By Mark Ballard
The Advocate
BATON ROUGE, La. — A new prison standard that became law Saturday allows nearly 3,000 lifers, habitual criminals and old-timers, including armed robbers, to apply for parole that eventually could free them from decades behind bars.
As startling as that sounds, prosecutors and law enforcement are OK with the change as Act 122 untangles at least one strand from the bowl of spaghetti that basically has levied different sentences and parole eligibilities for the same crime depending on when the person was convicted during the past three decades.
The state’s morass of overlapping and contradictory parole rules and laws were mostly enacted during the “war on crime” of the 1980s, 1990s and 2000s, putting Louisiana at the top of the list for per capita incarceration rates — highest in the U.S. and higher than those in Cuba, Iran and Russia.
“This is a very significant piece of legislation that restores equity to the system,” said Kerry Myers, deputy director of the Louisiana Parole Project, a Baton Rouge-based nonprofit that provides legal representation and residential reentry services to parole-eligible people sentenced to life in prison.
Before becoming Act 122, House Bill 145 breezed through legislative committees and floor votes, taking up about a half-hour total consideration — based largely on the opening line that the measure was a compromise that district attorneys and law enforcement officials didn’t oppose.
“We believe it was an opportunity for the Legislature to address fairness with respect to nonviolent offenders,” which make up about 65% of the 34,000 or so state inmates, said Loren Lampert, executive director of the Louisiana District Attorneys Association, the powerful Baton Rouge-based group that represents all 42 state prosecutors.
The district attorneys took a neutral position on HB145, helping draft one part and monitoring the language of the second part.
“I understand what they were doing. We’re OK with taking some of these complexities out,” Lampert said.
The new law adjusts the old-timers parole, which allows offenders sentenced to more than 30 years in prison, rather than life, to apply for parole after serving 20 years and reaching the age of 45; and the habitual offenders statute, which results in life sentences upon conviction of a fourth offense — a law Louisiana Supreme Court Chief Justice Bernette Johnson, since retired, last year declared was “largely designed to re-enslave African Americans.”
“People who commit a nonviolent offense and have no prior violent convictions would not receive a life sentence under today’s habitual offender laws,” noted Natalie LaBorde, executive counsel for the Louisiana Department of Public Safety and Corrections, noting the 2017 change in the law.
“The changes in Act 122 that allow for parole eligibility after 15 years for people with a life sentence for nonviolent offenses put prior laws more in line with the reforms passed in 2017,” she added.
That doesn’t mean those offenders will be getting out of prison immediately. This new law doesn’t affect “good-time release,” which is basically a calculation for well-behaved, relatively minor criminals that amounts to guards kicking an inmate’s cell and saying “out,” on the determined date of release.
Act 122 opens up eligibility only for a hearing before parole board members, who closely review the supplicant’s crime and criminal past along with their record while in prison.
A study by a group of criminologists and sociologists from the State University of New York at Albany and the University of Pennsylvania analyzed data from 1.6 million prisoners across the country. Their report, published in August 2020, found that during the “tough on crime” era, adults were arrested and charged with crimes that carried longer sentences and placed under parole rules that kept them incarcerated longer than earlier offenders.
Louisiana wasn’t the only state. But this state went further than most.
Although high courts on both the state and federal level haven’t overturned the sentences, more and more judges are commenting on the unfairness.
Perhaps one of the better examples is when five of seven Louisiana Supreme Court justices on July 31, 2020, upheld the decadeslong imprisonment of Fair Wayne Bryant for the crime of stealing hedge clippers.
He had been arrested in 1997 by Shreveport police after admitting that he had scoped out carports for gasoline cans when his automobile ran out of gas. Police found hedge clippers that Bryant said, but couldn’t prove, were his wife’s.
Then 38 years old, Bryant was convicted and received a “from now on” sentence because he had four prior convictions, including attempted armed robbery in 1979, possession of stolen things in 1987, attempted forgery of a $150 check in 1989, and simple burglary in 1992.
Chief Justice Johnson noted that the 60-year-old Bryant’s incarceration under the habitual offenders law already had cost Louisiana taxpayers about $518,667 and, if he lived another 20 years, would cost about $1 million — for attempting to steal hedge clippers.
In her lone dissent, Johnson linked Louisiana’s habitual offender law to the extreme sentences for petty crimes levied after Reconstruction to help states sentence impoverished Black people back into forced labor. Bryant was paroled in October.
The Louisiana Justice Reinvestment Act of 2017 moved the state past the “lock ‘em up and throw away the key” era. Sweeping though the Reinvestment Act was, it also exposed a lot of inconsistencies that the Legislature has been tweaking ever since.
HB145 was one such effort. Its chief sponsor was first-term Democratic Rep. Marcus Bryant, a 43-year-old St. Martinville lawyer who practices personal injury law.
In 1991, a new parole eligibility was enacted for the fast-aging prison population: People sentenced to at least 30 years who had served 20 years and had reached the age of 45 could apply for parole under the 20/45 law, also called “old-timers parole.” Almost immediately, lawmakers started tweaking the law, at one point specifically excluding anyone convicted of armed robbery.
Then rules were adjusted and required inmates convicted of certain crimes to serve 85% of their sentence regardless of their 20/45 status. Courts upheld the rule, but lawmakers made changes that lowered time served to 75% and that now sits at 65%.
Other courts found fault in excluding armed robbers, at least those convicted between 1993 and 1995, leaving some armed robbers sentenced to up to 99 years without parole eligibility, while others were eligible for parole based on when they committed the crime.
The law was changed again in 2014 and then again in 2017 to clear up discrepancies. But those clarifications led to other inconsistencies for those already serving their sentences.
Basically, a person with a criminal history convicted of a crime committed at 11:58 p.m. on Oct. 31, 2017, would receive a sentence of life in prison, while a similarly situated person committing the same crime three minutes later would receive a maximum of 20 years.
“Our bigger concern was addressing those cases that were completely nonviolent,” said Lampert, of the district attorneys group.
“Had they been convicted after Nov. 1 they were going to serve 20 years at most and had they been convicted prior, they would have been serving life,” he said. “This bill addressed issues of fundamental fairness because of the approach. But it still gives the parole board the ability to vet these persons, to do their best to make sure that those who deserve parole get parole and those who pose a continuing danger to society, don’t.”
About 150 inmates qualify for a parole hearing under the habitual offender section of the new law. The corrections department estimates about 2,800 inmates qualify under the tweaks to the old-timers parole.
“The Department of Public Safety and Corrections’ Office of Adult Services is identifying all persons whose sentences are impacted by the changes enacted in Act 122 and will revise their parole eligibility dates accordingly,” said LaBorde, the department’s executive counsel.
Once the agency completes the time computation, those names are submitted to the Committee on Parole. The committee has 90 days to schedule a hearing and, during that time, needs complete a report that looks at criminal history, disciplinary record and prison behavior. Did the supplicant participate in community volunteering, attend self-help classes or further his or her education? Does the applicant have a plan for what to do when released?
The committee also needs to give law enforcement agencies, district attorneys, judges and victims at least 60 days’ notice. The Parole Board can docket no more than 20 cases per day.
“Many of the incarcerated individuals that will be affected by Act 122 are serving long sentences for violent crimes,” Francis M. Abbott, executive director for the Louisiana Board of Pardons & Committee on Parole, wrote in an email. “The Committee must take into account numerous factors when exercising its discretionary releasing abilities, but public safety is always considered first and foremost.”
Though this new law clarifies one aspect of parole, Lampert pointed out that determining an end date for sentences still remains a chaotic situation. “This really is the low-hanging fruit,” Lampert said.
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