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Bail out: Is bail reform 'catch and release' or the solution to overcrowded prisons?

In many cases, bail is being set on felony arrests at $100 to $500 in cases that previously drew amounts ten times higher.

A revolution has quietly been transforming the New Orleans Criminal Justice System.

The city's jail population now stands at a 40-year low and continues to shrink. The driving force behind that reduction – sweeping bail reforms.

The new system has drawn praise – and grant money – from national reform groups. But some key players in the criminal justice system disagree with the new policies, some going so far as to say that lowering the jail population is also lowering public safety.

In many cases, bail is being set on felony arrests at $100 to $500 in cases that previously drew amounts ten times higher.

“It is expensive to detain folks,” said Derwyn Bunton, head of the Orleans Public Defender’s Office. “The national trend is to reduce the influence of bail in detention decisions.”

Reform groups say bail unfairly penalizes the poor, keeping some locked up for months awaiting trial. They say a high percentage of defendants released on low or no bail show up for court without fresh arrests.

“Bail is not necessarily something that keeps us safe,” Bunton said.

But some cases, including some uncovered by WWL-TV, have sparked criticism of the new trend toward lower bail amounts.

One case of low bail that has drawn attention involves an arrest of a man for the July 8 attempted armed robbery of a St. Roch convenience store. In that case, the store owner pushed his emergency panic button to alert police as he was being robbed. He said the would-be robber, Gino McDowell, was already an unwelcome regular from the neighborhood.

McDowell, 30, was arrested outside the store. After posting a surety bond to cover his $25,000 bail, McDowell was released. A month later, on Aug. 9, McDowell allegedly went back to the store and threatened to kill the owner, according to police.

In a wanted bulletin issued for McDowell’s arrest, an officer wrote, “Gino McDowell returned to the store and informed the victim he wanted his bail money back. When the victim refused, Gino McDowell returned on another day and informed the victim, ‘You causing trouble, I’m going to kill you.’ ”

On the new charge of intimidating a witness, McDowell returned to court and his bail was set at $200.

“Bail is set at $200 and he's released? So what type of effect do you think that has on the victim?” asked Rafael Goyeneche, president of the Metropolitan Crime Commission, a non-profit watchdog group. “What you don't want to see happen is the revolving door syndrome.”

McDowell's case is just one example of a new process of setting bail at Tulane and Broad. It's part of a push to reduce the jail population by releasing more arrested suspects on their own recognizance, known as an ROR, or low bail, some as low as $50.

Efforts to lower the jail population in New Orleans have been funded largely by a $1.5 million dollar grant from the MacArthur Foundation.

The results have been dramatic. Before the grant, the jail averaged about 1,600 inmates a day. By the end of last year, that average was about 1,400. This month, the number has been fluctuating close to 1,200, at one point last week dipping below that benchmark.

“What we see, I believe, is promising,” Bunton said. “Because when you look at our jail population, it is going down without any appreciable increase in our crime rate.”

But critics of the new program point to the full case file of Gino McDowell as an example of where lower bails may not work.

According to court records, after McDowell was arrested for the attempted robbery and released, he was booked in a burglary. While locked up on that charge, he was then re-booked with battery on a jail correctional officer. In addition, he's facing probation revocation for an earlier battery conviction.

Even with those cases and the probation revocation pending, the court's “new risk assessment tool” rated McDowell a three out of six for risk to re-offend or skip court.

The pre-trial report determines that risk based on nine factors, including recent crimes and missed court appearances. The risk algorithm was developed by the non-profit group The Arnold Foundation, and has been used in other cities around the country.

But in McDowell’s case, the district attorney’s office asked Magistrate Judge Harry Cantrell to review the case and increase McDowell’s $200 bail. Cantrell agreed, raising the bail to $15,000.

“This was a catch-and-release,” said Matt Dennis, co-owner of a bail bond company who works closely with the criminal justice system. “You are incentivizing crime at this point because there's no punishment.”

Other bail decisions uncovered by WWL-TV have been called into question.

Keilen Hawkins was booked on gun and drug charges in June before he was released after posting a bond to cover his $60,000 bail. He pleaded guilty and was given a suspended sentence, but was arrested Sept. 4 for cocaine possession. Despite facing immediate prison if his probation is revoked, and given a high risk score of 4, he was given a release on recognizance. He has now missed multiple court dates and remains at-large.

“Do you think you incentivized him to go home and get clean and quit dealing drugs?” Dennis asked. “Or did you think you incentivized him to laugh at the criminal justice system in New Orleans?”

Rodney Rivers was on probation for two domestic violence battery convictions from 2017 when he was arrested last month and booked with bank fraud and criminal damage to property. His bail was set at $500, despite a high risk score of 5, based on missing five previous court appearances. He skipped court again last week and remains a no-show.

We showed the Hawkins and Rivers cases to Goyeneche.

“So you're asking me to make sense out of something that is illogical and makes no sense. I can't,” Goyeneche said. “That's where initiative may be going off the tracks.”

In another case, four workers from out-of-town were booked with beating and robbing two men in separate attacks in the French Quarter area in July. One victim was knocked unconscious and had to go to the hospital. Bail was set at $300 to $350 dollars for each defendant.

After their boss posted cash to get them out, the men skipped court and had to be rounded up. The DA's office was then granted bail increases from $1,000 to $3,500 and the men were released after paying a bail bond company.

The new bail system is considered a pilot program and has been used primarily by the unelected magistrate commissioners who set bail in the afternoons, evenings and weekends. But a court memo obtained by Channel 4 shows that at the urging of the city, the elected judges signed off on the increased use of RORs and the new bail protocol last October.

In a statement, a spokesman for the judges, Judicial Administrator Rob Kazik wrote, “The program was a collaborative initiative with the City of New Orleans, spearheaded by the previous administration ... The program is approved by the Louisiana Supreme Court who acts as the liaison between the city and the District Court and ensures that best practices are followed.

The Pretrial Services Program, along with the Arnold Foundation Public Safety Assessment Tool are both nationally recognized and have been validated. The District Attorney’s Office and all Criminal Justice Stakeholders were included in all aspects of both the program and the Public Safety Assessment and its implementation.”

We showed dozens of additional cases to WWL-TV legal analyst Chick Foret.

“I've been doing this for 40 years. I know that that building is the most serious offenses anywhere,” said Foret, who has worked as a prosecutor and a defense attorney. He said he understands the hardship that can come with being arrested and then hit with a high bail.

“You've lost your job, your wife has left you, you have no money in the bank. I mean, I get all of that. So what you have to have, you have to have a balancing of what is the risk reward ratio,” he said.

But looking at the raft of lower bail amounts in recent arrests, Foret questioned the new program.

“In the application of the new mandate by the court, and that is to reduce the jail population in Orleans Parish, it's not being accomplished, in many different examples, safely and appropriately,” Foret said.

Even Bunton, whose clients have benefited the most from the changes, admits there is still work to be done with the program, especially in giving released suspects pre-trial services such as drug treatment.

“This is a work in progress. So we're going to be reviewing the outcome,” Bunton said. “We're hopeful that over time that the real savings will be borne out in community outcomes getting better.”

The city also is closely monitoring the program through its criminal justice coordinator, Tenisha Stevens, but is optimistic.

“The pre-notion that they’re letting people out and they're re-committing crimes that is not the case,” Stevens said. “Not that I'm not aware of. I don't think that is the issue at hand. I think we need to give this PSA time so we can actually see if it's working. I do believe that it's going to work if we can actually make sure that everybody's on board.”

The district attorney’s office issued the following statement critical of the new bail setting policies:

“We have for months expressed our concern to the Criminal District Court over the disturbing recent trends in the setting of bail amounts and the granting of unwarranted or illegal recognizance bonds.

Although city officials advocate for reducing New Orleans' jail population, that goal must be achieved through fewer people committing crimes, not by our courts disregarding state law and public safety.

Some judges and commissioners are making police arrests inconsequential and putting our community at risk in their zeal to grant absurdly low bonds or release orders for dangerous repeat offenders.”

Jon Wool, a public policy director at the non-profit Vera Institute helped lay the groundwork for the new bail system.

He said the city should push toward a bail system that no longer relies on a defendant’s ability to pay.

Before the judges took over the pre-trial services and risk assessment, the court paid Vera for those services, including its own risk assessment matrix.

“We should applaud the judges for working with the city and supreme court to bring to New Orleans a program that will replace money-based release and detention with a system that helps the court evaluate each individual’s likelihood of success if released,” Wool said. “Money should not play a role in release or detention. It discriminates against people of limited means and allows truly dangerous people with money to buy their freedom.”

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