Voice of the Experienced (VOTE) Lafayette condemns the Lafayette Library Board’s decision to reject a grant for an educational program about voting rights and disenfranchisement. While we are pleased to hear that the program will instead be put on by University of Louisiana at Lafayette’s Edith Garland Dupré Library, the decision from the parish library remains deeply troubling. Board members voted against the grant because the program speakers were “extremely far left,” and instead needed to show “both sides.” The board’s formal statement Monday doubled down on their decision to reject the program’s “potentially controversial” topics.
“This is something that they’re refusing to do as a library, which is supposed to offer facts and information that people can use,” said Consuela Gaines, VOTE Chapter Organizer for Lafayette. “It’s voter suppression to not want to educate people. It’s Black History Month, and I think that’s why they wanted to offer a grant like this, so that those people who are most oppressed by not being allowed to vote aren’t still left in the dark. They still wanted to create an opportunity for people to be educated on the long history behind voting rights.”
“In doing this, [the library board] made it a partisan thing. Nothing that these speakers could say would be partisan because it could be fact-checked, it would be on record. A lot of the history of voting rights is unfortunately based on voter suppression and people’s skin color. History is history. There are people in our community who are really upset about this, especially since there are so few Black History Month programs being done [compared to previous years] because of the pandemic. For them to pass this up makes no sense.”
VOTE Lafayette and other VOTE chapters across the state continue to fight one of the most common forms of disenfranchisement: misinformation. While thousands of people with convictions have their voting rights back due to the 2019 passage of Act 636, many do not know they’re even eligible to register. This small grant at the public library was a chance to combat just that kind of disenfranchisement. When democratic institutions decide not to share facts because of fear — or worse, disagreement with the facts — we must question the institution itself.
We look forward to the series’ presentation at ULL and the fruitful community discussion it will create.
As soon as it happened, the tweets, posts, and messages began: “President Biden is shutting down private prisons!” For some of us, we read past the headline. For others of us, we recall the day President Obama issued the same Executive Order — which was subsequently repealed by Trump.
While Obama’s order was to not renew some contracts in the federal system, none of those contracts actually ended during his administration. When Trump repealed the order, some of the contracts were renewed… But now we have a restoration of the order that the contracts should be left to expire. See what is happening here?
More importantly, the order applies to less than 10% of the facilities within the Federal Bureau of Prisons, and less than 10% of the prisons that are holding people for felony convictions. It only amounts to about 14,000 people. It does not touch the many facilities that form the heart of America’s immigrant detention Gulag; around 80% of people in ICE custody are held in private facilities. It does not apply to the private prisons that hold people pre-trial, nor the ones that hold people in state custody. And of course, it does not apply to public prisons, which make up 91% of US prisons and jails.
Most importantly, the order does not get at what is actually wrong with prisons: incarceration.
Read more from our friend, author, and professor Lydia Pelot-Hobbs, whose Op-ed is the most comprehensive and accurate writing on the Executive Order.
This year’s election season was as important as it was long. It felt both like a marathon and a sprint. November 3 brought significant victories both locally and nationwide, but for us in Louisiana, it didn’t end there. Many parishes also had a runoff election on December 5. Our VOTE family of organizers, canvassers, members, and partners kept energy high, and the results showed just how much our state was ready for change. Once we reached the finish line, our hard work paid off. Justice reform was on the ballot and justice reform WON.
This election season, two of our biggest wins were the people power we built and the progressive candidates we elected. Even through the physical separation of social distancing, our VOTE team was showing up. On Oct. 24, as part of the national “Justice Votes” day, VOTE rallied across the state to celebrate the formerly incarcerated communities' right to vote. In Shreveport, Baton Rouge, and New Orleans, we rallied, listened to speakers, and hit the polls as a family, showing what a true movement looks like.
Of course, we weren’t working alone. Throughout the season, we also partnered with Power Coalition for Equity and Justice (PCEJ) and Black Voters Matter. Combining our efforts to build power across the state resulted in huge voter turnout at the polls. In particular, Black voter registration and turnout reached a new height. We saw the results early on, too. Just two days into early voting, twice as many Black voters cast their ballot than at that point in 2016. By the end of the November election, we saw an increase in Black voters in nearly every parish since 2016.
Incarcerated leaders who we’ve been in close contact with during the pandemic also worked with us to get out the vote. They reached out to their loved ones on the outside about the importance of getting registered and voting. By building power from the inside out, we harked back to VOTE’s origin in the Angola Special Civic’s Project (ASCP). Our Executive Director Norris Henderson and his mentor and friend Biggy created a civic engagement club for both people sentenced to life in prison and non-lifers alike. They created roles and committees and appointed to different leaders (including Checo Yancy, current Policy Director for Voters Organized to Educate). Shortly after, they were writing bills and creating change to Louisiana politics from inside prison walls.
In the runoff election in December, New Orleans voted in a new progressive District Attorney (DA) and two new Juvenile Judges. Clint Smith and Ranord J. Darensburg won the judges’ races, and we have high hopes that they will change the way children are treated by the court system. Jason Williams is New Orleans’ DA-elect, and his victory cannot be understated. Among many other things, he has promised to: not try kids as adults, and implement restorative justice approaches for them whenever appropriate; provide alternatives to cash bail; work with federal authorities to aggressively pursue charges against any police officer or other official who hurts, lies or cheats in the name of the law, including previously dropped investigations; and review the accuracy of past convictions and sentences, including those who were convicted on non-unanimous juries in Orleans Parish, even if the outcome of Edwards v Vannoy does not mandate that non-unanimous juries should be reviewed.
Our Baton Rouge family had some major wins in the runoff as well, such as re-electing their first Black woman Mayor-President, Sharon Weston Broome. We believe she will continue to fight for change and bring true justice reform to the city. Baton Rouge citizens also elected new judges and Metro Council members, who will help Mayor Broome continue her work.
The best part about these major wins is that they create a feedback loop: the more people power we build—and the more people we get to the polls—the more recognition we gain as a voting block. Then, both current and future elected officials must listen and be accountable to us. The more visibility and recognition we gain as a voting block, the more we can encourage to join us. That is truly the power of the people.
Now that the fall elections are over, we’ll continue building momentum in other ways. For example, since voter registration happens all year round, we’ll still be spreading the word about Act 636 and educating people with convictions about the full power of their voice. Another one of our biggest jobs moving forward is holding our elected officials accountable. We’ll be paying attention not just to politicians’ words, but to their actions to make sure they line up with campaign promises. In some cases, we’ll even be advising them on the best way to fulfill those promises; earlier this month, our Executive Director, Norris Henderson, was named as a member of Jason Williams’ transition team, formed specifically to positively reform the DA’s role. Accountability is especially important as we gear up for the Louisiana legislative session, scheduled right now to start in April. We’re training up for the session in other ways, too, like holding more Vote Institute of Policy (VIP) courses for VOTE members. If these initiatives sound exciting and you want to learn how to get involved, send us an email at firstname.lastname@example.org or call us at 504-571-9599. We’ll connect with your closest VOTE chapter and more info on how to plugin.
This year, Louisiana’s runoff election is December 5.
These “second round” elections are often for positions that directly affect our communities—jobs like city council, district attorney, and school board officials. Because of their local impact, they’re just as important as national elections, and that’s exactly the reason why it’s so hard to win one of these races outright.
Elections in Louisiana can only be won by “majority,” which means that a candidate has to get at least 50% of all votes plus one, to win. In a race where there are more than two candidates, that’s nearly impossible—and that’s how we get runoffs.
Runoff elections are part of the system of disenfranchisement built against Black voters during the Jim Crow era. The idea was, if you could make people have to go vote a second time for important races like governors, mayors, judges, and so on, it would “diminish the influence of Black politicians who could more easily win in a multicandidate race with a plurality of the vote,” (source: Chicago Tribune.) In doing so, they would “preserve white political power in the majority-white state.”
In short: Runoff elections were created by white people, as a way to keep them in positions of power. While you won’t hear folks describe runoff elections that way, data and history shows that they are a wholly effective means of voter suppression.
A runoff means yet another trip to the polls, and if you don’t have the means or flexibility in your life, or within your job schedule to make those multiple trips, you simply don’t. Far too often, and especially in Louisiana, those most affected are Black and brown folks.
And that’s precisely the point.
Justice issues on the ballot actually affect communities of color the most. In New Orleans, 89% of people in jail have not been tried or convicted of a crime, and constitutionally at least, are still considered innocent. “Black men are arrested at twice the rate of white men, and Black men comprise 88% of the jail population but only make up 19% of the total New Orleans population. One of the biggest drivers of disparities in our jail population concerns the ability to pay bail: many people are detained because they are poor, not because they pose a risk to our community. More than 500 people detained (about 30% of the total population) are receiving psychiatric medication and 230 have reported a substance use disorder. Our jail is not equipped to be a mental health care provider, but these numbers indicate it is doing just that.” - Safety and Justice Challenge, 2019 report
Across Louisiana, the numbers are better, but not much. Black people make up 32% of Louisiana’s population, but make up 66% of the prison population, while white people make up 60% of the general population and are only 30% of the prison population. For a fuller picture of our state’s incarceration rate and its racial disparities, check out the Prison Policy Initiative.
On December 5, we have a chance to chip away at these numbers by casting our ballots for races that will directly affect our lives. These outcomes could be revolutionary. In Orleans Parish, we can elect leaders willing to change the course of the criminal legal system and put us on a path away from mass incarceration. We can only make that happen if our community gets out and votes.
Baton Rouge also has a great deal at stake on the runoff ballot, including the Mayor-President and six Metro Council seats. These positions wield a lot of power, and can be instrumental in moving Baton Rouge forward into a more just and equitable future.
Many other parishes also have local elections on the 5th. Whether you vote early, by mail, or in-person on election day, we hope you show up as an informed voter. Check to see your ballot, early voting location, and more in your online voter portal. See you at the polls!
February 2000, a fight breaks out in a hole-in-the-wall club in Slidell, Louisiana. It was an open mic night hosted by New Orleans rapper Mac “The Camouflage Assassin” Phipps, showcasing a crew of up-and-coming Black artists in front of a large and rowdy crowd. First came the sound of a smashing bottle, then a gunshot, and then a young man lay dying on the floor. Although a slew of eyewitnesses would come forward to police and identify another man as the one who pulled the trigger, St. Tammany’s infamous district attorney Walter Reed would convict Mac for the crime.
Today, Mac is still imprisoned at Elayn Hunt Correctional Center.
In 2019, after three decades of Walter Reed’s incumbency helped gain the parish the nickname “Saint Slammany,” a new DA was elected. One who the public doesn’t fear.
A new DA who could deliver Mac the justice he deserves. Mac was charged just a few miles away from the city he had always called home, a city with a legacy of over-incarceration that overshadows that of “St. Slammany,” a city that, come December 5, has a big vote on the ballot.
A district attorney wields enormous power, a power that—in thousands of cases over the years—can be seen leaning either toward fair and balanced judgement, or toward its opposite, in cases where the DA’s personal bias and allegiance to law enforcement over “the people” is clear. The good news? We elect our DAs.
And here in New Orleans on December 5, we have the opportunity to move our city toward meaningful criminal justice reform, toward progress that serves the people instead of the PD.
We have the chance to create a justice system that could transform New Orleans. This city’s unmistakable, original, and beautiful culture was cultivated by enslaved people who carried the heritage of their homelands with them. These, crossed with the influences of both the colonizers and the indigenous people of what became New Orleans, created a unique hybrid that one can only truly understand while in the city itself. So it makes sense that this city, a place that could not exist without the legacies of occupation, slavery, and racism, would also hold the sinister and shameful title of Most Incarcerated.
We incarcerate more people here in New Orleans than anywhere else in the country. To be clear: “Louisiana has an incarceration rate of 1,052 per 100,000 people (including prisons, jails, immigration detention, and juvenile justice facilities), meaning that it locks up a higher percentage of its people than many wealthy democracies do.” (source: Prison Policy Institute)
"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor– indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." —Justice George Sutherland, Berger v. United States, 295 U. S. 88 (1935)
The District Attorney has the power to change the course of our criminal justice system. How? By refusing to charge kids as adults, by not charging people under habitual offender laws, erasing the system of cash bail, and holding police accountable. And that is just the beginning. A DA is responsible, along with the police, for gathering evidence for trial. They also set mandatory minimums, and have a huge voice in policy and reform --as the ACLU breaks down in their blog explaining the DA’s power: Over the last several legislative sessions, community activists, academics, and criminal law reform advocates have championed evidence-based reforms to decrease incarceration and promote a more fair and equitable system of justice.
On December 5, New Orleans has the chance to elect a progressive DA to the bench. But the only way that’s going to happen is if we show up and vote.
Do you have a voting plan? Are you registered? Do you have a felony conviction and want to know if you can vote? We got you: call or email us at 504-571-9599, email@example.com
To hear more about Mac's story, check out Louder than a Riot, a podcast about prison and hip hop.
The upcoming November election has so much riding on it. One of the biggest threats to our Democracy is voter suppression. We can win this fight, but we must be prepared. Here are five ways to combat voter suppression and head to the polls ready to use the power of your vote.
Here are five ways to protect our voting power this election:
1. Vote early
Voter turnout this election season has already broken record numbers. Thanks to the hard work of advocates, both early voting and vote-by-mail were expanded so that the polls would be less crowded on election day. Avoid long lines and other potential election-day nightmares by casting your ballot by mail or in-person before Nov. 3!
If you are voting by mail, we strongly suggest that you request your ballot and send it back as soon as you can, keeping in mind that Oct. 30 is the official deadline.
In-person early voting is from Oct. 16-27, except Sundays, from 8am-7pm.
Your early voting location is different from your election-day location, so you can check your early voting polling place here.
2. Register to vote, and check your registration status OFTEN - We’ve met a lot of people this season who THINK they’re registered but are not. There are many reasons why this might include you - one reason being that the Secretary of State purged “inactive” voters from the list this summer. But there’s still time to fix it! The deadline is fast approaching: Tuesday, Oct. 13. It only takes 30 seconds to check, and then you’ll know for sure that your vote counts when you show up to the polls or mail in your ballot. To check your registration, use this link to log into your voter portal. If it lets you log in, you’re registered! If not, you can call your local Registrar of Voter’s Office to double-check, and you may need to re-register. Don’t wait! The deadline is Tuesday, Oct. 13.
If you're not registered, there's still time!
Register online here by the 13th, all you need is your Lousiana ID. If you have a felony conviction, this video will walk you through the online registration form, but remember, there is STILL an in-person step. You’ll need to bring your Voter Eligibility Letter in-person to the Registrar's Office. Call us with questions at 504.571.9599.
3. Make a voting plan
A voting plan simply means figuring out how you’re voting, when, and for who. For example, are you voting early? Great! All that’s left to do is to pick a day, find your early voting location, and fill out a sample ballot to take with you to the polls. Final sample ballots are available on the Secretary of State’s website on Wednesday, Oct. 14. It’s important to vote the way that’s best for you. Early voting, mail-in voting, and casting your ballot on election day are all available. Here are some key dates to consider:
4. Help your friends, family, and neighbors make a voting plan
We’ve said it before and we’ll say it again: community change happens when communities vote. We also know that it’s harder to vote when the people around you don’t - or can’t. That’s especially true for Black communities. A 2009 study found that eligible and registered black voters were nearly 12 percent less likely to cast ballots if they lived in states that disenfranchised formerly incarcerated people for life. That’s why making sure that your loved ones have a voting plan is essential in making our voices heard. Your support could be crucial for someone voting for the first time. So start that conversation. Text your brother to ask him if he’s registered and if he knows how he’s voting yet. Email your local sample ballot to your family and friends. See if your grandma needs a ride to the polls, or help requesting a mail-in ballot. In helping the people in our community create their voting plan, you could be the reason someone votes this season--we need that now more than ever.
5. Report voting violations
We all have a right to a polling place that is “free from solicitation, harassment, force or threats…” among many other things. Both workers and voters should be wearing masks, and polls should be free from any campaign materials. See something that’s not supposed to be happening at the polls? Call the Election Protection hotline, a non-partisan nonprofit organization. They have local, on-the-ground volunteers who they can send to your location, and lawyers on speed dial. They’ll do their best to record and resolve the issue:
dIn 2008, a judge sentenced Derek Harris to 15 years for selling a $30 bag of cannabis. Sound extreme? If Harris hadn’t had a record, he surely would not have gotten 15 years for this small-time drug sale. But those 15 years were not enough. The district attorney in Harris’ case took it a step further and filed to have him classified under the habitual offender statute. With one court filing, Harris’ past convictions, which he already paid the price for, were used against him yet again to sentence him to life without parole (LWOP). Harris, like so many others labeled by the (in)justice system as Habitual Offenders, was sentenced to death by prison. Harris started the arduous appeals process, desperately pleading that some judge, at some level, recognized that dying in prison was too extreme. He hoped they would agree that only a bad lawyer could have let this happen. Thankfully, even between uninspired lawyers and bureaucratic red tape, Derek’s latest lawyers (the only good ones) convinced the Louisiana Supreme Court (LASC) to overturn their previous decision. With their ruling out last week, on his sixth stage in his process, he won the opportunity for his case to be reviewed.
The ultra-punitive nature of prosecutors and judges is only one part of the courtroom equation that explains why Louisiana leads the nation in mass incarceration. Other parts include (a) defense counsel, and (b) restrictive appellate rules that can block even the most unconstitutional actions from being reviewed.
The LASC ruling declared that appellate judges CAN review errors during sentencing, including ineffective assistance of counsel. This is a major victory in creating fair appellate rules--but how many people will be able to benefit? It will take a few more cases to test the boundaries of this ruling, but our calculation is that those who tried to get their sentences reviewed (including when judges wrongfully thought the application of a Habitual Offender sentence was mandatory) but were categorically barred from raising the issues, will have a new window for appealing their case. For those people denied under Meline v. Louisiana (1996), they may have a year to build and file their case. While ultimately this is TBD, impacted people should seek legal advice.
Keep reading for a deeper dive into the legal analysis of this case.
When lawyers aren’t what they should be - Ineffective Assistance of Counsel (IAC)
One of our foundational democratic values is that people accused of crimes have the constitutional right to not just a lawyer, but an effective lawyer who covers all the bases on legal procedures. Meaning a lawyer is constitutionally obligated to explore every avenue and try their hardest to defend their client. For example, if someone has an alibi witness, the lawyer is constitutionally obligated to investigate and interview that person. But there are a lot of holes in this system. For one, though there are countless stories about how overworked and underpaid even the “best” public defenders are, meaning they always wish they could have done more. And how thorough of a job are the “good” lawyers doing? What about the “so-so” lawyers who don’t even specialize in criminal defense, yet are appointed by the court? Most of them don’t really care much about their client, or have the time to care, and will make the same flat rate regardless of the case’s outcome. Furthermore, what about the conflict of interest when public defense is partially funded from the fines following someone’s conviction?
These are just some reasons why a lawyer does not rise to the constitutional standard of “effective.” Regardless of the reason, this is one way innocent people are found guilty, or someone ends up in Angola with cruel and unusual punishment. Another hole in the system is that it can take some time for the average person to realize precisely where their case went wrong. If they realize the fault lies with their lawyer, they can raise a claim of Ineffective Assistance of Counsel (IAC)--they can officially claim their lawyer didn’t properly do their job, which, as we said, is a constitutional right. But (yet another hole) people cannot raise IAC on a direct appeal, because that is reserved for issues that were “Objected” to at trial, where there is some dispute on the trial record to review. This creates a problem, of course, because a sleeping lawyer can’t object to their own nap. So this kicks the can further down the road (meaning more time behind bars) and requires a second review AFTER the direct appeal.
Yet another hole: what if your direct appeal lawyer is also ineffective? This usually happens when an appellate lawyer fails to make an argument that an effective lawyer should have. That means someone needs to file a post-conviction petition, after being denied on the direct appeal, and make claims against BOTH of their lawyers. Because it is difficult to get a lawyer to represent you on a post-conviction petition, nearly all of these filings begin as a pro se filing, hopefully with the help of a jailhouse lawyer, or “inmate counsel.” VOTE’s founders and leaders all served as inmate counsel, and collectively we have filed hundreds of petitions.
Lastly, one of the biggest problems with IAC is exactly what Justice Thurgood Marshall warned in Strickland v Washington: the standard is so high, nobody will be able to prove it. To actually WIN an IAC, someone must prove that their counsel failed to do something, or made an objectively wrong non-strategic decision, and this ineffective performance puts doubt on the conviction. Basically, is it reasonable to think the situation would have turned out differently? (Usually, no matter how bad the lawyer, appeals courts will say “it didn’t impact the outcome,” or that it is a “harmless error.”)
The bottom line is that it is very difficult to make an IAC claim. There are endless barriers for incarcerated people to claim IAC, and Derek had to seek review by judge after judge.
Derek Harris’ Claims of IAC
The first thing that is clear in Derek Harris’ post-conviction petition to the LA Supreme Court is how difficult it is to get the courts to review bad lawyering. After waiting four years between his 2004 arrest and 2008 sentencing, it took Derek another TWELVE YEARS to get to the point where the LA Supreme Court said that his case may be reviewed. It still hasn’t been actually reviewed. That comes next, back at the trial court level.
Derek claimed (1) his trial lawyer should have presented a pretty standard “entrapment defense,” whereas the police initiated the drug deal, and the evidence was a video without audio, (2) his trial lawyer should have objected to the Habitual Offender being “mandatory,” because it was not and is not, (3) his trial lawyer should have told him the prosecutor offered him 7 years (this is required under the U.S. Supreme Court, and written into Louisiana law following VOTE’s 2019 advocacy), and (4) his appellate lawyer should have raised the claim about the no-audio DVD.
In 2013, one appellate judge (dissenting from the ruling) saw the situation clearly: the trial judge (a) admittedly didn’t believe Derek, an honorably discharged vet who has had PTSD and drug issues following his return, deserved 30 years in prison, much less to die in prison, and (b) it was clear that the trial judge thought that imposing the Habitual Offender sentence was mandatory. The ruling went against him though, so Derek had to keep trying.
Ironically, the state and federal courts put strict time limits on filing for review, because even if a case is continuously in the courts, from one stage to the next, every case like Harris' will usually span over a decade.
Finally, in 2016, Harris got into district court with his post-conviction petition and his IAC claims.
Post-Conviction Relief, overturning Melinie, and the New Ruling within LA v. Derek Harris
Along with Derek’s IAC claims listed above, he also claimed that the judge should have known that LWOP was not mandatory. In other words, it should not be solely the defense lawyer’s burden to point out every part of the law--certainly one would think anyone issuing a death sentence would know the legality around it.
In 2016, District Court Judge Laurie Huelin ruled that issues regarding sentencing, including IAC and Habitual Offender sentences, cannot be heard on post-conviction relief. Based on a ruling in 1996 (Melinie) judges have interpreted that to mean the 6th Amendment right to counsel at sentencing is not protected under Louisiana law. Overturning Melinie is the heart of Derek’s case. Judge Huelin also ruled that Derek failed to prove his IAC claims. This should come as no surprise, as Derek’s post-conviction attorney did not bother to call trial counsel to the stand. Examining the lawyer is the standard process for every IAC hearing. Basically, Derek was left with a lawyer ineffectively claiming ineffective assistance.
Making matters even worse, Derek Harris had to then argue, pro se, that his post-conviction attorney was also ineffective.
The 2020 LASC Ruling: People’s 6th Amendment right to counsel during sentencing, including Habitual Offender proceedings, can be reviewed by the court
This may seem obvious, because where else would you fight an issue about your lawyer failing to object to the Habitual Offender sentence enhancement? Essentially, the past rulings in Louisiana served to make Derek’s sentence, to die in prison, immune from review, bulletproof, and above the law. Likewise for similar people who have been stonewalled over the past 24 years. The State’s position on Derek Harris being sentenced to die in prison for a tiny bag of cannabis is that the LWOP cannot be reviewed by the appellate judges. The State’s lawyers actually take the position that Louisiana should hand out such severe sentences, and, no matter how faulty the process, the sentence is untouchable. But last week, LASC disagreed with the State’s attorneys.
Previously, people who have turned to the Federal courts for relief would then be told the state court shot you down for “adequate and independent state grounds.” This creates a classic feedback loop, where non-review in one court justifies non-review in another court because it was determined that it is not reviewable.
This new ruling puts hundreds of people in an interesting position. Those who have had similar such claims will need to go back to court. The first case to make its way up the chain, from district court petition on up the appellate chain, will create a precedent as to whether the Harris case is applied retroactively. One appeals circuit could rule that it is retroactive, while another circuit could rule that it isn’t. The precedent won’t be binding on the whole state until, like Derek Harris, the case goes all the way to LA Supreme Court.
Likewise for those challenging their state sentences in federal court. The only way to be certain how the feds will consider this new position is by filing a petition and trying. The Feds are effective at barring the courthouse door since the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA). Using restrictions such as a 1-year filing deadline, or allowing just one “bite at the apple” (meaning your first petition needs to make every claim). Federal time deadlines also occasionally have more leeway when new rules are announced, such as high profile decisions in Miller, Montgomery, and Ramos. When someone files after a new ruling, there will be debates about issues like “procedural vs. substantive rule,” or “watershed rule,” and whether non-review would be a “miscarriage of justice.” It is quite likely that any federal petition would either be denied or held onto, awaiting the Louisiana court’s final position on the issue.
Justice Crichton, who Justice Genovese agreed with, took his Harris concurring opinion a step further and spoke directly regarding the hundreds of people who have been told, essentially, there is no 6th Amendment right to effective counsel at sentencing. Crichton invoked the debate in Ramos, about the State’s worry of upsetting their status quo:
In its valiant search for reliance interests, the dissent somehow misses maybe the most important one: the reliance interests of the American people. Taken at its word, the dissent would have us discard a Sixth Amendment right in perpetuity rather than ask two States to retry a slice of their prior criminal cases. Whether that slice turns out to be large or small, it cannot outweigh the interest we all share in the preservation of our constitutionally promised liberties. Indeed, the dissent can cite no case in which the one-time need to retry defendants has ever been sufficient to inter a constitutional right forever. Ramos, 140 S.Ct. at 1408.
Justice Crichton writes, plainly, that the administrative burden of reviewing cases such as Derek Harris’ “is far outweighed” by the Sixth Amendment right to effective counsel at both trial and sentencing phases. Similar to the Ramos ruling on non-unanimous juries, the District Attorneys of Louisiana and the district court judges of Louisiana might have pondered whether their unique brand of “justice” would hold up under further scrutiny. Interestingly, all the district attorneys and judges are up for election this November 3. J. Crichton thoughtfully applies the Ramos rationale to overturn the instant case, and it appears that at least two LASC justices are firmly in support of someone returning to the courts after previously being told that IAC during sentencing cannot be reviewed.
Unlike Non-unanimous jury convictions, where a retroactive application of Ramos could mean throwing out an entire conviction, the Harris cases would be more like Miller and Montgomery. Those cases also applied to sentencing and threw out those unconstitutionally mandatory LWOP sentences for children still left these people convicted of a crime. Being re-sentenced, or simply having a Habitual Offender sentence enhancement tossed out, does not require witnesses and evidence and juries. The State would not be in such a tight position if dozens, or perhaps hundreds, of sentences are reviewed.
What’s next? Getting back into court
Anyone with a claim that centers on ineffective assistance of counsel during sentencing or legal challenges to the Habitual Offender laws, should consider that a one year clock just started ticking. This may also preserve a federal petition after you have exhausted your state remedies, but that bridge would need to be crossed when the time is right.
There is no need to hastily get “just anything” in immediately. Whether someone is Inmate Counsel, pro se, a family member, or an attorney: it would be wise to check in with VOTE and the Promise of Justice Initiative, to be sure you have the best representation and collectively do our best to ensure this ruling has the broadest impact on the most people.
Excellent work, courage, and faith exhibited by Derek Harris and our incarcerated brothers who supported his petitions along the way. And major shoutout to Harris' (hopefully last) lawyer, Cormac Boyle, a longtime death penalty investigator, who earned his law degree and is putting it to the best use with Promise of Justice Initiative.
Read the full opinion, Louisiana v. Derek Harris here.
As the legislative session winds down, it has become very clear that this is not just an emergency session for Covid-related bills. The final week of this session looks like any other, with bills covering a wide range of topics.
ACTION ALERT: HB 643, HB 529 all need to get a hearing in Senate Judiciary C this week! Call and email Chairman Franklin Foil asking him to put the bills on the agenda TODAY! 225-342-6777 / firstname.lastname@example.org
Here are some of the bills we’ve been following this session, covering Prison Conditions, Supervision and Discrimination, and Medical Marijuana:
Council on the Children of Incarcerated Parents (CIP): HB729 (Rep. Marcelle). Under the leadership of Daughters Beyond Incarceration (DBI), this entirely new council, to be in the Office of the Governor, would have 17 members (including a representative each from DBI and VOTE, three people who were children when their parents were incarcerated, and one FIP parent). Unlike most councils and commissions about our people, the CIP smartly only has two members of DOC, one representative from the Sheriffs association and one District Attorney.
Medical Services in Jails and Prisons Study: HCR 91 (Rep. Mandie Landry). This resolution will ask VOTE, LSU Health Sciences Center, Loyola Law, and the FIT Clinic to study medical services for the incarcerated, including the impact of COVID-19, and report to the legislature in 2021. This resolution passed the House (80-19), and needs to be heard in the Senate Committee this week.
End Solitary Confinement for pregnant women: HB 344 (Rep. Mandie Landry). This bill originally ended solitary confinement for pregnant women and people with mental illness, but amendments limited its scope to just pregnant women. Still, this bill marks the first time Solitary has been barred in any way, and hopefully future efforts will expand the ban on this inhumane practice.
Veteran’s Mentorship Program: SB 407 (Sen. Kenny Cox). This bill is a “clean up” to our prior expansion of the program, allowing the DOC to actually fulfill the intent of the law and ensure powerful vet mentors are able to help their fellow vets.. It passed through the Senate and House committee with no opposition, and onto the House Floor today for final passage.
Community Supervision and Post-Conviction Discrimination
Parole conditions cap at 5 years: HB 643 (Rep. Jones). This bill would help a few thousand people who have proven to successfully overcome the many obstacles to assimilation after prison, and place them on unsupervised parole. It has made it through the House will be heard this week in Senate Judiciary C.
Proving your incarceration term: HB 529 (Rep. Duplessis). This bill allows people to get documentation regarding their sentence (past or present) from their local Probation and Parole Office. People have previously gone to great lengths trying to prove they have finished the term, to prove identity theft, or qualify for a program.
Voter registration for people on probation: A bill to streamline voter registration (HB 454), which was worked out with the Secretary of State, DOC, and Rep. Sam Jenkins will need to wait on next week’s Special Session.
Studying the barriers to reintegration: HCR 14 The Louisiana Dept. of Health and Dept. of Education will study some of the barriers to reintegration. This is part of a broader movement to really understand why “success” is so difficult, and develop new strategies that work. – Passed the House and heads to the Senate floor this week.
Medical Marijuana: HB 819 Allows any doctor in good standing to recommend marijuana when “in the sincere judgment of the physician, therapeutic cannabis may be helpful to the patient's condition or symptoms.” This should finally allow Louisiana to fully benefit from medical marijuana the way that most other states in America can. The House passed it 77 – 15, and it is up for the full Senate today. Another medical marijuana bill (HB 455) passed the House 80 - 10, and is on the Senate floor. The bill would allow therapeutic marijuana for people in hospice or palliative care. The progress of these bills indicate a major shift on this subject.
Parole eligibility for all juveniles at 25 years: HB 173. The next step after ending mandatory juvenile life w/o parole was creating a parole eligibility at 25 years. This bill would extend that eligibility to every child serving a lengthy adult sentence. It passed the House 68 – 22, and is now in Senate Judiciary B.
Fines and fees--the saga continues: HCR 2 and HCR 3 serve to continue pushing off the JRI Reform that grants people “Ability to Pay” hearings and provides debt relief and incentives for people who can put these bills in front of their rent, phone, food, and transportation. The fact that it will take at least five years to understand the convoluted system of assessing and collecting fines and fees (and lack of accounting) should tell us all we need to know about this historical attempt to fund America’s most expansive criminal legal system on the backs of one of America’s poorest citizens. These will both pass.
Study of homicide data over the past 5 years: HCR 56. The Legislature added Voice of the Experienced to the research team, to provide insight on numbers and statistics that have real world people and situations. This passed the House, and is on to the Senate floor this week.
Retro 80s Throwback Edition - Reminiscent of America’s sordid “Tough on Crime” era, several bills are moving forward without any regard for the modern trend to reduce barbaric sentences that leave us with a prison full of senior citizens facing a global flu pandemic. These bills show that legislators often fail to look at the current maximum sentences, nor do they seem to believe the Louisiana judiciary (the most punitive in the nation) will dole out harsh enough sentences.
For more information on these bills and where things stand as the final week of the legislative session comes to a close, visit our Legislative Corner.
Here's where things stand at the end of this week.
At Gov. John Bel Edwards' daily press conference on Tuesday, Department of Corrections Secretary James LeBlanc announced that he has plans to release what will amount to about 1,100 people. That's not even 2% of the total number of people incarcerated in Louisiana, not including those in ICE facilities or on probation or parole! Not only that, but the plan only applies to those who: are doing time for a nonviolent offense, are within six months of their release date, and already have a residence plan for their release. Even worse, the review board--which includes no formerly incarcerated people--didn't begin until today, will only look at 40 cases at a time, and will require 5 of 6 board members to vote in favor of release. This is a negligible plan that isn't informed by medical or public health experts, and doesn't actually create any true social distancing within facilities. Can you please call Gov. Edwards right now at 225-342-0991 and tell him we demand that more people, especially our elderly and immunocompromised loved ones, come home?! Then can you repeat this call every day, and encourage others to do the same?
Care of Incarcerated People with COVID
On Tuesday, our partners at the Promise of Justice Initiative (PJI) and the Southern Poverty Law Center (SPLC) filed a lawsuit against the Department of Corrections (DOC). The DOC has been transferring incarcerated people who test positive for COVID-19 from various jails and prisons around the state INTO Camp J, a condemned building at Louisiana State Penitentiary (commonly called Angola) instead of to hospitals, where they need to be. The DOC’s entire plan has been widely criticized by public health experts and civil rights advocates alike. Camp J is a notoriously inhumane facility that was designed as a punishment camp for those serving life without the possibility of parole. The lawsuit calls on the DOC to halt the plan immediately and ensure people with COVID-19 receive adequate care.
On Wednesday morning, Louisiana Republican lawmakers blocked an emergency election plan that would expand mail-in voting, early voting and make other changes to the state’s delayed presidential primary election because of the coronavirus pandemic. This has negative implications for ensuring fair and equitable elections, for our newly eligible voters with conviction histories, and for democracy as a whole.
Last, our first virtual VOTE meeting on Wednesday afternoon was a big success! At more than 100 attendees strong, we gathered online to support each other, answer as many questions as we could about our work and your loved ones on the inside, and discussed next steps in bringing our loved ones home. Watch a recap of the call here.
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On Saturday, Patrick Jones died of the coronavirus while inside Oakdale prison in Allen Parish. Seven others from Oakdale are currently hospitalized because the pandemic has been spreading among the 990 men held at this facility. Positive cases are also confirmed at Angola, as well as in jails in Jefferson, Orleans, and Ascension Parishes. The spread among facilities is quickly catching up to--and will eventually surpass--the rate among the broad public. In NYC, for example, the infection rate in jails is already EIGHT TIMES that of outside the jail.
For the past three weeks we've been calling on decisionmakers at every level to immediately release as many people from these facilities as possible so that not only do they not endure the same fate as Patrick did, but they don't put thousands of others in harm's way, too, by spreading the virus.
The answer we keep hearing? "We're working on it."
That's vague. It's irresponsible. It's not something that consoles our families who are worried sick about their loved ones on the inside.
Gov. Edwards must take swift action before he has blood on his hands.
We DEMAND that IN THE NEXT FOUR DAYS,
he does the following FOUR EMERGENCY ACTIONS:
1) Grant 180-days Good Time to allow everyone within 6 months of going home to get home;
2) Issue medical parole for everyone with respiratory conditions, anyone who is immunocompromised, and anyone over 60 years old;
3) Provide masks and gloves to all staff and incarcerated people who remain; and
4) Create a jail and prison COVID-19 oversight commission under the Office of Public Health and CDC, with the power to interview sick people, enforce basic medical standards, and ensure families have a right to know about the health of their loved ones.
Can you help us make these demands by calling these three people today?
Gov. John Bel Edwards: 225-342-0991
U.S. Senator Bill Cassidy, MD: 202-224-5824
U.S. Representative Ralph Abraham, MD:
if you live in Central Louisiana call 318-445-0818
if you live in Northeast Louisiana call 318-322-3500
if you live in South Louisiana call 985-516-5858
Read the full demands letter that we sent to the Governor here.
Thank you for taking action. We are sending you and your loved ones love, persistence and hope in these times.