Criminal Justice Collapse: The Constitution after Hurricane Katrina

By Garrett, Brandon L.; Tetlow, Tania | Duke Law Journal, October 2006 | Go to article overview

Criminal Justice Collapse: The Constitution after Hurricane Katrina


Garrett, Brandon L., Tetlow, Tania, Duke Law Journal


ABSTRACT

The New Orleans criminal justice system collapsed after Hurricane Katrina, resulting in a constitutional crisis. Eight thousand people, mostly indigent and charged with misdemeanors such as public drunkenness or failure to pay traffic tickets, languished indefinitely in state prisons. The court system shut its doors, the police department fell into disarray, few prosecutors remained, and a handful of public defenders could not meet with, much less represent, the thousands detained. This dire situation persisted for many months, long after the system should have been able to recover. We present a narrative of the collapse of the New Orleans area criminal system after Hurricane Katrina. Not only did this perfect storm illuminate how unprepared our local criminal systems may remain for a severe natural disaster or terrorist attack, but it raised unique and underexplored constitutional questions. We argue that constitutional criminal procedure failed to serve its protective role during this emergency, while deferential rules rooted in federalism had the unanticipated effect of hindering provision of critical federal emergency assistance, and perhaps most important, longstanding local neglect rendered the system vulnerable to collapse. We conclude by imagining systems designed to safeguard the provision of criminal justice during emergencies.

INTRODUCTION

Hurricane Katrina washed away the New Orleans criminal justice system. As residents evacuated, the jail flooded to inmates' chests and police scrambled to enforce order without any communication. The water receded weeks later revealing "thousands of detainees awaiting hearings and trials ... thrust into a legal limbo without courts, trials, or lawyers" (1) resulting in what one judge called "a 'constitutional crisis.'" (2) This dire situation lasted not just during the initial period of severe disruption, but for upwards of a year. While courts eventually reopened, they failed to act as eight thousand people languished for months "doing Katrina time" in prisons. Most were arrested for petty offenses such as public drunkenness, reading tarot cards without a permit, or failure to pay traffic tickets, and then detained based solely on a police affidavit. Most then served long past their likely sentences without ever receiving a judicial hearing. (3) Nor did these thousands of detainees, mostly indigent, meet with lawyers. Only six public defenders remained in New Orleans, which the Chief Judge of the criminal court called "a full-blown disaster." (4) In effect, Louisiana courts suspended habeas corpus for six months. The United States has rarely experienced such a rapid and complete collapse of local law enforcement, a district attorney's office, the indigent defense system, jails, and criminal courts. A perfect storm illuminated how unprepared a local criminal system may remain for a severe natural disaster or terrorist attack.

The nearly unprecedented collapse of Louisiana criminal justice institutions and the mass detentions that resulted raise unique constitutional questions. We argue that constitutional criminal procedure rules failed to serve their intended protective roles during the emergency due to the institutional collapse of already vulnerable local actors. (5) Post-Katrina, criminal procedure rules failed to protect individual rights or even ensure normalcy, while deferential doctrines rooted in federalism hindered provision of critical federal emergency assistance.

In Part I of this Article, we present a narrative of the collapse of the New Orleans area criminal system after Hurricane Katrina. The account is based on local news coverage and a series of interviews at all levels of the New Orleans criminal system. We obtained first-hand information from police officers, state and federal judges, the district attorney, prosecutors, prisoners, prison officials, federal agents, and defense lawyers. These actors describe unforeseen devastation, poor planning, indifference and shock, heroic efforts, creative jerry-rigging, but ultimately inadequate efforts to preserve a semblance of orderly administration of justice. …

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