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Fifth Circuit Finds New Orleans "Debtor Prison" Unconstitutional

By Joseph Fawbush, Esq. on September 09, 2019

Many courts rely heavily on fines and fees to meet operational costs. One such court is the Orleans Parish Criminal District Court (OPCDC) in New Orleans. If the amount of fines and fees collected is lower than usual, the court has trouble paying for basic expenses. That may be why judges at OPCDC issue arrest warrants when defendants do not pay. Warrants have been issued for fees as low as $14 for court transcripts, although some stretched to the thousands of dollars. The OPCDC uses a third-party collection agency to pursue the fines.

Once collected, the fines go into a general fund used to pay for various expenses, including salaries and benefits for staff (but not the judges), office supplies, CLE travel, building maintenance, books, jury expenses, and more.

A Violation of Due Process

The Lawyers’ Committee for Civil Rights Under Law filed a class action lawsuit over this practice, alleging that this “debtor’s prison” violates due process.

Last year, a federal district court judge agreed this practice was unconstitutional. Courts have held that under the Fourteenth Amendment’s Due Process clause, a court cannot imprison an individual for failure to pay fines without first determining that individual’s ability to pay. The federal district court also found that because these fines went into a general fund that paid myriad necessary expenses, the judges did not preside over a neutral forum. In other words, it is impossible for the judges to neutrally determine ability to pay. The judges appealed only the latter part of the district court’s declaratory judgment.

An Argument Based on an Ellipses

The Supreme Court established the standard by which a judicial process violates due process when the adjudicator has a pecuniary interest in the outcome. In Tumey v. State of Ohio, a 1927 decision, the Supreme Court wrote that “every procedure which would offer a possible temptation to the average man as a judge to forget the burden of proof required to convict the defendant” violates due process.

On appeal, OPCDC judges argued that the standard in such cases is different for judges. Instead of being judged “as an average man” as judge, the standard should be “average judge” based on a 1986 Supreme Court case in which the justices shortened “average man as judge” to “average . . . judge.” This creative theory proposed that this set a new standard, and the “average judge” is less susceptible to temptation than “the average man.”

The Fifth Circuit found that argument unpersuasive, writing “[w]e find it hard to believe that the [Supreme] Court overruled one of its cases with an ellipsis.” Being experienced judges themselves, one also imagines they found it hard to swallow that judges are somehow more pure of heart than a mere ordinary mortal.

The judges may appeal, although the OPCDC has already instituted some changes, such as prohibiting its collection agencies from issuing warrants and forgiving $1 million in fines and fees. 

The Lawyer’s Committee for Civil Rights, which argued the case for the defendants on appeal, celebrated the Fifth Circuit’s opinion with a press release that doesn’t pull any punches.

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