Suit Alleges Scheme in Criminal Costs Borne by New Orleans’s Poor
September 17, 2015
NEW ORLEANS — Late at night, after the lawyers had gone home, Alana Cain washed the floors at a downtown firm. One morning, a ring disappeared; Ms. Cain, 26, was charged and eventually pleaded guilty. The judge ordered her to pay $1,800 in restitution. He also imposed roughly $950 on top of that in court fines and fees.
She paid in installments, coming to the collections office with $50 every two weeks for more than a year. Once, after too long a jobless spell, she was late with her payment. She phoned the court collections officer and told him she was getting the money. It was in her pocket when the police pulled over the car in which she was riding, citing a broken taillight. There was already a warrant; she spent a week in jail before she could see a judge.
“The extent to which every actor in the local New Orleans legal system depends on this money for their own survival is shocking,” said Alec Karakatsanis, a founder of Equal Justice Under Law, a civil rights group, and one of the lawyers who filed the suit. The funding arrangements at the court have been particularly controversial here in recent years, in the wake of allegations of abuses in the way money raised from defendants has been spent.
But in general, said Mr. Karakatsanis, who filed a similar suit in Ferguson, Mo., in February and helped force changes to jailing policies in Montgomery, Ala., last year, “the effort to fund local court systems on the backs of the very poor is not an aberration.”
The funding of criminal justice systems through the fining of poor defendants has drawn intense scrutiny across the country over the past year. This is in part because the protests in Ferguson highlighted these funding arrangements. But it is also because the practice has become more widespread, said Lauren-Brooke Eisen, a lawyer with the Brennan Center for Justice.
“As budgets have grown tighter, jurisdictions and politicians have balked at tax increases,” Ms. Eisen said. “So the burden of revenue for this vastly expanding criminal justice system has been shifted to those who find themselves defendants in courts or inmates in prisons.”
A spokesman for the Orleans Parish Criminal District Court did not respond to repeated requests for comment.
In Louisiana, which has the highest incarceration rate in the country, the state pays the salaries of the local criminal court judges. Local jurisdictions argue they do not have the resources to make up all of the remaining costs, leaving the local criminal justice system well short of the money needed to function effectively. So legislators have responded by allowing the costs to be pushed onto the people who find themselves in the system.
“The way Louisiana has funded the criminal justice system is to try and provide as many user fees as possible to finance it,” said Rafael Goyeneche, the president of the Metropolitan Crime Commission, a New Orleans-based watchdog group. Pointing out that the fees can sometimes be larger than the actual criminal fine, Mr. Goyeneche said that the system created a clear incentive for high fees, and even for conviction. “These Louisiana laws violate the Constitution,” he said.
While more than eight out of 10 defendants in the criminal court here qualify as indigent, the suit alleges that fees are often imposed without hearings to consider the defendants’ ability to pay. This was the case with all of the named plaintiffs in the suit. One of the plaintiffs is a man kept in jail for weeks for unpaid debts despite his protests that he had a job waiting that would have allowed him to earn the money. Another man spent six days in jail on a warrant issued in error, while a third was told by a collections officer to pay double every time he was late with a payment.
“It’s a failing system, and they know it’s a failing system,” said the third man, Reynaud Variste, 26, who was arrested in a police raid at his home one morning this year after he had fallen a few weeks behind in payments connected to a two-year-old illegal possession case.
The fees can begin accumulating immediately after an arrest, as soon as a bond is set. While a federal court in 1991 struck down a state law allowing New Orleans judges to take a percentage of each bond, a subsequent law mostly reinstituted this arrangement — but split up the percentage among the other actors in the criminal justice system.
Mr. Johnson has become an outspoken critic of this structure, but said it remained a grudging necessity in the absence of any other funding. “We as a citizenry, we don’t want to pay for the criminal system because we think it only impacts criminals,” he said.
The part of the system here that has drawn the most public outrage recently has been the judicial expense fund. This fund is intended to cover costs — from coffee to office supplies to the salaries of court support staff — unmet by state and local dollars. It is fed by assessments imposed on individual defendants at the judge’s discretion, and can reach $2,000 per felony charge.
This fund was the subject of a scathing state auditor’s investigation in 2012. It detailed how criminal court judges spent hundreds of thousands of dollars from the judicial expense fund on premium health benefits. The judges argued that the fund was not legally considered public money and thus bound by the same restrictions; the district attorney, in turn, accused the judges of illegally forcing defendants to pay into the fund or have their probation revoked. The scandal has since quieted. Once the fines and fees are set by the judges after conviction, those who cannot pay immediately are referred to a collections department. This department determines the schedule for repayment, though “no inquiry is ever made into a person’s ability to pay,” and partial amounts are not acceptable, the suit alleges. If a person misses payments, the suit says, a collections agent will sign the judge’s name to a warrant, and the person then faces potential jail time with an automatic $20,000 bond required for release. Once arrested, the suit continues, people can stay in jail for days without notice of a hearing.
Ms. Cain has paid down the restitution she owed but has hundreds of dollars to go, most of it in judicial expense fund fees. She has no car, has been turned down for job after job and lives with her mother in a one-bedroom apartment, the ceiling of which has a gaping hole. But she has not missed a payment since her jail stay; her mother and sister have scraped together what money they can so she can keep up.
“It’s a struggle,” Ms. Cain said. “I must say it is.”