N.O. nearly at bail-free status; poses challenge

Those criminal justice savings perhaps the state should have skewed towards New Orleans. Already one of the most dangerous major cities in the country (ranking 23^rd in violent crime rate of cities above 200,000 people) a perfect storm of legal rulings, elected official attitudes, and ideological activists may launch its crime rate even higher.

The state yesterday announced the distribution of over $8 million gained from lower incarceration bills courtesy of changes to divert more convicts from prison and shortening imprisonment sentences. Fortunately, the Gov. John Bel Edwards Administration appeared to resist the temptation to spread the money out for political reasons, resulting in local funds going only to entities in the five largest parishes in population terms (which also have the highest numbers of offenders).

All told, Orleans Parish operations received close to $3 million. But perhaps that should have gone higher, because of the turn pretrial procedures have taken over the past year-and-a-half.

In early 2017, the city passed an ordinance eliminating up-front bail for many minor offenses (and limiting it to $2,500 for any city offense), in effect extending an effort begun several years earlier to use pretrial services to forgo bail for others. With the remaining such offenses, the parish Criminal District Court followed by having one commissioner not set bail for offenses permitting that, and low amounts for others required by state law. Others followed later in the year.

Meanwhile, a group not required by law to release its details began collecting money to fund bail. Called the New Orleans Safety and Freedom Fund, it would select from the jailed accused those it wanted to spring using donations. A few leaders would then pay cash collected, avoiding state regulation regarding surety bonding that otherwise would have raised their costs dramatically. One leader, Joshua Cox, now acts as a senior adviser to Mayor LaToya Cantrell.

Still, the court’s officials in charge of bail-setting – headed by Magistrate Harry Cantrell, the mayor’s father-in-law – continued to set high amounts for more serious crimes. This included state misdemeanors, which he had picked up in 2016 as a result of City Council cuts (his daughter-in-law having participated in that) to state District Attorney Leon Cannizzaro’s office. Because of the heavy workload, the magistrate often decided bails quickly and on the high side.

But that came to an end a couple of months ago, when a federal district judge ruled how Cantrell performed his job risked a conflict of interest. Because state law awards part of its $15 criminal bond fee to the district criminal courts, the ruling said Cantrell and his commissioners had to find “clear and convincing” evidence of pretrial detention necessity before requiring a bond.

Cantrell originally responded to the suit by saying he would stop automatically imposing high bond amounts and spend more time considering individual cases, but the decision essentially forced his hand. So, he joined his commissioners in going to the other extreme on bond amounts, dramatically lowering these in many cases so time constraints wouldn’t matter, even for major crimes.

This played into the hands of the charity bail organization. With much lower costs, it could afford to free more of the accused and increasing the likelihood that those facing major charges would get out. In essence, this series of events has moved New Orleans fairly close to becoming, for all intents and purposes, a bail-free jurisdiction.

Which poses a problem. In the past few years, instituting of this policy has broken out from the margins into wider circulation, but data are scarce to judge whether its failure-to-appear rates aren’t higher. Yet even the small New Orleans 2017 sample flashed some warning lights: it claimed similar FTA rates between participants in the reduced/no bail cohort and those not who had no release conditions, but admitted higher rates for re-arrest and FTA for those with conditions in the experimental group. The new environment where even higher bail amounts essentially turn this cohort into another release-on-recognizance subset will drive those rates higher.

Unfortunately, Mayor Cantrell seems committed to staying this course. An opinion piece she co-authored with City Council Pres. Jason Williams reiterates a strategy to eliminate bail as much as possible. If so, look for New Orleans to move up that list of dangerous cities that might require many more state dollars to stem.