A Sea Change for Probation in Louisiana for Non-Violent & Non-Sex Crime Offenders in 2018
There has been a sea change n the area of probation in Louisiana for offenders on supervision for crimes which are not crimes or violence or sex crimes and who are not under the supervision of a drug court. Almost all violations of probation will now be considered "technical violations."
The Changes in the law are grounded in Social ReformThe people of Louisiana, through their elected officials, including the Legislature and the Governor, stated their clear intentions that the people expected immediate action by those officials to fundamentally change our system of incarceration which we have been acting under for decades. The legislative will espoused in the passage of the 2017 Louisiana Justice Reinvestment Act clearly mandates our judicial system take procedural steps to reduce the level of incarceration for those convicted of crimes which are non-violent and to seek alternative sanctions. The intent is clear and unambiguous to reduce our inmate population through the use of alternative non-incarceration sanctions and thus reduce our incarceration rate as Louisiana has the highest in the entire country. As the United States has the highest incarceration rate in the world, it therefore follows that our state leads the entire world in this dubious category.
The 2017 Louisiana Justice Reinvestment ActThe 2017 Louisiana Justice Reinvestment Act was ratified into law and designed to methodically reduce the prison population with specific focus on non-violent offenders while still attempting to confine those violent offenders who might prey upon others in our community.
According to the Louisiana Department of Public Safety & Corrections' "Louisiana's Justice Reinvestment Reforms Practitioner's Guide" (August 1, 2017), which has been located online on the Louisiana Supreme Court's website's front page banner as guidance for attorneys and judges alike:
[t]his Act was non-partisan in nature as six Republicans, two Democrats, and one Independent sponsored the package of ten bills, which earned endorsements from the Louisiana District Attorney's Association, business and faith leaders, and a diverse coalition of practitioners, advocates, and community leaders. The bills passed with large majorities in the House and Senate and were signed into law by Governor Edwards on June 15, 2017. Louisiana Justice Reinvestment Reforms Practitioner's Guide at page 5 (August 1, 2017).
If carried out by the judiciary, this "macro" solution to Louisiana's overcrowded inmate population of non-violent offenders, which requires members of our judiciary and attorneys on both sides of the criminal bar to fundamentally change how we have been sanctioning non-violent offenders is also set to achieve the following positive benefits for our state:
1) Save $262 million dollars in costs to taxpayers over the next ten years;
2) Reduce the prison and community supervision population by ten percent in the next ten years; and
3) Reduce the caseload carried by every probation and parole officer from approximately 139 to 119 cases per officer. (Id.)
The task force who researched all of these issues and the primary causes for our staggering inmate population numbers came to the following conclusions:
1) A chief reason Louisiana leads the Nation in imprisonment is that we send people to prison for non-violent crimes at a rate far higher than other states. (emphasis added). (Id. at 4.)
2) Louisiana sends people to prison for drug, property and other non-violent crimes at twice the rate of South Carolina and three times the rate of Florida, even though the states had nearly identical crime rates. (emphasis added). (Id.)
3) More than half of those sent to prison in 2015 had failed on community supervision (probation and parole).
The Changes Required in Probation Hearings for Non-Violent and Non-Sex Crime Offenders on ProbationThis truly represents a monumental reform set forth by the legislature, which mandates action by Louisiana courts to initiate alternative sanctions rather than incarcerating individuals who failed on community supervision.
The applicable legal authority controlling probation hearings is La. C.Cr.P. art. 900. Further, any offender on probation for a crime that is not under the jurisdiction of a "drug division," a crime of violence or a sex crime, will look to the revised subsection of that Article in La. C.Cr.P. art. 900 (A)(6).
The State may claim that La. C.Cr.P. Art. 900 still permits the Court to hold a revocation hearing and then rule to revoke an offender and sentence him to his suspended sentence, for any violation whatsoever, and that the changes in the law are discretionary. However, this argument ignores the changes in the law found in La. C.Cr.P. Art 900 subsection (A)(6) which completely modify the prior law. These changes carve out a mandatory sentence by the Court when the offender has committed "technical violations" when that offender was on probation for an offense other than a crime of violence or sex crime.
The law now reads as revised:
(d) A "technical violation," as used in this Paragraph, means any violation except it shall not include any of the following:
(i) An allegation of a criminal act that is subsequently proven to be a felony.
(ii) An allegation of a criminal act that is subsequently proven to be an intentional misdemeanor directly affecting the person.
(iii) An allegation of a criminal act that is subsequently proven to be a violation of a protective order, pursuant to R.S. 14:79, issued against the offender to protect a family member or household member as defined by R.S. 14:35.3 or a dating partner as defined by R.S. 46:2151.
(iv) Being in possession of a firearm or other prohibited weapon.
(v) Absconding from the jurisdiction of the court by leaving the state without the prior approval of the probation and parole officer.
Again, these new changes in the law to La. C.Cr.P. Art 900(A)(6) provide both clarity and certainty for a trial judge in revocation matters moving forward in hearings held after November 1, 2017. Several types of violations which, heretofore, were not "technical violations" now, shall be considered "technical violations" and courts are mandated to adhere to this reformed procedural system and execute upon the revised statutorily required sanctions.
Quo Vadis? Where are we going?The legislative intent in this area is designed to halt the practice of revoking non-violent offenders' probation and then sentencing them to full term of their sentence and thereby relieving our overburdened corrections system. This change in the law was effectuated because the task force who researched all of these issues and data on this issue found that more than half of those sent to prison in 2015 had failed on community supervision (probation and parole). The law itself, though groundbreaking and courageous in its attempts to achieve social reform in concept, are straightforward and plain in language and application.
Counsel is aware that some probation officers, prosecutors, and even some judges may be concerned about what they may feel is a usurpation of their previous authority when full discretion was imparted to revoke probation under the old law in La. C.Cr.P. art 900. However, the legislature's modification to this law does not eliminate judicial sanctions and instead allows for a wider array of sanctioning methods designed to modify behavior, obtain sobriety, and other "local sanctions" which at the same time do not continue to increase our incarceration numbers. It is an opportunity for Louisiana's criminal justice professionals to all seek to maintain public confidence in our system of law and order through active engagement in this new community supervision process that the people of Louisiana have demanded and our legislature has enacted.