Law and Disorder

by Jeremy Alford

The creation of new crimes and mandatory sentences needs to be curbed by the Legislature, but politics are making it difficult.

The stars and moon were perfectly aligned in 2001, when every imaginable party involved with the criminal justice policy process at the state Legislature sat down at the same table with the same goal. Prosecutors offered an olive branch to defense lawyers, judges worked calmly with district attorneys, and victims groups even took a measured approach in communicating with prison officials.

Mandatory minimum sentences were on the chopping block, as well as other measures previously enacted by lawmakers who wanted to be tough on crime. The harsher penalties created a booming prison population, overworked courts and strained budgets. Collectively, the group came up with a few ways to ease sentences and carve out alternatives to incarceration.

What a difference five years can make.

"The irony of all that is we've come full circle again," says Metairie Rep. Danny Martiny, who chairs the House Criminal Justice Committee. "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]. Pretty soon, it mounts up."

Martiny and others believe it's time to take more of a cautious approach in the Legislature and revisit criminal statutes to create viable options to long prison sentences. If the system continues to operate without changes, serious problems lurking 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 fear this trend will impact the civil docket, which is already competing for attention with criminal cases. Yet even with all the voices clamoring for reform, one overriding factor could thwart any momentum on the issue.

"It's not that we don't have the tools and resources for such a review," Martiny says. "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."

There's the political rub. No elected official wants to be viewed as soft, and legislators are under pressure from their constituents to display real grit. As a result, they're often pushing stiffer laws in hopes of obtaining federal prison incentives.

Houma Democratic Rep. Damon Baldone serves on the criminal justice committee and is no stranger to mandatory minimums and escalating penalties. Last year, before news cameras captured images of post-Katrina thievery on Canal Street, he passed legislation to establish a minimum jail sentence of three years for looting during a natural disaster. Now Baldone is back this year trying to prohibit such offenders from receiving time off for good behavior.

He admits not every law-breaker should be sent directly to jail ' depending on their circumstances ' but says the Legislature's authority to dictate sentences should not be completely phased out.

"A special crime for beating up a vending machine, rather than damage to property, is ridiculous," Baldone argues, "but creating something special for theft (or looting) in a case where police are otherwise occupied is different."

Lawmakers have 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 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 passed every session, the financial impact would be substantial. For instance, Metairie Rep. Steve Scalise filed legislation this year to create a new crime for hurricane relief fraud, which would differ only slightly from the standard definition of fraud already on the books. It requires at least two years in prison. According to a fiscal analysis, this bill alone would cost the state more than $16,000 annually ' just for the prison system, not the courts.

On the judicial side, this trend is forcing the courts to face an eventual breakdown, says Hugo A. Holland Jr., an assistant district attorney in Caddo Parish and a member of several prosecutors' groups. With more people deciding to go to trial, resources and manpower are evaporating at an alarming rate.

"Penalties are becoming so draconian that people are willing to roll the dice and go to trial," Holland says. "[The Legislature] passes things, and they end up having unintentional consequences."

One potential outcome is that criminal cases could make it tough on civil cases to get equal attention in courtrooms around the state. "You have to give priority to criminal cases because there's a time limit on when you can prosecute them," says Judge Robert H. "Bob" Morrison, a district court judge from Amite and spokesman for the Louisiana District Judges Association. Morrison says the bench should have more discretion 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. But there has been an ongoing effort among some lawmakers to consolidate Crescent City courts following Hurricane Katrina.

In some respects, the more specific new crimes become, the easier they are to defend, due to the prosecution's responsibility to prove them beyond a reasonable doubt, says George F. Steimel, a spokesperson for the Louisiana Association of Criminal Defense Lawyers.

"We probably already have every crime there is to have on the books, but people keep creating these specialty crimes," Steimel says. "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."

Louisiana's prison population has more than doubled since 2000, and the prison system requires more money every year. Richard Stalder, state corrections secretary, says he doesn't mind taking more prisoners into the system, just as long as there's some accountability from lawmakers for sending them there.

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 realize that other drugs were equally dangerous, even though they carried lighter penalties.

"Sometimes we just overreact," Martiny says. "We should take a step back and calm down, but that's hard to do."

Cell phones, for instance, have spurred recently filed bills banning their use when driving or when being arrested by a police officer. And comments by Fox News talk show host Bill O'Reilly slamming Louisiana's sex offender laws prompted legislators to file nearly three dozen bills addressing the topic this year.

An in-depth review is "not out of order," says 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 says. "Someone will have to be accountable."