By Deputy Director Bruce Reilly
The Louisiana Legislature’s special “Crime Session” begins on Monday, February 19th, with committee hearings expected to happen on Tuesday and Wednesday. With the rules being suspended, a bill can pass out of committee in the morning and be heard on the Floor that afternoon. The next day it is likely in committee in the opposite chamber, with the process repeating.
Twenty-four bills were filed in five committees, with half of them in the House Administration of Criminal Justice. See them all in VOTE’s 2024 Bill Tracker here.
Below is a summary of the bills, organized by category, the largest being “Extending Sentences.”
Transparency
HB 1 requires court clerks to report all their docket entries to a public portal, including hearing dates, counsel of record, charges, bond set, sentences, continuances, and names of judges. This applies to all adult courts and juvenile cases in violent crimes and/or someone facing a second felony. Posting a juvenile’s pretrial information (while still holding the presumption of innocence) may violate a child’s right to privacy, and that will likely incite numerous lawsuits. This will be a very costly portal to create and maintain, all so people can easily look-up an arrest record of every Louisianan. HUD, and the FTC (who oversees background check databases under the Fair Credit Reporting Act) have on multiple occasions explained that arrests are not to be used as indicators of guilt, so it will be interesting to see how the state law “immunity” clause (for the Clerks of Court) plays out in federal court when someone sues a housing provider or employer for discrimination.
Law Enforcement
HB 2 and SB 6 limit law enforcement liability to actions that are criminal, fraudulent, or intentional misconduct. Considering nobody ever won a liability case against a police officer without proving one of those things, these bills are performative, with no real impact. Any officer accused of misconduct will still require a hearing to decide if it is “intentional.” SB 6 also bars any liability if the complainant is convicted of a crime. Thus, as long as there is a conviction, a police officer can violate someone’s rights in any number of ways. It is unclear how this intersects with criminal misconduct, or if a petty conviction will bury any and all abuses. Most people will file such a claim in federal court, where such a waiver will carry no weight.
Drug Court
HB 3: Mandatory drug testing and screening for specialty courts (by licensed professionals) is well intentioned. The actual impact on addiction recovery is far from clear. First, someone’s intoxication level within 24 hours of arrest is not a clear indication of their substance use, nor even if they were intoxicated while allegedly committing a crime. Drug Courts typically sentence people to an intensive outpatient regimen, and drug testing, over an 8-year probation term. Recovery and relapse are intertwined, thus the level of punishment (or support) someone receives if they slip up is the difference between Drug Court as a successful therapeutic model or simply as a gateway to prison. Having data on the preexisting Drug Court cases, including firsthand testimony, would help clarify the likely outcomes of expansion. Realistically, Louisiana can turn about a third of all judgeships into “drug court” if they truly want to handle the intersection between the desperation of drug use and crime. To tackle it correctly, however, we need an army of health care providers, treatment facilities, and medication assisted treatment. If the threat of prison alone kept us sober, we would be the straightest population on the planet.
Wrongful Convictions
HB 4 forces district attorneys and judges to object when a person files a post-conviction appeal that is after the filing deadline, if it had been heard before, or if over a year has passed since uncovering newly discovered evidence. This takes the discretion from judges and prosecutors who would only be allowing the case to be heard if they had serious doubts about the legitimacy of the conviction. It is a peculiar bill considering how often legislators say, “they trust their district attorney.”
Extending Sentences
HB 9 is the big one, as it eliminates parole eligibility on all crimes happening after 8/1/24, except for juvenile Lifers. The price tag on this will be enormous, including the medical costs, especially if it is determined that it overrides medical furloughs and release.
SB 5 impacts all the parole-eligible people currently in prison and requires a board to be a unanimous vote for release. One member of the board could single-handedly block every release. The bill also requires someone to go 3 years without a serious discipline infraction, rather than the current 2 years. The parole board only releases about 2% of the 15,000 people who get out every year, each of them typically showcasing impeccable behavior and an impressive institutional resume. For people with extreme sentences, it is typically the only way they can be released. The bill also makes someone wait an additional 4 years after denial to be reconsidered. The final paragraph of the bill, although slightly vague, suggests the Board will have the power to rescind any parole decision at any time in the future “for any reason deemed appropriate by the committee.” This may run afoul of the Supreme Court’s principles in Morrissey v. Brewer, and how Due Process (not the whims of a king) govern such a liberty interest.
HB 5 adds a 61st crime to the list of “violent crimes” (R.S. 14(2)(b), which are then ineligible for things such as Good Time or parole and become enhancers for Habitual Offender multipliers. The law defines “illegal use of weapons or dangerous instrumentalities” as an illegal or negligent discharge of a firearm (or use of an article or substance) where it is foreseeable that it may result in death or great bodily harm. Another example of how many ways someone can be charged for the same action.
HB 7 essentially doubles the sentences for carjacking, with mandatory minimums of 5 years where no serious injury and 20 years with serious injury. It raises the maximums to 20 and 30 years respectively.
HB 8 creates a 25-year mandatory minimum for a “detectable amount” of fentanyl whenever it is added to something that is “attractive to minors.” This vague phrase includes things that are in the shape of animals, vehicles, or candy. It is difficult to imagine this law holding up in court, if it is used, considering that basic adult vitamins, for example, look like candy. More to the point, however, this is another example of how we are punishing our community members who have an addiction problem rather than providing opioid antagonists and residential treatment. A 30-year-old parent who gets hooked on fentanyl won’t be eligible for release until they are 55 in this scenario.
HB 10 mandates that sentences after 8/1/24 will earn a maximum of 15% Good Time credits. This means that, if they do not get any write-ups, they will serve 85% before being released on Good Time Parole Supervision (GTPS). With the elimination of discretionary parole eligibility under HB 9, this will be the only path to release short of 100% of a sentence. People sentenced to 40 years or more will likely die in prison. This bill also ends Good Time credits for people on parole. If they are violated, they will serve the full-term in prison, with no credit for time on the street. This may result in people turning down GTPS release altogether.
HB 11 increases the maximum probation term from 3 years to 5 (except Drug Court, which can be 8). Based on data and research, this term was reduced because by year 4, people had generally either succeeded or failed. The extra years were simply unnecessary labor for probation officers, and subjected people to petty infractions and fees rather than being able to move on. The bill also increases the penalties for technical violations: up to 90 days in jail. It also reduces what is a “technical” violation, including how an “attempted misdemeanor” would be subject to a full revocation instead. Its unclear what would be good examples of such an act.
HB 13 pushes for anyone convicted of a violent crime while in prison to lose all their Good Time. This bill seems redundant, particularly if someone is earning just a small amount under HB 10. Good Time credits can already be deducted by a disciplinary action without needing the trouble of a trial and conviction for assaulting someone.
HB 14 “Dangerous Offender” bill is redundant to HB 10, which would require everyone to serve at least 85% before GTPS release. Under this bill, a judge can deem someone a “dangerous offender” if they have one prior conviction for violence, sex, or drug distribution. This would require them to serve 85% of their time.
Children
SB 3 reverses the “Raise the Age” law which puts 17-year-old kids in the juvenile system. The law took five years to phase in, but Louisiana did nothing to expand the juvenile system to absorb those court cases and kids in custody. With extra space in adult jails and prisons, Louisiana prefers to return to the old ways. This change complicates things for wardens who must keep the 17-year-olds separate from the actual adults and coincides with Louisiana building more juvenile prisons. Thus, there will be even more space for 14-16 year olds across the state in a system with 300% turnover in their staff and a newly appointed head of the Office of Juvenile Justice who was notoriously involved in sexual abuse scandal with the kids.
SB 4 will make it more difficult for kids to get a second chance through the courts. Any child seeking a sentence modification must serve at least 3 years in prison (or 2/3 the sentence if shorter than 3 years). This will prevent judges from recognizing positive rehabilitative changes amongst children who are deep in their developmental stage.
Death Penalty
HB 5 creates absolute secrecy over who executes the people on Death Row and where they get the lethal substances. It also adds nitrogen hypoxia as an approved method of killing someone. Realistically, it should be the Governor who executes a person, as they alone have the power to not kill someone.
Indigent Defense
SB 8 moves public defenders from the independent “Board” into an executive state office. The Governor would appoint a head of the office who has 20 years’ experience as a barred attorney, with 7 years in criminal defense. This would be more experience required than the Attorney General and Louisiana judges, and it isn’t clear how the 7 years in defense would be calculated. The extreme requirement is likely intentional. The Chief Defender would hire an executive staff, and then contract with local head public defenders who (apparently) are nominated by a selection committee of one lawyer and two registered voters. It remains to be seen (if passed) who would be providing the constitutionally guaranteed right to effective defense counsel, and how flush (or starved) their budgets. It is likely that lawsuits are filed based on conflicts of interest and falling short of the 6th Amendment rights. For a chief executive who appoints the heads of the State Police and the Department of Corrections, a former Attorney General who successfully advocated for the State Police and A.G. to have criminal divisions in New Orleans (for starters): this has a massive appearance of impropriety.
Guns
HB 12 and SB 1 make it so any 18-year-old can hide a gun under their jacket, even if they have a documented mental illness or substance use issue. The only people prevented would be those with a felony record. It will certainly cause distress for gas station employees, Lyft drivers, and others who may rightfully question the intention of someone packing heat. How police officers, security guards, and business owners react will range from strict “No guns allowed” signs to shooting anyone considered armed and dangerous. It is difficult to imagine there being less shootings in Louisiana under such a law.
SB 2 takes away liability for conceal carry owners unless there is gross negligence, intentional misconduct, or a criminal act. This would put the onus on courts and juries to define gross negligence if an unlocked gun is stolen and used criminally.
Other
HB 15 is a reasonable amendment to the law. The 6-year time limit to charge someone for 3rd Degree Rape does not begin until after the crime is discovered by the victim.
SB 7 increases the usage of ignition interlock devices for DWI punishments. The sentence for .08 (the standard for “drunk driving”) from 90 days to 180. Realistically, DWI laws are among the few criminal laws that take a reasonable approach to balancing freedom, the right to work, and accountability for a dangerous situation. If only all parts of the criminal code were addressed as such.
Governor Landry has increased two parts of the state budget: prisons and the state police. He also recently issued a state of emergency that allows sheriffs to hire more people and receive more pay. The public concern about the incoming administration is well placed, as he continues to fight all regulations on clean air, clean water, and land pollution. It also appears public education and health care, already abysmal in Louisiana, are further on the chopping block. In a state so committed to force women to have babies, one might wonder what vision they have for such children.
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