The price of justice doesn't cover the bills: Column

On Wednesday, the Supreme Court ruled 7-1 on the Nelson v. Colorado case, which shows just how reliant cities are on revenue from the mainly poor users of the criminal justice system.

The Colorado law at the center of the case requires people whose criminal convictions have been overturned to file suit and further prove their innocence to get back the money they paid in conviction fees.

"Such an approach violates due process," Justice Ruth Bader Ginsburg wrote for the court, because once a person’s conviction is overturned, the state has “zero claim of right” to the fines and fees taken from the person.

This result should be obvious, so why did it require the Supreme Court to resolve it? States and localities have come to take for granted that defendants will significantly underwrite their arrest, detention, prosecution and conviction. These dollars are part of a river of money flowing from families and communities with the least amount to spare to government agencies and businesses that profit from charging for justice.

The problem is acute in New Orleans because most people arrested are poor and black, and the impacts on their communities are devastating.

Local problems

In New Orleans and most other places, this system begins with a bald pay-or-stay proposition: money bail. Defendants who can afford to pay bail are allowed to remain at home and at work while their cases are resolved. Those who can’t pay stay in jail until they plead guilty, face trial or have their case dismissed, often for many months.

In Louisiana, it’s not only bail bondsmen who profit; the courts and other government agencies are the financial beneficiaries of fees imposed when people post bail. That’s the front end. At the back end of the system, the costs continue to accumulate in the form of conviction fees and fines for those who are convicted — the same costs the Supreme Court addressed in Nelson v. Colorado.

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Charging for justice drives an enormous transfer of wealth from poor, mostly black communities to government agencies and the for-profit bail industry. In 2015, families involved in the criminal justice system in New Orleans coughed up $9.2 million — $4.5 million paid to government and $4.7 million to bail bondsmen. This in a city where 85% of defendants are too poor to hire an attorney. And black New Orleanians, who are overrepresented in the criminal justice system and among the city’s poor, bore the burden of this regressive tax.

In 2015, 30% of beds in the New Orleans jail were occupied by people incarcerated solely because they could not afford bail. (This does not count defendants with bail set in very high amounts to prevent their release or people detained for reasons in addition to bail, such as an alleged violation of probation.) A smaller but still significant number of people were jailed later in the criminal justice process because they couldn’t pay conviction fines and fees. Black residents made to pay fines and fees are one and a half times more likely to be jailed than white residents for failure to pay.

It doesn't pay

Not surprisingly, relying on poor people to help fund a major government system ends up costing more than the revenue it yields. The cost of the excess incarceration in 2015 that resulted from jailing people who could not pay bail and conviction fines and fees exceeded the revenue generated by a difference of nearly $2 million. Moreover, the city of New Orleans was left holding the full bill of $6.4 million for these excess jail costs, while the $4.5 million collected mostly went to other government agencies, principally the courts who imposed the bail and conviction fines and fees.

A new funding structure will not come easily, even when it’s clear that charging for justice drains money from already vulnerable families and communities, drives overincarceration, and costs New Orleans more than it reaps. One obstacle to reform is that these failed practices are driven largely by state laws, and it is state agencies — courts, prosecutors, even public defenders — that benefit most from the revenue.

But herein also lies the seeds of a long-term alternative. Poor individuals may have little political power, but cities do. The current system not only has its hand in the pockets of poor New Orleanians, it’s picking the city’s pocket as well. New Orleans and cities facing similar circumstances could save money on their jails by encouraging justice agencies to curtail reliance on user-generated revenue and replace that revenue with public funds. While the money collected from poor users is large in their world, it’s actually a tiny 4% of the overall budget for criminal justice in New Orleans. The city and state could collaborate to amend state laws that mandate the payment of money bail in a broad range of cases. Together, they could make conviction fees discretionary rather than mandatory. And they could require a finding of ability to pay as a condition for imposing money bail or conviction fines and fees.

Fortunately, some in government are already thinking this way. New Orleans’ Office of Inspector General recently studied the funding structure of the municipal criminal court and recommended that the city use its general fund dollars to pay for the court, and that it lobby the state to repeal the fees that now fund the court. Such direct funding would also allow the community to hold its justice system accountable for good performance and desirable outcomes, such as fewer people unnecessarily jailed, greater fairness and a greater focus on public safety.

The city, with support from the MacArthur Foundation’s Safety & Justice Challenge, is proposing that the courts reduce unnecessary incarceration by limiting the imposition of conviction fines and fees on people who cannot pay. And the state’s Supreme Court, with support from the Department of Justice, is undertaking a broad review of fines and fees at the state level.

What we know now about the real costs of charging individuals and families for justice demands such alternative laws and practices that would be better for everyone.

Jon Wool is the New Orleans director for the Vera Institute of Justice.