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5th Circuit ruling could signal changes to N.O. bail system

26th February 2018   ·   0 Comments

A recent ruling by the U.S. Fifth Circuit Court of Appeal that declared that the way Houston, Texas judges set bail for criminal defendants is unconstitutional is giving hope to justice advocates and civil rights activists in New Orleans seeking to do away with this city’s bail system, The New Orleans Advocate reported Monday.

A three-judge panel of the 5th U.S. Circuit ruled earlier this month that a district judge correctly decided that the Harris County, Texas bail system was unconstitutional. The panel explained that local judges failed to consider whether poor defendants could afford to make bail according to a preset set schedule.

The focus now turns to Orleans Parish Criminal District Court, where a separate lawsuit was filed last year targeting the bail practices of Orleans Parish Magistrate Harry Cantrell.

The hopes of local justice advocates and civil rights groups are buoyed by the fact that the 5th U.S. Circuit Court of Appeals is considered one of the most conservative appeals courts in the U.S. but still ruled that the Houston bail system is unconstitutional.

Alec Karakatsanis, an attorney with the nonprofit group Civil Rights Corps who is involved in both lawsuits, told The New Orleans Advocate that he is encouraged by the 5th Circuit’s ruling on the Harris County, Texas bail system.

“In general, the 5th Circuit opinion strongly reaffirms the fundamental constitutional rights at the core of our case against Judge Cantrell,” he said. “It was obvious before the decision that Judge Cantrell’s cash bail practices are illegal, based on binding Supreme Court precedent, and it is even more obvious after the 5th Circuit’s opinion.”

In the Harris County case, Karakatsanis and other attorneys representing a Houston woman had argued that the judges set bail amounts for defendants according to a schedule. Defendants without legal representation had little or no opportunity to plead poverty at hearings that only lasted seconds, the attorneys pointed out.

A federal district judge ruled in the plaintiffs’ favor in April 2017 but Harris County officials appealed to the 5th U.S. Circuit Court of Appeals.

The 5th Circuit’s three-judge panel was comprised of Judges Edith Brown Clement, Edward Prado and Catharina Haynes, all of whom were appointed to the bench by former U.S. President George W. Bush.

The panel said that a poor defendant with a similar charge as a rich one would remain in jail under the current bail system, while a rich defendant would fight his or her charge from a position of freedom.

“As a result, the wealthier arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration,” the judges said. “The district court held that this state of affairs violates the equal protection clause, and we agree.”

The panel did find, however, that U.S. District Judge Lee Rosenthal’s “sweeping” injunction against Harris County judges went too far. The panel said Judge Rosenthal should have stopped short of demanding hearings within 24 hours and expanding the pool of cases eligible for recognizance bonds.

The New Orleans Advocate reported that while some details in the Harris County and New Orleans lawsuits differ, both hinge on the ability of poor defendants to post bond.

The New Orleans lawsuit, filed in June 2017, said that Judge Cantrell has demonstrated blanket opposition to setting bail below $2,500 in many cases and that he refuses to consider the dire financial straits of defendants deemed too poor to hire private attorneys.

The lawsuit also alleges that the entire system in place in New Orleans represents a conflict of interest because bonds posted through bail companies generate a fee that funds court operations.

In December 2017, U.S. District Judge Eldon Fallon rejected Judge Cantrell’s motion to dismiss the lawsuit. Negotiations to reach a settlement in the case have been unsuccessful thus far, according to court records.

This article originally published in the February 26, 2018 print edition of The Louisiana Weekly newspaper.

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