This being an election year, advocates began the legislative session worried that lawmakers would shy from adjusting the sweeping Criminal Justice Reinvestment Act of 2017 that has let some convicts leave prison early.
By the end, however, a low-key offensive led Louisiana legislators to make all sorts of tweaks to the way the state prosecutes and punishes criminals, including changes to one law that advocates had called the “Holy Grail.” They also passed a way Louisiana State Penitentiary at Angola hospice workers can get those jobs on the outside and another measure that sets up the next big thing: turning away from fees and fines to fund the courts.
“I had concerns coming in for the handful of adjustment bills,” said Daniel Erspamer, chief executive officer at the Pelican Institute, a conservative think tank based in New Orleans that is a key advocate.
Democratic Gov. John Bel Edwards and a bipartisan coalition shepherded the 2017 revamps that have led to a decrease of 7,255 inmates since state prison population peaked at 39,867 seven years ago and saved taxpayers $12.2 million last year. The state general fund received $3.7 million of the money and the rest went to pay for victims services and educational, vocational training along with treatment services for maladies, such as, drug addiction and anger management.
A steadily declining number of state inmates over the past two years has helped Louisiana lose its unwanted status as the nation’s incarcerati…
Modest adjustments were made last year but getting much passed during an election year — when supporters could be tagged as soft on crime — was thought to be a bridge too far. After all, major politicians like Attorney General Jeff Landry and U.S. Sen. John Kennedy already had denounced the revamps as doing little more than releasing predators on the unsuspecting public.
“A lot of supporters asked us to stand down during an election year,” said Will Harrell, senior policy counsel with VOTE, Voice of the Experienced, the New Orleans-based advocacy group of formerly incarcerated people and their families. “We said, ‘We’re sorry. We don’t have the luxury of waiting until next year. It’s our people who are most affected.’”
Still Harrell, who has worked on similar efforts to roll back the 1980s "tough on crime" policies in other Southern states, was more than a little surprised, as were advocates in other states, at the number of adjustments passed. In particular, they noted changes to the Habitual Offender Statute, under which a person who is convicted of more than one felony crime faces longer and longer sentences for each subsequent conviction.
Prosecutors fiercely protect the habitual felon laws that can add years to sentences and thus serve as significant leverage in getting plea bargains.
“House Bill 518 was the centerpiece,” Harrell said. “It’s the Holy Grail. It’s the one thing we’ve never been able to put a dent in, not just in Louisiana but in other states as well.”
But by the end of negotiations, Louisiana district attorneys not only were on board but helped overcome conservative resistance to get a slimmed down version of the law. The legislation now sits on the governor’s desk.
HB518’s sponsor, LaPlace Democratic Rep. Randall Gaines, who also chairs the Legislative Black Caucus, wanted to eliminate the habitual offenders’ statute.
“There’s no proof that the habitual offender act has reduced crime,” Gaines said.
One of every seven Louisiana inmates — nearly 5,000 people, mostly African-Americans — are currently serving sentences enhanced by Louisiana’s habitual offender statute. Sixty-four percent of the people serving time under law were there for nonviolent crimes. Thirty-one percent of people convicted as habitual offenders are incarcerated for drug offenses.
Dolfinette Martin testified in House committee that she was sent to prison for seven years on a shoplifting conviction. “I was never given the opportunity to do better than what I was doing,” said Martin, who now serves as the operations manager at Operation Restoration, a nonprofit that helps women after they get out of prison.
Louisiana prosecutors opposed Gaines’ legislation at the get-go. District attorneys felt they had made enough concessions in 2017 and wanted to just wait to assess how that had worked before embarking on anything new.
And there it stood until Rep. Joseph Marino, No Party-Gretna, entered the negotiations. “I knew the DAs were not going to go along,” he said.
As a criminal defense lawyer, Marino also knew that knew Article 893 of the Code of Criminal Procedure allowed for some wiggle room. First-time offenders are given another chance under 893, provided they successfully complete their sentence and the judge agrees.
Under the rewritten HB518, someone who has completed a probated nonviolent, nonsex conviction wouldn’t face enhancement of a sentence to a second nonviolent, nonsex offense. But if criminal activity continues, prosecutors can bring back that first offense in their calculation of habitual offender status.
Marino said not counting a successfully completed first offense towards the multiple offenses of habitual criminal was in the spirit of 893 and adding the ability to claw back that first offense, if the defendant continues to commit crimes, is something the prosecutors would accept.
The Marino wording allows for some forgiveness early on but doesn’t jettison the tool if the criminal behavior continues. “It creates a safety net,” said Loren Lampert, associate director of the Louisiana District Attorneys’ Association until July 11 when he becomes executive director replacing retiring Pete Adams.
When the House committee hearing started, the district attorneys submitted a red card, indicating opposition. They negotiated Marino's concept in whispers as other bills were heard. When HB518 was called, the prosecutors switched to a white card, meaning they would testify as neutral fact givers. Once the language was hammered out and the bill arrived in the Senate, prosecutors submitted a green card showing support.
“That’s the first time I’m aware of that the DAs changed their stance from red to green,” Gaines said.
But final votes on the measure kept getting postponed. It took two tries before the Senate agreed to hear the bill again. Then that vote was delayed. On the next to the last day of the session – a time when another delay would essentially kill measure – a significant number of senators still were voicing qualms.
Liz Mangham, the managing partner at Southern Strategy Group and lobbyist for the business community on this issue, worked the senators, as did other advocates for the revamp, many of whom wore blue t-shirts, packing the hallways and galleries.
In the meantime, supporters approached the Rev. Gene Mills, head of the Louisiana Family Forum, in the State Capitol’s cafeteria and asked for help. Mills, a supporter of the 2017 revamp but little involved in the 2019 efforts, looked over the list of reluctant senators, ticking off “no votes” partial to the conservative evangelical agenda the Baton Rouge-based group holds. He gave the list to his lobbyists and told them “get on it.”
The floor debate later that afternoon revolved around frightening series of “what if” scenarios that all seemed to end with people being preyed upon by predators who otherwise would be behind bars.
Coming to the aid of Republican Baton Rouge Sen. Dan Claitor, a former New Orleans prosecutor handling the legislation in the Senate, Democratic Sen. JP Morrell, a former New Orleans public defender, noted that a lot the feared outcomes were way off base.
Claitor allowed that the “opponents came up with one that did sound kind of scary.”
The Senate gave final approval on a 30-6 vote, swaying some of the senators who the day before had opposed even bringing the measure up.
Another bill that advocates classify as a big win was House Bill 431, which would allow inmates who provided hospice care in the Louisiana State Penitentiary at Angola to receive certification that could be used to find similar work on the outside.
The center, where elderly and infirm inmates Angola are treated by other inmates during their final days, has been cited as one of the nation’s best. It was subject of a documentary by actor Forrest Whitaker and celebrity Oprah Winfrey. But the inmates who learn their skills are legally forbidden, because of their convictions, from getting a similar job on the outside.
Hospice care is one of Louisiana’s most undermanned professions.
“This is one step of many to remove barriers and pathways to jobs,” said Erspamer, of the Pelican Institute. “The best way to avoid recidivism is to get the released inmates working.”
Staffers with the Department of Corrections and the Louisiana Department of Health, as well as the licensing boards, needed to work together to find the appropriate laws and craft legislation that overcame objections to convicts doing the work in private homes and institutions.
HB431 was finally approved on June 3 and signed into law, to become effective Aug. 1, by the governor on June 11.
For decades, Louisiana’s criminal justice system has balanced its budget with the legal equivalent of squeezing blood from a turnip.
Preparing for next year, Erspamer and the other advocates worked a resolution to create the Louisiana Commission on Justice System Funding. The task force will look at what other states do and try to come up with an alternative model.
Unlike most states, Louisiana primarily funds its criminal justice system, except for a few salary supplements, through local governments. That means revenues raised through fines and fees levied against defendants. If they can’t pay, they end up behind bars.
“We’re essentially running debtor’s prisons,” Erspamer said, but that’s the way it has always been. “Our biggest challenge as we look ahead really is around how we fund our court system.”
Because each parish uses a different system, nobody knows for sure how much it all costs. Some estimate $500 million that state taxpayers will have to come up with each year to fully fund the criminal justice system.
The task force will look at what other states do and try to come up with an alternative model, then try to figure out the system can be funded.
“The appetite seems to be not necessarily for change, but to know what our options are,” said Lampert of the DA’s association.
Other items that passed the Legislature during its session that ended June 6 include:
- House Bill 9, signed May 24 as Act 1, would allow an applicant to expunge a conviction with one payment — about $500 — rather than being charged with every offense arising from the same arrest.
- House Bill 149, sitting on the governor’s desk, had cleanup tweaks to language dealing with how specific treatments and rehabilitation programs were counted towards parole.
- House Bill 551, which was signed into law on June 11 and becomes effective on Aug. 1, increased per diem payments to parish jails that house state inmates, but only for local facilities that offer rehabilitation training and programs.
- House Bill 611, which was signed June 11 as Act 253 to become effect Aug. 1, created rules that would allow defendants to retain their drivers’ license.
- House Concurrent Resolution 79 requests the Department of Public Safety and Corrections to study alternative technology that would allow a person on probation or parole to report to their supervisors instead of in-person meetings.
Not everything went smoothly.
Baton Rouge Republican Rep. Rick Edmonds’ bill, for instance, that opened licenses to allow released inmates to work made it to the Senate floor for a final vote when agency after agency tried to be excluded. The procession caused one senator to quip loudly enough to be heard, “If it’s such a great bill, why does everybody out.” The legislation was returned to the calendar and never received a final vote.
Legislation to require defense lawyers and the court to inform a criminal defendant of the consequences of pleading guilty, such as loss of gun ownership and possibility of family being evicted from public housing, was watered down. But a resolution was passed to study how that could be done in the future.
“You still have some who believe that 2017 was enough,” said Rep. Royce Duplessis, D-New Orleans, a member of the House Criminal Justice Committee. “I don’t sense much of an appetite for much more criminal justice reinvestment.”
Rep. Gaines disagrees to a point.
“We’ve had some breakthroughs, no question, but they (opponents) haven’t totally changed their perspective on criminal justice reform, he said.
The advocates for the ongoing revamp of the way the state handles criminals saw a change, particularly after going into the session wringing their hands over what would likely happen. Speaking after the session, Erspamer said he saw a lot more openness to discuss and engage in the issues.
VOTE’s Harrell said Louisiana voters have seen that less harsh sentences with more training and treatment hasn’t led to a rampage of crime. And lawmakers have seen that the new procedures are working, not in California, but in Texas, Mississippi and Alabama.
“I’m not dissatisfied,” Harrell said of the numbers of bills during a session where few expected any to. "We’ve got to do more. But I’m optimistic. The conversation with DAs is totally different now. They won’t get to where we want to go, but they’re open to dialogue.”
The District Attorney Lampert agreed: “Nobody is spiking the football, but nobody is saying this is jeopardizing public safety. These adjustments this year were common sense.”