Powerful Interests Obstruct to Reforming the State’s Draconian Sentencing Laws — Part 4 of a 7 Part Series
Louisiana Is The World’s Prison Capital
Criminal Defense Attorney New Orleans
Elizabeth B. Carpenter, Esq. – Serving clients in Orleans, Jefferson, Terrebonne, Tangipahoa, St. Bernard, St. Charles, St. Tammany, St. John, Assumption and Plaquemines Parishes.
Prison Sentence Reform Efforts Face Tough
Opposition in the Legislature
There was optimism in the air on the chilly day in January 2011 when Gov. Bobby Jindal announced an ambitious effort to overhaul Louisiana’s sentencing laws. A bipartisan cross-section of law enforcement leaders surrounded the governor in the Capitol’s fourth-floor conference room. Sheriffs, district attorneys and judges were there. So were leaders of the state House and Senate, along with good-government groups and national criminal justice experts.
For the first time in a decade, a political consensus was emerging that it was time to reduce Louisiana’s highest-in-the-nation incarceration rate. In the past two decades, the state’s prison population has more than doubled, with one of every 86 residents serving time.
Weeks later, the 22-member state Sentencing Commission, revived by Jindal after years of dormancy, produced a package of bills aimed at tackling some of the key factors driving the increase, including long sentences for nonviolent crimes and large numbers of offenders being sent back to prison for violations of parole or probation.
The five bills would eventually pass and get signed by the governor, but only after the most important parts — the ones that would have actually reduced prison sentences — were removed under pressure from sheriffs and district attorneys.
This year, though, two of the commission’s failed measures from the previous year were revived and have progressed smoothly through the Legislature, with Jindal’s backing. The measures are unlikely to have a substantial effect on the incarceration rate, and the cost savings will not be immediately apparent, but their passage provides a ray of hope for reformers.
Even as prison populations have strained the state budget and prompted fiscal conservatives to join liberals in calling for changes, the political calculus in Louisiana has evolved slowly since a series of tough sentencing laws in the 1970s, ’80s and ’90s bloated the state’s inmate counts.
If anything, the balance has remained tilted toward law enforcement. After a prison-building boom in the 1990s, Louisiana sheriffs now house more than half of inmates serving state time — by far the nation’s highest percentage in local prisons. Their financial stake in the prison system means they will lose money if sentences are shortened. They typically house the same drug pushers, burglars and other nonviolent offenders who will be the likely targets of any serious efforts to change the system.
“The three easiest votes for a legislator are against taxes, against gambling and to put someone in jail for the rest of their lives,” said state Sen. Danny Martiny, R-Kenner, a veteran policymaker who has led the judiciary committees in both the House and Senate.
Still, reformers are not giving up. They vow to chip away at Louisiana’s prison problem, one small-scale measure at a time. The success this year of the Jindal-backed bills is a sign that the climate might be shifting slightly, prompted to some extent by a state fiscal crisis.
“Given the differences we had last session with the sheriffs and the DAs, where we ended up unwittingly at an impasse, we had an incredibly great session with the sheriffs and the DAs,” said Judge Fredericka Wicker of the 5th Circuit Court of Appeal, who has been a leader on the Sentencing Commission, of this year’s deliberations. “There was a strong sense from both groups that they agreed with the entire package.”
Ellis “Pete” Adams has seen attempts at sentencing reform come and go in the 35 years since he became head of the Louisiana District Attorneys Association. At least four or five sentencing commissions, maybe a half-dozen, have convened — he can’t recall the exact number. The results of those long-forgotten efforts sit in a file cabinet in his spacious office, their recommendations rarely enacted.
“It usually arises (and) gets momentum when there are fiscal problems,” Adams said. “That’s when the confluence of conservative and liberal thinkers happens. The push for reducing the cost of corrections meets with the liberal view that, you know, our correction system is too harsh.”
That was certainly the case in January 2011, when Louisiana was facing a $1.6 billion budget shortfall and the Jindal administration was looking for ways to cut costs. The governor had made no secret of his desire to reduce recidivism and get incarceration costs under control, but to that point there had been little action.
“Certainly, it makes sense for us as a state to be reducing our recidivism rate and focusing and prioritizing our resources,” Jindal said late last year.
The Sentencing Commission’s current incarnation was designed from the start to be different than its predecessors. Past commissions have sometimes been dominated by outside groups with plenty of proposals for change but little idea of what could realistically get through the Legislature. They left behind well-meaning reports that now are mostly forgotten.
“You had basically reformer-types who were driving the recommendations, and whatever they would recommend, there really wasn’t enough stakeholder input and buy-in for the Legislature to pass those things,” Adams said.
In the newly formed commission, sheriffs, district attorneys, judges, victims advocates, public defenders and key legislators all had a voice.
By working through policy differences at the commission level, supporters hoped any bills that emerged would have enough momentum to convince recalcitrant lawmakers that they wouldn’t be punished politically for votes an opponent might characterize as being soft on crime.
There was good reason to get sheriffs and district attorneys on board early. Veterans of earlier efforts said it’s virtually impossible to get anything through the Legislature without support from those two critical groups.
“It’s not going to work if you have the DA association in an opposing role,” said former state Sen. Donald Cravins, an Opelousas Democrat who led efforts to revamp the state’s juvenile justice system in the early 2000s. “And the sheriffs’ association likewise. (Otherwise) you will never resolve it.”
That was the spirit in which the Sentencing Commission began its work. “The agreement we have with DAs and sheriffs (is) ‘We’re going to work together and we’re all going to support what comes out of the Sentencing Commission,’â” Jindal said.
Working on a compressed timetable with the 2011 spring session approaching, the panel decided against tackling some of the more volatile issues and instead settled on a package of five bills dealing with parole, good-time credits and home incarceration.
To carry the most far-reaching measures, the commission tapped state Rep. Joseph Lopinto, R-Metairie, who had arrested hundreds of suspected criminals as a Jefferson Parish sheriff’s deputy and later helped prosecute them as an assistant district attorney.
“The bottom line is, if locking everybody up and throwing away the key works, then we should have the lowest crime rate in the United States,” Lopinto said. “We don’t. So then you have to really look at your policies. In my opinion, it’s strictly a fiscal issue.”
One of Lopinto’s proposals was intended to reduce the number of nonviolent, low-risk offenders in prison by speeding parole eligibility. Nonviolent felons made up 82 percent of the 17,223 admissions to Louisiana prisons in 2009, and Lopinto’s original bill would have required first- and second-time offenders to be considered for parole after serving 25 percent of their sentences, down from as much as 50 percent.
Third-time offenders, who currently are not eligible for parole, would have been eligible after serving half of their sentences.
Another Lopinto measure was aimed at simplifying the “good time” provisions that allow inmates to reduce their sentences by behaving themselves behind bars. Critics complained that the current laws were a confusing patchwork that made it difficult for judges and prosecutors — let alone inmates and their families — to determine how much time needed to be served.
As the 2011 bill was originally drafted, it would have simplified the formula and changed it so that nonviolent offenders had to serve a minimum of 40 percent of their sentence, down from 46 percent, before they could be considered for good-time parole.
To be more palatable to the Legislature, both bills were designed to apply only to future offenders. Prisoners who were already locked up would have to live by the old rules.
Thus, the projected savings were small at first: The parole bill would have saved $6 million in the first year but more than $75 million over 10 years. The good-time bill was projected to save $4 million initially but $253 million over the course of a decade — money that would come from reducing the number of nonviolent, low-risk inmates serving time in local prisons.
Nevertheless, the parole bill quickly ran into trouble. Days after the session got under way in late April 2011, the District Attorneys Association voted to oppose the measure. As a result, the governor’s office quickly sent word that it could not support the bill and would consider a veto if it reached Jindal’s desk.
Just like that, the political cover the Sentencing Commission was designed to provide had largely vanished.
By the time the parole bill got to the Senate floor during last year’s spring session, it had been stripped of its original cost savings and only applied to first-time offenders — a fraction of those the commission had hoped to address.
Adams, the district attorneys’ lobbyist, said a “communications problem” was to blame and that the group had never agreed to support Lopinto’s bill if second- and third-time offenders were included.
“As late as when the bill got to the Senate, we had the lobbyist for the Sentencing Commission telling folks that the DAs had supported that earlier. That had never happened,” Adams said.
A similar fate befell the good-time bill, only this time it was the Louisiana Sheriffs’ Association that put up the roadblock.
With the governor’s staff indicating that a veto might be coming if law enforcement wasn’t on board, Lopinto quickly agreed to shelve the formula changes and thus any potential savings that would come from shorter sentences.
The turnabout surprised everyone, including Corrections Secretary Jimmy LeBlanc. “We thought we had consensus when we went,” LeBlanc said.
Wicker and other key Sentencing Commission members were determined to avoid misunderstandings this time around.
After a yearlong series of public meetings and painstaking word-by-word edits, the commission’s 2012 legislative package appeared to have every interest group’s stamp of approval.
Perhaps for that reason, the eight proposed bills were less far-reaching than 2011′s relatively modest package. Taken together, the 2012 measures would not make much of a dent in the prison population or result in substantial cost savings.
Still, they were tiny steps away from Louisiana’s airtight tough-on-crime stance and toward more discretion for prosecutors and judges.
Then, at the February meeting where the commission was to finalize the package, a Jindal aide spoke up. The aide, Cloyce Clark, had attended all the previous meetings and even helped draft some of the legislation. Suddenly, he was pushing for changes that had not been vetted by commission members.
Clark wanted to kill a proposal to remove attempted crimes from the list of violent crimes requiring enhanced sentences. Another proposal would have allowed prosecutors to seek sentences below the mandatory minimum for all but the most serious crimes — an option that is unlikely to be exercised often but that allows for leniency in unusual cases. Clark asked that all violent crimes and sex crimes, not just the most serious, be excluded.
After heated debate and a few dissenting votes, the commission complied with both requests.
In fact, the most significant proposals to be associated with the commission in 2012 are versions of last year’s parole and good-time bills, which are not officially part of this year’s package but are considered to have the commission’s endorsement. Lopinto introduced the measures with the backing of the governor and the Department of Corrections once it was clear that the sheriffs and district attorneys would stand down.
The Political Will
George Steimel, a veteran lobbyist for the Louisiana Association of Criminal Defense Lawyers, said the lack of progress in 2011 was a failure of political will.
“We know where the money-savers are. We know how to reduce the population,” Steimel said, discussing the reform package’s failure last year. “It’s the political will to do it, and that’s what failed this session.”
Martiny, the Kenner senator, said it’s hard to blame legislators, who are elected by the same voters who put the district attorneys and sheriffs in office. He cited his own efforts, earlier in the decade, to pass a series of changes to Louisiana’s troubled juvenile-justice system. Then, as now, it took months of careful negotiations to get DAs on board before his colleagues felt comfortable.
“If you give a legislator the opportunity to go either with the Innocence Project or with their DA, guess what? They’re going to vote with their DA,” Martiny said.
Still, veteran lawmakers say the political equation at the Capitol has shifted somewhat since the early 1990s, when crime rates were peaking, the victims-rights movement was in its heyday, and lawmakers were in a rush to pass mandatory minimum sentences.
The convening of the Sentencing Commission, at Jindal’s behest, was one sign of a new openness to reform. There are other signs that the mood might be changing at the Capitol and that lawmakers might be able to reduce sentences without the feared political repercussions.
Signs of Change
The revamped parole and good-time bills have sailed through the Legislature this session after Jindal agreed to support them and the law enforcement lobbies agreed not to oppose them.
One bill, which increases the rate of good-time accrual for nonviolent offenders, was signed by the governor last week, at a potential cost savings of $2,000 to $5,000 per offender.
Another bill makes second-time offenders eligible for parole after serving 33 percent of their sentences instead of the current 50 percent. It awaits the governor’s signature after passing the House and Senate by large margins.
The two measures apply only to people sentenced after Aug. 1, 2012. Any impact on the incarceration rate, the state budget and the sheriffs’ prison operations will be years down the road. But their easy journey through the legislative process thus far may signal some cracks in the tough-on-crime wall.
As in other states, an increasingly dire budget situation means that interest groups are feeling pressure to tone down their agendas and support cost-saving measures.
The Louisiana Sheriffs’ Association decided not to take a position on either bill this year, despite opposing last year’s good-time measure. Sheriffs are mindful of the state’s financial problems, even as their top priority continues to be public safety, said Michael Ranatza, the group’s executive director.
“In these economic times, we’re generally understanding of the plight of the state of Louisiana,” Ranatza said. “We want to be good statesmen, and we’re aware of the tremendous economic woes.”
District attorneys, who opposed key aspects of last year’s parole bill, decided they could live with this year’s version after the minimum time served was adjusted down to 33 percent of a second-time offender’s sentence, rather than the 25 percent originally proposed. Sex offenders and habitual felons would not be eligible for the early parole.
“If somebody appropriate for parole happens to qualify, and we save money and do it without risk to public safety, that’s a great thing,” said Adams of the District Attorneys Association. “The budget is shrinking. If we can save money without increasing risk, we’re open to these kinds of things.”
Steimel attributes the gains in the 2012 legislative session to several factors. Last year was an election year, making everyone — sheriffs, district attorneys, legislators — wary of rocking the boat. This year, a fresh crop of lawmakers is getting its bearings in Baton Rouge and may be more open to a different way of thinking. And there are the fiscal pressures making voters more likely to accept giving criminals a break if dollars can be saved.
“This is probably the best time to start this type of movement and reform, to start educating this new legislature,” Steimel said.