Criminal code not routinely revised
State Rep. Joe Lopinto remembers a time when he was a law enforcement officer and would arrest people for the crime of “drug-traffic loitering.”
The law makes it a crime for someone to remain in a public place “in a manner and under circumstances manifesting the purpose to engage in unlawful conduct,” such as drug-related activity.
“It was ruled unconstitutional and I quit booking people on it,” said Lopinto, a Metairie lawyer who chairs the House Administration of Criminal Justice Committee.
The law — though judged unconstitutional — is still on the books in Louisiana. The same holds true for plenty of other statutes, or parts of them, that have been struck down by federal and state courts over the years.
There’s the law that imposes the death penalty for aggravated rape of a child. The U.S. Supreme Court ruled in 2007 that the 8th Amendment to the U.S. Constitution bars Louisiana from imposing the death penalty when the crime did not result, and was not intended to result, in the victim’s death.
There’s the anti-sodomy law used by East Baton Rouge sheriff’s deputies in a series of sting operations to arrest men agreeing to have consensual sex with undercover agents.
The U.S. Supreme Court ruled in 2003 that making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the due process clause of the 14th Amendment to the U.S. Constitution.
And then there’s the law that provides for automatic consent to search of people in alcoholic beverage outlets for weapons.
Courts at one level or the other have also struck down parts of Louisiana laws dealing with crimes involving “amplified devices in public places,” obscenity, pandering, juvenile pornography and “letting a disorderly place.”
Those are just a small sampling of Louisiana statutes that remain on the books yet are largely unenforceable.
“If we were to go through the revised statutes and all parts of the code and identify every part ever declared unenforceable by the courts — state or federal — there would be scores that have never been cleaned up,” said House Clerk Butch Speer. “We ignore them.”
Speer said many of the problematic civil laws are corrected as proponents get the Legislature to revamp them to make them constitutional.
Every year sees a clean up of the revised statutes in the civil code as the Legislature updates its database to incorporate new laws.
But criminal laws are a different story, Speer said.
“Some people think there are some things that should be no matter what the U.S. Supreme Court says,” he said.
Pete Adams, director of the Louisiana District Attorneys Association, said no one has suggested going through the criminal statutes to do a “clean up.”
He said the attitude has been that as along as nobody is trying to enforce the unconstitutional laws, there is no reason to tackle the subject.
“It’s only when something like the recent stuff in Baton Rouge comes up does it get attention,” said Adams, referring to the anti-sodomy arrests. “I think cleaning up that one statute has got to happen now.”
Speer said tampering with criminal laws could inadvertently create avenues of appeal for criminal defendants.
“In the criminal area, it really is risky,” he said.
Adams said the state’s district attorneys are willing to work with legislators to help identify statutes that have unclear wording as well as laws that are clearly unenforceable.
“It’s going to take a little effort to make sure it’s not abused. It’s worth doing. There are all kinds of things on the books that are not necessary,” Adams said.
As a lawyer and former police officer, Lopinto said he has already begun reviewing the laws. He said it’s time to either make changes to the laws to make them enforceable or repeal them.