Turning Back Time

A national report shows that Louisiana puts more people behind bars than any other state. But Louisiana now leads the nation in a new way: re-thinking its approach toward sentencing.



'The idea [behind zero-tolerance] is that if you pick people up on the minor crimes, you get them before those crimes graduate up the hill,' says Orleans Parish Sheriff Charles Foti. 'We went from booking 30,000 to 40,000 seven years ago to where we are now, booking in one year 70,000 people.'

Orleans Parish Sheriff Charles Foti is talking about how people with addictions can backslide.

"I could be on the street corner and it's, 'Are you a wimp now, man? Smoke a little Mary Jane and you won't feel any pain.' Or I was out with all the guys and it's, 'C'mon Charlie, you can have one beer.'"

He continues, his voice going to a whisper: "Or maybe my friend pulls something out of her purse and it's, 'This pill is so good, sweetheart, just try one.'"

Make no mistake -- Foti would never be called soft on crime, even by his critics. Yet his stories today are not necessarily the ones expected from a law-and-order man. Not once does he utter the words "debt to society." Phrases like "keeping the public safe" and "protecting the public good" are used only once.

Instead, Foti is talking about second chances for people who are struggling and screwing up. He's giving some background on guys with dirty urine, low self-esteem and sixth-grade educations. And about how he and his staff at Orleans Parish Prison (OPP) are desperately working to help people who get out of jail, stay out of jail.

"We can do this while still protecting the public good; keeping the public safe, okay?" he says.

Foti's colleague in corrections, Richard Stalder, secretary of the Department of Public Safety & Corrections (DOC), is also speaking in a way that might seem unusual for someone who heads up Louisiana's state prison system.

"If I'm an 18-year-old on the streets of New Orleans," he explains, "and you tell me that you just increased the armed-robbery sentence from 50 years to 99 years, that's not going to have anything to do with whether I go out and commit an armed robbery."

Stalder and Foti are both discussing how not to lock people up in response to the state's ranking in the most recent Bureau of Justice Statistics census, "Prison and Jail Inmates at Midyear 2000." The report shows that Louisiana, once again, locks up more men, women, and children than anybody else in the United States. And in a ranking of U.S. jails by an average daily population, OPP came in at No. 9.

But Louisiana is now leading the nation in a new way: as one of the first states to re-think its approach toward sentencing. The newly passed Senate Bill 239 changes the sentencing structure for drug laws and softens mandatory minimums for low-level drug and property offenders. Several other bills passed during the same legislative session fund or advocate non-prison alternatives such as drug courts and home incarceration.

That's because the hand that is opening that prison door is also the hand that writes the checks, says Jenni Gainsborough, a senior policy analyst for the D.C.-based Sentencing Project, which promotes criminal-justice reform.

"I'm quite sure that Louisiana's change of heart had nothing to do with a different attitude toward drugs," Gainsborough notes dryly. Instead, she points to the $600 million or so it takes to maintain a state prison system the size of Louisiana's. For the past decade, she says, states like Louisiana and jurisdictions like Orleans Parish have been locking up so many of their citizens that they are now at a financial breaking point.

How did Louisiana end up with so many people behind bars? That'll take a little time to explain, says Foti. After all, he quips: "The only people with simple answers are simpletons."

For his part, he'll tell you that one of the biggest things to affect OPP was the "zero-tolerance" approach, which began several years ago. "The idea is that if you pick people up on the minor crimes," says Foti, "you get them before those crimes graduate up the hill." Under zero-tolerance, people were being arrested for petty crimes -- graffiti, disorderly conduct, open container -- and yet Foti notes the number of people arrested was hardly petty. "We went from booking 30,000 to 40,000 seven years ago to where we are now, booking in one year 70,000 people."

At that rate, in five years' time, Foti could run the entire adult population of Orleans Parish through OPP.

However, because some people stay at OPP for just a few hours or days, the average daily population at OPP -- 6,381 inmates -- is much lower than its booking rate. Most of his inmates are either going to or coming from a court date at Orleans Parish District Criminal Court, says Foti. He also holds 50 juveniles. The rest are people that OPP is being paid for: a few hundred federal prisoners and 2,700 Louisiana state inmates sleeping in parish prison beds until space becomes available in the state system. "[The state DOC] will call," he says, "and tell us how many to ship. As soon as they get beds open, we ship to them."

The DOC has held a backlog of population in parish jails since the mid-1970s, when conditions at Angola, then basically the only DOC facility, were bad enough that a judge froze its population. "For a year and a half," remembers Foti, "[the DOC] didn't take a person. So that backed up the parishes."

As a result, local parishes expanded their jails so they'd have enough bed space to hold both their own local prisoners and the backlog of state prisoners. The pattern continues today: OPP and other local jails hold 43 percent of the state's prisoners, a far bigger proportion than anyplace else in the United States. Inmate advocates criticize this practice because local jails don't have the rehab and educational programming that state prisons do; DOC Secretary Stalder argues that it saves the state from having to build more prison beds and that larger parish jails like OPP do have established inmate programs.

Stalder pauses. He wants to emphasize that his prison system may hold inmates, but it didn't put them there in the first place. It's the state's justice system that has been placing people in his custody in record numbers since 1990, when Louisiana's prison population was half of the 36,000 it is now. And a lot of that exponential growth, he says, had to do with mandatory-minimum sentences.

Mandatory minimums largely came about due to rising crime rates in the 1980s. In response, nearly every legislature in the country -- including Louisiana's -- passed lengthy penalties, aimed particularly at repeat offenders and those convicted in connection with drugs like crack, which was fairly new and especially feared at that time.

Another approach of that era was increased enforcement, through initiatives like the federally funded COPS program, which added officers to local police forces across the nation. This has proven to deter crime, says Stalder, by "letting people know that if they go out and commit certain crimes, the odds are that we'll be out there to catch 'em."

But mandatory minimums were not effective, he says. "What we've come to realize is that, if you incapacitate somebody, if you lock somebody up for a long period of time, the only person you really deter is probably that person." This session's legislation is based on this realization, says Stalder.

Ideally under the new statutes, judges will be sentencing more low-level drug and property offenders to home arrest or sending them through monitored programs in their communities. Stalder predicts that this should result in a "significant slowing" of Louisiana's incarceration rate. But slowing is not enough, says the Sentencing Project's Gainsborough. Right now, the state's incarceration rates lead the nation. Those rates -- and the corrections budget -- won't decrease in any meaningful way until some of Louisiana's existing inmates are transferred out of prison and into alternative programs that ease them back into the community.

This wouldn't compromise public safety, says Gainsborough, because half of the DOC's adult population is composed of nonviolent drug offenders and property offenders, people who were sentenced more harshly because of mandatory minimums. If, by the state's own admissions, mandatory minimums were ineffective, shouldn't the state further amend its mistakes by reducing those inmates' sentences? Especially considering that the DOC is paying more than $10,000 per "inmate year" or nearly $400 million annually to house those nonviolent inmates?

Stalder cautions that there will be no wholesale early-release program. Instead, he describes the three regional "risk-assessment panels" set up by SB 239. The panels, says Stalder, will look at people who "if they had committed their crime next month maybe would have been diverted [to a non-prison program]." They'll then make recommendations to the state's existing Pardon and Parole Boards.

Inmate advocates says that those boards are notoriously stingy about granting relief to inmates. They argue that, because the risk-assessment panels don't have any statutory authority to release inmates, the whole process is a farce and will likely release only a handful of people.

Stalder defends the state's pardon and parole boards. "I do think it's safe to say," he agrees, "that they both are fairly conservative in their approach at this point and time." But he doesn't think that's necessarily a problem.

Says Stalder: "If somebody, for instance, is not behaving himself in prison, I would argue that they shouldn't get out because they're not going to follow the rules on the street. It doesn't matter that they are a low-level offender that maybe shouldn't have come to prison to start with."

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