Louisiana Justice Reinvestment: One State’s Fight to End the War on Drugs and Mass Incarceration

By Alanah Odoms Herbert on Criminal Justice Reform

An Excerpt From the Summer 2017 National Bar Association Civil Rights Law Section Newsletter – Part 2


Louisiana has the highest rate of incarceration in the nation, a rate nearly double the national average. Louisiana’s over reliance on incarceration has contributed to poor public safety outcomes typified by high recidivism rates and a crippling budget deficit, topping out at over $300 million. In fact, the state siphons away $700 million each year to fund corrections but has not seen a reasonable return on investment, with one in three people released from prison returning within three years. In 2015, the Louisiana legislature adopted House Concurrent Resolution 82 creating the Justice Reinvestment Task Force, an inter-branch, bi-partisan group of criminal justice experts, charged with developing recommendations for statutory and budgetary changes affecting sentencing and corrections practices.

In its Final Report, the Task Force found that Louisiana leads the nation in imprisonment because it incarcerates people for nonviolent offenses far more than other states do. Louisiana sends people to prison for drug, property, and other nonviolent offenses at twice the rate of South Carolina and three times the rate of Florida, even though these states have nearly identical crime rates. In fact, the top 10 most common crimes at admission for newly sentenced prisoners in 2015 were all non-violent, with possession of schedule II topping the list. Racial disparities are also rife in the system. The Pew Charitable Trust, which provided research and technical assistance to the Task Force, found that African Americans serve longer in prison on average than their white counterparts. Several aspects of Louisiana law explain these statistics and make the state an outlier. First, drug possession is a felony in Louisiana, whereas in many other states, it is a misdemeanor. Second, the Habitual Offender law is one of the harshest in the nation. The Task Force investigated the impact of the habitual offender law on Louisiana’s incarceration rate and found the number of newly-sentenced defendants penalized under the law more than doubled over the past 10 years. While prosecutors across the state customarily use the law as a hammer to influence plea negotiations, only a few parishes utilize the law with any frequency. For example, Orleans Parish surpassed every other judicial district in the state in its use of the habitual offender Law, shipping 154 offenders to prison to serve enhanced punishments in 2015. Even more troubling, statistics reveal that drug possession was the most common primary offense for newly-sentenced prisoners convicted under the law, refuting the notion that the harshest penalties are reserved for the most violent offenders. Third, defendants facing a third felony conviction in Louisiana are no longer eligible for probation, even if their offense is non-violent. All in all, this means Louisiana citizens face lengthy prison sentences for crimes that would never land them in prison in other states.

Louisiana Supreme Court Chief Justice Bernette Johnson delivered a severe critique of these draconian laws in a recent dissent, State v. Howard, 2015-1404 (La. 5/3/17). Johnson rejected her fellow justices’ decision to uphold a defendant’s 18 year prison sentence for possession with the intent to distribute 18 grams of marijuana noting that the state’s expert concluded the quantity “was more consistent with personal use” than intent to distribute. She further highlighted that incarceration for 18 years would cost Louisiana tax payers an astounding $400,000.

In June 2017, the Louisiana Legislature passed ten bills proposed by the Task Force with strong bipartisan majorities which will eliminate certain mandatory minimum sentences, narrow sentence ranges for drug possession, and will expand probation eligibility to third time non-violent offenders. With this ambitious package, the state will save $262 million, and reinvest $184 million or 70% into programs aimed at reducing recidivism. Most significantly, Louisiana will lose its longstanding title as the most imprisoned state in the nation!

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