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!
Revenge Porn: New Orleans Computer Crimes Attorney Perspective
By: Elizabeth B. Carpenter, Esq.
Remember years ago when you would pack a shoe box with photos and other keepsakes after breaking-up with your boyfriend or girlfriend. Thanks to the internet, this practice has changed a little. Yes, people still have the boxes with the stuffed animals, dried flowers and promise ring, but they may also have a few intimate, sexual, digital photos sitting in a box of a different kind – Inbox. Those privately shared sexy photos are now in the hands of an angry ex who thinks that it would be amusing to post them on-line. This is where trouble begins.
Our nation seems to be gearing up for a host of laws aimed at addressing a new social phenomenon referred to as “revenge porn” –generally defined as the act of posting sexual photos of an ex-lover online for vengeance. The photos were typically exchanged consensually over the course of a relationship and meant only for the other person.
California is leading the charge to criminalize revenge porn. Last week, the governor signed a new law that makes revenge porn punishable by up to 6 months in jail or a $1,000 fine, or both. Repeat offenders may be punished by up to 1 year in jail.
Critics of revenge porn laws raise First Amendment challenges because these laws criminalize speech after-all. California seems to have sidestepped this problem by limiting the scope of the statute and enumerating what the law does not cover. For example, the new California revenge porn law does not apply to the following:
* Third Party Redistributors
* Non-Confidential Photos
* Insufficient Intent to Cause Emotional Distress
As you can see, the statute is so narrow that I would be surprised if there are many criminal prosecutions under this new law. Revenge porn laws would help victims more if they applied to website operators who republish user submissions, such as isanyoneup.com or myex.com. However, states cannot impose such sanctions due to 47 USC 230, the 1996 federal law that says websites aren’t liable for third party content.
Currently, Louisiana does not have any proposed criminal legislation addressing this issue. However, I imagine it is only a matter of time before our lawmakers propose a bill. As of this writing, the states of Arizona, Georgia, New York, Texas and Wisconsin are looking to enact similar laws. It will be interesting to see where the policy debates over revenge porn go from here. I feel certain that California’s small step isn’t the final word on this matter. The legal challenges that restricted California’s goal should provide helpful insight to other states who hope to strike more boldly against revenge porn.
Since the beginning of time sex, love and crime have been bedfellows. Now more than ever it is important to watch your internet footprint as we enter the brave new world of digital photography, social media and their many pitfalls. Do the best you can in love and your romantic relationships. The next time you are tempted to post sexy photos of your ex in an attempt to seek revenge — think twice.
Visit Ms. Carpenter’s web site for more information on Cyber Crimes and Internet Crimes in New Orleans, Louisiana.
An article was published earlier this week about a DWI defense class that I taught to other attorneys. I really enjoy talking about Louisiana DWI defense strategies with other attorneys. I hope that I have more opportunities to conduct such classes this year. Click HERE to read the article.
Happy Wednesday Everyone!
In 2007, the U.S. Senate declared January 11 as Human Trafficking Awareness Day in an effort to raise the consciousness about this issue. When you hear the term, Human Trafficking, you probably think of sex slavery or forced prostitution. I think that it is important for people to understand that the term is far more encompassing than that. Human trafficking is not just sex slavery. It is forced labor in cleaning services, farmlands, factories, nail salons and many other industries. It is holding humans captive, and forcing them to work for free, by threatening them. It is essentially modern day slavery.
In Louisiana, much attention has been paid to the issue lately in terms of legislation and advocacy groups. Last summer, Governor Jindal signed three new human trafficking related bills into law. The most significant bill broadened Louisiana’s Racketeering Laws by adding the following crimes to the definition of racketeering statute: female genital mutilation, aggravated kidnapping of a child younger than 13, human trafficking, trafficking of children for sexual purposes, bigamy, abetting in bigamy and the sale of minor children. Racketeering laws are utilized by prosecutors to target members of an organization engaged in criminal activities. This new bill will allow tougher penalties against groups of individuals who are engaged in human trafficking activities. The Louisiana racketeering provides for a penalty of imprisonment for not more than 50 years or a fine up to 1 million dollars, or both.
Another bill strengthens enforcement of current law that requires certain establishments to post the National Human Trafficking Hotline number. The bill adds penalties for the failure to post the hotline number and allocates the authority to promulgate rules regarding posting specifics to the Louisiana Office of Alcohol and Tobacco Control.
The third bill provides for pre-adjudication diversion programs for juveniles who allegedly engaged in prostitution related offenses due to sexual exploitation by human traffickers. The purpose of the bill is to help rehabilitate these young people rather than punishing them. This bill also takes additional steps to protect victims of human trafficking by creating a civil cause of action for victims, making victim restitution mandatory and establishing victim assistance guidelines for law enforcement, District Attorneys and the Attorney General’s office.
As a criminal defense attorney in the New Orleans area, I have defended individuals who were accused of Human Trafficking. These client’s face harsh criticism and blood thirsty prosecutors. My law firm is dedicated to providing our clients with a high level of guidance and the legal advocacy they deserve. My top priority is to create the strongest defense possible and help my clients avoid or minimize the penalties associated with human trafficking charges.
Happy New Year! I know that my blog has been rather quiet lately. The past few weeks have been packed with good food, family and friends, making goals for the new year and planning how I intend to accomplish said goals. Anyway, I am back and ready to serve up some information on Louisiana criminal laws as well as my personal musings.
Before Christmas, I attended the annual end of the year Continuing Legal Education (CLE) seminar hosted by the Louisiana Association of Criminal Defense Lawyers (LACDL), an organization that I encourage all Louisiana criminal attorneys to join. This CLE is usually full of all kinds of information that I believe helps me to grow as an attorney and offer a better service to my clients. I am looking forward to sharing many bits of my new found knowledge with my readers this year.
Louisiana parole eligibility laws are complicated. Many of the most highly skilled criminal attorneys do not fully understand these laws. I know that it is frustrating for clients because many accept sentences under the belief that they will be eligible for parole in X years, but when they arrive at the Louisiana Department of Corrections (DOC), they learn that their eligibility date is further away. The Louisiana Parole Eligibility statute is located at La. R.S. 15:574.4.
Parole Eligibility Overview
|A first time offender who is not serving a sentence for a violent offense, sex offense or sentenced under La. R.S. 15:529.1 (Multiple Offender Statute) regardless of the date of conviction, convicted of a first felony offense is eligible for parole consideration after serving 1/4th of the sentenced imposed. Eligibility is at 25% of the sentence – Act 285 of 2011. Effective for people who were sentenced on or after August 15, 2011.|
|Upon conviction of a second felony offense and not serving a sentence for a for a violent offense, sex offense or sentenced under La. R.S. 15:529.1 regardless of the date of the conviction, is eligible for parole consideration upon serving 33 1/3% of the sentence imposed. Act 159 of 2012. Effective for people sentenced on or after August 1, 2012.|
|A person convicted of a third or subsequent felony and committed to the DOC is not eligible for parole consideration. Effective for crimes committed on or after January 1, 1982.|
|A person who is serving a sentence for a crime of violence which was committed on or after January 1, 1997, and otherwise eligible for parole must serve at least 85% before parole consideration Act 1099 of 1995. Effective for crimes committed on or after January 1, 1997.|
|A person serving a life sentence is not eligible for parole. Act 162 of 1952. Effective for offenses committed on or after July 30, 1952.|
Of course, there are exceptions to every rule. i.e. Geriatric Parole, Juvenile Life Sentences, Life Sentences for Non-Violent Offenses… I hope to discuss these exceptions in another blog post.
Note: No inmate who has pending charges against him may be paroled.
If you have a loved one who is currently serving time, I extend sincerest empathy and compassion to you. I know that it is just as difficult for you as it is for your loved one.
If you need help with a parole issue, contact New Orleans Criminal Attorney Elizabeth B. Carpenter to schedule a consultation.
Social Security Fraud — 42 U.S.C. § 408
Social Security Fraud is the result of deliberate deception, and arises when an applicant falsifies a document or record offered as proof of disability, or misrepresents material facts on an application for benefits. Fraud can also be the result of omission when a beneficiary fails to report a change in circumstance, such as marriage, a new source of income, incarceration, removal from custodial care, or failure to report the death of a parent or spouse, while continuing to spend checks or direct deposits.
List of examples of violations that could result in criminal prosecution for Social Security fraud:
• furnishing false information of identity in connection with the establishment and maintenance of Social Security records, or with the intent to gain information as to the date of birth, employment, wages, or benefits of any person;
• forging or falsifying SSA documents;
• conspiring to obtain or allow a false, fictitious, or fraudulent claim;
• using a Social Security Number (SSN) obtained on the basis of false information or falsely using the SSN of another person, for the purpose of obtaining or increasing a payment under Social Security or any other federally funded program, or for any other purpose;
• altering, buying, selling, or counterfeiting a Social Security card;
￼￼• making or causing to be made a false statement or representation of a material fact for use in determining rights to Social Security benefits, Medicare, Supplemental Security Income, or Black Lung benefits;
• making or causing to be made any false statement or representation of a material fact in any application for any payment or for a disability determination under the Social Security Act;
• making or causing to be made any false statement or representation as to whether wages were paid or received, the amount of such wages, the period during which wages were paid or received, or the person to whom such wages were paid;
• making or causing to be made any false statement or representation as to whether net earnings from self-employment were received, the amount of such earnings, the period during which such earnings were received, or the person who received them;
• concealing or failing to report any event affecting the initial or continued right to payment received, or to be received by a person individually or on behalf of another;
What is the penalty for Social Security Fraud?
If you or a loved one has been indicted for a Federal Crime, Contact our law firm for a consultation. We are ready to help you.