ALEXANDRIA, Louisiana—Bruce Kelly has been treasurer of Rapides Parish for three years and was assistant treasurer for 27 before that. A man in his 50swith a bald head and bulldoggish demeanor, Kelly is responsible each year for ensuring that the local government—run by a nine-member elected body called, in Louisiana tradition, a police jury—has enough money to sustain basic functions like paying government salaries, feeding inmates, and maintaining records and inventory for the 131,000-person parish, nestled in the heart of Louisiana.
But in early 2018, Kelly faced a crisis: The district attorney’s office, led by the elected DA, Phillip Terrell, was requesting more than $2.5 million in parish funds. This was more than it had ever asked for in all the years Kelly had been at this job, and Kelly didn’t have the money. In fact, the parish was facing a budget shortfall of $427,000; even its “rainy day fund” had been used up.
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In the parish seat of Alexandria, where abandoned storefronts compete with a grand hotel converted from a 19th-century plantation house, many downtown streets desperately needed paving. The main courthouse needed a new air conditioner, to replace one installed in the 1960s. The county jail was overcrowded. The poverty rate in Rapides hovers around 20 percent—average for Louisiana, but above the national rate.
As Kelly reviewed the request, he pulled previous records and found that something had changed in the DA’s budget. Over the past three years, the DA’s intake from court fines had dropped from $900,000 to about $500,000 in 2017. According to Kelly’s calculations, the number of traffic tickets issued—the DA office’s primary source of fine income—had also dropped, from an average of 12,000 per year to 7,000. Kelly found it curious that the DA’s office was requesting so much money from the parish, while seemingly cutting down on one of its main money sources.
And there were signs that the DA’s office, despite its big ask, wasn’t short on cash: It had a fleet of new cars with leather seats. Kelly went through old state audits and other public information, and came to the conclusion that Terrell’s office was bringing in plenty of money but keeping it for itself.
He was right. Under Terrell, the DA’s office, as shown by public documents, had ramped up its “pretrial diversion” program, also sometimes called “pretrial intervention,” or PTI. As the website for the Rapides Parish DA’s office explains, the program provides “nonviolent offenders an opportunity to avoid conviction and incarceration” through “tailored” agreements in which the offenders pay money in exchange for their charges being dropped and their cases dismissed. In the program’s simplest form, instead of receiving and paying speeding tickets, offenders were paying feesnotto get tickets. And those fees were going directly to the DA’s office—whose websitefeatures a prominent MAKE A PAYMENT button.
Diversion programs, which exist in almost every state in the country, are a popular criminal-justice reform, often used to keep people accused of nonviolent crimes out of jail, and to prevent their cases from clogging the courts. In general, district attorneys can decide whether to offer diversion. In Rapides Parish, the program came with a twist: The district attorney also got to keep the money from those diversion fees. Typically, the fees go into a general parish fund, just like fines levied in a courtroom. Not in Rapides. Based on the records he had examined, Kellybelieved Terrell was diverting cases—which had the effect of depriving the parish of fine money—and keeping the fees for the DA’s office. As his department got more money, the parish got less.
In March 2018, the parish leadership and Kellyfiled a lawsuit against the DA’s office, asking a court to force the DA’s office to hand over some of its PTI proceeds. In 2017, according to the suit, Terrell’s office had brought in $2.2 million through PTI fees—more than 10 times what the previous DA had captured from diversion feesannually—by charging dismissal fees that ran from about $250 for traffic tickets, $500 for misdemeanors and $1,200 to $1,500 for felonies. Those rates were substantially higher than those of the previous district attorney, according to Kelly. Documents released by the DA’s office indicate that the money Terrell was pulling in from pretrial diversion was used for conference fees, postage, office supplies, computers, as well as “capital outlay” andalmost $90,000 for unspecified “fringe” expenditures. Kelly, who ran the parish’s general budget, was on the hook for the courthouse’s failing A/C.
Terrell’s office and his attorney did not respond to requests for comment for this article. But the DA made his position clear in a monthslong fight with the police jury. A former local judge and city prosecutor who was placed on probation shortly after his 2014 election (an employee of his had used client funds to pay her bills), Terrell argued to the police jury that he could make as much as he wanted through PTI because the law didn’t say otherwise. In a deposition related to the court proceedings, Terrell also said his office needed the money: It was “woefully underfunded to accomplish our mission.”
As his lawyer, Terrell hired Hugo Holland, a tough-on-crime prosecutor who loves the Confederacy, his hunting dogs and Lee Harvey Oswald. According to local news reports, Holland had threatened the police jury members with investigations into their own use of funds if they did not agree to drop their feud with Terrell. When that didn’t work, Terrell filed a countersuit, arguing that the DA’s office did not owe any money to the police jury. Terrell’s office referred to the police jury’s lawsuit in court papers as “politically driven.”
This lawsuit in central Louisiana might appear to be a local skirmish, but its trajectory tells a bigger story. Nationwide, pretrial diversion has come under fire for hurting the poor, who can’t always afford to pay their way out of their charges; there also have been reports of politically connected individuals receiving more lenient diversion offers in Alabama, Louisiana and elsewhere. But what becomes clear from the court documents in the Rapides Parish case and from interviews with people in the parish, as well as documentation about PTI programs that Louisiana district attorneys filed with the state Supreme Court, is that diversion comes with another, less-recognized risk: It can operate in a gray legal area that gives DAs a chance to siphon money from the budgets of often cash-strapped local governments.
In Louisiana, the problem is exacerbated by the fact that the state is one of a few thatdoesn’t directly fund most criminal court operations—meaning parish court systems, including public defenders’ offices, depend heavilyon the kinds of fees and fines that Terrell’s office was cutting down on in favor of diversion. The state’s public defendersare already chronically underfunded, to the point that some have refused to take on new cases. (The Rapides public defender, Deirdre Fuller, did not return requests for comment.)
Rapides is just one example of many in Louisiana in whichelected DAs seem to have enriched their offices through PTI.But it is an important one: The dueling lawsuits between the parish jury and the DA have raised the question of how far DAs can go in using diversion and who has the authority to set stricter rules around it.
Over the past quarter-century,advocates, community leaders and elected officials on both sides of the political aisle have embraced pretrial diversion as a way to reduce the burden of the criminal justice system on both budgets and people. In jurisdictions where it is adopted,diversion allows people accused of generally nonviolent crimes like traffic violations, bounced checks and shoplifting to stay out of the court system and keep their records clean, instead agreeing to pay a fine, take a class or complete other requirements.
Diversion has gradually become more common. In 1977, there were an estimated 200 diversion programs in the United States. By 2010, there were 298 such programs in 45 states, according to the Center for Prison Reform, a lobbying group. And as of 2017, according to the National Conference of State Legislators, 48 states and the District of Columbia offered some form of pretrial diversion.
The National Association of Pretrial Services Agencies, which promotes pretrial services reform, sets forth best practices for diversion programs, which include ensuring that a program’s requirements relate to the “root cause” of the crime and are voluntary. The group also says diversion “should not be denied on the basis of inability to pay,” and recommends creating a sliding scale of fees for people who have trouble paying. But there are no enforceable national standards for diversion, and programs can vary widely from jurisdiction to jurisdiction. Some are run by private, for-profit corporations; others, by prosecutors and judges. Some cater to drug offenders or veterans. Almost every diversion program requires a fee.
According to Fair and Just Prosecution, a nonprofit advocating for more progressive district attorneys, diversion programs are one of the core tenets of better prosecution; such programs “conserve resources, reduce reoffending, and diminish the collateral harms of criminal prosecution,” as a recent report by the group put it. But despite diversion success stories across the country, the programs have also been trailed by criticism that they open the door for abuse—especially when, as in Louisiana,thedecisions about whether and how to charge individuals for crimes or offer diversion are left to the sole discretion of prosecutors.
As the practice has become more common, reports have found that the conditions of diversion—such as mandated attendance at Alcoholics Anonymous meetings or weekly drug testing—can be onerous and that failure to comply can be costly. In Alabama, for example, where pretrial diversion has increased dramatically in recent years, people who have been admitted to diversion programs but are unable to make payments have been forced to plead guilty without trialand faced lengthy prison terms.
In places like Louisiana—where tax revenue is low, and criminal justice services are funded through fines and fees like those collected from diversion, as opposed to funding from the state—the incentive to milk diversion for cash increases. By creating their own diversion programs, prosecutors can exercise control over the funding without sharing the money they bring in with other county entities. In places where money is hard to come by, each part of the criminal justice system views fees and fines as funding up for grabs.
In recent years, even beforeBruce Kelly started looking into the Rapides books, public defenders and court clerks in Louisiana had begun to notice that money from traffic tickets, the primary source of funding for public defenders in Louisiana, was going to prosecutors’ offices at higher rates, according to Louisiana’s state public defender, Jay Dixon. In many Louisiana parishes, the number of traffic tickets issued has dropped, while there has been an increase in traffic diversion, by which drivers pay the DA’s office to avoid any record of a violation.
According to the Louisiana legislative auditor, an agency that tracks fiscal responsibility in the state, in 2014 the use of traffic diversion resulted in the loss of $1 million statewide that ordinarily would have gone to general court funds, including for public defenders. That same year,parish DA offices in Louisiana were getting 30 to 50 percent of their revenue from diversion fees, an increase from previous years, according to the legislative auditor. The auditor also found widespreadirregularities in how prosecutors were recording profits and spending.
By 2018, these findings had prompted Louisiana Chief Justice Bernette Johnson—the first black Supreme Court justice in the state—to send a letter to all Louisiana prosecutors asking them to report their income from PTI to the research arm of the state Supreme Court. (Not every DA’s office had participated in the legislative auditor’s earlier study.) The Louisiana District Attorneys Association initially resisted the data collection, saying it would be too time-consuming and expensive. But Johnson, whose office declined to comment for this article beyond referring to her letter, shot back in an April 2018 speech: “Is it financially prudent and morally responsible to fund a co-equal branch of government on the backs of a few who are often the poorest and least fortunate members of our society?” In response, DA offices across the state have been filing information to the court.
Although they remain incomplete, these filings provide some insights into how Louisiana’s DAs are using diversion, with plenty of variation across the state. Some charge thousands of dollars in fees; others allow participants to pay in installments over the course of two years. In St. Tammany Parish, north of New Orleans, a DWI dismissal costs $2,100 in total; in East Baton Rouge, a dismissal of the same charge costs$1,000. In some places, PTI isn’t available at all. One part-time public defender in Rapides also told me that, in his experience, white defendants had an easier time getting diversion than black defendants. Some DA offices report relatively little income; DA offices at the upper end, like Terrell’s, are making more than $2 million per year.(The DA in the state capital, Baton Rouge, which is almost twice the size of Rapides, makes about $1.3 million per year.)
Among critics of diversion in the state, particular attention has focused on a programcalled Local Agency Compensated Enforcement. Since the 1980s, LACE has allowed DAs and some municipal governments to pay off-duty deputies to conduct additional traffic enforcement, writing tickets that cost about $200 each, are payable direct to the DA’s office and do not end up on the payee’s record—nothing is ever filed in court. The stated purpose of the program is to enforce driving rules. But these same tickets, if adjudicated in court, would bring only $20 apiece to the DA’s office, with the remaining $180 going to the criminal court fund. A LACE ticket allows the DA to capture the entire $200. Many DAs—including Terrell in Rapides—make most of their money from LACE, according to documents filed with the Louisiana Supreme Court.
According to a 2018 report by the Louisiana legislative auditor, District Attorney Gary Evans of DeSoto Parish in the northwestern part of the state, entered 3,629 drivers into pretrial diversion through LACE over the course of one yearand caused other agencies in the parish to forfeit $1.07 million. The auditor also noted “deficiencies in record keeping, receipts, refunds issues and custody of payments received.” Evans entered into an agreement to pay the parish public defender a cut of PTI revenue—$45 for each diverted ticket. When the scheme was questioned on appeal, a trial court held, and upper courts affirmed, that it was unconstitutional and a conflict of interest for prosecutors to pay public defenders.
Last year, the Southern Poverty Law Center filed a complaint about LACE with the Louisiana Ethics Administration Program, which investigates ethics complaints against government entities, alleging that prosecutors were violating their ethical duties by extracting money from people on purpose. In the complaint, one DA is in fact quoted as saying that district attorneys created the “industry” of diversion because “we just weren’t making … money.”Dixon, who once received a LACE ticket himself, inspiring some local media coverage, agrees: “Paying folks extra to harass motorists is disgusting.” A few parishes have since pulled out of the program.
Local news outlets have reported on other forms of corruption in Louisiana’s diversion programs—from a DA in St. Tammany who allegedly awarded PTI on the basis of political ties to one in St. Charles who admitted to sexual contact with multiple women to whom he had offered diversion. In some parts of the state, including New Orleans, diversion programs have been implemented with better compliance and less profiteering.
Overall, while the final results of the state Supreme Court audit are not yet public, there is a growing sense among advocates, judges and defense attorneys that PTI programs in Louisiana are due for structure and limits. This comes on the heels of a number of justice reforms in the state in 2017—including efforts to reduce prison populations and shorten sentences—that have helped to move Louisiana from the country’s most-incarcerated state to its second.
The lawsuits in Rapides Parishraised—but ultimately failed to resolve—the key question that will determine the future of prosecutor-led PTI in Louisiana: Should there be limits on how much a DA can make from diversion?
The local trial court judge who first took up the Rapides lawsuit ruled simply that the DA’s office was permitted to collect and use PTI funds as it wished—even as he expressed hesitation, calling for the state Legislature to “investigate the question of what kind of fees are reasonable.” By the time the case had reached an appellate court, both parties were suing each other over who was reasonably entitled to what money.
Last fall, I attended the appellate arguments at Louisiana’s 3rd Circuit Court of Appeals, where both the police jury and Terrell’s office presented their legal arguments. Most members of the police jury were there, along with Terrell and the lead attorney for the LDAA, E. Pete Adams (who drives a car with a vanity license plate “LDAA 1”).
One member of the three-judge panel suggested that the entire lawsuit might be irrelevantbecause some reformers “are saying that pay-for-play is illegal overall,” implying that prosecutor-led PTI programs like Terrell’s might eventually become illegal. The judges all asked questions about alternatives to PTI that would have the same impact on participants without generating income for DAs. They seemed skeptical of the claim that Terrell could run “100 diversion programs” if he wanted to, as Adams had phrased it. Adams also argued that “thousands of lives are saved” by PTI, while Jimmy Faircloth, the lawyer representing the police jury, called it an “end-run around the court filing process.”
When the arguments were over, the judges urged the parties to settle. “Consider how this looks to the public,” one judge said, prognosticating that if no agreement were reached, the entire issue might be resolved by federal courts—which could decide to put an end PTI altogether, or at least fee-based versions. The 3rd Circuit said it would issue an opinion on the Rapides lawsuit two to three weeks after the oral argument, but none was issued before the two parties, after heeding the judges’ words, resolved the case out of court in November.
Terrell and the police juryannounced as part of the settlement that Terrell had agreed to a 10 percent cut in his personal salary, as well as salary cuts for all assistant district attorneys, keeping the office’s operating expenses within the budget set by the police jury. He also agreed to adhere to new LDAA guidelines, released just before the case settled, advising DAs to limit diversion profits to “reasonable expenses.” Kelly, over the phone, said he wondered “what ‘reasonable’ means” and seemed dubious the change would be effective. Adams told me via email that the guidelines were implemented in February and are still in effect. He did not comment on the Rapides case other than to say it was “settled and dismissed.”
Faircloth toldTown Talk, an Alexandria-based newspaper, that the collection of changes in Rapides “more fairly allocates the revenue and expenses of [the DA’s] office.” But Kelly told me he doesn’t think the settlement was very productive—the DA isn’t planning to give any money back to the police jury—and he is now concerned about the salaries and benefits of the prosecutor’s employees. “I still gotta walk the hallways,” he said.
Because there was no decision in the case, the issue of how much money PTI programs like Terrell’s can bring in remains unsettled. The judges indicated that the state Legislature should be responsible for enacting PTI regulations; Kelly agrees. But no legislative fixes have emerged at the state level. Meanwhile, in 2019, Louisiana cut its annual state budget for public defenders by 83 percent.
Although the state Supreme Court’s PTI audit is still ongoing, in April, the court issued a series of draft reports with suggested best practices for PTI accounting and ways to decrease the intake of fines and fees generally. One of the recommendations was to “cap the percentage of revenue that municipalities, towns and other locations can derive from traffic enforcement.” The report also strongly suggested that law enforcement should not be linked to revenue.
Other states besides Louisiana are grappling with how to make their PTI programs fairer.Civil Rights Corps, an advocacy group focusing on reducing the impact of the criminal justice system on the poor, has brought a lawsuit against the district attorney of Maricopa County, Arizona, Bill Montgomery, alleging that his pretrial diversion for marijuana arrests requires people to pay $1,000 for treatment at a private facility from which Montgomery’s office receives $650 per person. The group’s complaint states that “between 2010 and 2016 MCAO collected nearly $15 million in revenue” from diversion. Montgomery called the claims “ill-informed and misguided.”
Dixon, the Louisiana state public defender, is sympathetic to public defenders who have made deals with DAs to receive a portion of the PTI money, given how cash-strapped the criminal justice system is in Louisiana. And while he thinks too much money is “being bled from the system” to DAs, he says, “There’s a pretrial diversion that’s worthwhile.”
Still, for some advocates, it’s hard to shed the sense that a defendant offered diversion is “paying off” an arrest—to the benefit of a DA.
“The justice system serves everyone and protects everyone’s public safety,” Lisa Foster, co-director of the Fines and Fees Justice Center, a nonprofit advocacy group, told me. That, she says, should hold true for diversion, too.