some fashion. And so you did it on the backs of the people who were least able to pay,” former Criminal District Court Chief Judge Calvin Johnson told a reporter about the system in 2010.

A new report from the Vera Institute of Justice details exactly how much money is being forced out of poor black communities and transferred to one of the most carceral systems in the country. From start to finish, the accused must pay a slew of fines and fees to the court or risk being thrown in jail. In 2015, the city collected $11.5 million from thousands of criminal defendants.

The first cost is cash bail, an upfront payment of thousands of dollars eventually returned to the defendant if they are found innocent at trial. Money is supposed to be just one of many tools a judge can use to ensure a defendant released from jail shows up for trial. But according to the Vera Institute’s report, 87 percent of criminal court cases and 63 percent of cases in municipal court required money bail.

People who can’t afford to pay the full amount can pay a bail bonds agent to put up the money in exchange for a surcharge.

The threat of a lengthy stay in a jail known for its violence and neglect is often enough to send people to the bail bondsman. The report found that defendants and their families paid $6.4 million in non-refundable bail fees in 2015.

CREDIT: Vera Institute of Justice
CREDIT: Vera Institute of Justice

Those who can’t afford a bail bond sit in jail, often for months before their trial.

Wilkeitha, a first-time offender featured in a Vera video accompanying the report, was one of the thousands of New Orleanians who could not afford her bond. She ended up waiting in jail for trial for seven months.

“And when the seven months came, I decided to give up,” she said. She pleaded guilty just to get out of jail.

Most New Orleans convictions are secured through plea deals. But many people plead guilty to things they may not have done because they’re desperate to get out of jail.

“It happens with a good deal of regularity. Folks do not want to be in jail,” Chief Public Defender Derwyn Bunton explained at a panel discussing the Vera Institute report Wednesday evening. “Oftentimes they [plead guilty] on small offenses or middling offenses and don’t understand the consequence.”

Once they plead guilty, they’re hit with even steeper fines and fees. The Vera report determined that 2,156 people convicted in criminal district court in 2015 were charged an average of $1,125 each, while 6,175 people convicted of more minor offenses in municipal court were charged an average of $228. Those fines and fees added up to a debt of $3.8 million to the court system.

At the same time, the conviction closes off access to many jobs, professional licenses, housing, and educational opportunities, making it even harder to keep up with payments.

“When I got released, it was like I still was in prison. Because I got this over my head now,” Wilkeitha said. “Not counting my kids, my bills, food, clothing. Because I’d lost the job [while in jail], everything’s gone. So when I come back out, I’m starting over.”

And if they miss too many payments, they go back to jail, restarting the cycle. According to Vera’s data, 536 people were in jail last year because they had unpaid court fees.

Very few people profit from this cycle. But the key decision-makers in the criminal justice system have a “vested interest in this process,” said Norris Henderson, a formerly incarcerated advocate who runs the group Voice of the Ex-Offender (VOTE).

The judges, the traffic court, the district attorney, the sheriff, the public defenders, and the police department all get a cut of the fines and fees leveled on the people who pass through the criminal justice system. That creates a serious conflict of interest in the courtroom.

As a judge determines how much to fine an offender or how high to set their bond, they are simultaneously deciding how big their own share will be.

CREDIT: Vera Institute of Justice
CREDIT: Vera Institute of Justice

The money raised off court fines and fees make up significant portions of these agencies’ budgets. A few years ago, an audit discovered that the district court judges were using this revenue to purchase luxury health insurance benefits for themselves.

The public defenders’ reliance on this revenue also arouses suspicion among their clients, Bunton said. “Hey man, you get paid if I lose,” he hears from clients. They’re not wrong. “You pay the public defender fee if you’re guilty,” he pointed out.

Funneling wealth out of black communities

Black New Orleanians are paying the bulk of court fees and fines, even though black families tend to be significantly poorer than white residents of the city. Their share of fines and fees is far higher than their share of the population. And when they can’t pay, they are arrested and jailed more often than white people who also have outstanding fines and fees.

The burden piles up in less obvious ways, keeping black families impoverished and destabilized.

“It’s not just the time. It’s also about the money that can’t be utilized in other spaces,” moderator Charmel Gaulden of Baptist Community Ministries explained on Wednesday. “So this doesn’t go to someone’s education, this doesn’t go to their healthcare, they don’t have a 401(k). They can’t move up the ladder of opportunity because they’ve lost this funding.”

CREDIT: Vera Institute of Justice
CREDIT: Vera Institute of Justice

Altogether, the impoverished “users” of the criminal justice system are paying into the system more than they are getting out of it.

“Users” of the criminal justice system paid $4.5 million in fines and fees in 2015. That’s a million more dollars than the total amount of TANF cash welfare poor residents in New Orleans received in the same time period.

Ultimately, Vera concludes the cost of jailing people who can’t pay far outpaces the amount raised from poor residents who do manage to come up with the money.

That doesn’t include the less tangible costs that bleeds into the greater community: the exposure to violence in jail, the ensuing trauma, and the psychological stress on family and friends who need to find the money to help loved ones stay out of jail.

“The dollar amount is one thing, but that human cost destroys people’s lives forever,” Henderson said.

Aviva Shen, a former ThinkProgress editor, is now a freelance writer in New Orleans focused on criminal justice.