At 33, state Rep. Walt Leger sticks out at most legislative gatherings as the youngster in the room. But in political dog years — experience gleaned from a stint as a former assistant district attorney for Orleans Parish, four years as a lawmaker and now as speaker pro tem of the House — he's much older than he looks. Experience has taught him quite a few lessons about crime and lawmaking.
"You'll never be attacked when running for re-election if you file bills requiring new sentences or mandatory minimums," said Leger, D-New Orleans.
Being tough on crime is among the easiest policy decisions a lawmaker can make, in fact. All it takes is a piece of legislation, which staffers can draw up in a heartbeat. But being smart on crime — well, that's another situation altogether.
Prosecutors complain that their budgets are stretched thin because defendants, now more than ever, are going to trial. Jury trials are expensive, but they are every defendant's right in felony cases. Judges and district attorneys argue that their hands are tied. State and local governments have to come up with the money to keep the criminal justice system humming.
Defense attorneys, meanwhile, have to keep up with new crimes that are constantly created by the Legislature. Prison officials contend they need more space as offenders get slapped with mandatory minimum sentences and harsher penalties — all the result of "tough on crime" lawmakers.
According to the Heritage Foundation, a conservative think tank, an avalanche of anti-crime policies has led to a problem known as "overcriminalization." The definition is a doozy: "the promiscuous use of the criminal law to remedy numerous perceived social ills by relegating them to the principal government actors in the criminal justice system (police, prosecutors, defense counsel, judges and jailers) in order to regulate through criminalization."
It's not a new trend. Back in 2001 and 2002, all of Louisiana's criminal justice stakeholders spent considerable time poring through the criminal code, section by section. The end result was a legislative reform package that repealed many of Louisiana's mandatory minimum sentences and reshaped crime categories — but only those for nonviolent offenses.
Since then, lawmakers have just about come full circle. "The legislation just keeps coming back," says Pete Adams, executive director of the Louisiana District Attorneys Association. "The way the process goes is somebody has a horrific situation or they know a victim and the offender doesn't get a stiff enough jail sentence. So they file a bill creating a new crime or harsher sentences thinking it's going to stop."
This year there are roughly 150 bills related to crime, of which 20 create new crimes. Rep. Lance Harris, R-Alexandria, has House Bill 48 to create "the crime of theft of copper and other metals." Why can't it just be considered plain old theft? In Harris' case, maybe it has something to do with the thieves who trashed his convenience store in Forest Hill earlier this year.
George Steimel, lobbyist for the Louisiana Association of Criminal Defense Lawyers, said there are already laws on the books that are sufficient when it comes to certain crimes, such as theft. "The cost of operating our criminal justice system is a big issue, as it should be," he said. "And I think, from the district judges to the public defenders to the district attorneys to Department of Corrections, everyone is trying to be more efficient. But whenever you start creating new laws, it slows down the process. Basically, it costs more money."
Leger has some ideas on how to improve the system — but he's willing to wager that his colleagues don't have the political will to approve them. Even now, in the first year of this new term (traditionally the easiest time to pass a controversial bill), criminal justice reform is an uphill battle. Just consider Leger's House Bill 104, which removes simple possession from the list of offenses that can be applied to Louisiana's habitual offender law.
While working in the district attorney's office, Leger said drug cases were an everyday task and he often saw men and women draw a 20-year sentence for "one small crack of rock" because it was their fourth drug offense. A single 20-year stint costs taxpayers roughly $600,000, he added.
And what was the end result? "The only thing accomplished is you get someone with a drug addiction off the street," Leger said.
On the flip side, the crime package being pushed by Gov. Bobby Jindal will get only cursory glances from lawmakers before they dutifully approve it. As he has done every year, Jindal is targeting sex offenders. It's an issue he has bragged about on the national stage. (Jindal loves to boast that he has made sex offenders unwelcome in Louisiana — as if any other state welcomes them with open arms.)
But it's also an issue that has ended up in the courts. Last year, Jindal pushed a law banning sex offenders from websites such as Facebook. A federal judge ruled it unconstitutional. Now Jindal's back with a similar bill, plus another to ban sex offenders from libraries. New York recently passed a similar bill, but an appeals court struck it down.
Sometimes lawmakers have good reasons for wanting to drop the proverbial hammer. As chairman of the Senate Judiciary B Committee, Sen. J.P. Morrell, D-New Orleans, will hear many tough-on-crime bills. A few, like Senate Bills 66 and 67, are his. Those bills increase the mandatory sentences for distribution and possession of heroin. Morrell said it's literally about life and death.
"I targeted heroin in particular because in parts of my district, like St. Bernard, there have been a disproportionate number of deaths," he said. "Over the past year there have been 80 overdoses and 12 deaths, of which six were heroin-related. What that tells me is a lack of deterrence is leading to deaths."
He added that criminals pay attention to the law — and they know the cost of breaking it. "Some of the most well-versed people on the criminal code are drug dealers," Morrell says. "When I was fresh out of law school and working as a public defender, they could do a cost analysis of what they did and then tell me how the court would interpret the law."
Rep. Joseph Lopinto, R-Metairie, chairman of the House Criminal Justice Committee, says judges need more leeway in handing down sentences. "To add some balance, we're going to try this year to give judges as much discretion as possible," he says. "Some offenses should have harsher penalties than others, and the hammer should be slammed down, but we don't need to do it every single time. In my opinion, we already have too many laws on the books."
Adams, who represents Louisiana's district attorneys, says keeping up with the ever-changing face of criminal justice in Louisiana can sometimes be like "drinking water from a fire hydrant." As an alternative to mandatory minimums, he expects legislation this year that would allow DAs to pursue lesser sentences, except in cases involving murder and rape.
While Adams likes the idea (it was recommended by the Louisiana Sentencing Commission as a way to reduce the state's prison population), Jindal's administration has voiced concerns. As it stands now, the Bayou State leads the nation in incarceration rates. According to the Pew Center for States, one in 55 Louisianians is behind bars.
The courts don't fare any better, especially as criminal cases battle with civil dockets for attention. Clogged dockets make judges look bad, but often they can only do so much to speed things along — especially if defendants opt for jury trials, which not only cost more but also take longer than bench trials.
In an effort to target violent gun offenders, Mayor Mitch Landrieu has encouraged judges to use their discretion by setting higher cash bonds for charges relating to illegal possession of a firearm. "Gun offenders are a significant threat to the community. As a condition of bonded release, defendants facing gun charges should be required by the court to pay for electronic monitoring so the NOPD can watch and restrict their movements," Landrieu wrote in a recent letter to judges.
Morrell says the mayor is pushing new penalties for first-time possession, but it may not be enough to curb crime in New Orleans. "All of these things sound good on paper, but I don't know if it's politically viable. It's like trying to ban assault weapons," he says. "People are tired of all the saber rattling. We should hang our hopes on ideas that can make it through the legislative process."
Morrell says he has more confidence in proposed laws that address juvenile crimes, or those that crack down on offenders who use juveniles as mules and shields. "The most violent offenders out there usually cut their teeth as violent juveniles," he says.
In New Orleans, the public defender's office has suffered severe cuts over the past year and has lost 21 attorneys. Sen. Karen Carter Peterson, D-New Orleans, who was among several dozen high-profile attorneys appointed to pick up the slack by Criminal Court Judge Arthur Hunter — has filed Senate Bill 434 to direct more resources to the battered local office.
Then there are the Hail Mary passes. House Bill 758 by Rep. Austin Badon, D-New Orleans, would authorize the governor to call out the National Guard to help protect his hometown. He calls it a "short-term solution until the violence is under control and new recruits are able to plug the 13 percent gap in our police force."
Badon was also a candidate in last Saturday's (March 24) primary for an at-large seat on the New Orleans City Council. He announced his intention to sponsor the bill to bring in the National Guard around the time he announced his candidacy for the council.
For lawmakers like Leger, it's another chapter in the never-ending struggle to make bad people act good. But it's also a debate that's difficult to balance, especially given today's political climate. "There's a real education gap here," Leger said. "Once people do learn about how the system works, they realize there are other methods. But for many representatives and senators, they just want to appear tough on crime and pro-law enforcement. That's just the way things are."
Jeremy Alford is a freelance journalist in Baton Rouge. You can reach him through his Web site at www.jeremyalford.com.