2017 RURAL COURTS SEMINAR · Senator Danny Martini – Metairie . Rev. Gene Mills – Louisiana...

2017 RURAL COURTS SEMINAR Monday, November 20, 2017

Justice Reinvestment: Changes in Penalties, Habitual Offenders, and

Alternatives to Incarceration

Judge Allison Penzato 1st Circuit Court of Appeal

Judge John LeBlanc 17th Judicial District Court

Doug Nichols Director, Louisiana Supreme Court Central Staff

JUSTICE REINVESTMENT TASK FORCE HISTORY

The Louisiana Legislature passed House Concurrent Resolution 82 in 2015 establishing the Louisiana Justice Reinvestment Task Force to examine the state’s criminal justice system and recommend strategic changes to get more public safety for each dollar spent.

JUSTICE REINVESTMENT TASK FORCE MEMBERS

Sheriff Mike Cazes – West Baton Rouge Parish

Senator Dan Claitor – Baton Rouge

Flozell Daniels – Foundation for Louisiana, New Orleans

Public Defender James Dixon – Baton Rouge

District Attorney Bo Duhe’ – 16th JDC, Iberia, St. Mary and St. Martin Parishes

Judge Bonnie Jackson – 19th JDC, Baton Rouge *

Chief Justice Bernette Johnson – Louisiana Supreme Court

Judge Lori Landry, 16th JDC, Iberia, St. Mary and St. Martin Parishes

Representative Terry Landry – New Iberia

Secretary James LeBlanc – Department Public Safety and Corrections, Baton Rouge

Representative Walt Leger – New Orleans

Representative Sherman Mack – Albany

Senator Danny Martini – Metairie

Rev. Gene Mills – Louisiana Family Forum, Baton Rouge

Judge Laurie White – Louisiana Sentencing Commission, New Orleans

*denotes former member

RECOMMENDATIONS

1. Ensure consistency in sentencing

2. Focus prison beds on those who pose a serious threat to safety

3. Strengthen community supervision

4. Clear away barriers to successful reentry

5. Reinvest a substantial portion of savings

LEGISLATION

Ten (10) bills sponsored by Senator Claitor, Senator Martiny, Senate President Alario, Representative Dwight, Representative Tanner Magee, Representative Leger, Representative Emerson, Representative Marino and Representative Moreno passed and were signed into law on June 15, 2017.

Today’s Discussion will focus primarily on three bills:

I. Senate Bill 220 (by Senate President Alario) which became Act 281-Changes in Penalties-effective August 1, 2017

II. Senate Bill 221 (by Senate President Alario) which became Act 282-Changes in Habitual Offender Sentencing-effective November 1, 2017

III. Senate Bill 139 (by Senator Martiny) which became Act 280-Alternatives to Incarceration/Changes to Probation and Parole Supervision-effective November 1, 2017

The information included in these charts was compiled by the Louisiana State Law Institute Code of Criminal Procedure Committee in response to 2017 Criminal Justice Legislation.

Listed below are the major changes affecting Louisiana’s sentencing structure.

SENTENCE REDUCTIONS (ACT 281)

The following chart outlines the major sentencing changes contained in Act 281. The Act targeted sentence reductions and benefit restrictions for a list of non-violent offenses; removed the crimes of “mingling harmful substances,” “extortion,” and “illegal use of weapons or dangerous instrumentalities” from the list of violent offenses and appertaining sentencing restrictions; and consolidated various “theft” statutes and raised the felony threshold to $1,000. The following chart shows the significant changes in Act 281. Affected

Statute Charge Old Law New Law

La. R.S. 14: 52

Simple Arson 2-15 yrs 0-15 yrs

La. R.S. 14:54.1

Communicating False Information of Planned Arson

0-20 yrs 0-15 yrs

La. R.S. 14:56

Simple Crim. Damage to Property

> $500 - felony > $1000 - felony

La. R.S. 14:62.2

Simple Burglary of an Inhabited Dwelling

1-12 without benefit ofparole, probation, orsuspension of sentence

1-12 with benefit of parole,probation, suspension ofsentence

La. R.S. 14:62.8

Home Invasion 0-25 yrs; aggravatingfactors "dangerousweapon" and "person <12 or > 65"

1-30 yrs; removedaggravating factors"dangerous weapon" and"person < 12 or > 65"

La. R.S. 14:67

Theft > $25,000 = 5-20 yrs,$50,000 fine; 6 pack;$5,000-$24,999.99 = 0-10yrs, $10,000 fine, 6 pack;$750-$4,999.99 = 0-5 yrs,$3000 fine, 6 pack; <$750 = 0-6 mos, < $1000

> $25,000=- 0-20 yrs, 12pack; $5,000 - $24,999.99 =0-10 yrs, 6 pack; $1000 -$4,999.9= 0-5 yrs, 6 pack;< $1000 = 0-6 mos; if 2 ormore prior theftconvictions - 0-2 yrs

Affected Statute

Charge Old Law New Law

La. R.S. 14:67.25

Organized Retail Theft < $500 =0-2 yrs; > $500 = 0-10 yrs

> $25,000=- 0-20 yrs,, 12pack; $5,000 - $24,999.99 =0-10 yrs, 6 pack; $1000 -$4,999.9= 0-5 yrs, 6 pack;< $1000 = 0-6 mos; if 2 ormore prior theftconvictions - 0-2 yrs

La. R.S. 14:67.26

Theft of Motor Vehicle <$500 = 0-6 mos; $500-$1,499.99 = 0-5 yrs; >$1500 = 0-10 yrs

> $25,000=- 0-20 yrs, 12pack; $5,000 - $24,999.99 =0-10 yrs, 6 pack; $1000 -$4,999.9= 0-5 yrs, 6 pack;< $1000 = 0-6 mos; if 2 ormore prior theftconvictions - 0-2 yrs

La. R.S. 14:68

Unauthorized Use of a Movable

<$500 = 0-6 mos; >$500 = 0-5 yrs

< $1000 = 0 - 6 mos; >$1000 = 0-2 yrs

La. R.S. 14:68.4

Unauthorized use of a Motor Vehicle

0-10 years 0-2 years

La. R.S. 14:68.7

Receipts and Universal Product Code labels

>$1500 = 0-10 yrs; $500-$1499.99 = 0-5 yrs; <$500= 0-6 mos

> $25,000=- 0-20 yrs, 12pack; $5,000 - $24,999.99 =0-10 yrs, 6 pack; $1000 -$4,999.9= 0-5 yrs, 6 pack;< $1000 = 0-6 mos, <$500fine; if 2 or more priortheft convictions - 0-2 yrs

La. R.S. 14:69

Illegal Poss. Of Stolen Things >$1500 = 0-10 yrs; $500-$1499.99 = 0-5 yrs; <$500= 0-6 mos

> $25,000=- 0-20 yrs,12pack; $5,000 - $24,999.99 =0-10 yrs, 6 pack; $1000 -$4,999.9= 0-5 yrs, 6 pack;< $1000 = 0-6 mos; if 2 ormore prior theftconvictions - 0-2 yrs

Affected Statute


La. R.S. 14:70.2

Refund or access device application fraud

>$1500 = 0-10 yrs; $500-$1499.99 = 0-5 yrs; <$500= 0-6 mos


La. R.S. 14:70.4

Access device fraud >$1500 = 0-10 yrs; $500-$1499.99 = 0-5 yrs; <$500= 0-6 mos


La. R.S. 14:71

Issuing worthless checks >$1500 = 0-10 yrs; $500-$1499.99 = 0-5 yrs; <$500= 0-6 mos


La. R.S. 14:82

Prostitution 2-4 yrs 0-4 yrs

La. R.S. 14:95.1

Poss. Of F/A or Carrying Concealed Weapon by Convicted Felon

10-20 yrs 5-20 yrs

La. R.S. 14:202.1

Residential contractor fraud >$1500 = 0-10 yrs; $500-$1499.99 = 0-5 yrs; <$500= 0-6 mos


La. R.S. 14:230

Money laundering > $100,000 = 5-90 yrs > $100,000 = 2 - 50 yrs

Affected Statute


La. R.S. 40:966

Penalty for Distribution/PWID/ Manuf Of Sch. I

See La. R.S. 40:966(B) Less than 28 grams = 1-10 yrs with benefit, 6 pack; 28 grams or more = 1-20 yrs with benefit, 12 pack. Marijuana = less than 2.5 lbs- 1-10 yrs, 6 pack; 2.5 lbs or more = 1-20 yrs, 12 pack, ; Heroin or fentanyl or mixture - 5-40 yrs with benefit, 12 pack.

La. R.S. 40:966

Penalty for Possession Of Sch. I

See La. R.S. 40:966(C)-(E) Less than 2 grams - 0-2 yrs , 6 pack; 2-27.999 grams - 1-10 yrs , six pack; greater than 28 grams - treat as Subsection A; Heroin or fentanyl or mixture - less than 2 grams - 2-4 yrs , six pack; 2-27.999 grams - 2-10 yrs , six pack; more than 28 grams - treat as Subsection A. Marijuana = no change;over 2.5 lb's - violation ofSubsection A.

La. R.S. 40:966

Tx for heroin or fentanyl as condition of probation

Upon conviction of distr. or poss. of heroin/fentanyl, court may suspend sentence if court: gets PSI indicating substance abuse, make condition of probation complete SA Tx, if does not complete program, ct. may revoke probation, see 40:966(G) for other requirements.

Affected Statute


La. R.S. 40:967

Penalty for Distribution/PWID/Manuf Of Sch. II

See La. R.S. 40:967(B) Less than 28 grams - 1-10 yrs, 6 pack; 28 grams or more - 1-20 yrs, 12 pack; Manu. of cocaine/ methamphetamine was 12 pack, now 6 pack.

La. R.S. 40:967

Penalty for Possession Of Sch. II

See La. R.S. 40:967(C)-(G) Less than 2 grams - 0-2 yrs, pack; 2-27.999 grams - 1-5 yrs , 6 pack; more than 28 grams = treat as Subsection A; phenylcyclidine - less than 28 grams - 1-20 yrs , 12 pack; greater than 28 grams = treat as Subsection A.

La. R.S. 40:968

Penalty for Distribtion/ PWID/Manuf. of Sch. III

0-10 yrs, 12 pack 1-10 yrs, 6 pack

La. R.S. 40:968

Penalty for Poss. Sch. III 0-5 yrs 1-5 yrs

La. R.S. 40:969

Penalty for Distribution/PWID/Manuf. of Sch. IV

flunitrazepam = 5-30 yrs, 12 pack; All other Sch. IV = 0-10 yrs, 12 pack


La. R.S. 40:969

Penalty for Possession of Sch. IV



La. R.S. 40:970

Penalty for Distribution of Sch. V

0-5 yrs, 12 pack 1-5 yrs, 6 pack

La. R.S. 40:970

Penalty for Poss. Of Sch. V 0-5 yrs, 6 pack 1-5 yrs, 6 pack

The Act also created the Felony Class System Task Force to study creation of a class system method to effect penalty changes to all felony offenses. The LDAA representatives on the Felony Class System Task Force are: Rob Vines (16th J.D.), Suzanne M. Williams (1st J.D.), and Kathleen Barrios (19th J.D.).

Felony Sentencing

To focus prison beds more on an inmate population who pose a serious threat to public safety, the

Legislature reduced sentences for certain felony offenses, removed less serious crimes from the violent

crimes list, tailored drug offenses according to weight, raised the threshold marking the dollar value

when theft and property damage become a felony, eliminated specialty property crimes, and created a

task force to study the concept of adopting a felony classification system.

Reducing Minimum and Maximum Sentences for Specified Crimes

Senate Bill 220 amending La. R.S. 14:52, 54.1, 62.2, 62.8, 68, 68.4, 82, 95.1, and 230

Effective August 1, 2017—not retroactive

SB 220 alters criminal penalties for the following offenses:

Offense Prior Law Current Law

Simple arson, damage more than $500 2 – 15 years 0 – 15 years

Communicating false info of planned arson 0 – 20 years 0 – 15 years

Simple burglary of an inhabited dwelling 1 – 12 years 1 – 12 years

Home invasion 0 – 25 years 1 – 30 years

Home invasion, armed with a dangerous weapon 5 – 30 years

Home invasion, vulnerable victim 10 – 25 years

Unauthorized use of a movable, value > $1,000 0 – 5 years 0 – 2 years

Unauthorized use of a motor vehicle 0 – 10 years 0 – 2 years

Prostitution, third and subsequent conviction 2 – 4 years 0 – 4 years

Possession of a firearm by a felon 10 – 20 years 5 – 20 years

Money laundering, value more than 100,000 5 – 99 years 2 – 50 years

Underlined sentences indicate that the minimum term is mandatory and cannot be suspended.

Removing Less Serious Offenses from the Violent Crimes List

Senate Bill 220 amending La. R.S. 14:2(B)


SB 220 removes the following offenses from the violent crimes list: mingling harmful substances,

extortion, and illegal use of weapons or dangerous instrumentalities.

Raising the Felony Theft Threshold to $1,000 and Consolidating Penalties across Theft Offenses

Senate Bill 220 amending La. R.S. 14:67, 67.25, 67.26, 68.7, 69, 70, 70.2, 71, and 202.1


SB 220 raises the dollar value at which theft or property damage is considered a felony from $500 or

$750, depending on the offense, to $1,000, for most property crimes. It also consolidates and simplifies

criminal penalties for the following theft crimes:

Offense Prior Law Current Law

Value of property Sentence Value of property Sentence

Theft More than $25,000 5 – 20 years More than $25,000 0 – 20 years

5,000 to $25,000 0 – 10 years $5,000 to $25,000 0 – 10 years

$750 to $5,000 0 – 5 years $1,000 to $5,000 0 – 5 years

Less than $750 0 – 6 months Less than $1,000 0 – 6 months

Less than $750, 3rd and subsequent

0 – 2 years Less than $1,000, 3rd and subsequent

0 – 2 years

Organized retail theft More than $500 0 – 10 years Same as theft

(penalties and ranges above) Less than $500 0 – 2 years

Theft of a motor vehicle

More than $1,500 0 – 10 years

$500 to $1,500 0 – 5 years

Less than $500 0 – 6 months

Receipts and universal product code labels; unlawful acts

More than $1,500 0 - 10 years

$500 to $1,500 0 – 5 years



0 – 2 years

Illegal possession of stolen things


$500 to $1,500 0 – 5 years



0 – 2 years

Refund / access device application fraud (penalty for refund fraud in (C)(1) unaffected)


$500 to $1,500 0 – 5 years



0 – 2 years

Access device fraud More than $1,500 0 – 10 years

$500 to $1,500 0 – 5 years


Third and subsequent conviction, any value

0 – 10 years

Issuing worthless checks


$500 to $1,500 0 – 5 years



0 – 2 years

Residential contractor fraud


$500 to $1,500 0 – 5 years


Eliminating Specialty Property Offenses

Senate Bill 220 repealing La. R.S. 14:56.1, 56.2, 56.3, 62.1, 62.6, 62.9, 67.1-67.3, 67.6 – 67.10, 67.18,

67.20, 67.21, 67.24, 67.28, 67.30, 68.5, and 211


SB 220 eliminates the following specialty crimes that are duplicative of other theft, property damage,

and burglary offenses: criminal damage to coin-operated devices; criminal damage of a pipeline facility;

criminal damage to genetically engineered crops, genetically engineered crop facilities, or genetically

engineered crop information; simple burglary of a pharmacy; simple burglary of a religious building;

simple burglary of a law enforcement or emergency vehicle; theft of livestock; theft of timber;

unauthorized use of “access card” as theft; theft of utility service; theft of petroleum products; theft of

oilfield geological survey, seismograph, and production maps; theft of oil and gas equipment; theft of

goods; cheating and swindling; theft of a business record; theft of assets of a person who is aged or a

person with a disability; theft of utility product; theft of copper or other materials; theft of animals;

unauthorized removal of property from governor’s mansion and the state capitol complex; and sale of

forest products.

Creating a Louisiana Felony Class System Task Force

Senate Bill 220 enacting La. R.S. 40:601


SB 220 establishes the Legislature’s intent that it is in the best interest of the public to have a felony

class system, whereby nearly every felony falls into a class, ensuring consistency across crimes of similar

severity and greater transparency for victims, defendants, and criminal justice practitioners. Accordingly,

the Legislature created the Louisiana Felony Class System Task Force and charged the body with

developing recommendations for the adoption of a felony class system. The task force must hold its first

meeting on or before September 15, 2017, have a minimum of six meetings before February 1, 2018,

and present recommendations for consideration before the 2018 legislative session.

Tailoring Sentences for Drug Offenses According to Weight

Senate Bill 220 amending La. R.S. 40:966 – 970


SB 220 tailors Louisiana’s drug possession and commercial drug penalties according to the weight of the

controlled substance involved in the offense. It does this in two ways: first, by carving out low-weight

possession offenses and limiting their maximum terms of incarceration, and, second, by tiering

sentences for commercial offenses (manufacture, sale, and possession with intent to distribute)

according to weight. A high-level summary of the final drug sentences is below, and a detailed

comparison of Louisiana’s current and prior drug laws is included on pages 11 through 16.

Overview of new criminal penalties for controlled substances

Possession of certain controlled substances in large quantities is treated as a commercial offense under

the new law.

Drug Schedule Weight Possession Offenses Commercial Offenses

Schedule I

Marijuana and

synthetic marijuana

0 – 2.5kg Unchanged 1 – 10 years

2.5kg+ 1 – 20 years

Schedule I

Substances other

than marijuana and

synthetic marijuana

0 – 2g Heroin: 2 – 4 years

Other: 0 – 2 years Heroin: 5 – 40 years

Other: 1 – 10 years 2g – 28g 1 – 10 years

28g+ Heroin: 5 – 40 years

Other: 1 – 20 years

Schedule II

0 – 2g 0 – 2 years 1 – 10 years

2g – 28g 1 – 5 years

28g+ 1 – 20 years

Schedule III Any 1 – 5 years 1 – 10 years

Schedule IV Any Flunitrazepam: 1 – 10 years

Other: 1 – 5 years

Flunitrazepam: 1 – 20 years

1 – 10 years

Schedule V Any 1 – 5 years 1 – 10 years

Schedule I: Marijuana and synthetic marijuana—possession offenses

Senate Bill 220 amending La. R.S. 40:966

Prior Law Current Law

Weight Threshold Sentence Weight Threshold Sentence

Marijuana

0 – 2.5 lbs 1st <14g: 0 – 15 days 1st >14g: 0 – 5 years 2nd: 0 – 6 months 3rd: 0 – 2 years Subsequent: 0 – 8 years

Unchanged

2.5 – 60 lbs 2 – 10 years 2.5+ lbs 1 – 20 years (treated as a commercial offense—see below)

60 – 2,000 lbs 5 - 30 years

2,000 – 10,000 lbs 10 – 40 years

10,000+ lbs 25 – 40 years

Synthetic marijuana

0 – 2.5 lbs 1st: 0 – 6 months 2nd: 0 – 5 years 3rd: 0 – 20 years

Unchanged

2.5 – 60 lbs 2 – 10 years 2.5+ lbs 1 – 20 years (treated as a commercial offense—see below)

60 – 2,000 lbs 5 – 30 years

2,000 – 10,000 lbs 10 – 40 years

10,000+ lbs 25 – 40 years


Schedule I: Marijuana and synthetic marijuana—commercial offenses (sale, distribution, manufacture,

and possession with intent to distribute)




Marijuana and synthetic marijuana

Any Amount 5 – 30 years 0 – 2.5 lbs 1 – 10 years

2.5+ lbs 1 – 20 years

Schedule I: Substances other than marijuana and synthetic marijuana—possession offenses




Schedule I narcotics, excluding heroin and fentanyl

<28g 4 – 10 years 0 – 2g 0 – 2 years

2 – 28g 1 – 10 years

28g - <200g 5 – 30 years 28g+ 1 – 20 years (treated as a commercial offense—see below)

200 - <400g 10 – 30 years

400g+ 15 – 30 years

Schedule I non-narcotics

Any amount 0 – 10 years 0 – 2g 0 – 2 years

2 – 28g 1 – 10 years

28g+ 1 – 20 years (treated as a commercial offense—see below)

Heroin and fentanyl

0 – 28g 4 – 10 years 0 – 2g 2 – 4 years

2 – 28g 2 – 10 years

28 – 200g 5 – 30 years 28g+ 5 – 40 years (treated as a commercial offense—see below)

200 – 400g 10 – 30 years

400g+ 15 – 30 years


Schedule I: All substances other than marijuana and synthetic marijuana—commercial offenses (sale,

distribution, manufacture, and possession with intent to distribute)




Schedule I narcotics, excluding heroin and fentanyl


28g+ 1 – 20 years

Schedule I non-narcotics


28g+ 1 – 20 years

Heroin and fentanyl

Any amount 1st: 10 – 50 years Subsequent: 10 – 99 years

Any amount 5 – 40 years


Schedule II: Amphetamine, methamphetamine, cocaine, oxycodone, and methadone—possession

offenses




Amphetamine, methamphetamine, and cocaine

0 – 28g 0 – 5 years 0 – 2g 0 – 2 years

2 – 28g 1 – 5 years


200 – 400g 10 – 30 years

400g+ 15 – 30 years

Oxycodone and methadone


2 – 28g 1 – 5 years



Schedule II: Amphetamine, methamphetamine, cocaine, oxycodone, and methadone—commercial

offenses (sale, distribution, manufacture, and possession with intent to distribute)




Amphetamine, methamphetamine, and cocaine

Any amount Cocaine: 2 – 30 years Other: 2 – 30 years

0 – 28g 1 – 10 years

28g+ 1 – 20 years

Production of amphetamine and meth / Production or manufacture of cocaine

10 – 30 years Unchanged

Production of meth in front of a minor <12

15 – 30 years Unchanged

Oxycodone and methadone

Any amount 2 – 30 years

Production or manufacture: 10 – 30 years

0 – 28g 1 – 10 years

28g+ 1 – 20 years


Schedule II: GHB, pentazocine, and phencyclidine—possession offenses




Gamma Hydroxybutyric Acid (GHB)

0 – 28g 0 – 5 years 0 – 2g 0 – 2 years

2 – 28g 1 – 5 years


200 – 400g 10 – 30 years

400g+ 15 – 30 years

Pentazocine


2 – 28g 1 – 5 years


Phencyclidine*

Any amount 5 – 20 years Any amount 1 – 20 years


*Prior to the 2017 Regular Session, phencyclidine was a Schedule V controlled substance.

Schedule II: GHB, pentazocine, and phencyclidine—commercial offenses (sale, distribution,

manufacture, and possession with intent to distribute)




Gamma Hydroxybutyric Acid (GHB)


28g+ 1 – 20 years

Pentazocine


28g+ 1 – 20 years

Phencyclidine*


28g+ 1 – 20 years


*Prior to the 2017 Regular Session, phencyclidine was a Schedule V controlled substance.

Schedule II: All other Schedule II controlled substances—possession offenses




Schedule II narcotics, excluding oxycodone and methadone


2 – 28g 1 – 5 years


Schedule II non-narcotics, excluding amphetamine, methamphetamine, cocaine, GHB, pentazocine, and phencyclidine


2 – 28g 1 – 5 years


Schedule II: All other Schedule II controlled substances—commercial offenses (sale, distribution,

manufacture, and possession with intent to distribute)




Schedule II narcotics, excluding oxycodone and methadone


28g+ 1 – 20 years

Schedule II non-narcotics, excluding amphetamine, methamphetamine, cocaine, GHB, pentazocine, and phencyclidine


28g+ 1 – 20 years

Schedule III, IV, and V controlled substances—possession offenses




Schedule III controlled substances


Schedule IV controlled substances, excluding Flunitrazepam


Schedule IV: Flunitrazepam


Schedule V controlled substances


Schedule III, IV, and V controlled substances—commercial offenses (sale, distribution, manufacture,

and possession with intent to distribute)




Schedule III controlled substances


Schedule IV controlled substances, excluding Flunitrazepam


Schedule IV: Flunitrazepam


Schedule V controlled substances


18

Habitual Offender Statute

The Legislature made the following changes to better tailor habitual offender penalties to the severity of

the crime: reducing mandatory minimum sentences for most second and third offenses, eliminating the

possibility of life sentences on fourth convictions when the instant and all previous convictions are

nonviolent, differentiating cleansing periods according to whether the prior offense was violent or

nonviolent, and codifying judicial discretion to depart below the mandatory minimum sentence when it

is constitutionally excessive.

Cleansing Periods

Senate Bill 221 amending La. R.S. 15:529.1

Effective November 1, 2017—not retroactive

For the purposes of the habitual offender statute, the “cleansing period” is the period of time that must

pass prior to a felony being “cleansed” from the person’s record. Once cleansed, it cannot be used

under the statute to enhance the sentence of a subsequent felony offense. SB 221 makes two policy

changes to habitual offender cleansing periods. First, SB 221 reduces the cleansing period for

nonviolent offenses from 10 to 5 years, maintaining the existing 10-year cleansing period for sex and

violent offenses. Second, SB 221 modifies the method by which the cleansing period is calculated so

that it begins upon the termination of the person’s supervision period or the term of imprisonment if

the person is not placed on supervision following imprisonment. Prior to the enactment of SB 221,

habitual offender cleansing periods began only upon the termination of the maximum possible

sentence, including the maximum probation sentence as well as the maximum period of incarceration.

Judicial Discretion in Amending Constitutionally Excessive Sentences



SB 221 codifies the conclusion in State v. Dorthey, 623 So. 2d 1276 (La. 1993) that judges have the duty

to depart below a mandatory minimum sentence required by the habitual offender statute if it is

constitutionally excessive.4 A court making this finding must state the reasoning on the record and

impose the most severe sentence that is not constitutionally excessive.

Lowering Mandatory Minimum Sentences and Excluding Repeat Nonviolent Offenses from Eligibility

for Life Sentences



4 “A punishment is constitutionally excessive if it makes no measureable contribution to acceptable goals of

punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” State v. Dorthey, 623 So. 2d 1276, 1280 (La. 1993).

19

SB 221 lowers the minimum sentence for most second convictions under the habitual offender statute

from 1/2 of the maximum penalty to 1/3 of the maximum penalty, and lowers the minimum sentence

for most third convictions under the habitual offender statute from 2/3rds of the maximum penalty to

1/2 of the maximum penalty. Additionally, SB 221 eliminates the possibility of receiving life sentences

under the habitual offender statute when all the convictions are nonviolent.

Penalty formula

Example: If max penalty for 1st offense is 10 years

1st felony Max penalty = Z 0 – 10 years

2nd felony

Prior law Min penalty = ½ Z — Max penalty = 2x Z 5 – 20 years

Min penalty = 2/3 Z — Max penalty = 3x Z If both current and prior felony are sex offenses

6.7 – 30 years

Life without parole If both current and prior felony are sex offenses with victim <13

Life

Current law Min penalty = 1/3 Z — Max penalty = 2x Z 3.3 – 20 years

Min penalty = 2/3 Z — Max penalty = 3x Z If both current and prior felony are sex crimes

6.7 – 30 years

Life without parole If both current and prior felony are sex offenses with victim <13

Life

3rd felony

Prior law Min penalty = 2/3 Z — Max penalty = 2x Z 6.7 – 20 years

Life without parole If both current and prior felonies are crimes of violence, sex offenses with victim under 18, drug crime with max sentence of 10 years or more, or any crime with a max sentence of 12 years or more

Life

Current law Min penalty = ½ Z — Max penalty = 2x Z 5 – 20 years

Life without parole If both current and prior felonies are crimes of violence or sex offenses with victim under 18

Life

4th felony

Prior law Min penalty = 20 years — Max penalty = Life without parole 20 - Life

Life without parole If two of three prior felonies are crimes of violence, sex offenses with victim under 18, drug crime with max sentence of 10 years or more, or any crime with a max sentence of 12 years or more

Life

Current law Min penalty = 20 years — Max penalty = Life without parole 20 – Life

Min penalty = 20 years — Max penalty = 2x Z If current and previous felonies are all nonviolent, non-sex

20 – 20 years

Life without parole If current and two of three prior felonies are crimes of violence or sex offenses with victim under 18

Life


CHANGES RELATED TO IMPOSITION OF SENTENCE

Probation eligibility expanded/sentence lengths shortened

Expands probation eligibility to those defendants convicted of a third felony offense

Extends probation eligibility to defendants convicted of a first violent felony offense if the maximum penalty is 10 years or less and the victim is not a family or household member or dating partner

The one year minimum for probation sentences was eliminated

With only a few exceptions, the maximum term of probation for non-violent offenders was reduced from 5 to 3 years. This term of probation may be extended by the court to 8 years for completion of a specialty court program.

Eligibility for programming expanded

The eligibility for Substance Abuse Probation has been expanded to match the criteria for Drug Court and is no longer limited to drug possession and/or possession with intent to distribute. Eligibility now includes defendants who are convicted of other offenses if there is a significant relationship between the crime and drug or alcohol abuse.

Expands eligibility for both Drug Court and Substance Abuse Probation to violent crimes if the maximum possible penalty is 10 years or less and the victim is not a family or household member or dating partner.

CHANGES IN PROBATION/PAROLE COMPUTATION

Earned Compliance Credits

Applies to probation and parole

Applies to non-violent/non-sex crimes

Provides for diminution of sentence awarding 30 days off the supervision term for every full calendar month the offender is in compliance with conditions

Supervision term may be reduced by up to one-half

Credits will be awarded automatically as an incentive for compliance with conditions of supervision

Current month’s credit can be rescinded each month for supervision violations

Multiple violations in the same month only can rescind one month of credits

Effective November 1, 2017, all eligible cases will be given an ECC date based upon the remaining supervision

EXPANDED ADMINISTRATIVE SANCTION ELIGIBILITY

Administrative sanctions now authorized for all nonviolent, non-sex offenses.

Judges retain discretion as under the prior law to authorize probation officers to impose administrative sanctions for violent or sex offenses.

EXPANDED ACT 402 SANCTIONS

Act 402 can now be applicable for any violation, except

-An allegation of a criminal act subsequently proven to be a felony

-An allegation of a criminal act subsequently proven to be an intentional misdemeanor affecting the person

-An allegation of a criminal act subsequently proven to be a violation of a protective order

-Possession of a firearm or other prohibited weapon

-Absconding by leaving the state without prior approval of the court or the probation officer

CHANGE IN ACT 402 SANCTION PENALTIES

Prior law capped Act 402 sanctions to 90 days for a first sanction

New law allows an unlimited number of Act 402 sanctions and caps length of jail sanction to 15 (first), 30 (second) and 45 (all subsequent sanctions) days

The sanction can extend to 90 days when the court has ordered custodial substance abuse treatment

STREET TIME CREDIT

Probationers convicted of nonviolent, non-sex offenses receive credit toward their suspended prison sentence that is imposed upon revocation for the amount of time they successfully spent supervised in the community on probation

GOOD TIME CREDITS

Increase in amount of good time for nonviolent offenses from 1½ days for every 1 day in custody (earliest possible release at 40%) to 13 days for every 7 days in custody (earliest possible release at 35%). Sentences imposed under the habitual offender statute remain ineligible.

Increase in amount of good time for violent offenses from 3 days every17 days (earliest possible release 85%) to 1 day every 3 days (earliest possible release 75%).

Applies the definition of sex offense set forth in R.S. 15:541 to preclude eligibility for good time for those convicted of sex offenses after November 1, 2017.

PROGRAM CREDITS

Inmates can earn up to 360 days in program credits (Certified Treatment and Rehabilitation Programs) toward their projected good time release date.

All nonviolent offenders including those convicted under the habitual offender statute are eligible for credit.

Expands eligibility for credits for violent offenders to all offenders unless they have more than one prior conviction for a crime of violence or a prior sex offense.

Instant sex offenses remain excluded.

PAROLE ELIGIBIITY

All nonviolent, non-sex offenders otherwise eligible for parole (including those sentenced under the habitual offender statute) are eligible for parole consideration after serving 25% of their sentence.

For violent offenses, there are three tiers of eligibility:

-those with no prior felony conviction for a crime of violence or a sex offense (may have priors for other nonviolent crimes)—eligible after serving 65%

-those whose instant conviction is a second conviction of a crime of violence—eligible after serving 75%

-no eligibility for those offenders with two or more priors for crimes of violence

For R.S. 15:541 offenses:

An inmate who is convicted of a first or second sex offense after November 1, 2017 is eligible for parole after serving 75%. Inmates convicted a third or subsequent time of a sex offense are not eligible for parole consideration.

ADMINISTRATIVE PAROLE

Administrative parole authorizes release on an inmate’s earliest parole eligibility date without a hearing if the following criteria are met:

-Nonviolent, non-sex crime; reentry court and habitual offender statutes inapplicable

-No major prison disciplinary offenses within the last 12 months

-Inmate must agree to conditions of parole

-If the charge was reduced from a crime of violence or sex offense, the victim and district attorney have been notified and have not requested a parole hearing.

-Inmate has completed a written case plan.

JUDGE ALLISON H. PENZATO LOUISIANA FIRST CIRCUIT COURT OF APPEAL Judge Penzato is a 1981 graduate of Loyola University College of Law. She served as law clerk to United States Magistrate Ingard O. Johannesen in the United States District Court for the Eastern District of Louisiana from 1979-1981. Following twenty-seven years of practice, she was elected to the Twenty-Second Judicial District Court in October of 2008. She was re-elected without opposition in 2014 and served as Chief Judge from 2014-2016. In January of 2017, she was elected to the Louisiana First Circuit Court of Appeal. Judge Penzato previously served on the Executive Committee of the Louisiana District Judges Association and currently serves on the Board of Governors of the Louisiana Judicial College. JUDGE JOHN E. LEBLANC 17TH JUDICIAL DISTRICT COURT LSU: B.S. in Business 1981 Paul M Hebert Law Center: J.D. 1985 La. State Bar Admission: 1986 Private Practice: LeBlanc and LeBlanc Law Offices for 12 years Past President and officer of the Lafourche Bar Association Assistant 17th JDC Public Defender: 1990 - 1998 District Judge: 1998 to present Drug Court Judge: 2000 - 2003 Chief Judge, 17th JDC: April 2009 to present LDJA Executive Committee member LDJA/Clerks Liaison Committee Chair LDJA/DOC Uniform Commitment Order 2017 revision committee LCLE/LASC–NICS reporting committee LPOR-CMIS aiDashboard Pilot project DOUG NICHOLS LOUISIANA SUPREME COURT Doug Nichols, Director of Central Staff at the Louisiana Supreme Court, graduated from Tulane Law School in 1995. He clerked for the Honorable Steven R. Plotkin and the Honorable Catherine D. Kimball before joining Central Staff at the Louisiana Supreme Court. Central Staff assists the Justices in reviewing criminal matters pending before the Court.

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