Criminal Justice Committee : Municipal Bail Reform CALENDAR NO. 31,529 1

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The Accused Who Cannot Afford Bail are Adversely Affected University of Pennsylvania Study, July 2016: “We find that detained defendants are 25% more likely than similarly situated releases to plead guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on average.” 3

 Currently, most municipal defendants are released on their own recognizance  Majority of those with bond, with exception of higher level offenses, have it set at $300 or $500  Most bail bondsmen will not secure bonds for under $250 ($2500 bail)  It is only the most economically disadvantaged that cannot afford $300 or $500 bail  Highest current bond in Municipal Court is $2,500 4

Equal Protection Cases City of Calhoun, GA (2016) From DOJ amicus brief: “Although a jurisdiction has discretion to determine which rights and penalties beyond what the Constitution minimally requires are appropriate to achieve its legitimate interests, the Fourteenth Amendment prohibits a jurisdiction from categorically imposing different criminal consequences – including and especially incarceration – on poor people without accounting for their indigence.” City of Clanton, AL (2015) From DOJ Statement of Interest: “Fixed-sum bail systems…do not take [considerations of future danger to society or flight risk] into account. Such systems are based solely on the criminal charge. Because such systems do not account for individual circumstances of the accused, they essentially mandate pretrial detention for anyone who is too poor to pay the predetermined fee. This amounts to mandating pretrial detention only for the indigent.” City of Moss Point, Mississippi (2015) “The use of a secured bail schedule to set the conditions for release of a person in custody after arrest…implicates the protections of the Equal Protection Clause when such a schedule is applied to the indigent.” “If the government generally offers prompt release from custody after arrest upon posting a bond pursuant to a schedule, it cannot deny prompt release from custody to a person because the person is financially incapable of posting such a bond.” 5

Ascension Parish 6

Equal Protection Cases City of Jennings, MO (2015) Federal court issued permanent injunction mandating that “The City of Jennings…will offer every person in the custody of the City on arrest, either without a warrant or on the initial warrant issued, for any violation that may be prosecuted by the City, release from custody of the City on recognizance or on an unsecured bond as soon as practicable after booking.” Exceptions for domestic violence and intoxication, which are held for 24 hours and 12 hours, respectively. Montgomery, AL (2015) Similar to New Orleans in size (200,000) and high poverty rate. Municipal Court issued an order applying an unsecured bail schedule. Accused in some cases – DUIs and crimes of violence – are held for 12 hours, and then become eligible for release on unsecured bond. City of Jackson, MS (2016) Extensive agreement reached between Plaintiffs and the City. “No defendant will be incarcerated or detained solely because of the inability to pay any court- ordered monies, including fines, fees, court costs, or a monetary bond.” “All persons arrested for any misdemeanor that may be prosecuted by the City…[subject to exceptions] will be released on their persona recognizance….” 7

Department of Justice “Dear Colleague” Letter to Judicial Actors  “Courts must not employ bail or bond practices that cause indigent defendants to remain incarcerated solely because they cannot afford to pay for their release.”  Individuals detained with financial bail “may confront escalating debt; face…unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty….”  “The due process and equal protection principles of the Fourteenth Amendment prohibit ‘punishing a person for his poverty.’”  “Bail that is set without regard to defendants’ financial capacity can result in the incarceration of individuals not because they pose a threat to public safety or a flight risk, but rather because they cannot afford the assigned bail amount.” 8

American Bar Association Summit on Public Defense  Lisa Foster, Director of the DOJ Office for Access to Justice  Referred to the DOJ’s Statement of Interest in the Varden v. City of Clanton case:  “[S]ome have misinterpreted the department’s position in Varden, arguing that it only addresses fixed-bail systems – or bail schedules….But the same constitutional violations arise in other money bail systems, including those in which judges set cash bail amounts in one case after another without due consideration of a person’s ability to pay. However the system is designed or administered, if the end result is that poor people are held in jail as a result of their inability to pay while similarly situated wealthy people are able to pay for their release, the system is unconstitutional. Although it may be theoretically possible to design a money bail system that does not regularly violate the Constitution, we haven’t seen it yet.” 9

Reforms have Proven to be Successful in Other Localities  Washington, D.C.:  Similar crime rate to New Orleans, according to the FBI  Statute forbids imposition of a financial bond that results in pretrial detention  In 2013, defendants failed to appear for one or more hearings in only 12% of cases  Kentucky Statewide Reform (which included implementation of pretrial services)  Nearly 70% of pretrial defendants receive non-financial release  Of those released, 90% make all future court dates  92% are not re-arrested while awaiting trial  Kentucky Chief Justice John D. Minton Jr. stated that more low- or moderate-risk defendants are getting out before trial and being released without a bond, yet new crimes committed by those released went down 4 percent Note: the New Orleans Jail Population Management Subcommittee has already approved a plan to implement an /text message court reminder system, which has proven effective in reducing failure-to-appear rates in other jurisdictions. 10

Financial Costs of Detention 2015 Cost of Jail Operations OPSO Expenditures on Jail = $86,551,105 Average Daily Population = 1840 Total cost per inmate per day = $129 Source: Sheriff’s Budget Documents, Daily Inmate Count Based on the lowest estimate of the number of people who are detained pretrial on municipal offenses without any other holds or attachments (10 people per day), it costs $1,290/day, $9,030/week, or $470,850/year to detain people pretrial on municipal offenses. 11

Sec (a): New Bail Schedule will ROR Most Municipal Defendants  Most defendants will be released on their own recognizance, after booking  Will receive a notice to appear  Municipal Court judges to determine time frames for initial appearances 12

Sec (b): Higher Level Offenses Detained Until Initial Appearance  Those charged with municipal domestic violence, battery, and illegal carrying of a weapon will be detained after arrest, until initial appearance hearing - per discussion with NOPD  Initial appearance hearing to occur within 24 hours of arrest  ALL defendants charged with these offenses, not just those who can’t afford to post bond, will be seen by a judge 13

Sec (c)(1): Bail to be Imposed Only with Judicial Finding of Flight or Danger  If there is no judicial finding of substantial risk that the defendant may flee, or poses an imminent danger to any other person or the community, they should be released on their own recognizance (U.S. v. Salerno, 481 U.S. 739 (1987)) 14

Sec (c)(2): Where Flight or Danger Found, Release Conditions Tailored to Financial Means of Defendant  Court should impose least restrictive non-financial conditions (stay away order, court check-ins, etc.)  For indigent, no conditions with fees or costs  For those who can pay, maximum bond is $2,500  Reasons for release conditions to be stated on the record 15

Sec (d): After Initial Appearance, Pretrial Release Conditions Should Not Result in Detention Due to Failure to Pay  Defendants retain ability to bond out based on financial ability through entire pretrial phase  If defendant can no longer pay fees on a release condition that they were originally able to pay at time of release (counseling, classes, etc.), shall not be detained for financial reasons (non-payment) alone  Ordinance applies not only to judges, but agents of the Court and OPSO who provide information to defendants 16

Sec (e): Financial Bail May be Set After Defendant Willfully Fails to Appear 17

Sec (f): Arrest Warrants on Municipal Charges Don’t Default to Bail  If a defendant fails to appear, an attachment is issued for their arrest  Prohibits the bail schedule cycle from repeating, i.e. prohibits mandated payment of standardized bail (bail schedule) if you are arrested following a failure to appear and you seek release from detention  Rather, the Court would hold a hearing following arrest, as specified in Section (e), where defendant’s ability to pay would be considered in setting a bail amount, along with additional non-financial conditions at the Municipal Court Judge’s discretion (i.e. quick turnaround date, daily check- ins, etc.) 18