The Myth Justice is Blind to Money, Part 3 investigates the impact of the Federal Court’s involvement in Orleans Parish’s practices of imposing bail, fines and fees. How do the mayor’s office, the city council, the state legislature, and the criminal court judges comply or not comply with Federal rulings? In an era where police allocations are being questioned, where should a city apportion its taxpayers’ money?
Last time, on Unprisoned:
PEPPI: You know, I mean, we're still in the 19th century with respect of our court system.
KEVA: We knew that there were people who were sitting in jail and who could not afford bond and did not deserve to just sit because they could not afford bond.
JUDGE JOHNSON: At least some of us, this one of us knew full well that that to change how people pay to get out of jail and for us to get paid as a result was not the way for the system to function, operate. We knew that when we did it.
EVE: For decades, New Orleans criminal court judges have known keeping people in jail because they can’t afford bail, fines, or fees is wrong. But for decades, the court’s done it anyway, because they needed the money.
So what happens when a higher court says: that’s not just wrong; it’s unconstitutional?
You’re listening to Unprisoned. I’m Eve Abrams.
This is the Myth Justice is blind – to money. Part 3: the city.
Keva Landrum became the Chief Judge of the New Orleans Criminal Court in 2018.
KEVA: You know, I became the chief judge under two federal lawsuits
EVE: Lawsuits New Orleans judges filed to challenge rulings from two separate federal court cases, both from 2018. Both about money. One ruling had to do with magistrate court, where bail is set. It said: Magistrate Court was violating defendants’ constitutional rights by setting money bail without first determining if a defendant can afford to pay that bail. In the other case, a different federal judge ruled New Orleans judges can’t put someone in jail for not paying a fine or fee without first, again, determining if they can afford to pay that fine or fee. Both federal judges, in both cases, also said something that came as no surprise to retired Judge Calvin Johnson: when judges get a cut of the money they charge people, that’s a conflict of interest.
JOHNSON: That was as obvious as the light coming through your window-- that the federal system was going to say that you can't continue to make people pay money to you that you use the fund yourself. You can’t continue, come on, just do the math.
EVE: But Judge Landrum, doesn’t see a conflict of interest.
KEVA: I don't disagree with the fact that you should not make indigent people pay fines and fees. I disagree with the conflict of interest portion of the ruling because then no courts could deal with any financial aspects of their job, right? There is an administrative function of every court and their finances.
EVE: Which is why New Orleans’ judges appealed the conflict of interest portion of these Federal rulings. They appealed all the way to the Supreme Court of the United States. Who said: We’re not going to hear this case. So that was that. The judges had to accept the Federal ruling: ordering people to pay you money, which you use for you --was a conflict of interest.
So, without this money, how would the court pay its bills?
Calvin Johnson knew the court would have to get money from the city, from taxpayer dollars.
JUDGE JOHNSON: You can’t continue charging poor people money to use the system. You can’t continue to do that. But the court itself needs money to operate with. And so if you’re not going to have that money to operate with, well you can have to have some money to operate with. So the city just wrote a check to the court for, I don't know what, pushing almost $5 million or something.
EVE: Actually, for 2019 and 2020’s budgets, it was closer to $6.9 million.
But in any case, Judge Johnson says this totally nonchalantly, as if it’s common knowledge that the city more or less doubled the criminal court’s budget from 2018. But that’s not the case. Most people didn’t even notice the court got twice as much money. But organizers did. In fact, a group known as the New Orleans Alliance for Equity and Justice wrote a letter to the City Council before the budget passed, asking the city to fully fund the criminal court so the court could stop charging those fines and fees. They asked for other changes too – like ending money bail.
Syrita Steib-Martin signed that letter. So when she first heard the city was giving the court all this money, she was glad.
Syrita’s a formerly incarcerated person. She now runs an organization called Operation Restoration which helps women and girls transition to life outside of prison. Syrita thought: if the court was fully funded by the city, it wouldn’t need money from fines and fees and bail. Which would be great, because, in Syrita’s work, she regularly hears from people in jail who are locked up for one reason: they’re too poor to pay a fine or fee or bail.
SYRITA: We would go into Orleans parish prison and meet with the women monthly, talk to them, see what some of the issues were, where we could be helpful, and just hearing story after story of women being in there, leaving four kids at home, the oldest child is trying to take care of the younger three and you know, they need $100 to get out. And it just story after story of women just sitting there because they are unable to pay money. It was crazy.
EVE: Syrita kept thinking: how do we change this?
SYRITA: You know, we could call a judge or public defender and bring the situation to their attention and be like, okay, you have someone who's been sitting there for like 60 days. They need $100 to get out. Like what sense does that make? It costs you more to incarcerate the person than the hundred dollars you're trying to collect, right, but why is it up to us to go in, identify, and bring to your attention this particular individual? Like why is this person lost in the system for $100?
EVE: So when Syrita first heard the city was giving the court enough money so it could comply with the Federal rulings, she thought: this is it. This is the change we’ve been looking for.
SYRITA: it was like: yay, but then it was deflating at the same time because where’s the oversight? How is this going to translate into changing? Because we can pass these laws, we can change how we fund things, but if there's no oversight component in it, there’s no accountability.
EVE: No accountability. What was the city asking the court to do in exchange for that money? I wondered if Calvin Johnson knew anything. After retiring as a judge, Johnson was the Commissioner of Criminal Justice under former Mayor Mitch Landrieu; he oversaw criminal justice reform. So I asked him: did the city ask for changes when they doubled the court’s budget?
CALVIN JOHNSON: I assume the city’s purpose is to get the court to better manage how it operates itself. And so okay, we’ re going to give you money that will help you to get over some of the issues you have. And one of the issues is fines and fees. So, I assume if I'm writing the court a check, I assume that the check is being written with this ask in place.
EVE: But there were no asks, according to both the City and Judge Landrum. The city gave the judges twice as much money and trusted they would do the right, constitutional thing with it. They trusted the judges to follow the Federal Court rulings -- every judge, in every courtroom.
But, they’re not.
We know this because Syrita’s organization, Operation Restoration, trained a team of women to go into every courtroom, daily, and collect data -- like defendants’ demographic and ethnic information, and was the defendant’s ability to pay taken into consideration before fines, fees and bail were assessed? What they’ve seen is that the court is not doing what it’s supposed to be doing.
SYRITA: The only thing that’s consistent in the money bail conversation and what is happening, is that there’s no consistency.
EVE: According to Operation Restoration’s data, a 2019 report by the Vera Institute of Justice, and a 2020 report by Courtwatch NOLA, a surprising amount of New Orleans judges are not abiding by those Federal Court rulings.
Courtwatch NOLA found that before imposing fines, New Orleans Criminal Court judges asked defendants if they could afford these fines 61% of the time. Which means New Orleans Criminal Court judges are abiding by the constitution only 61% of the time.
Which brings us to the last City Council budget hearings in November 2019. This was before Covid, before Mardi Gras, before our nation’s streets erupted in protest about police conduct. Inside Council chambers, the City Councilmembers are sitting up on a dais. Behind them are flags, the seal of the city. In front of them, at a long table, are then Chief Judge Keva Landrum, the court’s accountant, and also Judge Karen Herman -- who took over as Chief Judge two months later. Behind the judges, in the audience, are more judges, activists, organizers, and criminal justice system watchdogs.
COUNCILMAN BROSSET: Ah, Chief Judge Keva Landrum-Johnson, the floor is yours, good morning, welcome to the council chambers. I see you’re joined by Judge Herman…
EVE: Having gotten their budget doubled the year before, without changing much of anything, the judges were back, asking for basically another year of the same, money-wise.
But they were talking about more than money. Everyone in council chambers was talking about those Federal rulings, and how the judges would comply with them now that they were out of appeals.
KEVA: There are two different issues: there was the bail money and the fines and fees. The bail money has been placed in escrow. The fines money has been placed in a restricted account…
EVE: It’s worth pausing, just for a moment, to remind us how courts work. Every state has a system of courts -- the highest is the state supreme court. But above all of them is an even higher system of courts, the Federal courts. Any laws or decisions the Federal courts make: states are supposed to follow them. That’s because in article six, paragraph 2 of the U. S. Constitution, there’s something called the Supremacy Clause, which basically says: Federal law takes precedence over state law.
Judge Keva Landrum is a state judge, and she wanted to clarify what exactly New Orleans judges needed to comply with, what exactly the Federal court, said:
KEVA: They did not say to eliminate fines and fees. What they said is that you cannot be the imposer and the collector.
EVE: You cannot be the imposer and the collector. The judges had an idea, a fix. A way to comply with this ruling -- not by making some big reform -- but by changing the money’s path. What if someone else was the collector? Say the city? who then gave it to the judges? All they’d need to do is change state law.
KEVA: The law currently states that those funds get directly deposited to the Judicial Expense fund. Our conversation with the mayor’s office is that we amend those laws so that it will not be deposited to the Judicial Expense fund. One option would be that the city be the collector, and then what the city choses to do with the funds would be solely up to you at that point.
EVE: The courts would still impose fines; they just wouldn’t collect them. If the state legislature would pass such a law, New Orleans could create a kind of legal money laundering. Most councilmembers seemed to think this was a workable solution, but one had reservations.
JASON WILLIAMS: I mean I think we should maybe have conversations with not only the city attorney but the ethics board and maybe even Federal Court as well.
EVE: Council President Jason Williams.
JASON WILLIAMS: I mean, sending funds here is only going to make the city part of another lawsuit. So I think we need to be very clear that we don’t solve a problem with a new problem.
EVE: Two new lawsuits have been filed – both about money bail. Only this time, the suits don’t claim magistrate court violates defendants’ constitutional rights; these suits allege all the criminal court judges do it.
Meanwhile, this June, plaintiffs in the 2018 Federal case involving Magistrate Court, have motioned for Magistrate Judge Harry Cantrell to be found in contempt of court for consistently failing to determine a defendant’s ability to pay, before setting bail.
Also this month, the state legislature passed a bill that basically does what Judge Keva Landrum described in City Council: makes the city the collector. The court remains the imposer, but now the city collects the money and is supposed to use it to defray the expenses of the criminal justice system.”
The day before Governor Edwards signed this bill into law, I called up retired Judge Calvin Johnson, who thought, this could be a good thing -- depending on what the city does with that money.
CALVIN JOHNSON: If it’s collected by the city, the city can then say this fund becomes dedicated to these after school programs, to job training programs. The council and the mayor could designate all of that money to entities outside of the court.
EVE: Johnson was the chief Judge during Katrina, when the city’s destruction brought about tremendous reform to the criminal legal system --something he sees potential for right now.
Some of the landmark things Johnson did as a judge, to help people – creating a drug court and a mental health court – he says now is the moment, to get rid of all that.
CALVIN JOHNSON: All of those things are better handled outside of the criminal justice system. The justice system never should have been doing it. It only was doing it because society itself wasn’t.
EVE: Now, says Johnson, is a time to get money out of the criminal justice system and put it where it can help people beforehand so they never get there in the first place.
A huge thanks to Jen Chien who edited the original version of this story for 70 Million. You should definitely check it out. Unprisoned is edited by Viki Merick and Katy Reckdahl. Theme music is by Greg Schatz. Thanks to Luis Gil for his original scoring and thanks to the Robert Rauschenberg Foundation for supporting Season 2 of Unprisoned. Subscribe to the podcast and check us out at Unprisoned dot org or wwno dot org, where you can see Merle Cooper’s amazing art for this episode.
I’m Eve Abrams. This is Unprisoned.