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.
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.
Habitual Offender Criminal Attorney New Orleans
If you are being charged of a crime as a Habitual Offender, Contact attorney Elizabeth B. Carpenter. Our firm is ready to fight for your freedom.
SUMMARY OF THE MULTIPLE OFFENDER LAW – La R.S. 15:529.1
The District Attorney may charge a person as a multiple or habitual offender after that person has been convicted of more than one felony.
A felony is any crime which is punishable by imprisonment at hard labor. Common felonies include theft and receiving stolen things valued over $300.00, nearly all crimes of violence and drug crimes, burglary, issuing worthless checks over $100.00, and many other crimes.
After the first felony conviction, the penalties for all subsequent felony convictions become much more severe. A prior conviction in any state or country may be considered if the crime would be a felony in committed in Louisiana.
On a second felony conviction (one prior conviction) the minimum penalty is ½ the maximum term of imprisonment applicable to a first offender; the maximum penalty is double the maximum term of imprisonment applicable to a first offender.
On a third felony conviction (two prior convictions) the minimum penalty is 2/3 the maximum applicable to a first offender; the maximum penalty is double the maximum applicable to a first offender. However, if the last and two prior felony convictions were for crimes of violence OR sex crimes against a person under 18 OR drug crimes punishable by ten years or more OR any crimes punishable by twelve years or more, the sentence for the 3rd felony conviction is NATURAL LIFE imprisonment without parole.
On a fourth or subsequent conviction (three prior convictions) the minimum penalty is twenty years at hard labor and the maximum penalty is NATURAL LIFE imprisonment without parole.
No conviction may be considered if the defendant has satisfied the 10 year cleansing period, beginning the date of release from actual custody or supervision by the Department of Corrections for probation, parole, or supervised good time, and ends on the date of the commission of the latest offense.
No sentence imposed under 15:529.1 may be suspended and the defendant may not be placed on probation. Most of these sentences are without reduction for good time.
In calculating whether a person is eligible for sentencing as an habitual offender, the sequence of offenses and convictions must be: commission of offense A, then conviction of offense A, then commission of offense B, then conviction of offense B, then commission of offense C, the conviction of offense C. Convictions on the same day for several district offenses committed in different incidents do NOT count as one conviction. See: State v. Michael Johnson, 2003-2993 (La. 10/19/04), 884 So.2d 568.
Each prior conviction must have been with counsel or an expressed waiver of counsel, and there must have been a complete Boykinization. Prior adjudication as a multiple offender is not required.
Defendants convicted of certain crimes which became felonies due to repeat offender status may not me multiple billed (such as repeat offender theft, possession of marijuana, convicted felon with firearm). However, those convictions may be used as prior (predicate) offenses if subsequently the defendant is convicted of another felony.
New Orleans Drug Crimes Defense Attorney
Serving Orleans, Jefferson, St. Tammany, St. John, Baton Rouge, St. Charles, Plaquemines Parishes.
New Bill Would Eradicate Mandatory Minimum Sentences For
Marijuana Possession In Louisiana
Both the Louisiana House and Senate will reconvene for the 2013 Legislative Session in April 8, 2013. As an attorney, I subscribe to email alerts regarding legislative news. This evening I was thrilled to see a proposed bill that would eradicate mandatory minimum sentences for Marijuana Possession.
This bill is House Bill 103, sponsored by state Rep. Austin Badon, D-New Orleans. The proposed bill will lessen penalties for repeat offenders and not subject offenders to Louisiana’s Habitual Offender Law (RS La 15:529.1). This new law would also apply to synthetic cannabinoids.
I am actually opposed to the legalization of synthetic cannabinoids due to the severe health complications associated with its use. Of course, complete legalization of Marijuana would obliterate the demand for synthetic cannabinoids.
As a final thought, I think that Representative Badon is going to have a battle to fight in Baton Rouge over this new bill. The state and local governments as well as substance abuse clinics love the money that they can extort out of people who are found guilty of Marijuana Possession.
The following is a chart demonstrating the proposed changes to the law:
If you or a loved one has been charged with a Marijuana Offense in New Orleans area. Contact a New Orleans Drug Crime Attorney – Elizabeth B. Carpenter. We offer discounted fee for Marijuana Offenses!
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.
Life-without-parole sentences for juveniles declared unconstitutional by Supreme Court
Life-without-parole sentences for juveniles are unconstitutional, according to a 5-4 opinionMonday morning from the U.S. Supreme Court that involved a 14-year-old convicted of murder in Alabama. Evan Miller was convicted of arson and murder in Lawrence County, but his life without any possibility of parole sentence violates the Constitutional protection against cruel and unusual punishment, according to the justices.
The opinion was written by Justice Elana Kagan. The ruling, which also includes a case from Arkansas, is another in a line of decisions that don’t allow the criminal justice system to give up hope that the youngest criminals can be rehabilitated.
“By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regard- less of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment’s ban on cruel and unusual punishment,” according to the opinion that was just released this morning.
The Campaign for the Fair Sentencing of Youth, which advocates for an end to lifetime mandatory sentences for youth, said that Louisiana has 332 youths serving life terms. That’s the third highest in the United States, behind only Michigan and Pennsylvania, according to the group.
“(The decision) will impact Louisiana significantly because we do have mandatory life sentences for juvenile offenses,” said Dana Kaplan, executive director of the Juvenile Justice Project of Louisiana. Kaplan, though, is reading the Supreme Court ruling, just out this morning, and says she’ll have a more thorough analysis later.
The four justices that dissented include Chief Justice John Roberts, Justice Samuel Alito, Justice Clarence Thomas and Justice Antonin Scalia.
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.
Criminal Defense Attorney New Orleans
Perpetration of certain crimes of violence against a victim sixty-five years of age or older — La RS 14:50.2
The court in its discretion may sentence, in addition to any other penalty provided by law, any person who is convicted of a crime of violence or of an attempt to commit any of the crime of violence with the exception of first degree murder, second degree murder, aggravated assault, aggravated rape and aggravated kidnapping, to an additional three years’ imprisonment when the victim of such crime is 65 years of age or older at the time the crime is committed.
Contact Elizabeth B Carpenter, attorney New Orleans, to schedule a consultation today!