Minor arrest on wrong block can mean jail
N.O. police protocol varies with location
The Times-Picayune
Saturday, October 20, 2007
By Katy Reckdahl
Staff writer
In January, Richard Andre, 21, was arrested while walking from a Bourbon Street bar where he worked security, mostly checking IDs at the door.
About 10 p.m., he said, he was nearing the Esplanade Avenue edge of the French Quarter when a New Orleans Police Department officer booked him with criminal trespassing. He believes the officer recognized him because he frequently hung out with other homeless people in Jackson Square.
Had he walked out of the city’s main tourist district before police stopped him, Andre’s fate would have been different. If the officer had arrested him on the other side of Esplanade, he would have been eligible to be released within two hours. Instead, because of a court order that critics call unconstitutional, Andre was held until his arraignment two days later.
For a year now, a court order has called for the quick release of most municipal defendants. Called “fast track,” the policy aims to curtail jail crowding by releasing arrestees accused of municipal or traffic offenses. It does not allow the quick release of anyone arrested for drunk driving, an outstanding warrant or a violent offense.
It also doesn’t allow the release of another group: anyone arrested in the French Quarter, as well as parts of the Central Business District and Treme.
“I think that’s screwed up,” Andre said.
The Police Department did not return repeated requests for statistics or comment on the practice or on the arrest of Andre.
Even Criminal District Judge Calvin Johnson, who issued the order last fall, thinks it’s imperfect.
“I don’t like it,” he said. But, said Johnson, it was a compromise with police officials, who told him they were arresting the same people twice nightly in tourist areas for nuisance crimes such as public urination.
Releases on fast track
Last summer, most people arrested for petty offenses were released within about two hours under the new policy, designed to relieve overcrowding in the city jail. Johnson, the court’s chief judge at the time, had kick-started fast-track releases in May 2006 with a different order, which didn’t specify any neighborhood boundaries. Instead, Johnson directed the Orleans Parish criminal sheriff to release most people arrested for municipal or traffic charges. Before that order went into effect, people arrested on minor charges were jailed either until they appeared before a judge or posted bond.
Four months later, the original order was moot, replaced by an altered version, issued by Johnson in September 2006. Added to the ineligible list for fast-track releases were “persons arrested for municipal offenses in the areas bounded by Poydras Street, Claiborne Avenue, Esplanade Avenue and the Mississippi River,” an area that includes the Quarter and parts of the CBD and Treme. People arrested in that zone who can’t afford bail will be held in Orleans Parish Prison until their first court appearance.
Marjorie Esman, executive director of the American Civil Liberties Union of Louisiana, believes the amended order is unconstitutional because it singles out defendants within certain neighborhoods and provides “enhanced protection to people in preferred neighborhoods.”
The order, as revised, less effectively limits the jail’s population, its original intent. During a recent “snapshot” of Orleans Parish arrests made during one day’s time, 170 people were arrested, according to data provided by the Criminal Sheriff’s Office. Of those, 35 were released through the fast-track process. If not for the exempted area, 22 more people could have been released.
Officers have discretion
There are other ways to limit jail population. For instance, the arrest snapshot provided by the sheriff tracked arrests Oct. 1, the same day that two Treme musicians were cited for leading a second-line parade without a permit. If the two brothers had been arrested and brought to jail, they would have been ineligible for a fast-track release because their alleged crime took place within the exempted zone. But officers opted to release the two brothers from the 1st District station with a citation and a court summons.
The Vera Institute of Justice recently recommended that the NOPD use citations more frequently for low-level offenders, in a report presented to the City Council’s Criminal Justice Committee in June, as part of an effort to reform the city’s troubled justice system.
The report noted that, for municipal offenders, NOPD officers have the discretion to issue a summons or arrest. But arrests are much more common. According to the report: “In January 2007, NOPD issued 1,043 summonses and arrested 3,972 people on municipal charges — almost four times as many arrests as summonses.”
Commenting last week on that report, Police Superintendent Warren Riley said the numbers distort the reality on the streets. Officers are trained to use their judgment on municipal arrests, and Riley said he would not support taking that discretion away. For example, Riley said, if officers stop a person for trespassing and then learn he has several previous arrests for burglary, they are likely to make an arrest.
“If the person is uncooperative or the officer suspects something else is going on, that officer has to have the discretion to make the arrest,” Riley said.
To book and screen one person costs the criminal sheriff about $100, Johnson said. City Hall then pays the sheriff $24 a day to house those inmates.
“Everyone is going broke doing this,” Johnson said.
Repeat offenders plentiful
Vera’s report also found that, in 2006, the city prosecuted one municipal offense for every three to four residents in New Orleans. The report speculated that those high per-capita numbers might be due to high levels of repeat offenders.
That’s exactly right, said Judson Mitchell, a staff attorney for the Loyola University Law Clinic.
“There are scores of repeat offenders in municipal court — judges and minute clerks know many of them by name when they see them,” he said.
The majority of those “frequent fliers” are homeless people with untreated mental health problems, often complicated by substance abuse, said Mitchell, who’s spent a decade defending those people through the Law Clinic’s homeless advocacy program.
“Basically, Orleans Parish Prison is a de facto homeless shelter — and an expensive one at that,” he said.
Johnson’s revised release order affects many of Mitchell’s clients. Within the order’s specified boundaries are countless homeless people, who pick up small jobs in the Quarter, visit homeless-service providers in the CBD, and gather, sometimes with a bottle or two, on the Moon Walk and in places such as Jackson and Lafayette squares.
Help for the mentally ill
Despite his order, Johnson does not advocate locking up mentally ill defendants.
On the contrary. For years, he has used his bench as a bully pulpit, advocating tirelessly for the treatment of mentally ill defendants, who have been cycling through court systems across the nation in growing numbers. In 2003, when a dozen mental health courts operated nationwide, Johnson founded one in Orleans Parish. He and his staff work closely with case managers to steer defendants through mental health treatment and help them secure stable jobs and housing.
As a result of Johnson’s work, defendants booked for more severe charges have better access to mental health services. “It’s easier if they’re charged with state offenses, because we have the mechanism in place: mental health court,” Johnson said.
He and municipal court Judge Paul Sens met last week with local mental health providers in an attempt to set up parallel services for low-level municipal offenders.
“We can’t use arrests to address someone peeing on steps,” Johnson said. “But right now, either we keep them in jail or we let them out. Neither one is a good solution.”
After fast-track releases began in May 2006, the city’s police officers became frustrated, Johnson said. At 5 p.m., they could arrest an obviously impaired homeless person for yelling at the top of his lungs outside a fancy Quarter restaurant. But then, by 7:30 p.m., that same person had been booked, fast-track released and was back in the same exact spot, causing the same exact disturbance.
“I can’t ignore the reality of that,” Johnson said.
Those situations do happen, said Martha Kegel, head of Unity of Greater New Orleans, which provides services to the city’s homeless. That’s why the NOPD has a Homeless Assistance Collaborative, with personnel who are specifically trained to deal with homeless people. Since its start in 2004, the collaborative has been steadily moving people off the streets and into housing, she said.
“The NOPD should be proud of that extremely effective collaborative, which contrasts sharply with this approach,” Kegel said.
Kegel believes that releases from jail should hinge on a defendant’s crime and his criminal record — not the part of town he was arrested in.
“If you do something in one neighborhood, you don’t go to jail,” Kegel said. “But if you do the same thing in another neighborhood, you’re jailed? How can this be official policy?”
