‘Pay Or Stay’ Sentencing In New Orleans

Debtors Prison alive and well in Louisiana and around the country with people facing jail time if unable to pay court fines.


Can also be read, here, at NOLA Data News Weekly, a publication that provides coverage on issues that affect black community of New Orleans…

Debtors’ Prison is an illegal practice in the US yet people are routinely imprisoned in Louisiana because they cannot afford otherwise. The recent class action lawsuit against the Orleans Parish Criminal District Court has brought national attention to how New Orleans uses fees and fines accrued in court to pay for judicial services. What is less known, is that the Orleans Municipal Court, which handles minor offenses such as marijuana possession or disturbing the peace, doles out fines at a much greater rate resulting in an ultimatum commonly referred to as ‘pay or stay’.

People facing minor charges are given the opportunity to plead guilty and pay a fine in order to go home that day. While this is an attractive option for anyone, low income defendants who make up the majority of municipal court, much of whom are homeless, often cannot to come up with the money. As a result, hundreds of individuals charged with minor, non-violent offenses end up in the notorious Orleans Parish Prison with debt still in their name.

Attorneys with Orleans Public Defenders are quick to point out that people should not fear going to jail if they are unable to pay their municipal court fine. In fact, Danny Engelberg of OPD says that fear of court fines can lead to the biggest mistake a defendant can make: missing their initial assigned court date. “It’s rare that somebody who shows up [in court] will get in trouble for not paying.” However, one missed court date can snowball into a massive amount of debt or a lengthy stint in jail.

“What really gets people in trouble is not showing back up for that hearing 30 days later. At that point, a warrant goes out for them, and the [court] will cite that person for contempt for missing court”. Once a defendant is in contempt, ‘pay or stay’ situations are more likely to arise. Contempt of Court citations come with the option of either a fine of $200 or 20 days in jail, emblematic of pressure ‘pay or stay’ sentencing places on low-income defendants.

Lauren Anderson, a public defender for municipal cases, says that once somebody has been arrested for contempt or another attachment, it is permissible for money to be accepted as a substitution for days in jail. “The court may take $300 instead of 30 days or $600 instead of 60 days. But these are people who didn’t have the money to pay the bond in the first place, they’re definitely not going to have the $300 to get out of jail… they may lose their house, they lose everything. And then they definitely can’t pay what they owed in the first place”.

If the concept of imprisonment over debt sounds like something that should be illegal, that is because it is. ‘Pay or stay’ was not only categorically rejected in a 1972 US Fifth Circuit Court of Appeals decision but was also ruled unconstitutional by the US Supreme Court a decade later. The Bearden vs. Georgia ruling in 1983 stated that it is in violation of Fourteenth Amendment’s Equal Protection Clause to imprison an individual “who has made sufficient bona fide efforts to pay [a] fine”.

Even though imprisonment over debt is clearly outlawed, a recently released report from the American Civil Liberties Union (ACLU) of Louisiana details that the practice continues in the state. Within the 45-day span that the study took place, the ACLU found 12 people jailed for unpaid fines. These 12 imprisoned for their debts were hardly an aberration. An unnamed source in the report said imprisoning people who cannot pay their debts was “so common you stop noticing it.” A case that received attention from the New Orleans community was that of Dianne Jones charged with marijuana possession in 2014. Jones was order to pay $834 in court fines in a six-month period or risk arrest. She tried her best to keep up with the payment plan but still had a warrant put out for her arrest when she was late with her final payment.

After reading the stories of imprisonment over a court fine, it is perplexing how often those with the least amount of money are given large penalties in their sentence. No formal procedure is required to determine if a defendant is indigent and therefore would be unable to pay a fine. As it stands now, a judge has complete discretion in how much to fine which explains the inconsistent sentences from case to case. For example, Dianne Jones was sentenced to pay $834, while Gregory Nogess, also charged with marijuana possession in 2013, was only ordered to pay $400. Public Defender Anderson, sees no science in how a court fine is determined. “They try to get it to a round number, but every judge is different”.

The seemingly arbitrary nature of court fines becomes more disturbing with the growing allegations that judicial officials benefit from collections. Every district court in Louisiana has a ‘Judicial Expense Fund’ that comes mainly from court fines. These funds can be used for court operation costs and even renovations of the courthouse. There is clearly potential for corrupt behavior in this system. This potential became reality in 2011, when it was discovered that some criminal district judges illegally used money from collected fines to pay for their own supplemental health and dental insurance. This specific incident, while not involving municipal judges, proves that Judicial Expense Funds open the possibility of judges benefitting from their own decisions.

Despite of the controversy circling “pay or stay” it is unlikely that the practice will change anytime soon. Too much funding for the parish’s judicial system comes from the court fines administered in municipal court.   The irony is that, while court costs and fees disproportionately harm the poorest defendants, their collection is critical to ensuring that these same defendants are able to have representation in court.

The state of Louisiana provides 85% of funding for the district attorney but less than half of the public defenders budget. Beyond these contributions parishes have to finance their own legal system . It is very likely that defendants like Dianne Jones, who struggle to pay their court finds, are paying the salaries of their court appointed lawyer.

The irony becomes even crueler once Orleans Public Defenders revealed that it is deep in debt , despite the massive number of fines imposed . Chief Defender Derwyn Bunton announced that his office is facing massive furloughs and reduction in services as the 2016 budget is already projected to have a $300,000 deficit. Many at OPD see the office’s financial troubles as a result of depending on the ‘user-fee’ system as a major source of funding.   Because defendants often go to jail because of their inability to pay, it is impossible to predict how much court fines will yield in any period of time.

With the state government in fiscal trouble of its own, it is difficult to know how OPD will rebound. Major structural reform in how public defense is funded is probably needed to assure that the constitutional right of attorney is preserved. Some in the Louisiana statehouse may not want to change course, but they may not have a choice as national awareness continues to grow on the use of court fines and their disproportionate effects on people of color. Lawsuits filed against cities like Ferguson, Mo. and Montgomery, Al. have shown that the practice of using court fines to fund government programs, and incarcerate those who fail to pay, is not something unique to New Orleans. ‘Pay or stay’ arrangements have been implemented throughout US history and the defendants with the least financial and social resources, the vast majority of whom are African-American, have always been the foremost victims. It may be complicated to fund a court system. But the perverse incentives that this system creates, not to mention the illegality of ‘pay or stay’, are all reasons why financial penalties should not be relied upon to fund basic legal services.