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Analysis: The Great Bail Debate

June 23, 2019

NEW ORLEANS (AP) — Police say the two men from Indiana bound employees at a New Orleans pharmacy with zip ties before getting into a gunfight with police officers, one of whom was hit in the shoulder.

The insult later added to the injury, at least as far as the New Orleans district attorney is concerned, is that the men arrested in last week’s robbery in uptown New Orleans were labeled “low risk” under the criteria of a pre-trial assessment tool used to gauge how high bail should be set for those awaiting trial.

“Here we have a violent offender who attempted to rob a business and two employees at gunpoint, opened fire upon three police officers who responded - striking and injuring one of them - and comes to our city from Indianapolis, which should establish a risk of flight,” Cannizzaro said in a news release.

Magistrate Judge Harry Cantrell was praised by Cannizzaro for “disregarding this tool” and setting bond at well over $1 million for each.

It’s not the first time Cantrell has been characterized as not following certain protocols involving the setting of bail. And he hasn’t always drawn praise for it. Coincidentally he had agreed only a few days earlier to establish policies to ensure that defendants in criminal cases aren’t jailed simply because they cannot afford bail. The agreement filed in U.S. District Court came after plaintiffs in a lawsuit said he had violated an earlier federal judgment regarding inquiries that must be made into defendants’ ability to pay bail or alternatives to bail.

Plaintiffs complained that he set high bails for those hard-pressed to pay and unlikely to miss court.

As for the setting of bail in last week’s robbery, with the suspects facing charges including armed robbery and attempted first-degree murder of a police officer, the whole episode is either an indictment of the risk assessment tool or proof that the system is working, depending on who is asked.

The chief judge of the state’s Criminal District Court in New Orleans, Keva Landrum-Johnson, said low risk assessments resulted from a suspect’s limited prior criminal history. The seriousness of the allegations, however, led to high bails in this case, Johnson told The Associated Press.

“Even the lowest (risk) level people, if arrested for murder, rape, armed robbery... no matter what your risk level is, you would not be recommended for release,” Landrum-Johnson said.

“It is a tool,” she added. “It doesn’t bind the court and the judges always have discretion.”

Jon Wool, director of justice policy, for the New Orleans office of the advocacy group Vera Institute of Justice, agreed. “The system actually worked as it should,” he said in an AP interview, adding that the risk assessment tool, or Public Safety Assessment, should be augmented with consideration of factors including the seriousness of the offense.

The stir last week over the assessment tool feeds into a larger debate going on in New Orleans about the fairness and constitutionality of bail practices, including whether defendants who can’t make bail are, in effect, jailed for being poor.

Federal appeals court judges are considering whether New Orleans judges have a conflict of interest in determining a defendant’s ability to pay bail, fines and fees, since those are sources of funding for the court.

And then there is the Vera Institute’s report , released earlier this month, calling for an end to bail and conviction fees. Suggested solutions include a commitment by the city to continue steps it has already taken to fund the justice system without bail and fee money.

Bail, the report suggests, should be replaced with a new system for deciding whether an arrested defendant should be jailed pre-trial, a system that doesn’t involve money. That system would “restrict the possible use of preventive detention to those individuals arrested for a violent felony for which state law requires a prison sentence if convicted” or individuals who are assessed at the highest risk level on the Public Safety Assessment.

Fairness and safety require taking money off the table when it comes to pre-trial release, said Wool, who added, “Nobody should be able to purchase their freedom because they’re wealthy.”

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EDITORS NOTE: Kevin McGill is an Associated Press reporter in New Orleans.

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