New Orleans Public Defenders Are Mobilizing to “Flip the Bench”
These candidates are highlighting the power of judges to challenge mass incarceration.
Katie Jane Fernelius, | October 16, 2020
This article originally appeared on The Appeal, which hosted The Political Report project.
These candidates are highlighting the power of judges to challenge mass incarceration.
In July, during a three-day period when candidates for elected office in Orleans Parish had to file their paperwork, court clerk Arthur Morrell set up a Facebook Live video feed in his office.
As each candidate ambled in, masked and holding documents, Morrell greeted them, “Hello, you are on Facebook Live, can you please introduce yourself?”
Familiar faces appeared, like an incumbent judge who was filing for re-election and an ambitious New Orleans City Council member who was running to be district attorney.
But then, a series of unexpected candidate hopefuls showed up: seven current and former public defenders who were seeking election as judges, including Derwyn Bunton, chief of the Orleans Public Defenders.
Jared Miller, a staff attorney at Orleans Public Defenders, told The Appeal: Political Report that some of his colleagues were stationed at the courthouse to watch the filings and send text updates to a group of other public defenders.
“There was huge excitement about what was going on,” Miller said.
Their candidacies stood out because, across the country, there’s a startling lack of judges with experience representing marginalized communities. In federal and state courts, judges are far more likely to have worked as prosecutors than public defenders. Graham Bosworth told the Political Report that in Orleans Parish’s last regular judicial election six years ago, he was the only person with experience as a public defender who ran for a seat at the courthouse.
Bosworth is running again this year, along with Bunton, Teneé Felix, Angel Harris, Meg Garvey, Steve Singer, and Nandi Campbell. Most have worked at the Orleans Parish defender’s office, while others have contracted as legal aid attorneys for indigent defendants.
NOLA Defenders for Equal Justice, a group of former and current public defenders, including Miller, has formed to advocate for this slate of candidates, who are running for criminal, juvenile, and municipal courts.
They say that electing judges with legal aid experience and progressive platforms could transform the city’s legal system, for instance by diminishing the reliance on cash bail.
Judges exercise considerable discretion. In earlier elections this year, New Orleans advocates put the spotlight on their role in overseeing evictions. Advocates stress that there are many other ways a different type of judge could challenge the status quo in New Orleans. Judges could be more aggressive in challenging evidence presented by police officers, or in holding prosecutors accountable if they fail to disclose favorable evidence to the defense team, as they are constitutionally required to do. Judges could also choose not to impose high bail amounts or long sentences.
“Being a good judge is more than just knowing the law,” said Bosworth, who is running to be a criminal court judge. “It’s being willing to step in and do what is right when the system fails. And that’s where you’re not just calling balls and strikes, you are making sure that due process and equal protection actually occur.”
This slate of candidates represents the latest success in the renaissance of the Orleans Public Defenders office.
Before Hurricane Katrina in 2005, a robust public defenders office didn’t exist in New Orleans. There was only the Orleans Indigent Defenders program, started in the 1970s. It was chronically underfunded and did not have any full-time attorneys on staff. In the wake of Katrina, the program effectively collapsed.
Judge Calvin Johnson, who was the first elected African American judge in the Orleans criminal court and chief judge at that time, enlisted attorneys to shape a new public defender’s office with the influx of recovery money coming into the city. They recruited recent graduates of top law schools across the country to join the office.
Bunton, the chief public defender since 2009, told the Political Report he was inspired to run by watching younger attorneys he had mentored take the plunge.
“I was looking around and I’m like, how are they more courageous than me?” he said. “[Public defenders] come from a different pedigree than what we’re used to on the bench. Most of the [judges] come from prosecutorial backgrounds or law enforcement backgrounds.” Bunton is running to be a criminal court judge and is facing off against Rhonda Goode-Douglas, a trial attorney and former prosecutor.
Bunton said there are a handful of things that he can do as a judge to use the sensibility he honed as a public defender and enact procedural reforms. If elected, he wants to incorporate technology into the courtroom and make its workings more transparent. He also plans to schedule his dockets with consideration for the plaintiffs and defendants who may not be able to easily take time off work to be present for their case.
Bunton and the other candidates have been particularly critical of the cash bail system.
Bosworth told the Political Report that “there are far more effective ways to ensure people appear in court that don’t create disparities based on economic means.” His opponent, Kimya Holmes, a staff attorney for the Capital Defense Project of Southeast Louisiana, told Nola.com that the cash bail system shouldn’t be overhauled, it just needs “tweaking.”
Louisiana’s pretrial detention rates are the highest in the country. Studies show that money bail can reinforce social inequities as it forces low-income people to choose between taking on debt to get out of jail or staying locked up and risk losing their work and housing.
Judges can use alternative pretrial services to compel court appearances like check-in calls and texts, as well as arranging for transportation. The City Council has passed an ordinance disallowing bail on most municipal charges. But Louisiana law mandates that a judge sets money bail for every charge a person faces. And judges have wide discretion over the amount; one New Orleans judge, Harry Cantrell, routinely set bond amounts so high—effectively trapping poor people in jail—that a federal court ruled his practices unconstitutional.
The bail system funds judges, sheriffs, prosecutors, and public defenders in New Orleans, while enriching bail bond agents who post bail for people who can’t afford it while charging exorbitant fees. In 2015, 97 percent of the people who posted bond in the Criminal District Court of Orleans Parish did so through a bail bond agent.
Agents like Blair Boutte wield political influence by helping recruit candidates for local campaigns, racking up financial contributions, and wrangling endorsements. Some say Boutte uses aggressive tactics against rivals.
Angel Harris has come up against this opposition in her race against incumbent Franz Zibilich for a criminal court judgeship. She is the only public defender candidate running against an incumbent in criminal court. (Harris used to work for The Justice Collaborative, of which The Appeal is a project.)
“I am absolutely going up against the political machine,” Harris said. “I’m talking about bucking a system, so, of course, the establishment folks aren’t going to jump on board with me.”
Money is a key struggle for first-time candidates like Harris. As of their September filings, Zibilich has over $150,000 in campaign funds. Harris has under $14,000.
“But to even start pushing back on how we are doing things and talking about bond and talking about bail reform and pointing out racial disparities, people are like, ‘Oh no,’” Harris said. “Voters need to really recognize the power that they have in this moment. … I want people to know that they have the power to determine who’s going to be sitting on that bench.”
NOLA Defenders for Equal Justice has helped raise the profile of local judicial elections through social media and candidate forums that have tied into broader public conversations around criminal justice reform.
“These systems have operated over many decades to make sure that Black lives don’t matter,” Miller of Orleans Public Defenders said. “People accused of crime who are Black or brown are people who the system treats with a lot less humanity. … But these candidates have the experience of knowing these clients at a personal level.”
Miller said this experience is what shapes the values that public defenders share.
“The thing about being a public defender is that it is a very hard job in which you’re dealing with a lot of pain and misery and trauma, to be honest, and you don’t often win,” Miller said. “To have these candidates who stand for our values come together and try to make change is really uplifting.”
He hopes that if the public defender candidates are elected, they will not only exercise meaningful discretion with individual cases in their own courtrooms, but also become role models and leaders in criminal justice reform citywide.
Bunton agrees that judges can be powerfully influential.
“There’s a lot of things that judges can do, there’s a lot of momentum they can create,” Bunton said. “Every big Supreme Court case we’ve ever had started with the little ol’ judge making a call.”