Bail on the Ballot
“You’re supposed to be innocent before proven guilty. But with bail that goes out the window.” Lee Tabb is a Black man incarcerated in Ferriday, Louisiana at the Concordia Correctional Facility, where he is currently serving time on assault charges. As he explained in a recent phone call, the charges were filed without his knowledge during an inheritance dispute that he felt should have been settled out of court. But when a police officer stopped him while biking the wrong way down a one-way street, an outstanding warrant for his arrest meant he was taken directly to Orleans Parish Prison. His income from a small cobbler’s shop on Claiborne Avenue was nowhere near enough to cover the bail.
Tabb wanted to fight the charges, but the time he spent in jail awaiting sentencing, unable to prevent the loss of his home and thriving business, eventually wore him down. “I got tired of fighting,” he says. “I stood in the parish 16 months trying to fight the charge before they sentenced me, but they knew I didn’t have any fight left in me.”
For those who are passionate about bail reform, the 2020 election offers unprecedented opportunities for change. Here in the incarceration capital of the world, bail not only places an unbearable financial burden on Black and brown communities, but according to recent reports high bail amounts actually make it more likely that someone will get arrested again in the future. New Orleans judges have operated for decades under the assumption that questioning whether money bail is just lies outside the judiciary’s domain. But this may change thanks to a slate of judicial candidates who believe it is time for judges to take a stand against mass incarceration. And for magistrate candidate Steve Singer, ending money bail is the place to start.
Magistrates are gatekeepers of the court system, and they have the most control over bail. As the first judge someone sees following arrest, they are also the only judge who can affect every single case that comes through the court. Their role is a bit like intake at a doctor’s office; they perform preliminary administrative functions such as conducting first hearings, issuing warrants, and setting bail. Chief public defender and judicial candidate Derwyn Bunton likens their role to a head gasket on an engine. You may not know what it is, but if it doesn’t work the way it’s supposed to it can do a lot of damage. As Bunton points out, before the police shot Breonna Taylor a magistrate judge signed her warrant. The decisions made by magistrates on each case can have ripple effects throughout the criminal justice system.
The current magistrate judge, Harry Cantrell (who at 73 years old is stepping down due to age limits), freely made use of the money bail system during his time on the bench. He is notorious for setting bond amounts well out of the reach of New Orleans’ poorest (and most frequently incarcerated) populations, and for regularly setting bail as high as $15,000 for marijuana possession and other nonviolent crimes. Sometimes, if a defense lawyer tried to advocate for a bail amount below Cantrell’s arbitrary minimum of $2,500, he would hold the lawyer in contempt of the court. The fact that the court was also funded by these exorbitant fees resulted in charges of willful misconduct from the Louisiana Judiciary Commission, a class action lawsuit, and a ruling from the 5th Circuit Court of Appeals that it is unconstitutional for a court to financially rely on bail fees.
Under the banner of Flip the Bench 2020, seven current and former public defenders have issued parallel challenges to the old guard of the New Orleans judiciary. These candidates are challenging more than incumbents: they’re challenging the current vision of the city’s legal system. Having witnessed firsthand the way the system has traumatized generations of New Orleanians, they bring a new perspective on what it means to be a judge. Through their work as public defenders, they have seen the pattern of their clients’ struggles. They understand individual crimes in the context of the larger social problems of race and class.
“All of us are people who have represented clients, and have seen what sitting in jail does to them and their families,” Steve Singer says. “We want to set people up to succeed.” Angel Harris, who is challenging incumbent Judge Franz Zibilich for the Section L seat, wants to re-imagine our system with what she calls “individualized justice”. In this approach, judges would take into account the individual needs and circumstances of the people coming into the courtroom. Does the person facing sentencing have a history of mental health issues? Have they received treatment? How many people financially depend on them? For many of these candidates, a search for nuance has yielded creative and humane results. Nandi Campbell, who is running against Lionel “Lon” Burns for the District G seat, suggests that the frustrating lack of transparency in the courtroom could be addressed with a newsletter that explains court proceedings to the loved ones of the accused. All of them are firm about ending money bail.
“We elect a lot of prosecutors to the bench, and I think that perspective has led to an echo chamber that needs to be opened up,” says Derwyn Bunton, who decided to run for criminal court judge section E after eleven years as chief public defender. Though he is careful to say that judges are not allowed to endorse other candidates, Bunton believes that the Flip the Bench platform could serve as a much-needed corrective to the “conviction culture” that New Orleans prosecutors have all too often brought to the bench. “Our experience gives us this holistic view of what people are going through. We know all of our clients have been victims and survivors of violence and crime themselves.” He acknowledges that everyone makes mistakes and should be held accountable for them, but “you shouldn’t have to be the worst thing you’ve ever done.”
One of the most consistent criticisms made by Flip the Bench candidates regards what they call the “criminalization of poverty,” in which cash bail plays a major role. New Orleans has a user pay legal system, which means the people caught up in the system also fund it with bail, fines, and fees. According to a 2017 Vera Institute Report, more than a third of the people slapped with thousands of fines and court fees have warrants issued for their arrest solely because of their inability to make payments. The same report found that three out of 10 jail beds held people who just could not afford to post bail. In other words, people are spending months in jail before being proven guilty of a single crime not for legal reasons, but because they are poor. In New Orleans, as elsewhere, most of them are also Black.
Nandi Campbell often talks about something called a survival crime: if you are hungry, and a felony charge prevents you from getting a job that enables you earn your bread, you might have to steal to survive. The system punishes survival crimes in different ways; often charges come with steep fines and fees. If you can’t pay them, you are sent back to jail. The cycle can quickly become impossible to break.
The candidates on the Flip the Bench slate see ending bail as a way to break the cycle. Citing examples like Washington D.C. and New Jersey, they point out that in places where money bail has been eliminated, very high percentages of people released pretrial appear in court and prison populations decrease dramatically. However, more traditional, establishment judicial candidates aren’t ready to take that step. Kimya Holmes acknowledges the bail system may need “tweaking,” but doesn’t want to make sweeping changes. Paul Sens presides over a municipal court (which deals with minor offenses) that requires bail for over 67% of its defendants, something that he has never taken issue with in either 23 years on the bench or on the 2020 campaign trail. Franz Zibilich says “the current bail system works.”
The clash between the old guard and its challengers is especially intense in the magistrate judge’s race, which has seen Flip the Bench candidate Steve Singer go head-to-head over bail with the more traditional former ATC commissioner Juana Lombard. If their race is center stage of the bail debate, there’s good reason. Though district judges can sometimes make bail decisions further along in the process, no judge has more discretion over bail than the magistrate. If a magistrate judge refuses to set cash bail because they believe it is unconstitutional, the ripple effects could be substantial.
The question of whether bail can or should be eliminated is the central issue of the magistrate race. Singer, a Loyola law professor and one of the architects of the post-Katrina Orleans Public Defenders office, is running under the slogan “end money bail now.” He believes it can be done, should be done, and that he is the one to do it. On the other side of the debate is Lombard, who wants to reform bail instead of ending it, and accuses Singer of making promises he can’t keep.
During interviews, Juana Lombard and Steve Singer come across as bitter opponents. However, they do have some overlapping views. Both speak about the importance of seeing the humanity in everyone that comes into the courtroom. They both believe that funding the court through bail bonds is a conflict of interest. Like Singer, Lombard wants to create new pretrial services. She wants to expand diversion programs, and believes that nonviolent offenders should not pay bail. “Steve Singer and I are in complete agreement about eliminating bail for nonviolent offenders. We can get a whole category of our lowest offenders out of jail that way and impact thousands of lives,” she says.
But the similarities end there. Singer says unequivocally that cash bail has no legal justification, and serves only as a tool of oppression for Black and low income communities. Lombard says that judges should reform bail practices, but don’t have the authority to end it. She expresses concern and skepticism over Singer’s promise to end bail, since she believes that is not under the purview of a magistrate judge. “We do need bail reform, but the reality is that one judge cannot end the money bail system; that is part of the legislative system.” She is certain that if Singer let someone charged with armed robbery out on a nominal bond, another judge would just undermine him in district court. “I don’t think we should be promising things that we can’t implement,” she cautions.
She also accuses Singer of violating the Louisiana Code of Judicial Conduct when he says he would never use bail under any circumstance, on the grounds of something called prejudgement. Prejudgement is when a judge answers how they might rule in a case before they have seen all the facts. “If someone robbed you at gunpoint, took your wallet with your ID in it, would you want him released on a nominal bond the next day with the knowledge of where you lived and that you put him in jail?” she asks. According to Lombard, she could not say beforehand whether or not she would set bail because she is duty bound to know the details of the actual case first.
Singer vehemently disagrees. “What case am I prejudging?” he asks. “I am not saying how I would rule in any particular case.” In a hypothetical armed robbery which legally requires a bail bond, Singer says that if he determines that the person who comes before him is not a danger or a flight risk, based on the facts of the case (their family circumstances, ties to the community, and employment, as well as what courtroom investigators, the police, the DA, and the defense say about the person’s background), then he would set a nominal bond and other non-financial conditions of release. If, on the other hand, the prosecution proves “with clear and convincing evidence as required by the United States v. Salerno” at an evidentiary hearing that the person is a danger to the community, they would be held without bond. Singer adds that the decision would be hard to overrule; district court would have to prove the magistrate abused a judge’s discretion.
“Now have I told you how I’d rule in any specific armed robbery case?” he asks. He has not. What he is saying is that money bail is “a bad system” that has no business in the courts. If a high bond is set as a way to detain someone suspected of a crime who the judge perceived was dangerous, but that person had access to the money, they could be released no matter how dangerous they were. Singer considers it a constitutional violation (under both Salerno and Stack v. Boyle) to intentionally set a bond higher than a defendant can pay as a form of detention. He wants to give back a defendant's right to a fair hearing.
Not all legal scholars agree that bail is unconstitutional. But while judges debate the issue, the people who are subjected to bail remain outspoken about the way it erodes their faith in the justice system. “When you take away the money bail it institutes due process,” says Edward Harris, a man who survived two death row sentences that Singer helped to overturn on the grounds of racial bias in jury selection. Harris raises an important question: what happens to the principle of “innocent until proven guilty” if someone is treated exactly like a convicted criminal for months on end? “Why should you ever have to sit in jail for something you didn’t do until whenever they have the evidence? Even if you are in a situation where you were clearly in the right, you have to go through a whole procedure to prove it. You are no longer innocent after you go through that.”
Lee Tabb agrees. “When you can’t pay your bail, you might spend months in jail. You lose your job, get behind on your insurance, lose your apartment, your kids. It causes a lot more people to be locked up longer.” If money bail had not been considered an option when he went before the magistrate judge in 2016, his interview might not have been conducted on a prison phone, but in his shop on Claiborne Avenue, where he’d be cutting leather and shining his people’s shoes while he talked.
The debate over bail in the 2020 judges race essentially boils down to two radically different interpretations of the role of the judiciary. The more traditional New Orleans judges in the race may believe that the time has come to institute reforms, but they intend to do it within the preexisting parameters of a legal system defined by their predecessors.
The Flip the Bench slate, on the other hand, wants to draw new lines of what is and isn’t acceptable in the New Orleans courts. As Derwyn Bunton says, ”the courts are often thought of as passive members of our system: the police hit the streets, and judges just direct traffic.” But if he wins the Section E seat, Bunton hopes to model a different approach. “I think we need to reorient ourselves on the role of the bench. Judges are more than that; they have always been more than that. They get to interpret the law, not just referee; they can interpret and make sense of the law for communities.” Ultimately, the Flip the Bench slate and the judicial establishment have made their positions clear. Now it is up to voters to decide whose vision best serves justice in New Orleans.