BATON ROUGE -- The stars must have been perfectly aligned in 2001 when every imaginable party involved with the criminal justice process in the Legislature sat down at the same table.
Prosecutors offered an olive branch to defense lawyers, judges worked calmly with district attorneys and victims groups even took to non-hostile communications with prison officials.
On the proverbial chopping block were mandatory minimum sentences, as well as other measures enacted by “tough on crime” lawmakers. The harsher penalties had created booming prison populations, overworked courts and strained budgets. Collectively, the group came up with a few solutions to ease the pressure.
What a difference five years can make.
“The irony of all that is we’ve come full circle again,” said Rep. Danny Martiny, R-Metairie, who chairs the House Criminal Justice Committee. “It seems to go in cycles. One year we create the crime, then we come back and create the mandatory minimum sentence, then we take away (time off for good behavior).”
Martiny and others believe it’s time again to review the criminal statutes and insert more caution in the legislative process. If the system continues without accountability, serious problems now bubbling under the surface could rise up and detonate.
Prosecutors contend they’re being stretched thin because defendants are now virtually forced to go to trial. Judges want more discretion and they fear this trend will impact the civil docket, which is already competing for attention with criminal cases. Furthermore, prison officials say they don’t mind taking on more criminals, as long as there’s money attached, and victims groups agree there could be a fairer arrangement.
Yet even with all the clamoring voices, there is one major hiccup.
“It’s not that we don’t have the tools and resources for such a review,” Martiny said. “It’s if anyone wants to tangle with these issues right now. And next year will be even more difficult because it’s an election year and there will be people who will want to be tough on crime again.”
And therein resides the real political rub. No elected official wants to be viewed as soft. They are under pressure from their constituents to display real grit and, sometimes, they’re pushing stiffer laws in hopes of obtaining federal prison incentives.
Rep. Damon Baldone, D-Houma, also a member of criminal justice, is no stranger to mandatory minimums and escalating penalties. Last year, before images of post-Katrina thievery on Canal Street were exposed by news cameras, he passed legislation to establish a minimum sentence of three years for looting during a hurricane. Now he’s back this year trying to prohibit such offenders from receiving time off for good behavior.
He admitted not every law-breaker should be sent directly to jail -- depending on their circumstances -- but also cautioned the Legislature’s authority in this area should not be phased out.
“A special crime for beating up a vending machine, rather than damage to property, is ridiculous,” Baldone argued, “but creating something special for (looting) in a case where police are otherwise occupied is different.”
Lawmakers have indeed taken advantage of their right to file mandatory minimum bills, to the tune of two dozen on average each year since 2001. Additionally, just for the ongoing regular session, lawmakers have filed another 22 measures that would create new crimes, such as theft of oilfield equipment, assault on a utility worker with a firearm and picketing a funeral.
If every bill were passed every session, the financial impact would be substantial. For instance, Rep. Steve Scalise, R-Metairie, has a bill to create the crime of hurricane relief fraud, which would differ only slightly from the standard definition of fraud. Most notably, it requires at least two years in prison. According to a fiscal analysis, the change would cost the state more than $16,000 per prisoner for the mandatory sentence – and this doesn’t include court costs.
On the judicial side, this trend is forcing the courts to face a potential “breakdown,” said Hugo A. Holland, Jr., a Caddo Parish assistant district attorney and member of several prosecutors’ groups. With more people deciding to go to trail, resources and manpower are evaporating at an alarming rate.
“Penalties are becoming so draconian that people are willing to roll the dice and got to trail,” Holland said. “(The Legislature) passes things and they end up having unintentional consequences.”
One potential outcome is that criminal cases could start making it tough on civil cases to get equal attention, said Robert H. Morrison, an Amite district court judge and spokesperson for the Louisiana District Judges Association.
“You have to give priority to criminal cases because there’s a time limit on when you can prosecute them,” Morrison said, adding more discretion should be given to the bench to iron out criminal matters like sentences and statutory limits.
Orleans is the only parish in the state where this isn’t a problem, since criminal and civil cases are separated. There has been an ongoing effort, however, amongst some lawmakers to consolidate the courts in the Crescent City following Hurricane Katrina last year.
In some respects, the more specific new crimes become, the easier they are to defend due to the prosecution’s reasonable doubt responsibility, said George F. Steimel, a spokesperson for the Louisiana Association of Criminal Defense Lawyers.
“Everyone wants special protections, from businesses to residents, and they feel if they create the crime and define it, it’ll get rid of it,” Steimel said. “That’s the mindset, but it doesn’t always work that way.”
Meanwhile, Louisiana’s prison population has more than doubled since 2000, according to a legislative report, and the system requires more money every year. Richard Stalder, state corrections secretary, said he doesn’t mind taking on more prisoners, just as long as there’s some accountability for sending them.
Martiny agreed this isn’t always carried out and says in order to reign in the system, it’s a good idea to understand where it all starts -- and that can be a challenge in itself. Sometimes emotions play a part in excessive laws, like the fiery debate during the 70s that gave birth to life sentences for heroin possession. Only later did people come to realize that other drugs were just as bad, he adds, even though they carried lighter penalties.
“Sometimes we just overreact,” Martiny said. “We should take a step back and calm down, but that’s hard to do.”
Recently, technology seems to be an impetus for new crimes as well. Cell phones, for instance, have spurred bills to be filed recently banning their use when driving or when being arrested by a police officer. Comments by Fox talk show host Bill O'Reilly slamming Louisiana’s sex offender laws also prompted legislators to file nearly three dozen bills addressing the topic this year.
An in-depth review is “not out of order,” said Pete Adams, who has been lobbying the Legislature for more than 30 years as executive director of the Louisiana District Attorneys Association. But for this to happen, the interested parties will have to wait for new leadership to come in, at which point elections would have wrung out any fears, term-limited lawmakers will be gone and the entire Capitol will practically be a blank slate.
“Then we will have some people who will have to live with the future impact in coming years,” Adams said. “Someone will have to be accountable.”