Some criminal justice reformers aren't waiting for court systems to "fix" bail so that poor people aren't stuck behind bars even when they're not flight risks or community threats. Some charitable people have launched community bail fund organizations that collect donations and then use that money to bail out people who cannot afford to cover the costs themselves. If those defendants behave and return to court as promised, the money is returned to the community group and can be used again for others.
One such group is the New Orleans Bail and Safety Fund, whose members say they've paid bail for about 200 people since it was founded a year ago.
New Orleans District Attorney Leon Cannizzaro isn't happy about that. Accusing the group of being naïve about the folks it's dealing with, he tells New Orleans' Fox affiliate that the fund is "playing a very dangerous game with public safety."
What drew this sudden attention to the group? It put up the bond for a guy named DeQuan Ayers, who was arrested for possessing two and a half pounds of marijuana. His bond was set for $3,500. Though Ayers' crimes may seem like small potatoes here, he had a lengthy criminal background and a history of not showing up for court. He was later arrested for allegedly beating up and robbing a tourist in the French Quarter. A magistrate subsequently increased his bond to $50,000.
But when you start looking at the two sides in this debate, they are not entirely opposed to each other. Cannizzaro's concerns appear to be that the fund is overly reliant on the magistrate's evaluation of the defendant's risk. The folks behind the fund say they get recommendations for who to bond out from public defenders and deliberately choose only those with bonds below $5,000, meaning that they are looking for low-risk candidates themselves.
Both sides are fundamentally arguing the same thing: that judges (magistrates, in this case) are not really doing the work of assessing risk when deciding the conditions of release for somebody who has been charged (but not convicted) of a crime, and that they are overly reliant on fixed schedules based on charges. Cannizzaro sees the bail amounts that are too low, making it possible for dangerous people to be able to get out to commit more crimes. The people behind the bail fund see judges relying on these schedules and thus keeping poor people stuck behind bars even though they're not dangerous.
These concerns are not contradictory. Both problems can be happening at once. They originate with the same underlying problem of lackluster risk assessments and a court system focused on churning through pretrial hearings as quickly as possible.
Bail fund member Jennifer Schnidman Medbery has started speaking out publicly in response to the critique. She says that the fund has seen a 92 percent success rate in getting the people they help to return to court.
More importantly, representatives of the New Orleans Bail and Safety Fund say that in about 65 percent of the cases they take on, prosecutors subsequently refuse the charges. That number matters because criminal justice experts who want to see bail reform note that people who are unable to pay for bail are more likely to plead guilty and more likely to face harsher penalties for crimes. People stuck in pretrial detention have little leverage or negotiating power and feel pressured to accept bad plea deals or even plead guilty if it will end the case. Louisiana, remember, has the second-highest incarceration rate in the country. (For a long time it had the highest, but it was recently overtaken by Oklahoma.)
Cannizzaro disputed the organization's numbers in that Fox interview, claiming that his office only refuses the charges in 15 percent of felonies. Note that, again, this isn't actually a contradiction, and both Cannizzaro and the bail fund may be telling the truth. Cannizzaro is referring to a larger pool of arrests (and felonies at that). The bail fund's representatives are talking about a pool of about 200 people, carefully selected because they seem to be low-risk candidates.
The fund is keeping its pool of beneficiaries under wraps. We don't know whether the charges would have been dropped anyway or if prosecutors specifically dropped charges because they lost leverage over the freed defendants. If that's the case, it puts some more perspective on Cannizzaro's complaining.
Recall as well that two federal judges have ruled in separate cases that the Orleans Parish bail system and its systems of fines and fees are violating defendants' constitutional rights by being arbitrarily high. The cases also highlighted the fact that the money from these high bails is being used to fund the court system itself, which creates a disincentive for the courts to release people, making the bail fund's work all the more necessary.