EXECUTIVE SUMMARY

Louisiana locks up more people per capita than anywhere else in the country — nearly double the national average. It sends people to prison for drug, property, and other low-level offenses at an alarming clip. This desire to lock people up and throw away the key has strained the state’s finances while failing to make communities safer. In just over a year’s span, credit agencies have downgraded Louisiana’s credit three times, and it is facing an over $300 million budget shortfall.

But the state is not without a path forward. Several reforms currently before the Louisiana legislature would help the state inch out of its incarceration and budget crisis. They are based on the 26 recommendations the Louisiana Justice Reinvestment Task Force issued, a group the legislature charged with developing a data-driven approach to criminal justice reform. The Task Force included experts with diverse expertise and broad political views. Five of the Task Force’s recommendations, which a majority of the committee supported, are aimed at ameliorating some of Louisiana’s more punitive outlier policies. After reviewing these five recommendations and relevant studies and practices in other states, the Fair Punishment Project has concluded that these are smart, fiscally sound, and critically important policies that the Legislature should adopt. These data-driven policies take into account years of research on criminality and new science, and will allow Louisiana’s system of justice to become more humane without jeopardizing public safety. The five reforms are as follows.

Proposal 1: Provide the opportunity for Parole consideration to some of Louisiana’s longest-serving inmates. For current and future inmates serving a life sentence, the Task Force suggests parole consideration for inmates who have already served at least 30 years in prison and have reached the age of 50. For other individuals serving long, but not life, sentences, the Task Force recommends authorizing parole consideration after 20 years of their sentence is completed and after they have reached 45 years of age. Inmates convicted of first degree murder are not parole eligible.

Proposal 2: Prospectively eliminate life without parole sentences for juveniles (JLWOP), granting parole review after 30 years. Louisiana currently has approximately 300 people with juvenile life without parole sentences — one of the highest number per capita in the country. To date, eighteen states plus the District of Columbia have banned Juvenile Life Without Parole outright. Eight others have no one serving the sentence and seven states have under ten people serving JLWOP.

Proposal 3: Make parole eligibility changes for more serious offenses. The Task Force proposed setting parole eligibility at 55% of the sentence served for those who have no additional violent or sex offense convictions other than the charged crime, and majority of the Taskforce said this should be done retroactively.

Proposal 4: Focus habitual offender penalties on more serious crimes. This recommendations means that Defendants accused of simple burglary, forgery, possession of less than 2 grams of cocaine, and unauthorized use of food stamps could no longer be charged under the habitual offender enhancement. Instead, prosecutors would be allowed to charge only those accused of more serious third time felonies under this law.

Proposal 5: Limit mandatory minimum sentences for possession of a firearm by a felon (FIP). The Task Force unanimously recommended reducing punishments for FIP and establishing “tiering penalties” so that those with a minor, prior felony do not receive the same severe sentence as those with a more serious previous offense.

These five proposals will not fix Louisiana’s excessively punitive justice system, but they are a necessary first step that will save taxpayers’ money and bring the state’s sentencing laws more in line with the rest of the country.

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Introduction

Louisiana locks up more people per capita than anywhere else in the country — nearly double the national average.[1] It sends people to prison for drug, property, and other low-level offenses at an alarming clip, nearly twice as often as South Carolina and three times as often as Florida.[2] In 2015, it had an astounding 776 people in prison per 100,000 residents – over 400 more than North Carolina.[3] The vast majority of the over 110,000 inmates serving life with parole sentences across the country will eventually have the opportunity for parole.[4] In Louisiana, life with parole does not meaningfully exist–only 20 people have received a life sentence with parole eligibility–virtually everyone is sentenced to life without parole instead.  There are 4,636 people serving this sentence who have no hope for release.[5] Nearly ten percent of those inmates committed low-level offenses.[6]

This desire to lock people up and throw away the key has strained the state’s finances while failing to make communities safer. In just over a year’s span, credit agencies have downgraded Louisiana’s credit three times, and it is facing an over $300 million budget shortfall.[7] And despite its exorbitant spending on incarceration, for the second year in a row, Louisiana earned the title of the country’s murder capital.[8]

The state is not without a path forward. Several reforms currently before the Louisiana legislature would help the state inch out of its incarceration and budget crisis. They are based on recommendations issued by the Louisiana Justice Reinvestment Task Force, a group the legislature charged with developing a data-driven approach to criminal justice reform.[9] The Task Force included experts with diverse expertise and broad political views, such as a sheriff, a public defender, a District Attorney, several state representatives, and the Secretary of the Louisiana Department of Corrections.[10] The Task Force reviewed data from the previous ten years,[11] conducted public hearings, received assistance from stakeholders, and evaluated reforms in other jurisdictions.[12] Only then did the Task Force make recommendations to change the way Louisiana treats those charged with crimes.

Twenty-one of the recommendations received the committee’s full support.[13] Many of these deal with reducing incarceration for low level offenses, eliminating or minimizing fines and fees, and improving diversion and community supervision programs. Implementation of these reforms would bring an estimated $305 million in savings to the state over ten years.[14]

The Task Force also detailed five recommendations supported by a majority of the committee.[15] These include giving a second chance to those serving extremely long sentences by providing parole consideration to some of Louisiana’s oldest inmates, prospectively eliminating life without parole sentences for juveniles, and making certain parole eligibility changes retroactive. They also include limiting habitual offender penalties to more serious crimes and reducing mandatory minimums for felons caught with a firearm.[16]

The Fair Punishment Project reviewed the five majority recommendations, all of which ameliorate some of Louisiana’s more punitive policies, to determine whether these policies are fiscally sound, substantively wise, and in the interest of public safety. After reviewing these recommendations, practices in other states, and studies on recidivism, we conclude that these are smart and critically important policies that the Legislature should adopt.

  1. Provide the opportunity for Parole consideration to some of Louisiana’s longest-serving inmates

The Task Force recommends improving parole opportunities for individuals serving long prison sentences. For current and future inmates serving a life sentence — which in Louisiana is effectively life without parole for all but an insignificant number of inmates — the Task Force suggests parole consideration for inmates who have already served at least 30 years in prison and have reached the age of 50. For other individuals serving long, but not life, sentences, the Task Force recommends authorizing parole consideration after 20 years of their sentence is completed and after they have reached 45 years of age.   Inmates convicted of first degree murder are not parole eligible.[17] Meaningful parole consideration is a smart policy for numerous reasons.

First, recidivism sharply decreases as inmates age, and older prisoners pose little risk to society. Study after study shows that criminal behavior declines rapidly after the person’s 20s, and then continues to decrease as those individuals get older – even for those who committed the most serious crimes during their youth.[18] One study found that while 45 percent of people in prison between 18 and 29 return to prison within one year, only 3.2 percent of those 55 and older end up back in jail.[19] The Office of the Inspector General reviewed the Federal Bureau of Prison’s aging prison population — defined in the report as those fifty and older — and found that of 381 aging inmates, within three years of release, police rearrested only 15 percent for new crimes.[20] Most of these arrests were for drug-related offenses. Police rearrested no one above the age of 70.[21] For this reason, age is frequently used in risk assessment tools.[22]

The drop in criminal behavior with age is hardly surprising. As individuals age, their brain develops and their judgment improves. Impulsivity, aggression, and susceptibility to negative influences decrease.[23] The Task Force’s proposal acknowledges this science and ensures that those who no longer exhibit the poor judgment of their youth receive an opportunity to earn parole.

Allowing earlier release for aging inmates also makes fiscal sense. The group least likely to commit crimes upon release is also the most expensive to house in prison. The Office of the Inspector General conducted a review of the Federal Bureau of Prison’s (BOP) aging prison population — defined in the report as those fifty and older — and found that on average, an aging inmate costs eight percent more to keep in prison than a younger inmate.[24]   The BOP’s Assistant Director for Health Services and Medical Director reported that inmates in their fifties and sixties place the “greatest burden” on the BOP due to “significant health problems” sometimes “stemming from years of substance abuse.”[25] They are also frequently chronic care patients, and are more likely to require expensive, catastrophic medical care.[26]   In 2013, BOP facilities with the highest percentage of aging inmates spent ten times more on outside medical care than those with the lowest percentage of aging inmates.[27] According to a study in the Journal of the American Medical Association, inmates above age 55 have on average three chronic conditions.[28] Approximately 20 percent have a mental illness.[29]

A 2010 Vera Institute of Justice Report similarly found that elderly inmates disproportionately contribute to the high cost of prison health care. In 2006-2007, for example, North Carolina spent nearly four times the amount on medical care for those 50 and older than it did for other inmates.[30] The National Institute of Corrections found that the annual cost of locking an older person up is an astounding $70,000.[31] And in 2013, almost half of the $58 million dollars spent in off-site prisoner health care in Virginia went to elderly prisoners.[32]

Louisiana could save considerable money if it implemented this proposal. As of December 2016, Louisiana had 4,859 inmates with a life sentence, over 13% of the state’s total prisoner population.[33] Of those, nearly half (2,338) are over the age of 50, and one-quarter (1,396) are between 40-50 years old.[34] Among all prisoners, Louisiana has 4,546 inmates who are age 55 and over.[35] It has 3,099 inmates between the ages of 50-54.[36] And numerous more will fall within that age bracket soon: 7,684 inmates are between 40-49, and the average age of Louisiana’s population is 36.8.[37]

This is also humane policy that would merely bring Louisiana in-line with other states. As the report points out, “neighboring states like Texas, Mississippi, Georgia, Arkansas, and Alabama provide parole eligibility for the vast majority of prisoners with life sentences.”[38] In Georgia, for example, an individual convicted of one of the most serious felonies, which include, murder, rape, and aggravated child molestation, is eligible to be considered for parole after thirty years.[39] In Alabama, a person serving a life with parole sentence is parole eligible after serving one-third of his remaining life expectancy or after ten years – whichever comes first.”[40]

Finally, the limitations included by the Task Force should assuage any fears legislators have about dangerous inmates running rampant on the streets. The parole board will not automatically release inmates once they hit 45 or 50 or serve thirty years in prison. It will release only those people who have shown “substantial growth” behind bars.[41] Those with considerable disciplinary histories and infractions in prison that suggest a high risk of future danger will not meet that standard and will remain in prison. And the Task Force also does not grant eligibility to those convicted of first degree murder. We neither endorse nor criticize those recommendations, except to note that they significantly minimize the risk that a person who is a danger to society will end up on the streets.

  1. Prospectively eliminate life without parole sentences for juveniles (JLWOP), granting parole review after 30 years.

The majority of the Task Force has also recommended eliminating Juvenile Life Without Parole (JLWOP) and granting parole eligibility after thirty years.[42] This recommendation too makes practical sense. As we’ve noted, most people “age out” of criminal behavior, including those who have committed even the most serious crimes as kids.[43] This is at least in part because the portions of the brain controlling impulsivity and aggression, as well as the ability to delay gratification and resist peer pressure, don’t fully develop until an individual is about twenty-five.[44] Adolescents are “risk takers.” “Relative to individuals at other ages, . . . adolescents . . . exhibit a disproportionate amount of reckless behavior, sensation seeking and risk taking.”[45] But as the brain develops, “the vast majority of juvenile offenders grow out of antisocial activity as they make the transition to adulthood.”[46] Statistics on recidivism support what the science shows, as most juveniles do not offend as adults. Crime rates rise in early adolescence but then rapidly decline.[47] The Supreme Court has repeatedly relied on this research to rule out harsh sentences for children, such as the death penalty or automatic life without parole.[48]

Second, as with parole eligibility in general, Louisiana is an outlier in its harsh sentencing practice for kids. Louisiana currently has approximately 300 people with juvenile life without parole sentences — one of the highest number per capita in the country.[49]

Reform would bring Louisiana in line with the rest of the country. To date, eighteen states plus the District of Columbia have banned Juvenile Life Without Parole outright.[50] These states include Texas, Arkansas, Utah, and West Virginia — hardly bastions of liberalism.[51] Others have no one serving the sentence, including New Mexico, Minnesota, Missouri, Indiana, New York, New Jersey, Maine, and Rhode Island.[52] Montana and North Dakota each have one.[53] Idaho, New Hampshire, Oregon, Ohio,  Wisconsin, and Virginia have under ten.[54] Other states have limited its use considerably.[55] In California, for example, JLWOP is available only for homicides that have at least two special circumstances, and most juveniles can petition for recall and resentencing with just a few exceptions.[56]

Ending juvenile life without parole also makes fiscal sense. According to a report by the Times-Picayune, the daily cost of keeping an individual in prison for life is $63.15.[57] If a juvenile enters prison at 16 and lives until he is 70, it will cost Louisiana over $1.2 million dollars to house him. This is an extraordinary expense, particularly for those individuals who could safely reenter society and lead a productive life.

  1. Make parole eligibility changes for more serious offenses

In its unanimous recommendations, the Task Force proposed setting parole eligibility at 55% of the sentence served for those who have no additional violent or sex offense convictions other than the charged crime.[58] Currently, inmates convicted of such a crime must serve at least 85% of their sentence (if they committed the crime between Jan. 1, 1997 and before Aug. 1, 2016), or at least 75% (if they committed their crime on or after Aug. 1, 2016).[59] A majority of the Task Force recommended making this parole change retroactive.[60]

The underlying policy (parole consideration at 55% of sentence for those with no prior violent offense) is a wise proposal. As the Task Force pointed out, for several reasons, Louisiana uses its parole system sparingly. In the late 1990s, under pressure from Bill Clinton and mandates included in a new federal crime bill, Louisiana enacted a harsh truth-in-sentencing law increasing parole eligibility to at least 85% of an inmate’s total sentence.[61] Between 2006 and 2015, the legislature also enacted 55 new restrictions on parole eligibility for those convicted of low level offenses and 25 restrictions on offenses that include an act of violence.[62] At worst, many individuals are never parole-eligible as a result of these restrictions, and at best, they won’t see the parole board until shortly before their sentence expires.

This recommendation wisely returns parole eligibility close to, but not quite at, pre-truth-in-sentencing levels.[63] It would give numerous people with little criminal history — and therefore the least likelihood of reoffending[64] — a chance for release while also saving the state money. And it would come at little cost to public safety. As numerous studies have now shown, longer sentences fail to meaningfully reduce recidivism or decrease crime.[65]

There is no good reason to refuse to apply this reform retroactively, and several good reasons to do so. There is of course the arbitrariness and unfairness of imposing two different sentences on people convicted of the same or similar crimes just because of the date they committed the offense. And states regularly apply criminal justice reforms to those whose sentences pre-date the change. In 2014, for example, neighboring Mississippi expanded parole eligibility to people with sentencing enhancements for certain offenses.[66] Its reform bill included a retroactive provision enabling people convicted of low-level offenses who were previously ineligible for parole to petition for eligibility after serving 25 percent of their sentence.[67] Similarly, in 2016, Maryland passed the Justice Reinvestment Act, which allowed for retroactive modification of mandatory sentences.[68] That same year, Delaware passed a bill scaling back its habitual offender sentencing structure and ensured sentencing modifications would also be applied retroactively.[69]

Retroactive application likely poses little additional risk to public safety. In 2012, for example, California voters amended their three strikes law, limiting life sentences to those who have a serious or violent third offense. It made that law retroactive. According to a Vera Institute of Justice report, judges granted 95 percent of the resentencing petitions leading to the release of over 1,000 people.[70] In the first four months of release, less than two percent were rearrested. Particularly when juxtaposed with “California’s overall recidivism rate of 16 percent in the first 90 days and 27 percent in the first six months,” this statistic is encouraging.[71]

In contrast, refusal to apply this reform retroactively will likely cost considerable time and money. First, the state may have to defend itself in court. District Attorneys in California, for example, are divided on whether Proposition 57, which prevents prosecutors from filing juvenile complaints directly in adult court, applies retroactively.[72] One DA has argued that this dispute will likely lead to appellate litigation for offices refusing to apply the new law retroactively.[73]   And most obviously, making the reform retroactive will save money as inmates transition slowly out of the prison system.

This reform also contains limitations that should assuage the concerns of those who are worried about a sudden release of prisoners. Most importantly, it applies only to those who have no other violent or sex offenses. Even for that remaining group, it is not a promise of automatic release — the individual must then present his case to the parole board. The Louisiana parole board is not a rubber stamp. In 2014, the parole board granted release in just 42% of eligible cases.[74] Again, we are not endorsing these limitations, but merely highlight them to show that it is nonsensical to contend that this reform will lead to an outpouring of inmates convicted of the most serious offenses on Louisiana’s streets.

  1. Focus habitual offender penalties on more serious crimes

The Task Force has also recommended seriously reforming Louisiana’s habitual offender law. If a defendant is convicted under that law,[75] the judge must sentence him to an extremely harsh sentence, even if he is only convicted of possessing drugs. For example, if a defendant convicted of possession with intent to distribute an opiate has two prior violent convictions, the judge must sentence him to life in prison. The judge has is no discretion, no ability to depart from locking up someone for life who might be better served by drug treatment or a more proportional punishment.[76] In a state like Louisiana, where even purse snatching is labeled a “violent crime,” the habitual offender law may loom large over many heads.[77]

Even if a defendant is arrested for possession of marijuana and has two prior non-violent offenses, the habitual offender law still applies and can dramatically increase his sentence.   In one egregious case, a man arrested for possessing two marijuana cigarettes received a sentence of 13.3 years of prison and hard labor, with no opportunity for early parole.[78]

Louisiana’s law is especially harsh because judges have no room to depart from the increased sentences.   Some states with mandatory minimum or habitual offender sentences have a safety valve permitting judges to depart from an excessively harsh sentence when a reduced sentence would still protect public safety. This is the case, for example, in Florida, another place with unforgiving mandatory minimums and habitual offender laws.[79] Louisiana gives judges no such option.

The Task Force has recommended making the lowest level felony offenses — class D and class E crimes — ineligible for enhancement under the habitual offender statute.[80] Defendants accused of simple burglary, forgery, possession of less than 2 grams of cocaine, and unauthorized use of food stamps could no longer be charged under the habitual offender enhancement. Instead, prosecutors would be allowed to charge only those accused of serious third time felonies under this law.[81]

This recommendation would not affect a large number of people. According to the Task Force, habitual offenders account for just a small percentage of admissions. But it is an important first step in reducing needless incarceration of people who commit low-level offenses.[82] There is no good reason someone with two marijuana cigarettes should serve thirteen years in prison with hard labor. And yet this is how the habitual offender statute is generally used. According to data collected by the Task Force, District Attorneys largely utilize the habitual offender statute to incarcerate people for nonviolent offenses. Almost 75% of habitual offenders are in jail for drug or property offenses.[83] Removing low-level felonies from the purview of this law is a smart step toward keeping people who commit low-level offenses out of jail.

The habitual offender statute is also not necessary to protect public safety. Lengthy sentences do not reduce recidivism for people who commit low-level offenses. A 2012 Pew Study utilized a risk assessment that factored in criminal histories of people convicted of low-level offenses in Maryland, Michigan, and Florida, asking whether “public safety” justified longer sentences. They found that a large portion of those people could have been released far earlier without undermining public safety. After between three months and two years, “14 percent of the Florida release cohort, 18 percent of the Maryland cohort, and 24 percent of the Michigan cohort could have been safely released.”[84] And among people suggested for release, just one to two percent would be arrested for violent crimes.[85] A 1998 RAND study showed that the enactment of habitual offender or “three strikes” law did not decrease crime rates at a rate higher than states that did not enact these laws.[86]

Like the other proposals, this reform would also help bring Louisiana’s laws in line with other states. Numerous states with the harshest three-strikes and habitual offender laws have started repealing them. California amended its three-strikes law in 2012, eliminating life sentences for non-serious, nonviolent crimes.[87] It also provided a mechanism for already-incarcerated inmates to seek a reduced sentence if their third-offense was for a minor crime.[88] The sky did not fall. According to a study by the Stanford Justice Advocacy Project, the state released 1,000 prisoners in the eight months following Proposition 36.[89] They had a recidivism rate of less than two percent.[90] And according to the project, it “saved California taxpayers between $10 and $13 million.”[91] If the reform were “applied to all eligible inmates, it is estimated that Californians would save almost $1 billion over the next ten years.”[92]

The reform will also normalize sentencing across the state. According to another Pew study, the habitual offender statute is utilized sparingly in all but three places: New Orleans, Jefferson, and St. Tammany/Washington Parishes. In 2015, Orleans District Attorney Leon Cannizzaro sent 154 people to prison under the habitual offender statute. Jefferson Parish District Attorney Paul Connick lodged 116 sentences, and St. Tammany/ Washington Parish District Attorney Warren Montgomery logged 64 people, although he claimed in an interview to have stopped using the law as frequently. No other district sent more than three people to prison under the law in 2016.[93]   This leads to a troubling disparity in sentencing. If you are caught with marijuana in New Orleans, you may end up serving thirteen years. If you are in Baton Rouge, you could get probation.

The reform is also necessary to rein in prosecutors’ unfettered, and sometimes irresponsibly used, discretion. There is some evidence that District Attorneys use the habitual offender statute to lock people up for long sentences whom they suspect, but cannot prove, are guilty of a more serious offense. If the police nab the defendant for a minor offense, then the District Attorney can use the the law to lock him up for a longer sentence than the minor infraction might otherwise allow. District Attorney John De Rosier has stated: “[We] have people all the time that we know have been involved in robberies, rapes and murders. We haven’t been able to prove our cases, but we’re in court with them for second-offense possession of marijuana. What do you think we’re going to do?”[94] And Pete Adams, the head of the Louisiana District Attorneys Association, has reported: “The anecdotal stories I’m getting back are: You’ve got a guy with a long history of violent arrests, he’s just a bad guy, and he ends up as a third felony offender on a murder case you can’t get witnesses on, or you got him for drugs in the same incident.”[95] “You don’t prosecute the murder case; you put him away on the (charge of) felony intent to distribute drugs, which is what you need.”[96]

These prosecutors are trying to undercut two bedrock principles of our justice system: the presumption of innocence and the right to a trial by a jury of peers to determine guilt. Utilizing a habitual offender law because the prosecutor “thinks” the defendant caught with marijuana is also guilty of another robbery allows the prosecutor to substitute his own judgment for that of the jury. It also permits the government to get around the burden of proof beyond a reasonable doubt. Allowing the government to grasp onto the habitual offender law for a minor crime because the District Attorney suspects the defendant is guilty of an armed burglary but cannot prove it makes a mockery of this system of justice.

This reform will also help reduce the use of unethical threats prosecutors make to secure plea bargains.   Even without the habitual offender statute, prosecutors always have tremendous leverage at the plea bargaining stage. They generally win at trial, and if the defendant refuses to plead, they may add on additional charges to increase a defendant’s potential sentence. But their ability to dangle long sentences over the defendant’s head is at least constrained by the evidence they have and by the facts of the case. A prosecutor cannot, for example, threaten to add a gun charge to extract a plea in a drug case when no weapon is found. But with the habitual offender statute, the sky is the limit for the amount of jail time a prosecutor can threaten. Even if the defendant does not believe the government can prove the minor charge — marijuana or trespassing or the like — is is it really worth taking the chance that he is wrong and could face up to twenty years under the habitual offender statute at trial?   As Louisiana State Senator J.P. Morell stated: “For a DA to have the ability to dangle over someone’s head 10, 20 years in jail, that provides them with tremendous leverage to pretty much get whatever they want.”[97]

Given how sparingly the habitual offender law is used in many Louisiana Parishes, it is difficult to make the case that this law is necessary to protect public safety. The recommendation does not suggest eliminating it altogether—although perhaps it should. But this is an important step in reducing the overly punitive consequences of that law.

  1. Limit mandatory minimum sentences for possession of a firearm by a felon.

Like most, if not all states, Louisiana makes possession of a firearm by a felon (FIP) a crime. But Louisiana’s FIP laws are in another stratosphere, punishing someone to between 10 to 20 years in jail.[98] And it punishes those with a nonviolent predicate felony in the exact same manner as those with a violent predicate offense.[99] If someone with a prior felony drug possession conviction is later caught with a gun, he must serve at least ten years in Louisiana with hard labor. And he might serve up to twenty. In the last ten years, Louisiana has seen a sharp increase in imprisonment for FIP, with admission more than tripling between 2006 and 2016. The Task Force reported, by 2015, “it was the fourth most common offense on admission.”[100]

The Task Force unanimously recommended reducing punishments for FIP and establishing “tiering penalties” so that those with a minor, prior felony do not receive the same severe sentence as those with a more serious previous offense.[101] For those with a prior sex offense, the committee recommended a penalty from 1 to 10 years, with no mandatory minimum.[102] And for individuals previously convicted of drug possession or another enumerated offense, the committed recommended a sentencing range of 1 to 5 years, with no mandatory minimum.[103]In addition to this consensus recommendation, a majority of the Task Force proposed lowering the maximum sentence for FIP for almost all crimes and expanding a judge’s discretion in sentencing for those with a prior violent offense, sex offense, or commercial drug offense.[104] For those with a prior violent offense, the committee recommended reducing the sentencing range from 10 to 20 years to 1 to 10 years, with a one year mandatory minimum.[105]

Like all of the others, this recommendation would help to ameliorate Louisiana’s outlier status as the country’s most punitive punisher for FIP. Louisiana’s felon in possession law is perhaps the harshest in the country.[106] While Louisiana’s current penalties start at a ten year sentence, with perhaps one exception, the strictest schemes have a ceiling at ten or fifteen years, and defendants can receive a far lesser sentence.[107] In Washington, D.C., for example, the maximum possible sentence for FIP with a predicate crime of violence felony is fifteen years, but the mandatory minimum is just three years.[108] For all others predicate crimes, the maximum sentence is ten years imprisonment with just a one year mandatory minimum.[109] In Arkansas, the range is between five to twenty years imprisonment for convictions that largely involve violent felonies, with no mandatory minimum, but the defendant can also receive a fine up to $15,000.[110] For all other prior felony convictions, defendants can receive only up to six years in prison, with no mandatory minimum, and a judge can impose a fine of up to $10,000 in lieu of (or in addition to) any prison time.[111] Mississippi, Oklahoma, and Texas also cap their sentencing range at ten years and have no mandatory minimum.[112] Numerous other states, like Alabama,[113] Connecticut,[114] South Carolina,[115] and Georgia,[116] cap the sentencing range at five years. In Maryland and New York, the crime is a misdemeanor.[117]

Given that Louisiana fares no better at protecting its citizens than other states do, it would be wise to eliminate this outlier sentencing practice. The reform brings the sentencing range’s cap in-line with most other states at ten years for violent offenses, and at five for nonviolent offenses involving the sale of drugs. And critically, as with the recommendations that simply allow for parole eligibility, not release, judges in these cases will still have considerable discretion to sentence the defendant near the top of the range if they deem it necessary, while providing leniency to a defendant with little to no criminal record. And while we were unable to discern the exact financial effect of the proposed modifications, given that FIP is the fourth most frequent cause for prison admission in Louisiana, it seems fair to assume that by enacting these reforms, Louisiana will save considerable money while keeping individuals unnecessarily out of prison and allow them to remain in the workforce.

CONCLUSION

Earlier this year, Louisiana’s legislature faced a midyear deficit of $304 million and made cuts to essential services to eliminate it.[118] The legislature cut funding for its State Police, Department of Education, and state-funded hospitals that treat poor and uninsured people.[119]

At a time when Louisiana’s schools rank 46th in the nation,[120] or when approximately 11% of its residents are not covered by health insurance,[121] it makes little sense to continue pouring money into a broken prison system that does little to protect the public. These five proposals supported by the majority of the Task Force will not fix Louisiana’s excessively punitive justice system, but they are a necessary first step that will save taxpayers’ money and bring the state’s sentencing laws more in line with the rest of the country.

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ABOUT THE FAIR PUNISHMENT PROJECT

The Fair Punishment Project uses legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable. As a joint initiative of Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute, we work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyering, and racial bias, and to highlight the unconstitutional use of excessive punishment. The Project also closely partners with The Bronx Defenders, which provides invaluable strategic, research, and writing assistance.


FOOTNOTES

[1] Danielle Kaeble & Lauren Glaze, U.S. Dep’t of Just., Bureau of Just. Stat., Correctional Populations in the United States, 2015, 12 (2016), available at https://www.bjs.gov/content/pub/pdf/
cpus15.pdf
; La. Just. Reinvestment Task Force, Report and Recommendations 6, 12 (2017), available at https://www.lasc.org/documents/LA_Task_Force_Report_2017_FINAL.pdf [hereinafter Task Force Report].

[2] Task Force Report, supra note 1, at 6 (citing Department of Corrections statistical reports for Alabama, Arkansas, Florida, Georgia, Louisiana, South Carolina, Tennessee, and Texas).

[3] State-by-State Data, The Sentencing Project, http://www.sentencingproject.org/the-facts/#detail?
state1Option=U.S.%20Total&state2Option=Louisiana
(last visited Apr. 10, 2016).

[4] The Sentencing Proj., Life Goes On: The Historic Rise in Life Sentence in America 6 (2013), available at http://sentencingproject.org/wp-content/uploads/2015/12/Life-Goes-On.pdf.

[5] See id.

[6] Am. Civ. Lib. Union, A Living Death: Life without Parole for Nonviolent Offenses 22 (2013), available at https://www.aclu.org/files/assets/111813-lwop-complete-report.pdf.

[7] See Elizabeth Crisp, S&P Downgrades Louisiana’s Credit Rating, Citing Budget Instability, The Advocate (Mar. 15, 2017),available at http://www.theadvocate.com/baton_rouge/news/politics/article_abacaa46-09a1-11e7-81bc-
af2933b39681.html
.

[8] See Beau Evans, Louisiana Tops Murder Rate Again, New FBI Data Shows, NOLA (Sept. 27, 2016), available at http://www.nola.com/crime/index.ssf/2016/09/louisiana_tops_murder_rate_aga.html.

[9] In 2015, the Louisiana State Legislature adopted HCR 82, a resolution creating the Louisiana Justice Reinvestment Task Force to develop a data-driven approach to massive prison reform. The resolution is available at https://www.legis.la.gov/Legis/ViewDocument.aspx?d=955455 (last viewed Apr. 10, 2017).

[10] Task Force Report, supra note 1, at 10-11.

[11] Id. at 10.

[12] Id. at 5, 15.

[13] Id. at 30.

[14] Id. at 8.

[15] Id. at 56-59.

[16] Id. at 56-59.

[17] Id. at 56-57.

[18] See From Juvenile Delinquency to Young Adult Offending, Nat’l Inst. of Just., available at https://www.nij.gov/topics/crime/Pages/delinquency-to-adult-offending.aspx; Citizens Alliance on Prisons and Pub. Spending, Parolable Lifers in Michigan: Paying the Price of Unchecked Discretion 19 (2014) (demonstrating that of the 133 parolable lifers released from July 2005-October 2013, only three returned to prison with a new sentence for a re-offending rate of 2.3 percent), available at http://www.capps-mi.org/wp-content/uploads/2014/02/Parolable-Lifers-in-Michigan-Paying-the-price-of-unchecked-discretion.pdf; Robert J. Sampson & John H. Laub, Life-Course Desisters? Trajectories of Crime Among Delinquent Boys Followed to Age 70, 41 Criminology 301, 315 (2003) (“Aging out of crime is thus the norm—even the most serious delinquents desist.”), available at http://scholar.harvard.edu/files/sampson/files/2003_crim_laub_1.pdf.

[19] See Tina Chiu, Vera Inst. of Just., It’s About Time: Aging Prisoners, Increasing Costs, and Geriatric Release 5 (2010), available at http://archive.vera.org/sites/default/files/resources/downloads/Its-about-time-aging-prisoners-increasing-costs-and-geriatric-release.pdf.

[20] U.S. Dep’t of Just., The Impact of an Aging Inmate Population on the Federal Bureau of Prisons iii (rev’d 2016), available at https://oig.justice.gov/reports/2015/e1505.pdf.

[21] Id. at 38-40. Aging inmates in the BOP account for 19 percent of the total population but commit only ten percent of misconduct incidents in prison. Most incidents are of moderate to low severity, such as refusing to enter an assigned program or work. See id.

[22] See, e.g., Utah Crim. Just. Ctr., Pretrial Release Risk Study, Validation, & Scoring: Final Report 3 (2013), available at http://ucjc.utah.edu/wp-content/uploads/PretrialRisk_UpdatedFinalReport_v052013.pdf.

[23] United States v. Nash, 1 F. Supp. 3d 1240, 1246 (N.D. Ala. 2014); Nat’l Inst. of Mental Health, The Teen Brain: Still Under Construction (2005), available at https://infocenter.nimh.nih.gov/pubstatic/NIH%2011-4929/NIH%2011-4929.pdf.

[24] U.S. Dep’t of Just., supra note 20, at 1-2.

[25] Id. at 11.

[26] Id. at 14, 15-16.

[27] Id. at 13.

[28] See Chiu, supra note 19, at 5 (referencing Mike Mitka, Aging Prisoners Stressing Healthcare System, 292 J. of Am. Med. Assoc., 423 (1994)).

[29] Id.

[30] Id.

[31] Id.

[32] Michael Ollove, Elderly Inmates Burden State Prisons, Stateline (Mar. 17, 2016), available at http://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2016/03/17/elderly-inmates-burden-state-prisons.

[33] La. Pub. Safety & Corr., Briefing Book 28 (2017), available at http://www.doc.la.gov/media/1/Briefing%20Book/Jan%202017/full.jan.17.update.pdf.

[34] See id. at 38.

[35] See id. at 28.

[36] See id.

[37] See id.

[38] Task Force Report, supra note 1, at 23.

[39] Life Sentences, Ga. State Bd. of Pardons and Paroles available at , https://pap.georgia.gov/life-sentences.

[40] Pardon and Parole Protests, Ala. Off. of the Att’y Gen.; available at http://www.ago.state.al.us/Page-Victims-Assistance-Pardon-And-Parole-Protests.

[41] Task Force Report, supra note 1, at 56-57.

[42] Id. at 57.

[43] Id. at 23.

[44] Laurence Steinberg et al., Psychosocial Maturity and Desistance From Crime in a Sample of Serious Juvenile Offenders 2, 8 (2015), available at https://www.ojjdp.gov/pubs/248391.pdf; Interview with Sandra Aamodt, Brain Maturity Extends Well Beyond Teen Years, NPR (Oct. 10, 2011); available at http://www.npr.org/templates/story/story.php?storyId=141164708.

[45] L.P. Spear, The Adolescent Brain and Age-Related Behavioral Manifestations, 24 Neuroscience & Biobehav. Revs. 417, 421 (2000).

[46] Steinberg, et al., supra note 44, at 9.

[47] U.S. Dep’t of Just., OJJDP Statistical Briefing Book, Age-Specific Arrest Rate Trends (2011); U.S. Dep’t of Just, Fed. Bureau of Investigation, Age-Specific Arrest Rates and Race-Specific Arrest Rates for Selected Offenses 1993-2002 3-4 (2003).

[48] See Montgomery v. Louisiana, 136 S. Ct. 718 (2016); Miller v. Alabama, 567 U.S. 460 (2012); Roper v. Simmons, 543 U.S. 551 (2005).

[49] La. Cntr. for Children’s Rights, Louisiana Must Give Children Sentenced to Die in Prison a Chance at Release, Rules SCOTUS (Jan. 25, 2016),, available at http://www.laccr.org/news/louisiana-must-give-children-sentenced-to-die-in-prison-a-chance-at-release-rules-scotus; Juvenile Lifers, Including 300+ in Louisiana, Await Chance for Parole After U.S. Ruling, Times-Picayune (June 20, 2016), available at   http://www.nola.com/crime/index.ssf/2016/06/juvenile_lifers_including_300.html.

[50] The Sentencing Proj., Policy Brief: Juvenile Life Without Parole 2 (2017), available at http://www.sentencingproject.org/wp-content/uploads/2015/12/Juvenile-Life-Without-Parole.pdf.

[51] Id.

[52] Id.

[53] Id.

[54]The Sentencing Project, State by State Data, available at http://www.sentencingproject.org/the-facts/#map

[55] John R. Mills, et al., Juvenile Life Without Parole in Law and Practice: Chronicling the Rapid Change Underway, 65 Am. U. L. Rev. 535, 556-560 (2016).

[56]The Sentencing Project, State-by-State Data, available at http://www.sentencingproject.org/the-facts/#detail?state1Option=Minnesota&state2Option=Alaska

[57] Cindy Chang, Angola Inmates Are Taught Life Skills, Then Spend Their Lives Behind Bars, Times-Picayune (May 15, 2012), available at http://www.nola.com/crime/index.ssf/2012/05/angola_inmates_are_taught_life.html.

[58] Task Force Report, supra note 1, at 32-34 (Recommendation 1).

[59] Dep’t. of Pub. Safety & Corr. and the Comm. on Parole, Report in Response to Senate Concurrent Resolution No. 38 of the 2016 Regular Session of the Louisiana Legislature Regarding Parole Matters 36 (2016), available at http://www.doc.la.gov/media/1/PardonParole%20Policies/2.15.17.2016.scr.38.report.pdf.

[60] Task Force Report, supra note 1, at 58 (Majority Recommendation 3).

[61] In 1996, the federal government passed the Violent Crime Control and Law Enforcement Act, offering federal funding if states promised their violent offender inmates would serve a substantial portion of their sentences. See William J. Sabol, et al., The Influences of Truth-in-Sentencing Reforms on Changes in States’ Sentencing Practices and Prison Populations iii (2002), available at http://www.urban.org/sites/default/files/publication/60401/410470-The-Influences-of-Truth-in-Sentencing-Reforms-on-Changes-in-States-Sentencing-Practices-and-Prison-Populations.PDF.

[62] Task Force Report, supra note 1, at 21.

[63] Task Force Report, supra note 1, at 58 (Majority Recommendation 3).

[64] U.S. Sentencing Comm., Recidivism Among Federal Offenders: A Comprehensive Overview 5 (2016), available at http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2016/recidivism_overview.pdf.

[65] Ram Subramanian & Ruth Delaney, Vera Inst. of Just., Playbook for Change? States Reconsider Mandatory Sentences 5 (2014), available at http://archive.vera.org/sites/default/files/resources/downloads/mandatory-sentences-policy-report-v2b.pdf (citing Pew Center on the States, State of Recidivism: The Revolving Door of America’s Prisons (2011); Don Stemen, Vera Inst. of Just., Reconsidering Incarceration: New Directions for Reducing Crime (2007).

[66] H.B. 585, 2014 Reg. Sess. (Miss. 2014); see also Samantha Harvell, et al., Urban Inst., Reforming Sentencing and Corrections Policy: The Experience of Justice Reinvestment Initiative States 20 (2016), http://www.urban.org/sites/default/files/publication/86691/reforming_sentencing_and_corrections_policy_final.pdf.

[67] Harvell, et al., supra note 62.

[68] Maryland Justice Reinvestment Act, Maryland Alliance for Justice Reform, available at http://www.ma4jr.org/justice-reinvestment/.

[69] S.B. 163, 2015-2016 Reg. Sess. (Del. 2016); see also Nicole Porter, State Advances in Criminal Justice Reform, 2016, The Sentencing Project (Jan. 19, 2017) available at http://www.sentencingproject.org/publications/state-advances-criminal-justice-reform-2016/.

[70] Subramanian, supra note 48 at 14.

[71] Id.

[72] Marjorie Hernandez, Prop. 57 sends minors on new path through court system, Ventura County Star (Dec. 4., 2016), http://www.vcstar.com/story/news/courts/2016/12/04/prop-57-sends-minors-new-path-through-court-system/94816902/.

[73] Id.

[74] Louisiana Board of Pardons and Parole, 2014 Annual Report 14 (2014) at 14, available at http://doc.louisiana.gov/media/1/2014/12/2014-Board-of-Pardons-and-Parole-Annual-Report.pdf.

[75] La. R.S. 15:529.1.

[76] Id. see also La. R. S. 40:966(B)(1).

[77] La R.S. 14:2(B).

[78] Louisianan Given 13-Year Prison Sentence for Possession of Two Marijuana Cigarettes, Drug Policy Alliance (Apr. 16, 2014), http://www.drugpolicy.org/news/2014/04/louisianan-given-13-year-prison-sentence-possession-two-marijuana-cigarettes.

[79] Fl. Stat. Ann. § 775.084 (3)(a)(6).

[80] Task Force Report, supra note 1, at 58-59.

[81] Under the Task Force recommendations for classifications, examples of Class A, B, and C felonies include armed robbery, first degree robbery, and theft over $25,000. See id. at 33.

[82] Task Force Report supra note 1, at 58.

[83] Id.

[84] Time Served: The High Cost, Low Return of Longer Prison Terms, Pew Center on the States (2012), at 36, http://www.pewtrusts.org/~/media/legacy/uploadedfiles/wwwpewtrustsorg/reports/sentencing_and_corrections/prisontimeservedpdf.pdf (last visited Apr. 10, 2017).

[85] Id. at 37.

[86] Lauren Galik, The High Cost of Incarceration in Florida: Recommendations for Reform, Reason Foundation (2015), at 15-16, http://reason.org/files/florida_prison_reform.pdf (last visited Apr. 10, 2017) (citing Peter W. Greenwood et al., Three Strikes Revisited: An Early Assessment of Implementation and Effects, RAND, Aug. 1998. Prepared for the National Institute of Justice.)

[87] Three Strikes Reform Act (2012) (“Proposition 36”), http://www.lao.ca.gov/ballot/2012/36_11_2012.aspx (last visited Apr 10, 2017).

[88] Id.

[89] Three Strikes Basics, Stanford Law School Justice Advocacy Project, https://law.stanford.edu/stanford-justice-advocacy-project/three-strikes-basics/ (last visited Apr. 11, 2017).

[90] Id.

[91] Id.

[92] Id.

[93] John Simerman, Louisiana’s habitual-offender law used sparingly except in Orleans, Jefferson, St. Tammany, The Advocate (Oct. 6, 2016), http://www.theadvocate.com/new_orleans/news/courts/article_cb112404-8803-11e6-a553-eff6f3cbe5dd.html.

[94] Martin Kaste, States Push For Prison Sentence Overhaul; Prosecutors Push Back, NPR (Jul. 9, 2014), http://www.npr.org/2014/07/09/329587949/states-push-for-prison-sentence-reform-and-prosecutors-push-back.

[95] Advocate Editorial, Our Views: Take a Look at Repeat-Offender Penalties, The Advocate (Oct. 17, 2016), http://www.theadvocate.com/baton_rouge/opinion/our_views/article_2e034d1e-8c03-11e6-8ae2-8f429f4f884c.html.

[96] Id.

[97] Martin Kaste, States Push For Prison Sentence Overhaul; Prosecutors Push Back, NPR (Jul. 9, 2014), http://www.npr.org/2014/07/09/329587949/states-push-for-prison-sentence-reform-and-prosecutors-push-back.

[98] Task Force Report, supra note 1 at 59.

[99] La R.S.14:95.1

[100] Id. at 40 (citing La. Dep’t of Corr.).

[101] Id.

[102] Id.

[103] Id.

[104] Id. at 59 (Majority Recommendation 5).

[105] Id. at 40.

[106] See generally James Orlando, Penalties for Illegal Handgun Possession, Connecticut Office of Legislative Research (Aug. 7, 2012), available at https://www.cga.ct.gov/2012/rpt/2012-R-0345.htm.

[107] See id. In Nebraska, sentences range from three years to life in prison. Neb. Rev. Stat. § 28-1206.

[108] D.C. Code Ann. § 22-4503.

[109] Id.

[110]Ark. Code Ann. § 5-73-103.

[111] Id.

[112] Miss. Code Ann. § 97-37-5; Okla. Stat. Ann. tit. 21, § 1283; Tex. Penal Code § 46.04.

[113] Ala. Code § 13A-11-72.

[114] Conn. Gen. Stat. Ann. § 53a-217c.

[115] S.C. Code §§ 16-23-30, 16-23-500.

[116] Ga. Code Ann. § 16-11-131.

[117] Md. Code Ann., Pub. Safety § 5-133; N.Y. Penal Law § 400.00.

[118]Julia O’Donoghue, 7 hours before deadline, Louisiana Legislature OKs Budget Deal Close to What Governor Proposed, NOLA.com (February 22, 2017), http://www.nola.com/politics/index.ssf/2017/02/louisiana_budget_deal.html.

[119] Id.

[120] State Highlights Report: Louisiana Earns a D-Plus on State Report Card, Ranks 46th in Nation, Education Week (Dec. 30, 2016), available at http://www.edweek.org/ew/qc/2017/state-highlights/2017/01/04/louisiana-state-highlights-report-page.html?qs=louisiana.

[121] See Health Insurance Coverage in the United States: 2015, United States Census Bureau (Sept. 2016); available at https://www.census.gov/content/dam/Census/library/publications/2016/demo/p60-257.pdf (stating that, in 2015, around 546,000 Louisiana residents were not covered by health insurance, compared to its overall population of approximately 4.65 million).