Mar 172014

Owen Courreges

Should the powers of New Orleans Municipal Court be expanded?   It’s already happening.  You just probably didn’t realizing it was going on.

It began a couple of years ago, in late January 2012.  Mayor Mitch Landrieu dispatched letters to the judges of Criminal District Court and Municipal Court asking them to impose higher bonds for release in gun cases.  Landrieu specifically pointed to a program initiated by Judge John Garvey in St. Louis, who began automatically requiring a $30,000 cash-only bond for youths arrested for illegally possessing firearms.

A cash-only bond is one where the accused must pay, in full, the total amount of the bond to secure his release.  The offender can’t use a surety (a bail bondsman) and isn’t given the option of paying only a portion for a cash deposit bond (usually 10% of the total bond).

“This is about having an immediate consequence to a bad choice,” Landrieu declared in a subsequent press conference.

There were three problems with what Landrieu proposed.  First of all, the Second Circuit held in State v. Golden, 546 So. 2d 501, 503 (La. App. 2 Cir. 1989), that it is unconstitutional for a judge to require a cash-only bond.  Much to Landrieu’s chagrin, Missouri plays fast-and-loose with bail requirements compared with Louisiana.  Judge Garvey’s scheme would be illegal here.

Secondly, the purpose of a bond in criminal cases is not, as Landrieu suggested, to impose “immediate consequences.”  The presumption of innocence means that a bond is not a punishment, but a method of securing the appearance of the accused in court.  Accordingly, while a judge may be able to impose massive bonds to send a message to alleged gun offenders, he’s not actually supposed to be doing so.

Thirdly, and most crucially, at the time Landrieu made his proposal, the maximum bond that could be imposed in Municipal Court was $10,000, a third of the amount of the bonds Garvey was issuing.  This final problem, however, had a legislative solution.

Less than a month after Landrieu’s pronouncement, state Rep. Austin Badon filed House Bill 158, which would raise the allowable bond in New Orleans Municipal Court to $30,000.  The bill was signed into law by Governor Bobby Jindal and became effective on August 1, 2012.  As a result, Municipal Court may now require a very high bond for very minor crimes.

Alone, this would be a single proposal that netted a single new law.  However, we have since seen hints of a wider agenda.

The next indication came last June when the “Seven Essential Items” were released by a dubious coalition of neighborhood organizations urging revisions to New Orleans’ noise laws.  The fourth “item” was to “pass state legislation to allow higher or unlimited fines.”

The Louisiana Supreme Court previously held in State v. Le Compte, 406 So. 2d 1300, 1304 (La. 1981), that a law cannot impose an unlimited fine (something the coalition ignored), but that still leaves open the possibility of “higher fines.”  Presently, the maximum fine Municipal Court can impose is under state law is $500, which is certainly befitting of the minor crimes it normally handles.

This past month the Vieux Carre Property Owners and Residents Association (VCPORA) released responses from a questionnaire issued to candidates in the City Council At-Large runoff, and one of the questions was: “Would you support a council resolution to support a bill in the legislature to allow the City Council to increase fines for municipal violations from $500 (current cap), up to $5000?”

Both candidates indicated their support.  The victor in Saturday’s runoff, Jason Williams, opined that he supported the proposal “in line with moving forward,” noting that “[a] $500 fine may mean nothing to some so this gives the council more teeth.”

Does this mean we’re moving towards a municipal fines ten times higher than they are now?  Municipal Court judges have already been given authority to require bonds of $30,000.  If these plans bear fruit, they will also be able to impose fines of $5,000.  This is a sea change.

While this may seem esoteric to some, the issue here is actually rather simple: Municipal offenses are all misdemeanors, very minor crimes where jury trials are not provided.  They don’t require high bonds or high fines because the offenses don’t merit them.   Clearly, those with a wider agenda are unconcerned with fairness or proportion in individual cases.  Rather, they simply want to give the city broader authority to punish people for minor offenses.

We aren’t having a debate over whether this is fair or justified, yet these developments would have a tremendous impact on the enforcement of municipal laws.  When major changes begin to occur beneath the notice of most citizens, it’s unsettling to say the least.

I, for one, see no pressing need to expand the authority of Municipal Court judges and am concerned about potential consequences.  Alas, for now it seems I am arguing with myself.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for on Mondays. He has previously written for the Reason Public Policy Foundation.

  25 Responses to “Owen Courreges: Should fines for minor offenses be ten times higher?”

  1. #arbitration?

    • Not sure what you mean here…

      • Sorry – bad legalese pun. ‘Arbitration’, ‘arbitrary’…
        – though it would be nice if there were arbiters to negotiate between defendants and judges if all of this comes to fruition.

  2. Municipal court is a joke. We need meaningful penalties for violations of municipal law, and we certainly need higher bonds for weapons violations, even if they can’t be all cash.

    • Deux,

      Why do we need higher bonds? Were too many people missing court with the existing bonds? Landrieu didn’t say that. Rather, Landrieu was proposing using bonds as punishment, which is improper because suspects are presumed innocent.

      In any case, Municipal Court can now require a bond 12 times higher than any other municipality in the state. Do we really need that? Was there adequate debate on the subject? No on both counts.

      As for “meaningful penalties” for municipal violations, a $500 fine is hardly meaningless for a petty offense (and that’s the legal term for them, since if they’re not merely petty, you’re supposed to spring for a jury). Even if you think we should should increase that amount, suddenly raising it tenfold is ridiculous. $5,000 is way out of proportion for a misdemeanor.

      • Just don’t start any bar fights. and you’ll be ok, I don’t think a fine of $5000 is way out of proportion for many “petty” crimes. Landrieu’s explanation for a need for higher bonds may be poor, but that doesn’t make the need non-existent. People arrested for gun crimes should not skate out of jail even when likely to show up in court.

        • Deux,

          The old trope of “don’t break the law, and you won’t have any problem” doesn’t really work in practice. And $5,000 is disproportionate to most misdemeanor offenses; if the authorities genuinely believe they are serious enough to warrant such a fine, they need to start providing jury trials.

          Finally, I have a real problem with this statement: “People arrested for gun crimes should not skate out of jail even when likely to show up in court.” Actually, if they can post sufficient bail, that’s exactly what should happen. An arrest merely amounts to an accusation. The suspect is presumed innocent; the only purpose of that bail is to secure his appearance.

          • If “they can post sufficient bail,” I agree that they should skate out of jail. The “chief purpose of bail” is to to secure an appearance, but the seriousness of the crime has always been a factor too. Skating out of jail should be harder for gun arrests than most others.

      • Owen, people would not be missing court with somewhat higher “cash only” bonds. Plus, I hate to say it but, some attorneys that only serve to get people out of jail and bail bondsmen, might need to find a different career.

  3. When were the bond and fine limits established? Inflation may have eroded the value of these amounts if they were instituted many years ago. How much of the increase would just counteract the effects of inflation over the years?

    • chickadee,

      The $10,000 bond limit for New Orleans was set in 1999. Before that, it was the same as everywhere else — a maximum of $2,500. With the 2012 law, New Orleans can now require a bond 12 times higher than any other city. This all reeks of using bail as punishment and it’s wrong.

  4. A very good friend of mine was shot and permanently disabled, both physically and mentally, by people who should have already been in jail due to multiple arrests, among them – wait for it – weapons violations. I’ve had it with the dangerous revolving door at the jail and am 100% for high cash-only bonds specifically for weapons violations.

    • Angie,

      I sympathize, but people who have merely been arrested have to be presumed innocent. Excessive bail cannot be required; the founders put that in the constitution for a reason. The courts can’t (and shouldn’t) try to punish suspects in advance of trial by holding them in jail with an excessive bond.

      I understand that some people arrested on weapons violations, especially repeatedly, pose a serious threat to public at large and ultimately belong in jail. In cases where a person has a significant criminal background and poses a danger to the community, a somewhat higher-than-normal bond may be justified for a misdemeanor weapons violation. However, there has to be a legitimate purpose and the bail still needs to match the seriousness of the crime. What they’re doing in Missouri, what Landrieu proposed in 2012, doesn’t seem to recognize that.

      • An arrest is not a non-event. It is made on probable cause and has legal consequences. The presumption of innocence guides the ultimate judgment, but an arrestee is presumed to be more of a danger than someone not arrested. That’s why they get handcuffed, searched, and taken to jail.

  5. I believe a mandatory “cash only” bond for “all” crimes committed while armed would go a long way in reducing crime.

    • Mike Flood,

      Sure, but that’s an improper use of bail. It’s not a general crime-fighting tool. These people haven’t had the benefit of a trial or even a preliminary hearing.

  6. Deux,

    An arrest is not a non-event but it is not punitive, either. Certainly, a judge may weight the criminal background of the accused and the severity of the offense in setting bail. However, requiring $30,000 in bail on a misdemeanor — a crime deemed to be so “petty” that no jury is provided — is excessive in my view.

    Furthermore, how do you know there was actually probable cause? An accused person can request a preliminary hearing to determine if there was, in fact, probable cause, but this occurs after bail is set. Before that time, there has been no judicial determination whatsoever.

    The bottom line is that because accused persons are presumed to be innocent, they are not supposed to be punished before being afforded legal process. Pretrial detention is not punitive.

    • Arrest and pretrial detention are punishment. Are you kidding? They are the consequences of bad behavior or bad luck, but it is hard to imagine a judicial system without them. As for amounts for gun crimes, we’ll have to agree to disagree. Magistrates and Judges do have discretion, and thy have generally erred on the side of too light.

      • Deux,

        >>Arrest and pretrial detention are punishment. Are you kidding?<>As for amounts for gun crimes, we’ll have to agree to disagree.<<

        I'll grant that it's an issue for debate. I question whether they are really being too lenient — if the accused doesn't have any serious criminal record, there's really no basis for a high bond.

        • Owen, you’re way too theoretical. Arrest and pre-trial detention are painful and indistinguishable from punishment, that’s why your parents told you to stay out of trouble. It is a common occurrence for people to stay in jail and then plead guilty because they will be sentenced to time served and be released. It begs the question to say bail should not be excessive, and the seriousness of the charge is a proper factor is setting the amount.

  7. Deux,

    I would argue that depends on the circumstances. If a person with no criminal record is picked up for carrying a concealed weapon without a permit, I see no reason why bail should be set at the high level. The fact that a weapon is involved, by itself, neither makes the accused a threat to public safety nor a flight risk.

    Bear in mind that these arrests could include, for example, the scared woman who decided to carry a knife in her purse after hearing about a gang rape in the French Quarter. I don’t think arrest is warranted at all in such cases, to say nothing of substantial bail.

  8. Mike,

    To the extent defendants are missing court, then yes, bonds should be increased. Nevertheless, I haven’t seen evidence that it’s a widespread problem or that the prior $10,000 cap was insufficient. Rather, it appears that the increase was borne from a desire to make bail punitive, i.e. to “send a message.”

  9. Owen, I agree with your assessment of this, and to my non-lawyer mind, having exclusive standards for one parish over the rest of the state screams of an equal protection violation. Why is a misdemeanor more serious in Orleans Parish than Jefferson or St. Bernard? Could it be… racial?
    Anyway, based on the comments below, we may be crying in the rain on this one. These laws go into effect precisely because there’s a substantial segment of the population who’d gladly give up basic civil rights in the name of “fighting crime”. Bail is only meant to secure appearance at court, you’re correct. They even acknowledge that. They simply don’t care. They don’t believe in presumption of innocence. They believe anybody who’s been arrested deserves to be in jail for the rest of their lives, near as I can tell from the histrionics of the people advocating for essentially unlimited bail for misdemeanor offenses.

  10. Deux,

    >>Owen, you’re way too theoretical. Arrest and pre-trial detention are painful and indistinguishable from punishment[.]<<

    It's not just theoretical, though. You're right that they are painful, but that's why we should vigilant against the misuse of bail as punishment. If no objective evidence indicates a person is a threat to the general public or a flight risk, they shouldn't get a high bond. Moreover, I think cash-only bonds are generally excessive and wrong (and are illegal in Louisiana anyway).

    Some of the overcrowding at OPP is because due to holding people, often for trivial offenses (like a suspended licence violation), for weeks or months at a time pending a court date because they can't afford any bail at all. Myself, I'd prefer some of them be ROR'ed or not arrested to begin with, and when we get into increasing bail across the board for certain offenses and using that to "send a message," I get concerned that things are moving in the wrong direction.

    • My final comment is that I don’t want bail to be punishment either, but you can’t just point to the pain and say there must be some misuse going on. It is inevitably part of the process. I see no evidence of the intent you assume. Bail is properly a function of the seriousness of the offense as well as likelihood or fleeing. A person arrested for murder needs a high bond set, even if he dutifully appeared in court the last time he was arrested for murder.

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