When a Judge Sets Bail and Administers Court Funds is There a Judicial Conflict of Interest? Caliste v. Cantrell, Fifth Circuit Court of Appeals, Filed August 29, 2019

In Caliste v. Cantrell, the Fifth Circuit Court of Appeals held that, when a judge both sets bail and administers court funds that are derived from bail, it creates a judicial conflict of interest. A “magistrate’s dual role—generator and administrator of court fees—creates a conflict of interest when the judge sets their bail.”

The system in New Orleans required judges to set bail for defendants, including the option to require a surety bond. A portion of all surety bonds goes to various government agencies – including the court that is setting the defendant’s bond, and then the same judge who required the surety bond is responsible for allocating those funds.

Coincidentally, at the time the plaintiffs filed their lawsuit from a New Orleans jail cell, the judge also had a practice of not “inquiring into an arrestee’s ability to pay or considering the adequacy of nonfinancial conditions of release…”

What was the Procedure that Created a Judicial Conflict of Interest?

The judge named as a defendant in this case presided over the initial appearances of all arrestees in the Orleans Parish Criminal District Court – usually 100-150 appearances a week.

In about half of the cases he heard, he required a surety bond, and did not “make findings about their ability to pay or determine if nonfinancial conditions could secure their appearance.” One of the plaintiffs in this case stayed in jail for over two weeks, and another stayed in jail for over a month – they could not afford to pay a bondsman.

The plaintiffs were not asking for monetary damages – they asked only for a declaratory judgment that it is unconstitutional for the Orleans Parish to 1) not consider a defendants ability to pay and alternatives to pretrial incarceration, and 2) allow the same judge to set bond and profit institutionally from the bonds that he sets.

What was the Judicial Conflict of Interest?

The court has the option of setting a surety bond for defendants, which, in most cases, requires them to use a commercial bondsman:

Judge Henry Cantrell is the magistrate for the Orleans Parish Criminal District Court. He presides over the initial appearances of all defendants in the parish, which encompasses New Orleans. At those hearings, there are typically 100–150 a week, Judge Cantrell appoints counsel for indigent defendants and sets conditions of pretrial release. One option for ensuring a defendant’s appearance is requiring a secured money bond. Just about every defendant who meets that financial condition does so by purchasing a bond from a commercial surety, as that requires paying only a fraction of the bond amount.

A portion of every security bond goes to the Judicial Expense Fund:

When a defendant buys a commercial bail bond, the Criminal District Court makes money. Under Louisiana law, 1.8% of a commercial surety bond’s value is deposited in the court’s Judicial Expense Fund.

The same judge who sets surety bonds also administers these funds and allocates where the money will be spent – more than a quarter-million dollars per year. The fund doesn’t pay the judge’s salary, but it does pay for the salaries of other judicial staff including secretaries, law clerks, and court reporters. It is also used for office supplies, travel expenses, and other costs.

That fund does not pay judges’ salaries, but it pays salaries of staff, including secretaries, law clerks, and court reporters. It also pays for office supplies, travel, and other costs. The covered expenses are substantial, totaling more than a quarter million dollars per judge in recent years. The bond fees are a major funding source for the Judicial Expense Fund, contributing between 20–25% of the amount spent in recent years. All 13 judges of the district court, including Judge Cantrell, administer the fund.

Historically, courts would allow many conflicts of interests like hearing the cases of their family members. But, even in the carefree days when judges were trusted to be impartial even in the face of obvious conflicts of interest, a judge was still not permitted to hear a case where the judge had a financial interest in the outcome:

Trust in the impartiality of judges was carried to extremes. Judges could even hear cases involving close family members. See Brookes v. Earl of Rivers, Hardres 503, 145 Eng. Rep. 569 (Ex. 1668) (allowing a judge to hear a case involving his brother-in-law).But the common law view that judges were incorruptible had a notableexception—when judges might benefit financially. See Tumey v. Ohio, 273 U.S. 510, 525 (1927) (“There was at the common law the greatest sensitiveness over the existence of any pecuniary interest however small or infinitesimal in the justice of the peace.”).

Even when the benefit is indirect, such as income that is distributed to the judge’s court staff but not the judge himself, it may be a violation of Due Process.

What is the result of the Court’s holding?

The Fifth Circuit upheld the district court’s declaratory judgment:

“Judge Cantrell’s institutional incentives create a substantial and unconstitutional conflict of interest when he determines [the class’s] ability to pay bail and sets the amount of that bail.”

The plaintiffs were prohibited from seeking an injunction by 42 U.S.C. § 1983 (“[I]n any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable . . . .”).

Now, it is up to Orleans Parish to fix the problem by 1) eliminating the judge’s dual role as bail-setter and funds-allocator, or 2) change the allocation of money from surety bonds so that the funds do not flow into the Judicial Expense Fund.

If the parish does not fix the problem, then the plaintiffs can return to court and ask for an injunction…

Due Process and Equal Protection Claims

The plaintiffs also included claims in their lawsuit for violation of Due Process and Equal Protection because they were kept in jail solely for their inability to pay:

First, the complaint alleges that he was violating the Due Process and Equal Protection Clauses by setting bond without inquiring into an arrestee’s ability to pay or considering the adequacy of nonfinancial conditions of release. This, Plaintiffs contend, results in keeping people in jail only because of their inability to make a payment.

The Fifth Circuit decision only addresses the judicial conflict of interest claim because Orleans Parish has begun making findings of the arrestee’s ability to pay and considering alternative conditions of release – Judge Cantrell only appealed the lower court’s findings on the claim that he had a judicial conflict of interest.

Federal Appellate Attorney in Columbia, SC

Elizabeth Franklin-Best is a federal white collar criminal defense and federal appeals lawyer located in Columbia, SC.

For more information, call us at (803) 331-3421 or send us an email to set up a consultation about your case.