Historic court ruling sparks talk on crime, penalties
A Tulane Law School symposium Friday commemorated the 50th anniversary of the landmark Supreme Court decision that established a right to counsel for indigent defendants with a daylong program that focused on the intersection of race, poverty and public defense.
The symposium, called “Gideon 50 Years Later in New Orleans” for the Gideon v. Wainwright decision, was held in conjunction with Orleans Public Defenders, used the anniversary to tackle the twin issues of mass incarceration and sentencing reform in Louisiana.
An afternoon panel featured former U.S. Attorney Jim Letten; 5th Circuit Court of Appeal Judge Ricky Wicker; state Rep. Joe Lopinto, R-Metairie; Louisiana Department of Corrections Secretary James LeBlanc; Marjorie Esman, executive director of the American Civil Liberties Union of Louisiana; and Cindy Chang, a reporter with the Los Angeles Times who authored a 2012 series on Louisiana’s prisons for The Times-Picayune.
Even as Louisiana’s overall crime rate has been in decline since 2007, LeBlanc said, it remains the state with the highest incarceration rate in the nation, at 874 persons per 100,000 citizens.
“We’ve been a lock-’em-up state,” LeBlanc said, “but lock ’em up and throw away the key is not the answer.”
LeBlanc said there are 40,170 inmates in Louisiana, with 18,599 serving in state prisons and 18,042 in parish lockups. An additional 3,529 are in transitional facilities, he said.
LeBlanc said his agency had put an emphasis on re-entry programs and alternatives to incarceration in recent years in an effort to drive down the rate of imprisonment.
That rate is being driven by several factors, the speakers noted.
One is the number of prisoners serving time for small-time offenses that come with big-time prison sentences, a legacy of the 1980s, when the “war on drugs” and the “war on crime” together led to a ballooning of prison populations around the country.
Esman said that period saw the emergence of the “broken windows” theory of criminal justice, which held that if you went after small-time crime like littering, you’d get bigger-ticket felons along the way, while sending the message that laws would be enforced.
She recalled that localities fought for federal money that went along with no-quarter sentencing guidelines coming down from the federal government.
“This led to a crazy system,” Esman said, where someone might get a mandatory 20-year sentence on a nonviolent marijuana charge — while at the same time, some much more serious crimes carry maximum sentences of five years.
“Now we have this monster that we can’t afford to feed,” Esman said. “We need to change the mindset away from thinking that we need to criminalize everything.”
Letten, in his new role as assistant dean for experiential learning at Tulane Law School, described his journey from “hardline” local prosecutor to nuanced federal prosecutor.
Letten’s time as U.S. attorney, a position he held from 2001 until last year, had given him a “measured perspective” on criminal justice, he said in a follow-up interview. The post put him in contact not only with victims and their families but also with the families of offenders.
It was a journey, Letten said, that started while he still was prosecuting crimes in Orleans Parish.
“I think I became a more pragmatic prosecutor as time went on, and started thinking less in terms of aggressive, tough prosecution and more in terms of intelligent law enforcement, and it pushed me to the middle,” Letten said.
Lopinto, who chairs the House Criminal Justice Committee, said an emphasis on alternatives to incarceration was not part of his platform when he ran for office six years ago. And yet he, too, came to realize that an overemphasis on retribution at the expense of rehabilitation was unwise public policy.
“This is about education and common sense,” Lopinto said, explaining his support for state initiatives that emphasize drug treatment and other alternatives to incarceration.
Wicker, who along with being a judge sits on the Louisiana Sentencing Commission, a body established in 1987 to address sentencing disparities that, she said, conflict with the Constitution’s guarantee of equal protection under the law.
The commission meets monthly, she said, and is engaged in a “comprehensive and ongoing study of sentencing and incarceration in Louisiana.”
As part of its work, the commission studies the connection between sentencing and recidivism. Wicker cited data that showed the rate of recidivism among prisoners who are released after the age of 50 is practically zero.
But because of mandatory minimum sentences and no-parole sentencing restrictions in Louisiana, there are “lots of old men in prison on ventilators.”