When judges make decisions that affect the liberty or property of defendants appearing before them, the Fourteenth Amendment to the U.S. Constitution requires these decisions to be free from bias or the appearance of bias. This requirement means that judicial decisions must be, and must appear to be, based on the pursuit of justice and the protection of the public, and not on the personal, financial, political or institutional interests of the judge or others.
Judge Paul A. Bonin is a judge on the Orleans Parish Criminal District Court who routinely requires defendants to wear ankle-monitoring devices. This is a normal judicial function. What was unusual about Judge Bonin’s orders, however, is that he required, steered or otherwise permitted defendants appearing before him to enter into ankle-monitoring service agreements with ETOH Monitoring, LLC (“ETOH”), a private company with which he has long-standing personal, political and financial ties. This violated the defendants’ rights under the Due Process Clause of the Fourteenth Amendment. So Hakeem Meade and Marshall Sookram, two defendants in Judge Bonin’s court who paid substantial ankle-monitoring fees to ETOH, have joined with the Institute for Justice (IJ) and the Law Office of William Most to bring a civil rights class action lawsuit seeking to end this practice and force ETOH to return the fees it collected from the defendants in Judge Bonin’s courtroom.
Ankle Monitoring—Where Criminal Justice and Private Enterprise Meet
When a judge orders a defendant to wear an ankle monitor, a government entity or a private company working with the government places a GPS device on the defendant’s ankle, allowing the device to record the defendant’s location. The device allows the monitoring entity to determine, among other things, whether a defendant is following a curfew or is staying within geographical confines. Like many municipalities, Orleans Parish does not run its own ankle monitoring service. Instead, when judges on the Orleans Parish Criminal District Court order defendants to ankle monitoring, the defendants may choose from among three ankle-monitoring providers operating in the Parish, one of which is ETOH.
Companies charge high fees for ankle monitoring, particularly for indigent defendants or when judges order several months of monitoring. ETOH, for instance, charges defendants (for their own governmental oversight) a $100 installation fee plus up to $10 per day (i.e. between $280 and $310 per month).
Use of ankle monitoring has exploded in recent years. According to the Pew Charitable Trust, in 2005, 53,000 Americans were monitored electronically. By 2015, that number rose 140% to over 125,000.1 This number is expected to rise after the federal First Step Act of 2018, which includes provisions for the greater electronic monitoring of released individuals. The risks of incarceration posed by COVID-19 also are likely to expand the use of ankle monitoring.
The rise in the use of ankle monitors coincides with the expansion of private companies in the criminal justice system. Governments increasingly contract out government functions to private parties—debt collection, parking tickets, property code enforcement, probation and ankle monitoring are some of the functions now routinely performed by private companies. When government performs government functions, there is no question that it must follow the Constitution. How constitutional protections apply when government gives its powers to a private party is much less well-established. There are relatively few cases on this topic, and private companies exercising governmental power often fail to act as if they are bound by the same constitutional constraints as the government.
Judge Bonin and ETOH Monitoring LLC
Judge Bonin was first elected to the Orleans Parish Criminal District Court in 2016. He was formerly a traffic court and Louisiana Court of Appeal judge. Prior to becoming a judge, Judge Bonin was the law partner of Leonard L. Levenson, one of ETOH’s two principals.
In 2018, court observers from judicial watchdog organization Court Watch NOLA (CWN) examined a decade of campaign finance disclosures and found that over the course of three judicial elections (2008, 2012 and 2016), Judge Bonin’s campaign received over $9,000 in donations and loans from Levenson and ETOH’s other principal, Christian Helmke. Levenson and Helmke made four contributions to Judge Bonin’s campaign in 2016 alone and loaned the judge’s campaign money.2 CWN did not find contributions to Judge Bonin’s campaign from anyone associated with the District Court’s other private ankle-monitoring provider.3
CWN found that while ETOH executives also donated to four other District Court judges, they gave significantly more—and significantly more often—to Judge Bonin, who was also the only judge to whom they made a loan. Moreover, “Judge Bonin was the only judge found to have required a defendant to use an ankle monitor and then steered the defendant to pay a specific ankle monitoring company (over other companies) from which the judge had received campaign contributions or a loan.”4
Judge Bonin “made it a regular practice of recommending defendants use ETOH” and emailing defense attorneys “on how the defendant could sign up for ankle monitoring services,” while including ETOH executives on the emails. Judge Bonin also required his staff to “provide the defendant or the defendant’s family members with the contact information for ETOH.”5
In addition, on “several occasions, Judge Bonin refused to release the defendants from jail until the family had arranged for ETOH to set up ankle monitoring,” and he regularly refused to release defendants from ankle monitoring “solely because the defendants had not paid ETOH all the remaining fees.” Judge Bonin made release from ankle monitoring explicitly contingent on “financial obligations owed to the ankle monitoring company.” And he “threatened to put defendants back in jail and set bond for their failure to pay their remaining debts.”6
Investigations and public record requests have revealed dozens of other defendants Judge Bonin ordered or steered to ankle monitoring by ETOH. These records and CWN’s report show that from 2017 to at least 2019, Judge Bonin sent defendants to ETOH and coordinated closely with the company, including to ensure that ETOH collects its fees under threat of jailing—from a population of defendants that is overwhelmingly of modest means or indigent, and overwhelmingly Black.7
Hakeem Meade and Marshall Sookram Were Ensnared in Judge Bonin’s and ETOH’s Tainted and Unconstitutional System
Hakeem Meade and Marshall Sookram paid fees to ETOH as part of Judge Bonin’s and ETOH’s unconstitutionally tainted system of ankle monitoring for profit.
Hakeem’s story is tragic. In 2016, after an argument about his car, an autoshop owner shot Hakeem six times (including in the head). The man then shot Hakeem’s pregnant girlfriend of the time, who lost their unborn twins. While still hospitalized and recovering from his injuries, Hakeem was shocked to learn that he was charged with a crime after being the victim of this horrific attack. He turned himself in. After being held in pretrial detention, he was released without ankle monitoring. Over the next several months, he went to pretrial proceedings before multiple judges in the Orleans Parish Criminal District Court, without any incidents. In February 2017, Hakeem was transferred to Judge Bonin’s court. He made several appearances before Judge Bonin without missing any court dates, and he passed several court-ordered drug tests.
Suddenly, in August 2017, Judge Bonin ordered Hakeem to pretrial ankle monitoring by ETOH. Hakeem asked why, but Judge Bonin did not explain. The judge told Hakeem “exactly where to go” and ordered him to have the monitor attached within 24 hours. Hakeem had to pay ETOH $10 per day. This weekly amount of $70 in court-ordered fees was significant for Hakeem, who was then a truck driver and now works in maintenance dredging on the Mississippi River. Appearing at monitoring check-ins also required him to take time off work and negatively affected his employment—so much so that he had to change employers.
Judge Bonin kept Hakeem on ETOH monitoring for two months, and Hakeem paid ETOH nearly $300. To this day, ETOH continues to pester Hakeem for the remaining fees—over $300 more than what he already has paid. He should never have suffered this indignity and this deprivation of his liberty and property just so ETOH could profit off his custody.
In September 2017, Marshall was charged with three crimes in Orleans Parish Criminal District Court: simple criminal damage, possession of a weapon by a person with a felony conviction and aggravated assault with a firearm. He contested the charges and was briefly held in pretrial detention. He was released on bond by a magistrate judge, without ankle monitoring.
More than a month later, on October 13, 2017, Marshall appeared for arraignment before Judge Bonin. Judge Bonin ordered Marshall to ankle monitoring that day. Judge Bonin asked for Marshall’s public defender’s email address, which was consistent with Judge Bonin’s practice of instructing attorneys via email how their clients could sign up for ankle monitoring with ETOH.
Marshall did not receive the instructions for signing up with ETOH, and a bondsman signed him up with another company. Marshall appeared for at least two more pretrial hearings before Judge Bonin without incident. Then, on February 23, 2018, Marshall’s attorney told Judge Bonin that Marshall intended to switch to “another company that you had given me the phone number of.” That company was ETOH, which offered to put Marshall “on a more graduated payment plan.”
ETOH charged Marshall a $100 installation fee and between $8.50 and $10 per day of monitoring. At the time, Marshall worked in food delivery, and these fees were a significant financial burden.
On October 19, 2018, ETOH emailed Judge Bonin and his staff “to confirm that Mr. Sookram is allowed to be released from the GPS monitor.” Judge Bonin’s administrative assistant responded that day: “Mr. Sookram will be able to have the monitor removed once his balance is paid in full.” ETOH then told Marshall that Judge Bonin’s chambers had conditioned Marshall’s release from ankle monitoring on paying all of ETOH’s fees. Marshall paid at least $500 and was immediately freed from ankle monitoring. Over the course of about eight months, Marshall paid ETOH well over $1,000.
In February 2020, in order to get out from the specter of his criminal case—which by then was ongoing for over two years—Marshall pleaded guilty to a charge of disturbing the peace and his other charges were dropped. Judge Bonin sentenced Marshall to four days of probation, without ankle monitoring.
The Legal Claims
This is a class action lawsuit brought under the federal civil rights statutes.8 It alleges that Judge Bonin’s and ETOH’s actions violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. On behalf of themselves and those similarly situated, Hakeem and Marshall are asking the U.S. District Court for the Eastern District of Louisiana to declare that judicial decisions influenced by a judge’s ties to a private party violate the Constitution, require ETOH to disgorge and return to the members of the class the fees it has collected from defendants appearing before Judge Bonin and cancel outstanding fees.
Due process requires all judicial decision-making to be free of any self-interest—whether personal, professional, institutional or political. The U.S. Supreme Court has made clear that the integrity of the judicial process is undermined, and due process is violated, when a judge’s interests give rise to bias or the appearance of bias. Under these constitutional rules, it is not necessary for a judge’s personal finances to be implicated: While decision-making systems that directly affect a judge’s income or salary are obviously unconstitutional, so are those that benefit the court system itself or a judge’s professional or political interests.
This case will extend these due process principles to judicial decision-making systems that benefit private parties with personal, political or financial connections to a judge. When deciding whether to restrict people’s liberty or deprive them of property (including money), judges must act only in the interests of individual justice and public safety—not in their own professional or political interests or the interests of private parties.
The Court and the Parties
This case is brought in the United States District Court for the Eastern District of Louisiana and has been assigned to Judge Carl Barbier.
IJ and the Law Office of William Most are representing Plaintiffs Hakeem Meade and Marshall Sookram. The Defendants are Judge Paul A. Bonin of the Orleans Parish Criminal District Court and ETOH Monitoring, LLC.
The Litigation Team
This case is being litigated by IJ attorneys Bill Maurer and Jaba Tsitsuashvili, who litigate property rights and fines and fees cases nationwide. Joining them is local counsel William Most of the Law Office of William Most.
About the Institute for Justice
The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for property rights. This case is the latest in IJ’s nationwide initiative to end abusive fines and fees and to ensure that the justice system operates for health and safety, not for profit. To vindicate these principles, IJ is currently litigating fines and fees cases in California (Indio and Norco), Georgia, and Missouri. IJ also launched a nationwide database surveying and grading state laws for their role in facilitating fines and fees abuses. And IJ’s Project on Immunity and Accountability litigates cases to hold government officials and those who act in concert with them accountable for violating peoples’ constitutional rights.