Paid In Full: A Plan To End Money Injustice In New Orleans

Paid in Full: A Plan to End MoneyInjustice in New OrleansJon Wool, Alison Shih, and Melody ChangJune 2019

The following organizations endorse this reportand its recommendations:ADL South Central RegionALASNew Orleans Safety and Justice ChallengeCommunity Advisory GroupAmerican Civil Liberties Union of LouisianaNew Orleans Workers’ Center for Racial JusticeATD Fourth World Movementand its projects Stand with Dignity,by DeSign (formerly BAR NONE)Congreso de Jornaleros, andConvergeAlianza de Trabajadores de Marisco y PescadoDaughters Beyond Incarceration (DBI)Operation RestorationFamilies and Friends of Louisiana’s IncarceratedOrleans Parish Prison Reform Coalition (OPPRC)Children (FFLIC)Orleans Public DefendersFoundation for LouisianaPromise of Justice InitiativeFree-Dem Foundations, Inc.Southern Poverty Law CenterGreater New Orleans Fair Housing Action CenterUrban League of LouisianaGreater New Orleans Louis A. Martinet SocietyWelcoming ProjectHoly Cross Neighborhood AssociationWomen with A VisionHope HouseInnocence Project New Orleans (IPNO)Justice and Accountability Center of LouisianaJustice and BeyondKabacoff Family FoundationLouisiana Center for Children’s RightsNavigate NOLANew Orleans Alliance for Equity and JusticeNew Orleans Safety and Freedom FundiiVera Institute of Justice

From the DirectorTwo and a half years ago, Vera published Past Due:Examining the Costs and Consequences of Charging forJustice in New Orleans. For the first time, researcherscaptured the staggering burden of bail, fines andfees—a dynamic we’ve come to refer to as moneyinjustice. This report updates those findings, describesthe progress that’s been made and the harms that stillflow, and offers a blueprint for ending money injusticeonce and for all—recommendations that, if followed,will keep hard-won dollars in the pockets of lowincome New Orleanians and could decrease the localjail population by 56 percent, or even more.Right now, residents with little money to spare, themajority of them black, pay to help keep a brokenjustice system running to the tune of almost 9 millionannually, not even including what people pay for minormunicipal and traffic offenses. That’s for those whocan pay what the system demands. For the others,reliance on money bail in particular leads to unfair,unnecessary, and harmful incarceration. Again, blackNew Orleanians are overwhelmingly shackled—a deepaffront in a city that desperately needs to invest inracial equity, not undermine it.Poor and low-income black people and their familiessuffer most. But jailing people unnecessarily—a misuseof resources that all New Orleanians subsidize withtax dollars—impacts everyone. It leads to more, notless, crime in the city because even short periods ofdetention destabilize people’s lives, increasing thelikelihood they will commit crimes in the future.Money bail also jeopardizes public safety when peoplewho pose a significant danger to others are able tobuy their way out of jail. In New Orleans, 65 percentof people arrested for the most serious crimes or whoare flagged as high risk for other reasons avoid jail bypaying bail. Although only a small number of thempose an imminent threat, the current system lacks thecapacity to reliably identify and detain those who do.Money injustice is not unique to New Orleans—it’spervasive nationally—but it is particularly acute andpernicious here, where revenue from bail, fines andfees is used to fund the court system. Judges thereforeface an untenable conflict of interest that’s baked intothe institution in which they work: how can theyfollow the law when the court as a whole dependson following the money? Last August, two differentfederal courts said they cannot; no matter a judge’sefforts or intentions, the institutional conflict violatesdefendants’ right to due process of law.The shadow that money injustice casts over NewOrleans is lightened by the extraordinary opportunityfor reform before the city today. Historically, one outof every four dollars in the Orleans Parish CriminalDistrict Court budget came from overwhelmingly

poor defendants and their families. Then last year,at the urging of Criminal District Court judges whorecognize the injustice of the status quo, the mayorand city council provided additional funding for 2019designed to replace this “user-generated” revenue. Thisshift in funding policy is a watershed moment forjustice reform in New Orleans. With direct fundingfor justice, the court, which is the lynchpin of deepand lasting reform, can take money out of the equationwhen making decisions about pretrial release anddetention and also when sentencing people.At the center of this report is a plan for doing just that:pragmatic changes in court practice that are fair toall and truly promote public safety. And the cost forgreater safety and justice? Far less than what the cityand its taxpayers are paying now, primarily becausepeople who pose no danger to anyone will no longerbe jailed simply because they can’t pay bail. The dollarsavings resulting from reduced incarceration can beused to provide stable replacement funding goingforward for the district attorney and public defender,as well as for the court, so that all three agencies arefully funded to focus on safety and justice.With the system Paid in Full, there’s nothing standing inthe way of transformative change except the challengeof change itself. New Orleans Criminal District Courtjudges, the mayor, and other city officials are poisedto become trailblazers within Louisiana and leadersnationally by implementing the first comprehensive,locally grown approach to ending money injustice.We at Vera hope this report serves as a helpful guide.Whether you’re someone who cares most about publicsafety, justice, racial equity, or the fiscal accountabilityof government, that new path is a far better one.Jon WoolDirector of Justice Policy, New Orleans office

Contents1I. Introduction: Challenging money injustice2The national landscape3New Orleans on the path to change6The final steps to reaching the goal8II. Legal challenges to money injustice12III. Pursuing safety and justice instead of money: Ablueprint for action12Direct funding for justice15Shifting the focus away from money to make fair andsafe decisions about whom to release pretrial29Lifting the burden: Eliminating fines and fees imposedat conviction32IV. Impact of the recommended reforms32 Preventing unnecessary, unfair, and harmfulincarceration384144Generating savings for all New OrleaniansKeeping hard-earned dollars where they belong:At homeEnhancing safety45Conclusion48Appendix A54Appendix B55Appendix C56Endnotes

I. Introduction: Challengingmoney injusticeThe role that money plays in criminal justice systems across thecountry has come under increased focus in recent years, a level ofscrutiny that shows no signs of abating and is appropriate to thedepth and breadth of the problem. State and local systems are extractingmoney, or trying to, from people who by and large are already strugglingeconomically. Steep costs are levied early on in the process in the form ofmoney bail, which becomes a requirement for release pretrial, and later onthrough the imposition of fines and fees that accumulate as debt. Peoplewho cannot pay are jailed while their cases proceed, as are those whomake the difficult choice to support their families rather than pay what thesystem demands.Money injustice is deeply unfair andharmful to those directly impacted,exacerbates poverty and racial inequality,wastes scarce taxpayer dollars, and doesnot deliver the safety all people value.The result is a de facto system of money injustice. That system isdeeply unfair and harmful to those directly impacted and, on a broadscale, exacerbates poverty and racial inequality; it wastes scarce taxpayerdollars; and it does not deliver the safety all people value and want. ThosePaid in Full: A Plan to End Money Injustice in New Orleans1

with a vested financial interest often claim that money bail protectspublic safety. In fact, the opposite is true. In the rare cases in which peoplepose a credible immediate danger, the outsized role of money in makingpretrial release decisions allows many of those same people to buy theirfreedom. At the same time, the focus on money sends a steady stream ofpeople to jail who pose no danger to anyone, where their lives are oftenturned upside down in ways that might even cause them to commit futurecrimes—all because they can’t afford the price of freedom.These practices have long plagued New Orleans, driving unnecessaryand harmful jail incarceration, pulling millions of dollars out of thepockets of struggling families, grounding the legal system in fundamentalunfairness, and costing the city’s taxpayers more than if the system werefunded directly through general tax dollars. Building on activism andpolicy changes over the last few years—and the city’s significant decision inthe past year to provide increased direct funding to the Criminal DistrictCourt—this report sets out the steps necessary to replace money injusticewith a justice system that functions for all New Orleanians.The national landscapeResistance to money injustice in all its forms is mounting—from grassrootsopposition to decisions at the highest level of government. Community bailfunds across the country are paying bail for people who would otherwisebe detained just because they are poor.1 Along with freeing people, thesefunds provide further evidence that money does not keep us safe and isnot necessary to get people to come to court—arguments that are changingpublic opinion. The majority of Americans now oppose incarceratingpeople solely because they can’t pay bail.2Other advocates are appealing to the courts in a wave of litigation thatchallenges blatantly unfair uses of money bail and “debtors’ prisons.” Whenthese lawsuits succeed, they restore fundamental rights and protectionsthe U.S. Supreme Court first clarified nearly 70 years ago yet are deniedin practice to people every day.3 In its recent unanimous decision in Timbsv. Indiana, for example, the Court recognized that the 14th Amendment’sdue process protections include the right to be free from “excessivefines,” which historically have been a tool of racial subjugation.4 Writing2Vera Institute of Justice

for the majority, Justice Ruth Bader Ginsburg connected today’s abusesthat fall disproportionately on people of color with post-ReconstructionBlack Codes—laws intended to convict black people for dubious offensesand saddle them with fines they could never pay in order to extractinvoluntary labor.Resistance to money injustice in all itsforms is mounting—from grassrootsopposition to decisions at the highestlevel of government.In some jurisdictions, reforms to curb money injustice are alreadyunderway. State legislatures in California, New Jersey, New Mexico, andNew York have taken action to eliminate or significantly reduce the useof money bail.5 A number of cities and counties are also undertakingbail reform, often ahead of their state legislatures, and at least one city,San Francisco, has eliminated the use of fees levied at conviction to theextent possible within existing state law.6 A relatively new nonprofitorganization—the Fines and Fees Justice Center, launched in April 2018—is solely dedicated to helping communities and their representatives ingovernment address the pervasive problem of money injustice.7New Orleans on the path to changeThe Vera Institute of Justice’s (Vera’s) work on bail, fines and fees spansmultiple jurisdictions, but runs especially deep in New Orleans, where ithas partnered with government and community-based organizations formore than a decade. Vera’s previous report Past Due: Examining the Costs andConsequences of Charging for Justice in New Orleans crystalized the problem ofPaid in Full: A Plan to End Money Injustice in New Orleans3