This Blog is for general information purposes only. While we do our best to keep all our posts updated, the Louisiana legislature makes changes to our laws every year. Unfortunately, we sometimes unintentionally fail to make appropriate updates. If you have any specific questions, please contact our firm. We are here to assist you with your legal questions.
It’s Time to Open these Gates!
The U.S. Sentencing Commission (USSC) voted in favor of making new federal drug guideline sentence reductions retroactive.
Most of you know by now, our country is in the midst of an incarceration crisis. Our great nation locks up more, per-capita, than any other nation. Many of these inmates are victims of harsh sentencing initiatives resulting from the failed war on drugs.
Last week, we received good news from Washington. Nearly, 46,000 federal drug offenders (25% of BOP population) will be able to file a motion in court to have their sentence reduced by an average of 2 years. This will only apply for those sentenced before November 1, 2014. The average sentence reduction for those who qualify will be two years!
Those of you with loved ones in federal prison may be asking, “Now what?”
Remember: not all federal drug offenders sentenced before November 1, 2014, will be eligible for a sentence reduction, and the reductions are not automatic.
Who won’t be helped by this decision?
1. Prisoners sentenced for other than a drug offense.
2. Prisoners serving a mandatory minimum for a drug offense.
3. Prisoners sentenced as Career Offenders.
While courts can begin considering and granting motions for sentence reductions starting on November 1, 2014, prisoner releases will not begin until November 1, 2015. The Commission is giving courts and probation officers a chance to handle the big influx of motions for sentence reductions before probation officers must turn their attention to supervising the prisoners upon release.
If you are wondering if your loved one qualifies for this sentencing reduction, contact Federal Criminal Defense Attorney Elizabeth B. Carpenter.
New Orleans Criminal Attorney
Is Vehicular Homicide a Crime of Violence in Louisiana?
During the past few weeks, I have been asked this question a few times.
Grief When a Family Member is Incarcerated
I just returned to my office after a difficult morning in court. My client was sentenced to serve 25 years in prison for a crime that I believe does not merit such a harsh penalty. This is an aspect of my work that I dislike to say the least. Of course, I replay all my defense strategies in my mind, making sure that I did not fail my client along the way. I also try to comfort the family members in this time of grief. In all honesty, I cannot say that I know what they are experiencing because I have never lost a loved one in the criminal justice system. The only thing that I can imagine is that the pain is similar to the death of a loved one, only worse.
Today, I would just like to offer some words of advice on how to make it through the first months after your loved one is sentenced to a lengthy prison term. I really think that someone should create a support group for families who are coping with the incarceration of a loved one.
1) Take it one day at a time — Your body, mind and spirit are totally consumed with pain. Focus on today, tomorrow will come soon enough.
2) Drop the feeling of “normal” — Nothing is going to be normal for quite some time because what you are going through is not “normal.” As time moves forward, you will adjust and experience a new “normal”.
3) Brace yourself for many loses — The loss of a loved one in your daily life can start a domino effect of losses. Personal possessions will be given away. Relationships with friends and other family members may be strained. Don’t be alarmed if one loss seems to escalate until you feel overwhelmed.
4) Tell people what you need — people will not know how to relate to your loss. Be specific about your wants and needs. Ask for help.
5) Remember to eat — grieving affects the mind in many ways. It requires a lot of energy. You may not be hungry, you may forget to eat, but you need to keep your strength.
6) Sleep when you can — Your sleep most likely will be affected by your loss. You need sleep to function mentally and physically. Take a nap if you are tired. Try sleeping in a different place in the house if you cannot sleep in your bed. See your doctor is sleeplessness continues.
7) Crying is okay — Let the tears flow either when you are alone or in public. Crying is a natural outlet to grief.
8) Exercise every day — Exercising will help you deal with the multitude of emotions that are rippling through your body. It will also help you sleep at night.
9) Seek support early — Get support through family, friends or a grief counselor. You don’t have to walk through this alone.
10) Lean on your faith — If you are a spiritual person, remember to touch base with your faith. It will bring comfort, strength and internal wisdom. If you have no belief system, then get in touch with nature. The beauty of the world around us can be very soothing. Your faith will help your loved one cope better with being incarcerated.
FACTS, LIES and VIDEOTAPED INTERROGATIONS
The Justice Department recently said that the F.B.I. and other federal law enforcement agencies are encouraged to videotape interviews with suspects in most instances. This new policy does not apply in cases where agents need urgent national security-related information that could expose sources or methods or where the interviewed subject request to not be videoed. This is one of the most significant changes in F.B.I. policy under James B. Comey, who took charge as the bureau’s director in September. Mr. Comey’s predecessor, Robert S. Mueller III, and senior bureau officials had once opposed the video requirement, saying the tapes could reveal agents’ interrogation tactics and discourage witnesses from talking.
The new policy, which goes into effect in July 2014, applies to the F.B.I., the Bureau of Alcohol, Tobacco, Firearms and Explosives, the Drug Enforcement Administration and the Marshals Service. These federal law enforcement agencies are also encouraged to use electronic recording in other parts of their investigations, like witness interviews.
The former official, Paul K. Charlton, said federal prosecutors were unnecessarily losing cases because they were unable to present to jurors the most damning evidence available to them: videotaped confessions.
“The most difficult part of proving a crime involves the state of mind, and that is almost always obtained through a statement of the suspect.“
I think this is one of the most significant improvements in the criminal justice system in a long time. Cameras are on neighborhood poles, the corner of big box stores and spread all throughout modern society. Cameras help cops when stops are made. Many Officers now must wear a mini camera on their person. Why would anyone suggest a video-taped interview, hot after a crime would not provide a closer look at the truth, is beyond me.
Of course, I could see how law enforcement would not like the eye in the sky recording their “strategic approach” to obtaining information, confessions and what-have you. Now, the very first time an interviewee asks for a lawyer, the agents can’t just offer the subject a cigarette, cup of bad coffee and hit it again an hour later with some new angle. Now the interview will actually be over. “I want my lawyer…I don’t want to talk anymore!” ACTUALLY means that.
That is Power- and that is good for justice
Governor Bobby Jindal has signed three bills into law. Two of these bills expand gun rights, while the third one restricts gun rights.
- Carrying Weapons in Establishments that Serve Alcohol
A new law that allows concealed-carry permit holders to carry their weapons into restaurants that serve alcohol — the establishment must make most of its money from the sale of food rather than alcohol. This law will also permit off-duty law enforcement officers to carry their guns into bars. However, no one will be allowed to drink alcohol while carrying a weapon in restaurants.
The state’s concealed-carry law already allows for permit-holders to carry guns in restaurants that serve alcohol, the criminal statute outlawing guns at places that sell alcohol didn’t list an exception for restaurants that also serve alcohol.
- Expand Louisiana “Stand Your Ground” Law
Under current law, a person who kills an intruder coming into his car or house is given the benefit of the doubt and can use self-defense as a lawful reason for the killing. But the same self-defense argument could not be legally applied to situations where a person hurt, but didn’t kill, the intruder.
This law essentially closes a loophole. The belief is that people who end up harming — but not killing — an intruder or a carjacker should not be charged with attempted murder if those who kill those people don’t face those similar consequences.
- Restricted Gun Rights for People Convicted of Domestic Battery
Anyone who has been convicted of domestic violence and is under a legal protective order will be prevented from owning a gun for 10 years under a new law.
The National Rifle Association — which usually fights gun restrictions — remained neutral on the domestic battery provision, which is probably why Jindal agreed to sign the bill.
It has been said that Louisiana leads the nation when it comes to spouses murdering spouses with firearms. I do not know if this is true.
In 2012, Louisiana voters approved a state constitutional amendment that makes gun ownership a fundamental right. This places gun ownership on the same level as freedom of speech or freedom of religion. This law also requires that any challenges should be held to strict scrutiny which is the most stringent standard of judicial review. In other words, the law should favor the constitutional right or principle more than the government’s interest.
Since this amendment passed, many defense attorneys have challenged prosecutions for Felon in Possession of a Firearm La. R.S. 14:95.1 in state courts. The issue is whether the amendment applies to convicted felons who are barred from having firearms. District Judges in state courts seem to be divided on their interpretation of the law. A couple weeks ago, the Louisiana Supreme Court heard arguments addressing this question.
I am on the edge of my seat waiting for the justices to release their decision. Last year, I had a case where I challenged the prosecution of my client for being a convicted felon with a firearm. Unfortunately, the state court judge ruled against me. I think that he just did not feel comfortable making that call. One problem that I see with Louisiana’s statute restricting firearm possession with respect to felons is that the law is too broad. I also think that the sentencing range is too harsh — 10 to 20 years. As written, the law does not even permit someone who has been convicted of a small felony, such as theft of $500.00, to possess a rifle to go hunting.
I know that I will revisit this topic when the justices release their decision.
If you or a loved one has been arrested for a violation of a Louisiana gun law, it is imperative that you hire an attorney who defends firearm offenses. Contact attorney Elizabeth B Carpenter for a consultation.
On Tuesday, April 29, 2014 two convicted murderers were set to be given lethal injections for their crimes in Oklahoma. Clayton D. Lockett and Charles F. Warner were to be Oklahoma’s latest executions. As the clock drew down on Mr. Lockett he was supposed to be given his last meal, marched down to the execution chamber, strapped down, injected with a cocktail of lethal drugs and peacefully pass away….or so the authorities thought!
Normally, and in the recent past in the U.S., the practice of injecting a person with a fatal dose of drugs was pretty straight-forward and often provided a quick end to a troubled life. The inmate would first fall asleep as the first drug entered his circulatory system. As the second drug is administered, his respiratory system would slow to a halt. The last drug would stop the heart, rendering the person dead. In essence, this was a humane approach to deadly justice. That’s the way it is supposed to work, at least.
As the world and European countries have begun to shun the practice of capital punishment, these drugs have become increasingly harder to obtain and have led the states to increasingly dramatic attempts to procure replacements. Now, many of these drugs originate from dubious and secretive origins. To make matters worse, many courts have ruled that the prisons do not have to divulge the new supplier of these drugs, as was the case in Oklahoma. Furthermore, the drugs that are now being used are still in the experimental phase. Thus, the inmate is essentially a capital punishment guinea pig. This climate of secrecy and mystery makes it impossible to know whether these executions will comport with the Constitution’s ban on cruel and unusual punishment.
This brings us to the common argument of who cares if he experienced pain or agony. He still didn’t suffer as much as his victims. This common sentiment may be a form of justice to some people but it certainly is not law and order.
I think that it is possible to support the death penalty and still be morally disgusted by the idea of torturing a man to death, especially under circumstances where those in charge knew or should have known their conduct would violate the Eighth Amendment’s “Cruel and unusual Punishment” clause. If my beliefs are incorrect, then I ask those with such sentiments if, living in an uncivilized society is acceptable to them. Within the past 48 hours, the best statement I’ve come across on this issue is
“An eye-for-an-eye does not raise anyone up; it just brings us down to the level of the condemned.”
The parents of Clayton D. Lockett’s victim released a statement to the press just prior to the execution, “We are thankful this day has finally arrived and justice will finally be served.” I ask the question, “Has justice been served?” In Oklahoma’s haste to execute Lockett, this convicted murderer has been elevated to a level that he does not deserve and never would have achieved had Oklahoma respected the basic requirements of due process. Lockett’s name and photo have been all over the news. The horrible acts that he perpetrated have quickly been forgotten. He has become a victim of bureaucracy. Ten years from now, students in criminal justice courses may read about him in text books. Did Oklahoma provide these parents with any amount of closure to help them heal from this tragedy? It appears more as if the state betrayed these poor people.
This is not a pro or anti death penalty debate. Quite frankly, I am tired of arguing that issue. I think that the most important lesson for us to learn is that regardless of how we feel about capital punishment, due process and the Eight Amendment serve to protect us all: the victims, the convicted and society in general. If we are going to have a Death Penalty- we must do it right. Until this process becomes transparent, we are only hurting ourselves.
It only takes seconds to fill a syringe with a lethal dose of heroin. Tuesday night’s dose can provide a pleasurable high, while Friday’s dose can have a 20-something year old discovered dead, foaming at the mouth.
I’ve had acquaintances that one would never suspect partake in such reckless behavior. I also had a friend die from a heroin overdose, and no one, except his suppliers, even knew he used the drug. While other drugs, such as alcohol, cocaine and meth can take years to kill someone, heroin can take seconds!
In recent years heroin has seen a huge growth in popularity among younger segments of our population. Back in the seventies we had images of junkies in a SOHO stairwell strung-out from years of drug abuse. Today, America’s heroin user is a high school or college student- well educated and from an affluent community.
On the local level, sheriffs, police chiefs and coroners, individually, are reporting:
- A heroin death a week since the start of 2013 in Jefferson Parish.
- Heroin-related deaths have tripled since 2012.
- Heroin use has reached epidemic proportions.
- Jefferson Parish leads the state in overall heroin deaths – 87 fatalities in 2012.
One explanation for this spike in heroin use is Louisiana’s implementation of a better tracking system for prescribing and selling pharmaceutical CDSs, which is reducing the street supply of those drugs. People who were once addicted to the great supply and accessibility to prescription opioids like Oxycodone (Oxycontin) and Vicodin are now turning to heroin for relief. Heroin is cheaper, does not require a prescription and readily available.
In 2001 the Louisiana Legislature passed a law reducing a mandatory life sentence with no benefit of parole or suspension of sentence for heroin distribution to a minimum mandatory sentence of 5 years and maximum of 50 years. Some lawmakers are now regretting this action. In the current 2014 Legislative Session, two bills have been introduced, SB9 and SB87, which will effectively raise the maximum sentence for heroin distribution and possession with intent to distribute to 99 years and raise the minimum sentence to 10 years with the requirement that 5 years be served without parole. I commend the legislature for attempting to punish the distributors more aggressively rather than the users (addicts). Nevertheless, I doubt that this law will have the desired effect, i.e. reduce heroin use. I do not believe that longer periods of incarceration produce lower risks of recidivism. In fact, I believe the contrary. When someone is incarcerated, after a period of time any potential for rehabilitation ceases and the risk of recidivism increases. Prisoners become too institutionalized for society after a while. What was once believed to be a solution to a problem only produces additional problems. Furthermore, for every individual who is incarcerated for heroin distribution, there is someone else waiting to step in place as a distributor regardless of the potential criminal penalties.
If you or someone you know needs addiction help of any kind, please contact a local physician or treatment center. Modern medicine has created many tools and solutions to assist heroin addicts get clean.
If you are caught in the web of Heroin and currently facing legal troubles, please feel free to contact me. I have helped many individuals with heroin distribution and possession charges.
5/12/2014 Update: I was wrong. The legislation is also trying to change the sentence for possession of heroin to a mandatory minimum of 5 years, even for a first time offender. Shame on you! To be continued…
I am happy to report that the Louisiana Association of Criminal Defense Lawyers’ (LACDL) voted last week to adopt an official policy statement related to the possession and use of marijuana. The 2014 legislative session has a number of marijuana-related bills up for debate. The LACDL Marijuana Policy Statement is as follows:
We believe that marijuana prohibition financially burdens taxpayers, encroaches upon civil liberties, engenders disrespect for the law, and disproportionately impacts students, lower income classes, African Americans, and other ethnic minorities who bear the brunt of cannabis arrests and prosecutions. The responsible consumption of marijuana by adults in private should not be defined as criminal behavior deserving of arrest, potential jail time, a criminal record, and the lifelong stigma that accompanies it. Criminalizing marijuana is a disproportionate response to what, at worst, is a health issue, not a criminal justice issue.
The LACDL Board of Directors unanimously voted to adopt the official Marijuana Policy Statement.
The Louisiana Association of Criminal Defense Lawyers (LACDL) is the only professional association of attorneys devoted exclusively to the profession of Criminal Defense. The LACDL mission is to promote a fair, accurate, and humane criminal justice system through education, advocacy, and the development of effective and professional defense lawyers. For more about LACDL, please visit www.LACDL.org.
Federal Crime: Mailing Injurious Articles Via The United States Postal Service
Looking for a job can be a drag, especially when you feel overcome by constant rejection. If you find yourself feeling spiteful and frustrated with a lack of employment opportunities, don’t do what Jevons Brown, a 58 year old vet from St. Louis, Mo., did because you might end up on jail. To get revenge, Brown sent boxes filled with cat poop to companies that did not hire him.
Brown sent the packages of cat poop via the U.S. mail. Investigators were able to find 20 packages containing cat poop and trace them to him.
Some of you may be wondering what’s the crime? Believe it or not, mailing poop is against the law because it creates a health hazard. The offense is called Mailing Injurious Articles and it may be found at 18 U.S. Code § 1716.
In short this law prohibits a person from mailing poisonous substances, poisonous animals, insects, reptiles, and all explosives, hazardous materials, inflammable materials, all disease germs or scabs, and all other natural or artificial articles, compositions, or material which may kill or injure another or property of another. This also includes mailing intoxicating liquors, spirits, wines, medications and certain drugs. It is worth mentioning that this statute permits people to mail some of these articles under certain circumstances provided the sender obtains permission and employs appropriate packaging guidelines. Although this offense is only a misdemeanor, it is a federal crime. Federal sentencing guidelines for this offense recommend probation or up to 6 months in prison. Of course, if someone is killed as a result of the mailed injurious articles, the offense becomes a felony and is punishable by death or life in prison.
In Brown’s case the judge sentenced him to two years of probation. I think that this is a fair sentence. Of course, I don’t think that he was trying to harm anyone. According to a St. Louis newspaper, since this incident occurred, Brown has found a job and started counseling. Good luck to you Mr. Brown.
So what’s the moral of the story? The next time you don’t get a job that you want, stay away from the cat box! Meow!