In August of 2018, I began interviewing attorneys of the Orleans Parish Public Defenders office (OPD) to give the public access to some of the inner workings of the criminal justice system. For this installment, I sat down with a veteran of the Public Defenders office, Meghan Garvey, to talk about her beginnings at OPD, her position in Magistrate court (the lower court where criminal proceedings begin), and the bail system. We discussed her role in the advocacy group New Orleans Alliance for Equity and Justice, which includes such organizations as Courtwatch NOLA, Voice of the Experienced, and The Welcoming Project. Together, these groups have collected ideas on how to end the practices of bail, fines, and fees in order to build stronger communities.
Why did you decide to work for the Orleans Parish Public Defenders Office?
By the time I came on with Orleans Indigent Defender Program in June 2006, it wasn’t Orleans Public Defenders yet, but there had been some changes. There was a new local board and different people who were more reform-minded… When I came on, there was a lot of change in the air. A lot of people were talking about how public defense delivery in New Orleans works, how it hadn’t been working, and all of the issues that Katrina sort of laid bare for us with all the chaos that ensued. My initial role that I played was leading a group of lawyers who were all members of the Federal Bar in a volunteer learning program where they were meant to be representing people from the time their bonds were set up until their cases were accepted. During that initial pre-acceptance period, they were supposed to be providing advocacy for people. And we had a lot of people who were interested. But I think a lot of the lawyers started to get so frustrated with the way the system worked and how unjust it was that they often stopped participating. Then I ended up working in magistrate court, which is kind of funny because I’ve come full circle now. I stayed with the Public Defenders office until the end of 2012 and by that time I was a supervisor and was doing what we internally call Level 1 cases—cases where somebody’s facing life in prison without possibility of parole, so murder and first degree rape. Then I left and I went to what is now the Louisiana Center for Children’s rights, where I was the managing director.
I came back to OPD in October of 2017 to work in magistrate court. To be honest, when I first came back I was thinking, “Oh I’m just going to take this job for a little while,” because I wasn’t sure I could commit. Working here is really hard and I had a lot of traumatic memories of how grueling it was. But when I came back, I felt at home; I felt comfortable. I like the people who work here. I like the feeling of being in those trenches and dealing with all of the insanity and being on the front lines.
Was there someone who influenced you to become a lawyer?
Before I went to law school, I worked as an investigator on death penalty cases in California. Before that, I worked doing case management in SRO [single-room occupancy or “residential”] hotels in the Tenderloin [San Francisco]. I think who inspired me to become a lawyer was the clients I had. It wasn’t like I really looked up to a particular lawyer and wanted to be just like them. I didn’t really know a lot of lawyers before I went to law school. Nobody in my family is a lawyer; I didn’t read biographies of lawyers or anything like that. It was dealing with my clients and the situations that I was working on when I was an advocate for them, but then also hearing about all the things they had been through and other people in their lives and communities… I think it just made me want to be stronger as an advocate and have more power to advocate for people that I cared about.
So the general public has a better understanding, what does a day in magistrate court look like?
You get police reports—they’re what’s called gists, these quick and dirty police reports—or arrest warrants. You get a stack of those and a list of names. You go and meet all these people and you have to gather biographical information about them, financial information, contact information (so you can connect with their families), information about the case, and whether or not they have any urgent medical or mental health needs. You’re gathering all that information really quickly by having these very brief, to-the-point interviews with people. Then you have a chance to present that to the court to influence the outcome of the pre-trial detention or release decision. It’s different every day because you’re dealing with different people every day. It depends who is sitting as the magistrate judge or the commissioner (attorneys appointed to handle misdemeanor trials, set bond, decide if police have probable cause for arrest). There are days when they’re really in a hurry and they’re trying to race you, and you have to fight against it because you know what you’re there for is important. They know that too, but they’re still in a hurry, so you have to try to slow the judge down and get them to relax so they don’t rush you, while at the same time trying to be efficient and being honest with people about how sometimes getting into long, detailed explanations of what actually happened when they got arrested isn’t really going to benefit them in that moment, and there will be time for that later. It’s a balancing act because you want people to feel like they’re being heard. Obviously it’s terrifying to be arrested, and you’re the first person that somebody’s talking to after that. You want to be respectful and you want to hear what they have to say.
Once you’re in the court, you have an opportunity to make arguments about whether or not there is probable cause to hold the person for the charges for which they were arrested. After that you look at the strength of the case. What kind of evidence do they have? And that’s meant to be a serious consideration when setting the amount of the bond. You also look into how much bond this person can afford. What responsibilities do they have? What extenuating circumstances are going on here? Is there anybody in the courtroom that’s come to share information with you about the case? It really just depends. Oftentimes you can share with the court that you have information about this person that affects their bond. Maybe they’re participating in a program or they have someone checking in on them. And if the court just wants to say, “Stay with whatever program you’re working with so that you maintain your stability, and remember to come back for your court dates” and that’s enough, we don’t need to set a money bond for you. That’s one of the kinds of arrangements you might try to make. A lot of times people are there for extradition hearings because they were arrested for charges in other states. There aren’t a lot of “trial of the century” things going on in magistrate court, but you are setting things in motion that can affect someone’s case the entire way through, so it is important to take it seriously.
“There aren’t a lot of ‘trial of the century’ things going on in magistrate court, but you are setting things in motion that can affect someone’s case the entire way through, so it is important to take it seriously.”
How has working in magistrate court changed since you started with OPD?
It’s changed a lot… It used to be that the bonds were set in lockup. They often used this room on the first floor that was meant to be a lineup room. It had this stage and a weird sloping floor and it didn’t have any air conditioning. They would bring people over and people would all be sitting on the floor. Sometimes the judge would come over, but sometimes they would just do it over the phone because they didn’t want to come over there since it wasn’t air-conditioned. In the summertime, it was hotter in there than it was outside. People were fainting. Defendants were often feeling very sick and sometimes there were upwards of 70 people in the room at once… You wouldn’t necessarily have the gist; sometimes you did and sometimes they wouldn’t make them available to you.
You would walk in there and do this really crazy triage. You’d look for anybody who looked to be a teenager or anybody who looked really old, anyone who looked like they were having serious mental or physical health problems. I had a law clerk and we would try to get as much information as we could. Mostly it was just phone numbers and there wasn’t time to talk to them about anything else. And the judge would be screaming at you the whole time, asking why you even needed to talk to these people.
Now we interview people in a semi-soundproof booth and we’re both sitting in chairs looking into each other’s eyes. It’s a lot more professional. The judges believe that it’s important for us to talk to people and they give us time to talk with people before they start. So that is a huge difference. Also the numbers are way better, for various reasons. The misdemeanors aren’t in there anymore; they’re in municipal court. The considerations that the court gives to probable cause and strength of the evidence is night-and-day. Part of the reason is that we have different people working there, but I also think it’s just been years and years of people like me and my colleagues grinding them down and saying: no, we’re going to keep showing up every day and demand that you do things according to the law. Over and over again. 365 days a year, for years, is really what that took. It’s in a courtroom now—a courtroom with air conditioning—so that’s great! Gradually they’re starting to pay more attention to things like people not having records, or the charges not being as serious, or the case not being that strong based on the evidence presented in court. I think judges are definitely taking a closer look at those things. And the bonds are way better. They’re releasing more people on their own recognisance and the bonds they are setting are way lower.
Back then, nobody cared about what was happening in magistrate court. It was like this weird black box of mystery that no one cared about at all. In general, we now have a more concerned public. There are more average citizens, who do not work in the criminal justice system, who care what happens to people in magistrate court. That’s huge and really helpful. Continuing that is the only way any of this stuff is going to improve… But I don’t want to give the impression that things are OK now or that the way bonds are set or first appearances are conducted is good. Because it’s not.
What are some negative effects of the current bail system?
Well, it’s costing us a ton of money as taxpayers because we’re paying to house people in jail who would otherwise be out—many of whom, once their case is resolved, are either found not guilty, or their charges are reduced to a misdemeanor, or they get probation. So had they been able to pay their bond or had they been ROR’ed (released on one’s own recognizance), they never would have spent a day in jail and never would have cost the taxpayers that money. That’s the fiscal angle, which isn’t even my main concern, but it’s important because we do have a lot of need in this community and we do need to think about how we’re spending our resources.
Then you have what happens to those individual people. They’re in jail; jail is traumatic. There have also been lots of studies that show that jail is criminogenic: basically, the more time you spend in jail, the more time you’re going to end up spending in jail. The more time you spend in jail, the more likely you are to get picked up on a new or more serious charge in the future. There are lots of different reasons for that, but jail is not good for people. It’s not a healthy environment for people physically or emotionally or psychologically. So once the people do get out, we’re dealing with that burden as a community—people who have been through a scary, traumatic experience and all of the ways that they affect all the people around them. Then we’re dealing with the fact that people’s family members have that burden. Not only is their loved one in jail, but they’re not there to play their role in the family, whether that relates to childcare or making money to support the family.
There are other things people don’t realize, such as the fact that when people are in jail and not able to afford their bond, it affects the outcomes of their cases. There has been lots of research about this, but people who are not able to afford bond are more likely to plead guilty to something they didn’t do, just to get out of jail. I believe that hurts the entire community. We don’t want people pleading guilty to things they didn’t do. That undermines all of our faith in the system and it undermines people’s willingness to participate in the system and go along with all of it. People also end up having worse outcomes in terms of sentences and are less able to assist with their own cases when they’re locked up. Those are just some of the ways it hurts people. Obviously there’s basic things like people losing their jobs and homes… [they] are more likely to need public assistance because of that. Or others in their family may end up homeless because of it. The person may be in school and now they’ve forfeited that. They may have paid money to go to Delgado and then they can’t get out of jail, so that opportunity is gone.
If there was an absence of bail, how would it benefit New Orleans citizens?
First of all, it would save people money. And a lot of people are poor here, so that’s good. But I think it would add a lot of legitimacy to the system. Doing away with money bail in a lot of ways could reduce crime and make us safer. There would be fewer people pleading guilty to things they didn’t do in order to get out of jail. There would be more scrutiny on the kinds of cases that were accepted, because they wouldn’t be prosecuting people who are unlikely to plead guilty because they knew they couldn’t make the cases. There would be less to criticize in the system, so people would respect it more and be willing to use the system only to address safety issues. I also think that when people are out on bond, they would be more likely to be able to access mental health or substance abuse treatment… If we had that in place—plus a DA who actually cared about representing the interests of his or her constituents—we could be resolving a lot of these cases without convictions. We could be helping people get back on the right path and I think it would allow us to have more progressive ways of resolving cases, which means fewer people with felonies. And fewer people with felonies means more voters. More voters means more citizen voice in what happens here. I think we would disenfranchise fewer people in the long run and that would make things so much better, because frankly we’re really bad at voting. New Orleans is awful at voting. We need to improve on that.
There’s been lots of talk about bail reform in New Orleans. Is there a way to phase out bail? Would that have to happen through legislation? How would it be implemented?
That’s a tough question for numerous reasons. I think there are some immediate things that could happen that would be very helpful. And then I think that some of the other aspects of it will require serious legislative change, but also a shift in the way that players in this system think about bail and its purpose. One of the issues is that for every commercial surety bond that is made, a percentage of that money goes to the court, the sheriff, the district attorney, and even OPD. That’s a problem, because the people that are making the decisions about what the amount of bail should be are getting a cut of that money. I mean, that’s just clearly a conflict of interest and the courts have said so. Because of that, our court actually met with city council and said, “Hey, we’re gonna lose money.” They asked for more money to supplement what they wouldn’t be getting as a result of these commercial surety bonds. The city gave them that money with no strings attached and no performance measures put into place. And I think—a lot of people think, including the members of New Orleans Alliance for Equity and Justice, and Vera Institute of Justice in their report—that you need to be attaching something to this money because they’re still issuing the bonds and still doing fines and fees. So step one is eliminating this user pay aspect and making sure things are fully funded. That way, there’s not an incentive to extort money from poor people in order to fund the system.
Another thing that needs to be changed is this prohibition on being released on recognizance for certain enumerated charges and here’s why: when that was implemented, it was because those charges were considered “dangerous” unto themselves. But the law says that people are supposed to have an individualized determination of bail. So when you force a judge to issue a money bond for someone, regardless of whether the judge feels they’ve been presented evidence that proves that person is a danger or a flight risk, you are not letting the judge do their job and you’re not letting them comport with the constitutional requirements, which say that bond is for people who are a danger to society or people who are flight risks. Most people are just supposed to be released without any bond.
I think also what Vera, and the New Orleans Alliance for Equity and Justice, and a lot of advocates are calling for is a shift closer to the system that is used in New Jersey. They very rarely use money bond at all. People are either detained or released. And it’s my impression—which is based on me reaching out to public defenders in New Jersey, including the head of the Public Defenders office there—that they’re happy with how the system works there, and there hasn’t been a huge increase in the number of people being detained.
What is your role in the advocacy group New Orleans Alliance for Equity and Justice?
I’d say that my role is to represent the on-the-ground point of view. I think that’s probably the most valuable thing I bring to the table. We have a lot of groups fighting money injustice in the system, be it through bail or fines and fees or other things where poor people are being hurt by the criminal justice system… I think we all share the same ideals and the same hopes for how we want New Orleans to improve, but we sometimes have different strategies of how to go about it. But because it’s such an entrenched, huge problem, I think that’s kind of good. The diversity of viewpoints and strategies is actually helpful.
photo by Jason Kerzinski
transcription by Erin Hall