WEEKLY NEWS COLUMN 05.24.06
Law and Disorder
The creation of new crimes and mandatory sentences need to be
curbed by the Legislature, but politics are making it difficult.
By Jeremy Alford
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.”
Syndicated Work
POLITICAL BRIEFS
No Gas-Price Gouging?
Even though the Attorney
General's Office was inundated
with complaints about gas
stations jacking up their prices
during last fall's two
hurricanes, the subsequent
investigations yielded nothing.
In other states where Katrina
and Rita never made landfall,
however, there were
convictions, settlements and
major fines issued for similar
violations. Nearly 1,500
consumers statewide called or
mailed in complaints to the
office's Consumer Protection
Section last year before and
after the hurricanes, says
Jennifer Cluck, an AG
spokeswoman. "But upon
further investigation, none of
them rose to the level of where
they would have violated that
pricing statute," she says,
referring to a law the
Legislature passed last year to
curb such abuse. The state
attorney general is responsible
for enforcing the law that
prohibits providers of goods
and services in Louisiana from
increasing prices when a
tropical storm or hurricane
enters the Gulf of Mexico.
Attorneys and economists
have slammed the law as
vague and difficult to enforce.
While Louisiana was unable to
find violators following the
hurricanes, New York Attorney
General Eliot Spitzer launched
a three-month probe following
Katrina and fined 15 stations a
total of $63,500. Georgia
Governor Sonny Perdue
oversaw 15 settlements
resulting from gas gouging,
including both consumer
restitution and civil penalties
ranging from $1,000 to
$10,000.
Bucking State Workers
State Rep. Warren Triche, a
Chackbay Democrat, will push
legislation during the upcoming
regular session to decrease
the number of state jobs by
offering some workers early
retirement options. In the past,
early retirement has been
offered as an alternative to
workers who had a terminal
illness or a spouse taking a job
out of state. "But the
hurricanes last year changed
everything," Triche says.
"Many people who want to go
back to their jobs can't
because the jobs aren't there
any more." Others have also
been displaced or have lost
everything and are exploring
new options, he adds. House
Bill 45 is nearly identical to two
other early retirement bills
Triche has pursued in recent
years, and neither faced heavy
opposition from the
Legislature. This year's version
would offer early retirement to
members of the Louisiana
State Employees' Retirement
System who are at least 50
years old with 10 years of
service. If a state employee
decides to take advantage of
the program, he or she would
receive a retirement benefit
equal to as much as 2 percent
of their average compensation
multiplied by the number of
years of creditable service.
Only one out of every three
positions left vacant by the
program would be refilled,
Triche says, unless the
commissioner of administration
and the secretary of state Civil
Service decide to retain the
post. The program would run
from Jan. 1, 2007, through
Dec. 31, 2008. It's unclear how
many state employees might
take advantage of the option.
Digital Politics
Unless you're a political hound,
it may be difficult to ascertain
the face behind the Louisiana
Political News Service, an email
newsletter and blog site that
roasts and cheers certain
elected officials. Although he
claims it isn't a huge secret --
just try finding his name
attached to
lapoliticalnews.blogspot.com --
the blogger is none other than
Pat Bergeron, a well-known
political operative in Baton
Rouge. "Most people who know
anything about politics know
it's my blog," Bergeron says.
More than 16,500 people
receive the email newsletter,
he says, and even more check
out the Web site. While
Bergeron bills the site as an
"independent, nonpartisan
blog," it does take a
heavy-handed approach
toward certain politicos --
particularly those running
against candidates Bergeron
gets paid to promote, like New
Orleans mayoral hopeful
Peggy Wilson and secretary of
state bidder Mike Francis.
Bergeron claims he is "not
exactly attacking folks," just
"putting real news stories on
there and commenting on
them." Those who have borne
the brunt of his "stories" no
doubt would argue otherwise.
Tag 'Em
It may cost you a few bucks to
get into certain areas of
Plaquemines Parish these
days, especially the locales
devastated by Katrina. The
sheriff's office there has been
charging a $10 "processing
fee" to visitors and others for
an identification badge. Two
weeks ago, the state attorney
general's office ruled that state
law neither prohibits nor
authorizes such a tactic and
the sheriff's actions "do not yet
appear to rise to the level of
malfeasance in office." Col.
Charles Guey of the
Plaquemines Parish Sheriff's
Office says the decision was
made to keep an eye on
looters and other
troublemakers using the
wasteland for cover. "This just
gives us access control," he
says.
Hospital Hullabaloo
The state's public hospital
system is facing a $183 million
shortfall in the aftermath of
Hurricane Katrina, and the
deficiency is expected to trickle
down to medical centers in
Lafayette, Shreveport and
Baton Rouge. Officials at LSU's
Health Care Services Division,
which oversees several public
hospitals, say they need $870
million from the state budget
for the next fiscal year to
adequately provide services
and maintain programs. But
the governor's proposed $20.3
billion budget for the fiscal year
that begins July 1 earmarks
only $687 million for the
hospitals. Marvin McGraw,
director of communications for
the LSU health-care division,
says the shortfall could affect
hospital operations in areas
overburdened by the influx of
hurricane evacuees. "Certainly
there will be an impact on all of
the hospitals," he says. The
irony of the cuts is that the
governor's proposed budget is
based on a decline in New
Orleans-area patients, while
hospitals outside the hurricane
region are dealing with more
patients than ever. The public
hospital system began the
current fiscal year with a
budget of $900 million --
before the hurricanes shut
down the hospitals in New
Orleans. Meanwhile, LSU has
leased space in New Orleans
to open a trauma center with
in-patient beds and a
medical-surgical hospital.
Additionally, parts of University
Hospital should be up and
running by December. Officials
say the budget projections
could go up if more patients
use New Orleans hospitals and
the numbers remain high in
outlying areas.
