New Orleans Threatens To Defund Court Over Fines And Fees

By Emma Cueto | August 30, 2020, 8:02 PM EDT

Every year, the 390,000 residents of New Orleans pay an estimated $1.9 million in criminal fines and fees, according to the Vera Institute for Justice. This month, the City Council passed a resolution refusing to accept those funds and threatening to choke off money to the courts if criminal fines continued to be levied.

In a resolution passed Aug. 20, the New Orleans City Council said that it intends to fund the city's courts without relying on money in a special account set up for fines and bail bond fees, and that it will reduce the courts' budget by $2 for every $1 in the account, encouraging judges to use their discretion to not impose fines or set money bail.

"The city of New Orleans does not wish to continue extracting this money out of the community and wishes families to keep every dollar possible, particularly in light of a potentially declining economy in the wake of COVID-19," the resolution said.

In 2019, the city budgeted $6.9 million to the criminal courts; if the courts were to levy another $1.9 million in fines and the city makes good on this promise, that would cut the court's budget by more than half.

This action by the City Council comes after the state Legislature reconfigured the way fines and fees money is distributed, a move prompted by a 2018 federal court ruling that the old structure, which allowed the court to control the money directly in order to fund its operations, was an unconstitutional conflict of interest. The decision was upheld by the Fifth Circuit last year.

Under a new law, which was passed by the Legislature in May and signed by the governor in June, the money that once flowed to the courts directly would now be placed into the newly created state fund that is dispersed to the City Council. Though the law does specify that no part of the money should be used to pay judges' salaries, it does dictate that it should be used to fund the criminal justice system.

City Council members, however, did not feel that this approach was the right one.

"We are not suggesting that anyone should be allowed to offend without being held accountable, but that those tools we traditionally use are not best or appropriate in all circumstances," Criminal Justice Committee Chair and Council President Jason Rogers Williams said in a statement.

"This recent action at the state Legislature does not represent a fix to the root issue of inequity and wealth extraction from poor communities," he continued. "We have a duty to propose and make real change when it is needed, and it is desperately needed in the area of judge-ordered fines and fees on poor people."

The New Orleans criminal court told Law360 in a statement that it leaves lawmaking to the state Legislature and City Council. "The court's position is and always has been that the judges are obligated to follow valid state law," the court's statement, delivered through its attorney, said. "However, if there is a conflict between a City Council resolution ... and a state law, basic legal principles tell us that state law prevails."

The court also noted that it does not understand the resolution as being legally binding.

Although the resolution does not have the force of law, and there is nothing to prevent the council from changing its mind when drawing up the next budget, Will Snowden — the director of Vera's New Orleans office, which worked with the City Council on the resolution — said that he thinks there's a lot of political will behind the proposal.

"Across the board, the City Council is really supportive of the idea of not continuing the harm done by fines and fees," he said.

Initially, Snowden said, Vera hoped to eliminate money bail and discontinue fines and fees in the city. When that effort failed, however, he said, the organization started looking at other ways to keep that money in the community.

That's something that's especially important now in the midst of the pandemic, he said, when many New Orleanians are struggling to make ends meet.

Lisa Foster, co-director of the Fines and Fees Justice Center, said that she thinks the approach is a good one, and most likely unique to New Orleans.

"I think it's smart and savvy, and it's going to put millions of dollars back into the hands of people who need it," she said. "And, frankly, it's also, I think, responsive to this particular moment in this country's history. People are in the streets demanding that governments invest in communities of color, and one of the easiest ways to do that is to stop taking their money."

Other states, such as Missouri, have put a cap on how much revenue local governments can raise from court fines and fees, with the rest usually going to the state, and local municipalities like San Francisco have tried to reduce fines and fees. However, she said, she isn't aware of another city that has said it would refuse to take fines and fees revenue.

Given that the city isn't able to control what fines or fees the state Legislature decides to put on the books, Foster said, this is an innovative way to try to tackle the issue.

Foster also questioned whether the Legislature's plan would properly address the unconstitutional conflict identified by the federal courts, even if it does prevent the money from being used to pay judges.

"Money is fungible," she said. "If the court knows it's just going to come back to fund the court ... the same potential conflict exists."

As a practical matter, it remains unclear how exactly the city might go about refusing the money in the special fund, and whether it would be possible to refund the money to the community. Snowden said that people are working on that issue, but there are no answers yet.

In his opinion, it's clear the money should be returned.

Foster theorized that if the City Council refuses the funds, the Legislature may simply take the money back. "It would not surprise me," she said.

However, Foster noted that the city has been funding the courts since the old funding system was ruled unconstitutional in 2018 without this special fund.

"That is the right way to fund courts," she said. "Courts serve the entire community — everybody. They should be paid for by everybody, out of city general revenue, not out of fines and fees."

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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