5th Circ. Gives Fresh Momentum To Fine And Fee Reformers

By Emma Cueto | September 8, 2019, 8:02 PM EDT

Recent decisions by the Fifth Circuit that aspects of the funding system for New Orleans criminal courts are unconstitutional represent major victories in the push to curb the use of fines and fees in the criminal justice system — and highlight how far court challenges to alleged abuses have come, advocates say.

In two cases, one focused on bail fees and the other on fines, the federal appeals court found that it was a conflict of interest for Orleans Parish judges to levy fines and set bail amounts while also controlling the fund that money was paid into.

The Judicial Expense Fund, which derived a large portion of its money from fines and bail money, did not pay judges’ salaries, but it did pay for a huge number of necessary expenses, from the salaries of court reporters and clerks to law books to courthouse coffee. The Fifth Circuit agreed that, because judges rely on the Judicial Expense Fund to pay those expenses, the setup compromises their impartiality when issuing fines and setting bail.

“Here, the judges have exclusive authority over how the JEF is spent ... and the fines and fees make up a significant portion of their annual budget,” the court wrote in one of the decisions, which was issued on Aug. 23. “In sum, when everything involved in this case is put together, the ‘temptation’ is too great.”

Mindy Nunez Duffourc, an attorney for the judges in both cases, criticized what she described as the lawsuits' attempts to portray the New Orleans judges as "villains" who were out to imprison the poor.

"Nothing could be further from the truth," she said. "These judges take the bench every day and encounter the a very dark side of society — allegations of rape, murder, child abuse — yet they remain committed to the administration of impartial justice. Why? Because they swore an oath to do so and they take that oath seriously."

She added that it was "insulting" to claim that the judges would abandon their duty of impartiality because of the money generated by fines and fees, and said the judges have already made many changes in light of the criticisms raised by the lawsuits, including writing off over $1 million in money owed to the court.

She said judges in both cases will be asking the Fifth Circuit to reconsider the decisions, and that they do not believe the decisions are in line with precedent.

However, Alec Karakatsanis, an attorney who worked on both cases and has been involved in similar lawsuits in other parts of the country, said that the two decisions were an important victory, not just for New Orleans but for the fight against unfair fines and bail decisions nationally.

“This is a fully national problem,” Karakatsanis said. “Some of the problems are particularly egregious in New Orleans, but it’s happening all over.”

In one of the New Orleans cases, which focused on bail fees, the suit targeted a single judge, Harry E. Cantrell. According to the decision, Judge Cantrell oversees all initial appearances for criminal defendants in Orleans Parish Criminal District Court. He typically assigned about half of defendants to pay bail with a secured money bond, the decision said.

Usually, defendants will use a commercial surety in order to pay the bond, because doing so allows them to only pay a portion of the bond amount, according to the decision. After the bond is purchased, 1.8% of the bond’s value then goes to the Judicial Expense Fund, the decision said.

This arrangement accounts for 20% to 25% of the amount of money the fund spends per year, according to the decision.

In the second case, which named multiple judges as defendants, the people bringing suit argued that the judges did not conduct an ability-to-pay assessment before levying criminal fines and fees. These fines and fees would be paid into the Judicial Expense Fund and accounted for about another 25% of the money in the fund, according to the decision.

People who didn’t pay their fines could be — and often were — arrested and held in jail on a $20,000 bond, the decision said.

The lower court ruled that it was unconstitutional for the judges not to assess whether people could pay a particular fine or fee, and that it was a conflict of interest that judges both oversaw the Judicial Expense Fund and levied the fines and fees that paid into it.

The judges chose not to challenge the lower court’s ruling on the ability-to-pay assessments, but judges in both cases told the lower courts that the oversight of the fund was not a conflict of interest. The Fifth Circuit ruled against them in both cases, one decided on Aug. 23 and the other on Aug. 30.

Lisa Foster, the co-director of the Fines and Fees Justice Center, said she was most encouraged by the fact that the decisions came from panels made up of different Fifth Circuit judges.

“The decisions read differently, but they both reach exactly the same conclusion and they reach it unequivocally,” she said.

Bill Maurer, a managing attorney for the Washington office of the Institute for Justice, which submitted a brief in favor of the citizens bringing one of the lawsuits, told Law360 that the decisions were “very heartening” and might represent a new phase of the legal challenges to these types of funding arrangements.

“There has been a significant expansion of litigation on these issues,” he said. “And now I believe you are beginning to see the case law come out that reflects those efforts.”

Both Maurer and Foster pointed out that the principles in the Fifth Circuit cases are not new legal doctrines — in fact, one case cited by both decisions, Foster highlighted, was decided in the 1920s.

However, they both said, courts have not applied those principles in a while.

Part of the issue, Maurer said, was simply that there was a lack of awareness on the part of people hit with the fines and fees about their options for potentially challenging the system, as well as the fact that the use of fines and fees to fund state courts has grown enormously in recent years, a phenomenon courts are now being asked to address.

According to the National Center for State Courts, courts across the country are facing budget shortfalls, a problem that appears to have been persistent in many places since the economic downturn in 2008.

And although state budgets have rebounded somewhat, a report from the center noted that proposed cuts to federal funding for state and local services will likely hurt state budgets too.

However, advocates say, forcing defendants to fill this funding shortfall is wrong.

“It taints the decisions,” Maurer said, noting that this was especially true in New Orleans, where judges themselves were allowed to decide how to spend the money their decisions raise.

And now, Maurer said, thanks to advocates raising the issue, courts like the Fifth Circuit were beginning to come to this same conclusion as well.

Foster echoed the point. “That this is being raised again is important,” she said. “[It is] a critical principle all over the country.”

--Editing by Aaron Pelc.

Update: This story has been updated with comment from an attorney for the judges. 

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