Cash bail a thing of the past? Not yet, but New Orleans judges agree to new rules | Courts

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Orleans Parish Criminal District Court judges this month settled the last of several lawsuits over bail fees and court costs that dogged them for six years.

A joint order from the judges in February formalized new bail rules that paved the way for the settlement. The agreement comes after drawn out wrangling over how judges in New Orleans can impose bail or fines and fees on thousands of defendants each year, the vast majority of them poor.

Under the new order, defendants must have an attorney when their bail is set. The judges also promise to inquire into defendants’ ability to pay, to consider alternatives to cash bail and to explain their reasoning when they do keep defendants behind bars.

Former Magistrate Judge Harry Cantrell previously agreed to follow those rules for defendants making first appearances in his court. The Feb. 4 joint state court order enshrines the rules for Criminal District Court as a whole.

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For civil rights lawyers, it’s a long-awaited concession to indigent defendants’ rights. For the court, it is the end to costly litigation and a reflection of the growing power of progressive judges. Several judges elected last fall promised to re-evaluate the court’s reliance on cash bail.

The first of numerous lawsuits against the court was filed in 2015 over the judges’ use of conviction fines and fees. Many of those are mandated by state law, which directed a percentage of the court costs straight back to the Criminal District Court budget.

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The judges’ salaries weren’t drawn from the fines and fees, but civil rights lawyers called the arrangement a flagrant conflict of interest. In 2018, a federal judge agreed.

Separately, civil rights lawyers targeted in a 2017 lawsuit the bail fees which defendants paid before they went to trial, a portion of which went back to the court budget. In far too many cases, Cantrell failed to consider whether bails would keep defendants locked up simply because they were poor, the attorneys said. They won a district court ruling against Cantrell in 2018.

The plaintiff’s lawyers didn’t win a ruling outright banning cash bail in New Orleans. But they did win an agreement from Cantrell to shape up his practices.

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The legal battle continued in 2019 and 2020 with additional lawsuits that sought to force district court judges and court commissioners to follow the new rules as well. They did so in their Feb. 4 joint order. With that order in hand, lawyers from the MacArthur Justice Center in New Orleans and the non-profit firm Civil Rights Corps agreed to drop their lawsuits.

U.S. District Judge Eldon Fallon formally dismissed the lawsuits on April 4. No money changed hands as a result of the settlement.

The legal battles over bail in New Orleans have coincided with a drop in the jail population that began before the lawsuits and has continued since. On Sunday, the jail had 742 people in its custody, the lowest number since the New Orleans City Council began keeping records in 1991.

Eric Foley, a staff attorney for the MacArthur Justice Center, said he was reluctant to identify the litigation as the main reason for the declining inmate population. He noted there has also been pressure from community organizers for smaller bails that defendants can post.

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