A Step Towards Criminal Justice Reform: Act 122

by Brennan O’Keefe

Introduction

The United States national incarceration rates are at an all-time low over the past 20 years; yet, the United States still has the highest incarceration rate in the world.[1] Roughly 25% of the world’s total prison population is held in the United States—approximately 2.2 million prisoners.[2] Louisiana, crowned “America’s prison capital,” leads the country in terms of imprisonment, with 1,094 people in prison per 100,000 people when accounting for prisons, jails, immigration detention, and juvenile justice facilities.[3] This staggering statistic extrapolates to almost 50,000 people imprisoned in Louisiana.[4]

It is without question that high incarceration rates strain government spending. According to the VERA Institute of Justice, the average cost of detaining an inmate in Louisiana was $17,486 per year in 2012.[5] In 2010, the Louisiana Department of Public Safety and Corrections spent $698 million, which was 12.9% more than the state-allotted budget.[6] John Bel Edward’s gubernational win appeared to be a step toward reducing Louisiana’s status as America’s prison capital. In 2017, Edwards signed the most comprehensive criminal justice reform in Louisiana’s history.[7] The bipartisan package consisted of ten bills focused on non-violent, non-sex offenders and was designed to drive less serious offenders away from prison, strengthen imprisonment alternatives, reduce prison terms, and remove barriers to successful community re-entry.[8] In furtherance of his commitment to criminal justice reform, Governor Edwards signed Act 122—House Bill 145—into law in June 2021. This act could reduce parole times for nearly 3,000 lifers, habitual criminals, and old-timers.[9]

Act 122 amends and reenacts Louisiana Revised Statutes § 15:574.4(A)(2) and (B)(1) and enacts § 15:574.4(A)(6).[10] Section 15:574(A)(2) was revised and enacted as follows:

Notwithstanding the provisions of Paragraph (1) of this Subsection or any other law to the contrary, unless eligible for parole at an earlier date, a person committed to the Department of Public Safety and Corrections for a term or terms of imprisonment with or without the benefit of parole for thirty years or more shall be eligible for parole consideration upon serving at least twenty years of the term or terms of imprisonment in actual custody and upon reaching the age of forty-five. This provision shall not apply to a person serving a life sentence unless the sentence has been commuted to a fixed term of years. The provisions of this Paragraph shall not apply to any person who has been convicted of a crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541 when the offense was committed on or after August 1, 2014.[11]

The prior version of § 15:574(A)(2) permitted parole for persons sentenced to a term of 30 years, with or without the benefit of parole, who had served at least 20 years and reached the age of 45.[12] However, the provisions did not apply to persons convicted under Louisiana Revised Statutes § 14:64 or to any person convicted “of a crime of violence as defined in R.S 14:2(B) or a sex offense as defined in R.S. 15:541.”[13] With the relevant changes in Act 122, a person convicted under § 14:64 for armed robbery may now seek parole relief under § 15:574.4(A)(2).[14]  Section 15:574.4(A)(2) works in tandem with § 15:574.4(B)(1), which explicitly removed the language that “[n]o person shall be eligible for parole consideration who has been convicted of armed robbery and denied parole eligibility under the provisions of R.S. 14:64.”[15] Additionally, persons convicted of a “crime of violence as defined in R.S. 14:2(B) or a sex offense as defined in R.S. 15:541” may seek parole relief under this provision if the “offense was committed [before] August 1, 2014,” although there are other restrictions outside the scope of this article.[16]

Furthermore, the Louisiana legislature enacted § 15:574.4(A)(6), which now reads:

(a) Notwithstanding the provisions of Paragraph (1) of this Subsection or Subsection B of this Section or of any provision of law to the contrary, a person committed to the Department of Public Safety and Corrections shall be eligible for parole consideration upon serving fifteen years in actual custody if all of the following conditions are met:

(i) The person was not eligible for parole consideration at an earlier date.

(ii) The person was sentenced to life imprisonment without parole, probation, or suspension of sentence after being convicted of a third or subsequent felony offense under R.S. 15:529.1 for the instant offense.

(b) The provisions of Subparagraph (b) of this Paragraph shall not apply to any person who meets any of the following criteria:

(i) The instant conviction is a crime of violence under R.S. 14:2(B)

(ii) The instant conviction or any prior conviction, whether or not that prior conviction was used in the habitual offender conviction under R.S. 15:529.1, is both a crime of violence under R.S. 14:2(B) and a sex offense under R.S. 15:541.

(iii) The person would still qualify for a sentence of life imprisonment without parole, probation, or suspension of sentence as a third or subsequent offense under R.S. 15:529.1, as it was amended by Act Nos. 257 and 282 of the 2017 Regular Session of the Legislature.

Therefore, § 15:574.4(A)(6) may provide parole to many prisoners who would otherwise be ineligible. Accordingly, prisoners who have served 15 years in actual custody shall be eligible for parole if: (1) the person was not eligible for parole consideration at an earlier date and (2) the person was sentenced to life imprisonment without parole, probation, or suspension of sentence after being convicted of a third or subsequent felony offense under § 15:529.1 for the instant offense.[17] However, the provision is inapplicable if: (1) the instant conviction is a crime of violence; (2) the instant conviction or any prior conviction is both a crime of violence and a sex offense; or (3) the person would still qualify for a sentence of life imprisonment without parole, probation, or suspension of sentence as a third or subsequent offense under § 15:529.1.[18] Ultimately, the revisions and enactments allow new opportunities for parole to people who would have spent significantly more time behind bars.

The changes come just a year after retired Louisiana Supreme Court Justice Bernette Johnson opined that Louisiana’s habitual-offender statute was “largely designed to re-enslave African Americans.”[19] Act 122’s changes attempt to combat Louisiana’s contradictory parole laws that were enacted in large part during the “war on crime” throughout the 1980s, 1990s, and early 2000s.[20] Act 122 passed with flying colors as legislators and prosecutors alike saw the Act as untangling the confusing and overlapping parole eligibilities that depended on when a particular crime was committed.[21] Kerry Myer, deputy director of the Louisiana Parole Project, commented that Act 122 “is a very significant piece of legislation that restores equity to the system.”[22] Further, Natalie LaBorde—executive counsel to the Louisiana Department of Corrections—opined that “[t]he changes in Act 122 that allow for parole eligibility after 15 years for people with a life sentence for nonviolent offenses put prior laws more in line with the reforms passed in 2017.”[23] These comments demonstrate how Act 122 will reinforce Governor John Bel Edward’s commitment to criminal justice reform, initiated in 2017.

Perhaps the most concerning change in Act 122 is that it opens the possibility of parole for persons convicted under § 14:64, which criminalizes armed robbery. Yet, imagine a situation where a 20-year-old commits an armed robbery. Under § 15:574.4(A)(2), this person would be eligible for parole upon serving 20 years or more of a 30-year sentence and reaching the age of 45.[24] Therefore, the person would have to serve 25 years of the 30-year sentence to even be eligible for parole, assuming there was no previous parole option.[25] Surely Louisiana believes in its criminal justice system enough to rehabilitate offenders so they can peacefully reenter the community after 25 years.

Furthermore, as a spin on the foregoing hypothetical, imagine that same 20-year-old was convicted of armed robbery, got out of jail, and then reentered jail on a life sentence, without the benefit of parole, for a rather minor crime, but as a repeat offender. Before the enactment of § 15:574.4(A)(6), this person would be ineligible for parole because § 15:574.4(A)(2) is inapplicable to “a person serving a life sentence unless the sentence has been commuted to a fixed term of years.”[26] Now, § 15:574.4(A)(6) would permit this person to be eligible for parole upon serving 15 years of the sentence in actual custody.[27] Logically, this change makes sense because Louisiana should want the criminal justice system to work for the people rather than against. Thus, skeptics—believing dangerous criminals will be released due to Act 122’s revisions and enactments—should have faith that the criminal justice system works toward rehabilitating criminals rather than assuming the opposite and refusing to allow offenders a second chance.

Regardless, although Act 122 was passed and signed into law, it will take time to see whether the intended benefits come to fruition. The changes allow for eligible inmates to receive a hearing before a parole board, but this does not mean that an inmate will receive immediate release. The parole board will scrutinize the inmate’s record—including criminal history, disciplinary record, and prison behavior—to determine whether parole release is appropriate.[28] Therefore, receiving a parole hearing is only half the battle because the inmate must have a record worthy of granting release. Accordingly, the fate of an inmate who receives a parole hearing is at the mercy of the parole board who ensures that a prisoner is ready to safely reenter the community.

Conclusion

Act 122 builds on Governor John Bel Edwards’s criminal justice reform initiated in 2017, but it may take time to see the benefits that the Act seeks. Ultimately, the parole board holds the power to monitor and grant parole release to those who could reap the benefits of Act 122. Act 122’s effectiveness is now in the hands of the criminal justice system and how well the system can rehabilitate offenders to demonstrate successful reentry into Louisiana’s communities. Time will tell how effective Act 122 really is, but the successful enactment is a step towards reducing Louisiana’s overcrowded prisons and enhancing the state’s public image. Moving forward, Louisiana must stay committed to criminal justice reform to ensure that previous and forthcoming laws work toward rehabilitating criminals with a focus on a safe and peaceful community reentry.

[1] Highest to Lowest – Prison Population Rate, World Prison Brief, https://www.prisonstudies.org/highest-to-lowest/prison_population_rate?field_region_taxonomy_tid=All [https://perma.cc/CP7Y-QAUP] (last visited Nov. 10, 2021). The countries with the highest prison population rates, measured in number of prisoners per 100,000 population, are: U.S. at 639, Rwanda at 580, Turkmenistan at 576, El Salvador at 564, and Cuba at 510. Id. The countries with the highest total prison populations are: U.S. at approximately 2.1 million prisoners, China at 1.7 million, Brazil at 810,000, and India at 500,000. Highest to Lowest – Prison Population Total, World Prison Brief, https://www.prisonstudies.org/highest-to-lowest/prison-population-total?field_region_taxonomy_tid=All [https://perma.cc/6VLE-GYSX] (last visited Nov. 10, 2021).

[2] Id.

[3] Lea Skene, Louisiana once again has nation’s highest imprisonment rate after Oklahoma briefly rose to top, The Advocate (Dec. 25, 2019), https://www.theadvocate.com/baton_rouge/news/article_4dcdfe1c-213a-11ea-8314-933ce786be2c.html [https://perma.cc/R4AA-92WL]; Louisiana Profile, Prison Pol’y Initiative, https://www.prisonpolicy.org/profiles/LA.html [https://perma.cc/9DNV-H9RZ] (last visited Oct. 4, 2021).

[4] Incarceration Trends in Louisiana, Vera Inst. of Just., https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-louisiana.pdf [https://perma.cc/UR4D-JEGA] (last visited Oct. 4, 2021).

[5] The Price of Prisons—Louisiana, Vera Inst. of Just. (Jan. 1, 2012), https://biotech.law.lsu.edu/courses/adlaw/2014s/price-of-prisons-louisiana-fact-sheet.pdf [https://perma.cc/9ZF5-TA2C].

[6] Id.

[7] Criminal Justice Reform, Off. of the Governor, https://gov.louisiana.gov/
index.cfm/page/58#:~:text=On%20June%2015%2C%202017%2C%20Louisiana,reform%20in%20the%20state’s%20history.&text=The%20state%20will%20reinvest%20an,in%20services%20for%20crime%20victims [https://perma.cc/S5E8-Z9JP] (last visited Oct. 4, 2021).

[8] Id.

[9] Mark Ballard, About 3,000 inmates in Louisiana could get parole under new law; here’s who would be eligible, The Advocate (Jul. 31, 2021), https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_6461957c-f234-11eb-9813-677f50cb4b9a.html [https://perma.cc/T9PT-Y7GU]. A habitual offender is “[a]ny person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state.” See La. R.S. 15:529.1. Section 15:574.4(A)(3), referred to as the “old-timers law,” permits parole consideration for prisoners “serving a life sentence for the production, manufacturing, distribution, or dispensing or possessing with intent to produce, manufacture, or distribute heroin” who have served “at least fifteen years of imprisonment in actual custody.” See Sinclair v. Kennedy, 701 So. 2d 457, 458 (La. Ct. App. 1st Cir. 1997).

[10] Act 122, H.B. 145, 2021 Leg., Reg. Sess. (La. 2021).

[11] Id.

[12] Id.

[13] Id.

[14] Act 122, H.B. 145, 2021 Leg., Reg. Sess. (La. 2021).

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Ballard, supra note 9; see State v. Bryant, 300 So. 3d 392, 393 (La. 2020).

[20] Ballard, supra note 9.

[21] Id.

[22] Id.

[23] Id.

[24] Act 122, H.B. 145, 2021 Leg., Reg. Sess. (La. 2021).

[25] Id.

[26] Id.

[27] Id.

[28] La. Stat. Ann. § 15:574.2(6).

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