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] Continue reading

A Constitutional Development? The Electric Chair as a Default Execution Method

by Chaz Morgan

Introduction

On May 14, 2021, South Carolina Governor Henry McMaster signed Act 43, a law setting electrocution as the default method of execution in South Carolina.[1] The act also allows inmates to alternatively select a firing squad or lethal injection—if the requisite drugs are available—as a means of execution in lieu of the electric chair.[2] Under South Carolina’s previous law, lethal injection was the default method of execution if inmates did not choose the electric chair.[3] However, the companies that produce the drugs necessary for lethal injection began refusing to sell the drugs to South Carolina to subvert its attempts to carry out death sentences.[4] Simultaneously, inmates refused to choose the electric chair, thereby preventing the state from carrying out its sentences.[5]

Act 43’s use of the electric chair as the default method of execution and the addition of the firing squad—a legal execution method in several other states—as an alternative method have raised questions as to whether these methods are cruel and unusual punishment under the United States Constitution’s Eighth Amendment.[6] If they are cruel and unusual, then these methods are prohibited forms of execution.[7] If they are not cruel and unusual, then the new law is constitutional.[8] Continue reading

Stipulating Vicarious Liability to Avoid Direct Negligence Claims: Why This Relic of the Past Should Be Abandoned in Louisiana

by Natalie R. Earles

Introduction

Imagine that Pierre is driving down the highway in his vehicle. A semi-trailer truck, driven by Étienne, crosses the centerline and crashes into Pierre. It is later discovered that Étienne was intoxicated at the time of the accident and had been fired from his previous truck-driving job for causing four accidents while under the influence. Pierre sues both Étienne and his employer, Big Trucks, Inc. He claims that Étienne was negligent in his operation of the truck and that Big Trucks, Inc. is vicariously liable. He also claims that Big Trucks, Inc. is independently negligent in its hiring, training, and supervising of Étienne and in its entrustment of the truck to Étienne. If the employer stipulates that Étienne was acting in the course and scope of his employment at the time of the accident, a Louisiana court is likely to dismiss Pierre’s independent negligence claims against Big Trucks, Inc.

This outcome is based on a centuries-old tort rule that this Piece dubs the “stipulation rule.” The rule provides that when an employer assumes vicarious liability for its employee’s negligence, the plaintiff may not pursue additional theories of liability against the employer.[1] The stipulation rule originated in Houlihan v. McCall, a 1951 decision of the Maryland Supreme Court.[2] In Houlihan, plaintiffs injured in an automobile accident sued both the truck driver involved and the driver’s employer for negligent hiring or retention.[3] The employer acknowledged an agency relationship with the truck driver.[4] At trial, the court admitted evidence of the employee’s driving record, and the jury found for the plaintiffs.[5] Maryland’s highest court reversed, reasoning that because the employer stipulated that the driver was its agent, it was “unnecessary to pursue the alternative theory” of negligence to hold the defendant liable.[6] The court concluded that the trial court erred by admitting the driver’s record because where agency is stipulated, the employee’s driving record served “no purpose except to inflame the jury.”[7]

Continue reading

When Are Defendants Entitled to an Additional Medical Examination? The Correct Interpretation of “Good Cause” in Louisiana Code of Civil Procedure Article 1464

by Heidi Bieber

Introduction

For many years, Louisiana Civil Code of Procedure article 1464 has granted defendants the right to have plaintiffs submit to a physical examination, known as an additional medical examination (AME), when the plaintiff’s medical condition is a “matter in controversy” and “good cause” is shown.[1] Louisiana appellate courts, however, are split on the meaning of good cause. The split has been especially complicated by the Louisiana First Circuit’s recent interpretation in Hicks v. USAA General Indemnity Co.[2] Presently, both the Second and First circuits hold that the ability of the movant to obtain the desired information by other means determines whether good cause is shown for ordering an AME.[3] Additionally, the First Circuit requires the AME physician to review deposition testimony and medical records and then justify why good cause exists for the examination under article 1464.[4] Conversely, the Third and Fourth circuits hold that good cause exists when the plaintiff places his or her mental or physical condition in controversy and fairness dictates the defendant receive an AME in order to rebut the plaintiff’s experts at trial.[5]

The decisions of the First and Second circuits impose a legal standard for good cause under article 1464 that is unsupported by any legislative or jurisprudential basis. Because the defendant in Hicks recently filed a writ with the Louisiana Supreme Court challenging the First Circuit’s decision, the Court may finally provide clarity to the issue. In addressing the issue, the Louisiana Supreme Court should adopt the Third and Fourth circuits’ interpretation of good cause, which is supported by the United States Supreme Court’s holding in Schlagenhauf v. Holder.[6] Continue reading

Volume 82 Junior Associates Announced!

The Louisiana Law Review Volume 82 Board of Editors and Senior Associates would like to extend our congratulations to the newly selected Volume 82 Junior Associates. It is a great honor to be selected as a Junior Associate, and we are very excited to introduce them to you!

The Louisiana Law Review Editorial Board and Senior Associates welcome the following:

Jack Aguillard

Eric Alborn

Jennifer Baker

Kimberly Cook

Stephen Cox

Hailey Cummiskey

Luke Dupre’

Tyler Frederick

Andrew Hughes

Emily Martin

William Mathews

Matthew McCain

John Newman

Lily Pavy

Brooke Reedy

Mikha Romero

Jon Ruello

Catherine Rutherford

Baylee Smith

Macy Spencer

Margaret Sternberg

Paul Veazey

Emily Vest

Blake Vick

Fallon Voltolina