Criminal Justice Collapse: The Constitution after Hurricane Katrina

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.

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