This Letter From Louisiana Prosecutors Perfectly Explains Why Criminal Justice Reform Is So Hard

The state wants to save money by locking up fewer nonviolent offenders. But state prosecutors don't agree.

Louisiana can lower its staggering incarceration rate — and save taxpayers money — by locking up fewer nonviolent offenders and devoting more resources to people who are actually dangerous, the state’s legislative auditor argued in a report last week.

The auditors’ suggestions are fairly standard: Politicians and activists on both sides of the aisle, from the Koch brothers to #Cut50, support fiscally conservative reforms that will lower the prison population.  

That’s what makes a response letter from the Louisiana District Attorneys Association, included in the report’s appendix, so revealing. Although the group says it “generally” finds the auditor’s report “thoughtful” and the recommendations “worthy of serious consideration,” it goes on to push back against many of the auditor’s proposals.

Sentencing some non-violent offenders to probation or community service “sounds reasonable on paper” but could actually constitute “a significant risk to public safety,” the group claims. Nonviolent criminals in Louisiana should be locked up not just because of their convictions, the DAs argued, but also because they’ve been arrested a lot.

The DAs’ argument exposes a little-known obstacle to lowering prison populations: DAs and judges regularly use arrest records in determining how to charge and sentence people, regardless of whether those arrests resulted in convictions. If you were arrested for any crime in the past — even if you weren’t convicted — you can possibly face a longer sentence.

This policy has horrific consequences for black communities. Black people are disproportionately subject to arrest in the state of Louisiana, according to a 2014 investigation by USA Today. They also make up the majority of the state’s prison population.

Police in Gretna, which sits right across the river from New Orleans, arrest more people per capita than any other department in the U.S. Most of those apprehended are black. The same is true in Baton Rouge, where 284.3 out of 1,000 black residents are arrested, compared to 104.8 out of 1,000 for every other racial group combined, according to USA Today’s analysis. In Jefferson Parish, that number is 94.2 for black residents and 25.2 for everyone else.

But many arrests do not result in convictions, as the Center For American Progress noted in a 2014 report.

District attorneys and judges in Louisiana give prior arrests particularly heavy weight when considering charges and sentencing, says Derwyn Bunton, the chief district defender for Orleans Parish. The DAs’ desire to continue using nonviolent arrests that didn’t result in convictions as a justification for locking people up shows that Louisiana’s justice system is “wed to over-incarceration” and “points to how difficult criminal justice reform can be,” he added.

“The larger the criminal justice system is, the more DAs we need to prosecute crimes and keep our communities safe. A larger criminal justice system ― one which criminalizes more and more conduct  ― allows DA offices to justify budget increases and a need for more resources,” Bunton said. “They are a very active co-conspirator in mass incarceration in Louisiana. It is not all district attorneys, by any means, but generally as an organization, the culpability of our district attorneys in the mass incarceration problem is quite high.”

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Black people are disproportionately subject to arrest in the state of Louisiana

The DAs stand by their argument.

“If a person has an arrest record of 10 or 15 felony arrests and for purpose ― like intimidating witnesses or killing witnesses ― but there is no conviction, I believe it’s very relevant to the judge and the district attorney to judge how to proceed with that defendant,” said E. Pete Adams, the group’s executive director.

Prosecutors “seem reluctant to let go of long-term Louisiana traditions favoring incarceration and relying on arrest records as a primary source for sentencing data ― even to the extent of giving them more importance than the offense of conviction,” said G. Paul Marx, the chief district defender for Lafayette Parish.

Using arrest records to determine sentences is especially problematic in the context of Louisiana’s extremely harsh habitual offender laws, Bunton said. In 2012, Louisiana had around 160 people serving 20 years or more “whose most recent crime involved nothing more harmful than marijuana,” according to an investigation by The Times-Picayune. There were also over 300 inmates serving life without parole who were never convicted of a violent crime.

The costs of housing and feeding these nonviolent offenders adds up. As the report notes, the state spent approximately $680.4 million in fiscal year 2015 keeping people behind bars.

“Our money would be better spent on people who have a demonstrated history of really going upside somebody’s head,” Bunton said. “But it is the philosophy of many in our district attorneys’ association ― and the association as a whole ― that it’s OK to lock up people with those kinds of criminal histories, mostly because where there’s smoke there’s fire.”

 Read the entire report below: