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In Kingsley v. Hendrickson, 135 S. Ct. 2466 (2015), the Supreme Court held that a pretrial detainee may prevail on a § 1983 excessive force claim if he or she shows that the force used was objectively unreasonable, regardless of whether the officer had a subjective intent to cause the detainee harm.  In reaching this decision, the Court seemed to grant greater protection to pretrial detainees under the 14th Amendment’s Due Process Clause than is given to convicted prisoners under the Eighth Amendment, which still requires proof of a subjective intent to cause harm before a violation will be found.  Frankly, it’s hard to see how that shouldn’t be the case– a pretrial detainee is legally innocent of any charges, and so, as the Court noted, he or she can’t be subjected to any form of punishment.  That is unlike a convicted prisoner, who may be punished so long as the punishment is not “cruel and unusual” under the Eighth Amendment.

Noting some of the broad language in the Kingsley opinion, the Ninth Circuit has recently interpreted its holding to apply to all § 1983 claims brought by pretrial detainees, not just those founded on allegations of excessive force. Castro v. County of Los Angeles, 833 F.3d 1060 (9th Cir. 2016). Other circuits have yet to interpret Kingsley outside the excessive force context, but it is surely an issue percolating up through the federal court system. A circuit split could, of course, mean that the issue would be back in front of the Supreme Court. Given the narrow majority in Kingsley itself (it was a 5 to 4 decision), it will be interesting to see whether the case is read expansively or, instead, is cabined solely to the excessive-force context.

Currently pending in the Senate, the Sentencing Reform and Corrections Act of 2015 (S. 2123) could have far reaching, positive consequences for federal criminal law and the excessive incarceration rates in this country. The law was sponsored by Republican Senator Chuck Grassley, chairman of the Senate Judiciary Committee, and also enjoys the support of Senator Patrick Leahy, the ranking Democrat. The Act focuses on reforming 21 USC § 841, the primary federal drug law. If the Act becomes law, it would abolish mandatory life without parole for people with two prior drug convictions, replacing that penalty with a mandatory minimum 25 years for only certain offenders. That is huge— the threat of mandatory life is an extraordinarily powerful club federal prosecutors can use to pressure defendants in drug cases into taking plea deals they may not otherwise take.

The Act contains the following revisions to § 841:

 Limits the types of drug offenses that can be used to multiple bill an offender under 21 USC § 851. Instead of all prior drug felonies being predicates for a bill, the Act would limit a predicate offense to a “serious drug felony,” defined as a drug offense for which the defendant was actually imprisoned for 12 months or longer. (This change in the law would also be a huge step forward— currently, even simple possession offenses can be used to bill a defendant, thereby enhancing mandatory minimum penalties).

 Abolishes mandatory life for “three-strikes” offenders. Changes mandatory minimum to 25 years upon conviction of a third “serious drug felony”

 Reduces the mandatory minimum for a second serious drug offense from 20 years to 15 years.

Additionally, the Act contains language that would make it retroactive, meaning that if someone is currently serving a term of imprisonment under the old law, then if the Act is passed, that person can apply to the Court for a reduction in their sentence.

Although the Act is currently stalled in the Senate, as is a similar law in the House, we can hope that the bills will move again after the current election season is over. Given the Act’s bipartisan support, I’m hopeful the Act will become law.

Defense attorneys and others sometimes lament the extraordinary breadth of federal conspiracy laws. These complaints are nothing new.  In his lecture on Industrial Conspiracies, Clarence Darrow quipped:

When they want a working man for anything excepting work they want him for conspiracy. And the greatest conspiracy that is possible for a working man to be guilty of is not to work— a conspiracy the other fellows are always guilty of  . . .  If any king or ruler wanted to get rid of someone, and that someone had not done anything, they indicted him for what he was thinking about; that is, for conspiracy; and under it they could prove anything that he ever said or did, and anything that anybody else ever said or did, to prove what he was thinking about; and therefore that he was guilty.

Darrow’s wit aside, federal conspiracy law can be shockingly broad. It allows the government to prosecute the agreement to commit a crime, not just the actual crime itself. To convict someone of a conspiracy, the government must prove nothing more than: (1) the existence of an unlawful agreement between two or more persons; (2) the defendant’s knowledge of the agreement; and (3) the defendant’s voluntary participation in the conspiracy.

An agreement may be inferred from a “concert of action,” United States v. Landry, 903 F.2d 334, 338 (5th Cir. 1990), and “[t]he agreement, a defendant’s guilty knowledge and a defendant’s participation in the conspiracy all may be inferred from the ‘development and collocation of circumstances.’” United States v. Maltos, 985 F.2d 743, 746 (5th Cir. 1992).

Note what is not required— actual commission of the crime.  In a drug conspiracy case, for example, the government is not required to prove any particular defendant actually possessed illegal drugs. Instead, it only has to prove that two or more  people agreed to possess or sell illegal drugs, the defendant knew about the agreement, and the defendant did something to help or further the agreement.  Note also that the government does not have to show an actual, verbal agreement to commit a crime.  The “development and collocation of circumstances” (whatever that means, and I’d suggest it’s a fairly capacious phrase) can be enough.

Understandably, this broad definition of conspiracy can be hard to grasp at first. I often hear the complaint about “ghost drugs” in a conspiracy— the idea that someone can be punished just as much for an agreement to sell drugs as for selling the actual drugs themselves, even where no actual drugs were ever possessed, strikes a lot of people as fundamentally unfair. And it is undoubtedly the case that innocent people have been charged and convicted for conspiracies they were not guilty of.  That’s why it’s important to have an experienced lawyer on your side whenever federal conspiracy laws are involved.

For more information or a consultation, contact the Law Offices of Stephen Haedicke.

It is increasingly common for jails and prisons to contract with a private company to provide medical care to pre-trial detainees and prisoners. In a recent civil rights case involving the tragic death of a 16-year-old boy being held in an adult jail, we sued such a private medical company and its employees. In response, the company argued that it and its employees were entitled to assert the qualified immunity defense, which offers strong protections to government workers sued under section 1983 and other civil rights laws. The need to overcome the qualified immunity defense—which can shield a government employee from liability even where the employee made a mistake—is one of the reasons why civil rights cases are so difficult. In the words of the late Justice Scalia, the defense protects “all but the plainly incompetent or those who knowingly violate the law.” So rebutting the private medical company’s assertion that it could assert the defense was crucial.

Thankfully, the law is on our side. In Richardson v. McKnight, the Supreme Court considered whether guards at a private prison, who were employed by the private company that ran the prison pursuant to a contract with the state, were entitled to qualified immunity simply because they were considered state actors subject to liability under § 1983. Rejecting a simple one-to-one correspondence between § 1983 exposure and entitlement to qualified immunity, the Supreme Court instead held that qualified immunity should be permitted only if historical context and public policy demand it. Richardson, 521 U.S. at 410-13

For private prison guards, the Richardson Court determined there was no such demand that they be entitled to qualified immunity. Various sources, including historical treatises and state common law cases from the 1800’s, showed that private prison contractors had not historically enjoyed any special protections from lawsuits related to their jobs. Id. at 405-06. Furthermore, there were no policy reasons sufficient to justify extension of the qualified immunity doctrine to cover private prison employees. Qualified immunity is generally justified on the grounds that public employees must have certain protections so that they can perform their jobs without a “timidity” born of fear of lawsuits. Id. at 408-09. Qualified immunity is also justified by the need to offer public employees protections so that talented people will be willing to apply for the positions. Id. at 411-12. The Richardson Court held that neither of these reasons justified extending the doctrine to private employees of a private corporation. The Court noted that ordinary competitive pressures of the marketplace would weed out overly timid employees or companies. Id. at 408-10. Further, the availability of and general requirement that companies procure comprehensive insurance policies would serve to ensure that talented people would be willing to apply for jobs at private employers without fear of potential personal liability. Id. at 411-12. Considering these facts, the Court held that private prison guards were not entitled to qualified immunity in a § 1983 lawsuit. Id. at 412.

The Richardson case strongly suggests that private medical providers, just like private prison guards, do not enjoy qualified immunity protection. And that is in fact what all court to have considered the question have held: Employees of private medical providers in a jail or prison are not entitled to qualified immunity. Although the Fifth Circuit where I work has apparently not reached this issue, a District Court in the Southern District of Texas presented a lucid analysis in Cheek v. Nueces County Texas, No. 13-cv-26, 2013 U.S. Dist. LEXIS 110039; 2013 WL 4017132 (W.D. La. August 5, 2013). In that case, the Court held that there was no material difference between private medical providers and the private guards discussed in Richardson. In each case, there is no historical basis for extending qualified immunity to these private actors. Id. at 61-64. Furthermore, just as in Richardson, competitive market forces and the availability of insurance serve to ameliorate any problems associated with overly timid workers and difficulties attracting qualified candidates. There was thus no policy basis for granting qualified immunity to the private health care company employees, and the Court declined to do so. Id. at 61-64, 66.

The Cheek Court also collected a host of cases from other circuits that have reached the same conclusion in very similar contexts. See McCullum v. Tepe, 693 F.3d 696 (6th Cir. 2012) (holding that privately employed doctor working at county jail was not entitled to qualified immunity); Rosewood Services, Inc. v. Sunflower Diversified Servs., 413 F.3d 1163, 1169 (10th Cir. 2005) (applying “market forces” element to deny qualified immunity to non-profit organization supplying services to the developmentally disabled under government contract); Jensen v. Lane County, 222 F.3d 570, 579 (9th Cir. 2000) (denying qualified immunity to contract psychiatrist); Hinson v. Edmond, 192 F.3d 1342, 1347 (11th Cir. 1999), amended, 205 F.3d 1264 (11th Cir. 2000) (finding no reason to distinguish privately employed physicians from privately employed prison guards and denying qualified immunity; withdrawing any opinion on the merits of the constitutional claim); Halvorsen v. Baird, 146 F.3d 680, 685-86 (9th Cir. 1998) (non-profit detoxification facility not entitled to qualified immunity). See also Currie v. Chhabra, 728 F.3d 626, 631-32 (7th Cir. 2013) (affirming denial of qualified immunity for private health care providers for jail).

As for the company itself, courts have long recognized that qualified immunity shields only individuals, not legal entities. Owen v. City of Independence, Mo., 445 U.S. 622, 100 S. Ct. 1398 (1980); Trent v. Wade, 776 F.3d 368, 388 (5th Cir. 2015).

In a continuing move towards rationality in federal criminal law, the U.S. Department of Justice recently announced a new clemency program for certain offenders serving time in the federal system.  Under the program, the DOJ will review thousands of cases, mostly involving drug offenders, and recommend many prisoners to the president as candidates for executive clemency.  The DOJ announced that the program would cover the following types of inmates:

(1) inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today;

(2) are non-violent, low-level offenders without significant ties to large-scale criminal organizations, gangs, or cartels;

(3) have served at least 10 years of their sentence;

(4) do not have a significant criminal history;

(5) have demonstrated good conduct in prison;

and (6) have no history of violence prior to or during their current term of imprisonment.

It remains to be seen how the program will play out, but it has the potential to offer a second chance to thousands of federal inmates who were sentenced under punitive laws–most particularly laws relating to crack cocaine–that have now been revised.

 

For various reasons, the Louisiana legislature has enacted legislation granting extended prescription dates (otherwise known as statute of limitations dates) on the prosecution of sex crimes.  Although prosecution for most felonies must begin within either four or six years, for a long list of sex crimes the time limit for instituting prosecution has been extended to 30 years after the victim reaches the age of 18.  The list of sex crimes with this extended prescription date is below.  An interesting issue that would bear research is whether the extended prescription date–which was apparently instituted in 1993–would be considered an ex post facto law if used to prosecute someone who allegedly committed the crime before the extended-prescription law took effect.  That is, does changing the prescription date on a crime count as a substantive or procedural change in the law?

Louisiana Code of Criminal Procedure Article 571.1 contains the list of sex crimes with an extended prescription date.  Note also that aggravated rape and forcible rape are never subject to prescription, pursuant to Article 571.

Sexual Battery (R.S. 14:43.1),

Second degree sexual battery (R.S. 14:43.2)

Oral sexual Battery (R.S. 14:43.3)

Human Trafficking (R.S. 14:46.2(B)(2)

Trafficking of Children for Sexual Purposes (R.S. 14:46.3)

Felony Carnal Knowledge of a Juvenile (R.S. 14:80)

Indecent Behavior with Juveniles (R.S. 14:81)

Pornography Involving Juveniles (R.S. 14:81.1)

Molestation of a Juvenile (R.S. 14:81.2)

Prostitution of Persons under eighteen (R.S. 14:82.1)

Enticing persons into prostitution (R.S. 14:86),

Crime against nature (R.S. 14:89)

Aggravated crime against nature (R.S. 14:89.1)

Crime against nature by solicitation (R.S. 14:89.2(B)(3))

Incest (R.S. 14:78),

Aggravated incest (R.S. 14:78.1) which involves a victim under seventeen years of age

Well, Louisiana’s statute for driving while intoxicated (sometimes called driving under the influence, or DUI) is found at LA R.S. 14:98, which is posted below.  As you’ll note, it’s quite long and complicated, with escalating potential penalties based on blood alcohol content and number of prior offenses.  On top of that, there are complicated statutes governing what happens to your license if you catch a DUI– a conviction will result in a suspension.  That part of DUI/DWI law is covered by Title 32 of the Louisiana statutes, specifically, LA R.S. 32:414.

There are a number of ways to work within these statutes to protect yourself– an experienced attorney can be invaluable.

LA RS 14:98.  Operating a vehicle while intoxicated

 

A.(1)  The crime of operating a vehicle while intoxicated is the operating of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance when:

 

(a)  The operator is under the influence of alcoholic beverages; or

 

(b)  The operator’s blood alcohol concentration is 0.08 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood; or

 

(c)  The operator is under the influence of any controlled dangerous substance listed in Schedule I, II, III, IV, or V as set forth in R.S. 40:964; or

 

(d)(i)  The operator is under the influence of a combination of alcohol and one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription.

 

(ii)  It shall be an affirmative defense to any charge under this Subparagraph pursuant to this Section that the label on the container of the prescription drug or the manufacturer’s package of the drug does not contain a warning against combining the medication with alcohol.

 

(e)(i)  The operator is under the influence of one or more drugs which are not controlled dangerous substances and which are legally obtainable with or without a prescription.

 

(ii)  It shall be an affirmative defense to any charge under this Subparagraph pursuant to this Section that the operator did not knowingly consume quantities of the drug or drugs which substantially exceed the dosage prescribed by the physician or the dosage recommended by the manufacturer of the drug.

 

(2)  A valid driver’s license shall not be an element of the offense, and the lack thereof shall not be a defense to a prosecution for operating a vehicle while intoxicated.

 

B.(1)  On a first conviction, notwithstanding any other provision of law to the contrary, the offender shall be fined not less than three hundred dollars nor more than one thousand dollars, and shall be imprisoned for not less than ten days nor more than six months.  Imposition or execution of sentence shall not be suspended unless:

 

(a)  The offender is placed on probation with a minimum condition that he serve two days in jail and participate in a court-approved substance abuse program and participate in a court-approved driver improvement program; or

 

(b)  The offender is placed on probation with a minimum condition that he perform four eight-hour days of court-approved community service activities, at least half of which shall consist of participation in a litter abatement or collection program, participate in a court-approved substance abuse program, and participate in a court-approved driver improvement program.  An offender, who participates in a litter abatement or collection program pursuant to this Subparagraph, shall have no cause of action for damages against the entity conducting the program or supervising his participation therein, including a municipality, parish, sheriff, or other entity, nor against any official, employee, or agent of such entity, for any injury or loss suffered by him during or arising out of his participation in the program, if such injury or loss is a direct result of the lack of supervision or act or omission of the supervisor, unless the injury or loss was caused by the intentional or grossly negligent act or omission of the entity or its official, employee, or agent.

 

(2)(a)  If the offender had a blood alcohol concentration of 0.15 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood, at least forty-eight hours of the sentence imposed pursuant to Paragraph (B)(1) of this Subsection shall be served without the benefit of parole, probation, or suspension of sentence. Imposition or execution of the remainder of the sentence shall not be suspended unless the offender complies with Subparagraph (B)(1)(a) or (b) of this Subsection.

 

(b)  If the offender had a blood alcohol concentration of 0.20 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood, the offender shall be fined not less than seven hundred fifty dollars nor more than one thousand dollars and at least forty-eight hours of the sentence imposed pursuant to Paragraph (B)(1) of this Subsection shall be served without the benefit of parole, probation, or suspension of sentence. Imposition or execution of the remainder of the sentence shall not be suspended unless the offender complies with Subparagraph (B)(1)(a) or (b) of this Subsection.

 

C.(1)  On a conviction of a second offense, notwithstanding any other provision of law to the contrary except as provided in Paragraphs (3) and (4) of this Subsection, regardless of whether the second offense occurred before or after the first conviction, the offender shall be fined not less than seven hundred fifty dollars, nor more than one thousand dollars, and shall be imprisoned for not less than thirty days nor more than six months.  At least forty-eight hours of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.  Nothing herein shall prohibit a court from sentencing a defendant to home incarceration, if otherwise allowed under the provisions of Article 894.2 of the Code of Criminal Procedure.  Imposition or execution of the remainder of the sentence shall not be suspended unless:

 

(a)  The offender is placed on probation with a minimum condition that he serve fifteen days in jail and participate in a court-approved substance abuse program and participate in a court-approved driver improvement program; or

 

(b)  The offender is placed on probation with a minimum condition that he perform thirty eight-hour days of court-approved community service activities, at least half of which shall consist of participation in a litter abatement or collection program, and participate in a court-approved substance abuse program, and participate in a court-approved driver improvement program.  An offender, who participates in a litter abatement or collection program pursuant to this Subparagraph, shall have no cause of action for damages against the entity conducting the program or supervising his participation therein, including a municipality, parish, sheriff, or other entity, nor against any official, employee, or agent of such entity, for any injury or loss suffered by him during or arising out of his participation therein, if such injury or loss is a direct result of the lack of supervision or act or omission of the supervisor, unless the injury or loss was caused by the intentional or grossly negligent act or omission of the entity or its official, employee, or agent.

 

(2)(a)  If the offender had a blood alcohol concentration of 0.15 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood, at least ninety-six hours of the sentence imposed pursuant to Paragraph (1) of this Subsection shall be served without the benefit of parole, probation, or suspension of sentence.  Imposition or execution of the remainder of the sentence shall not be suspended unless the offender complies with Subparagraph (1)(a) or (b) of this Subsection.

 

(b)  If the offender had a blood alcohol concentration of 0.20 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood, the offender shall be fined one thousand dollars and at least ninety-six hours of the sentence imposed pursuant to Paragraph (1) of this Subsection shall be served without the benefit of parole, probation, or suspension of sentence. Imposition or execution of the remainder of the sentence shall not be suspended unless the offender complies with Subparagraph (1)(a) or (b) of this Subsection.

 

(3)  Notwithstanding the provisions of Paragraph (1) of this Subsection, on a conviction of a second offense when the first offense was for the crime of vehicular homicide in violation of R.S. 14:32.1, or first degree vehicular negligent injuring in violation of R.S. 14:39.2, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years, and shall be fined two thousand dollars.  At least six months of the sentence of imprisonment imposed shall be without benefit of probation, parole, or suspension of sentence.  Imposition or execution of the remainder of the sentence shall not be suspended unless the provisions of Subparagraph (1)(a) or (b) of this Subsection are complied with.

 

(4)  Notwithstanding the provisions of Paragraph (1) of this Subsection, on a conviction of a second offense when the arrest for the second offense occurs within one year of the commission of the first offense, the offender shall be imprisoned for thirty days without benefit of parole, probation, or suspension of sentence and shall participate in a court-approved substance abuse program and in a court-approved driver improvement program.

 

D.(1)(a)  On a conviction of a third offense, notwithstanding any other provision of law to the contrary and regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years and shall be fined two thousand dollars.  Except as provided in Paragraph (4) of this Subsection, one year of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence.  The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment.  If any portion of the sentence is suspended, except for a suspension of sentence pursuant to the provisions of Paragraph (4) of this Subsection, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time equal to the remainder of the sentence of imprisonment, which probation shall commence on the day after the offender’s release from custody.

 

(b)  Any offender placed on probation pursuant to the provisions of this Subsection shall be required as a condition of probation to participate in thirty eight-hour days of court-approved community service activities and to submit to and complete either of the following requirements:

 

(i)  To immediately undergo an evaluation by the Department of Health and Hospitals, office of behavioral health to determine the nature and extent of the offender’s substance abuse disorder and to participate in any treatment plan recommended by the office of behavioral health, including treatment in an inpatient facility approved by the office for a period of not less than four weeks followed by outpatient treatment services for a period not to exceed twelve months.

 

(ii)  To participate in substance abuse treatment in an alcohol and drug abuse program provided by a drug division subject to the applicable provisions of R.S. 13:5301 et seq. if the offender is otherwise eligible to participate in such program.

 

(c)  In addition to the requirements set forth in Subparagraph (b) of this Paragraph, any offender placed on probation pursuant to the provisions of Subsection D of this Section shall be placed in a home incarceration program approved by the division of probation and parole for a period of time not less than six months and not more than the remainder of the sentence of imprisonment.

 

(d)  If any offender placed on probation pursuant to the provisions of Subsection D of this Section fails to complete the substance abuse treatment required by the provisions of this Paragraph or violates any other condition of probation, including conditions of home incarceration, his probation may be revoked, and he may be ordered to serve the balance of the sentence of imprisonment, without credit for time served under home incarceration.

 

(2)(a)  In addition, the court shall order, subject to the discretion of the prosecuting district attorney, that the vehicle being driven by the offender at the time of the offense shall be seized and impounded, and sold at auction in the same manner and under the same conditions as executions of writ of seizures and sale as provided in Book V, Title II, Chapter 4 of the Code of Civil Procedure.  If the district attorney elects to forfeit the vehicle, he shall file a written motion at least five days prior to sentencing stating his intention to forfeit the vehicle.  When the district attorney elects to forfeit the vehicle, the court shall order it forfeited.

 

(b)  The vehicle shall be exempt from sale if it was stolen, or if the driver of the vehicle at the time of the violation was not the owner and the owner did not know that the driver was operating the vehicle while intoxicated.  If this exemption is applicable, the vehicle shall not be released from impoundment until such time as towing and storage fees have been paid.

 

(c)  In addition, the vehicle shall be exempt from sale if all towing and storage fees are paid by a valid lienholder.

 

(d)  The proceeds of the sale shall first be used to pay court costs and towing and storage costs, and the remainder shall be allocated as follows: sixty percent of the funds shall go to the arresting agency, twenty percent to the prosecuting district attorney, and twenty percent to the Louisiana Property and Casualty Insurance Commission for its use in studying other ways to reduce drunk driving and insurance rates.

 

(3)(a)  An offender sentenced to home incarceration during probation shall be subject to special conditions to be determined by the court, which shall include but not be limited to the following:

 

(i)  Electronic monitoring.

 

(ii)  Curfew restrictions.

 

(iii)  Home visitation at least once per month by the Department of Public Safety and Corrections for the first six months.  After the first six months, the level of supervision will be determined by the department based upon a risk assessment instrument.

 

(b)  The court shall also require the offender to obtain employment and to participate in a court-approved driver improvement program at his expense.  The activities of the offender outside of his home shall be limited to traveling to and from work, church services, Alcoholics Anonymous meetings, or a court-approved driver improvement program.

 

(c)  Offenders sentenced to home incarceration required under the provisions of this Section shall be subject to all other applicable provisions of Code of Criminal Procedure Article 894.2.

 

(4)  Notwithstanding the provisions of Subparagraph (1)(a) of this Subsection, the one-year period described in Paragraph (1) of this Subsection which shall otherwise be imposed without the benefit of probation, parole, or suspension of sentence, may also be suspended if the offender is accepted into a drug division probation program pursuant to R.S. 13:5301 et seq.  The provisions of Paragraph (2) of this Subsection shall also be applicable to any offender whose sentence is served with the benefit of probation, parole, or suspension of sentence pursuant to the provisions of this Paragraph.

 

E.(1)(a)  Except as otherwise provided in Subparagraph (4)(b) of this Subsection, on a conviction of a fourth or subsequent offense, notwithstanding any other provision of law to the contrary and regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than ten years nor more than thirty years and shall be fined five thousand dollars.  Except as provided in Paragraph (5) of this Subsection, two years of the sentence of imprisonment shall be imposed without benefit of parole, probation, or suspension of sentence.  The court, in its discretion, may suspend all or any part of the remainder of the sentence of imprisonment.  If any portion of the sentence is suspended, except for a suspension of sentence pursuant to the provisions of Paragraph (5) of this Subsection, the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole, for a period of time not to exceed five years, which probation shall commence on the day after the offender’s release from custody.

 

(b)  Any offender placed on probation pursuant to the provisions of this Subsection shall be required, as a condition of probation, to participate in forty eight-hour days of court-approved community service activities and to submit to and complete either of the following requirements:

 

(i)  To immediately undergo an evaluation by the Department of Health and Hospitals, office of behavioral health to determine the nature and extent of the offender’s substance abuse disorder and to participate in any treatment plan recommended by the office of behavioral health, including treatment in an inpatient facility approved by the office for a period of not less than four weeks followed by outpatient treatment services for a period not to exceed twelve months.

 

(ii)  To participate in substance abuse treatment in an alcohol and drug abuse program provided by a drug division subject to the applicable provisions of R.S. 13:5301 et seq. if the offender is otherwise eligible to participate in such program.

 

(c)  In addition to the requirements set forth in Subparagraph (b) of this Paragraph, any offender placed on probation pursuant to the provisions of Subsection E of this Section shall be placed in a home incarceration program approved by the division of probation and parole for a period of time not less than one year nor more than the remainder of the term of supervised probation.

 

(d)  If any offender placed on probation pursuant to the provisions of Subsection E of this Section fails to complete the substance abuse treatment required by the provisions of this Paragraph or violates any other condition of probation, including conditions of home incarceration, his probation may be revoked, and he may be ordered to serve the balance of the sentence of imprisonment, without credit for time served under home incarceration.

 

(2)(a)  In addition, the court shall order, subject to the discretion of the prosecuting district attorney, that the vehicle being driven by the offender at the time of the offense be seized and impounded, and be sold at auction in the same manner and under the same conditions as executions of writ of seizure and sale as provided in Book V, Title II, Chapter 4 of the Code of Civil Procedure.  If the district attorney elects to forfeit the vehicle, he shall file a written motion at least five days prior to sentencing stating his intention to forfeit the vehicle.

 

(b)  The vehicle shall be exempt from sale if it was stolen, or if the driver of the vehicle at the time of the violation was not the owner and the owner did not know that the driver was operating the vehicle while intoxicated.  If this exemption is applicable, the vehicle shall not be released from impoundment until such time as towing and storage fees have been paid.

 

(c)  In addition, the vehicle shall be exempt from sale if all towing and storage fees are paid by a valid lienholder.

 

(d)  The proceeds of the sale shall first be used to pay court costs and towing and storage costs, and the remainder shall be allocated as follows: sixty percent of the funds shall go to the arresting agency, twenty percent to the prosecuting district attorney, and twenty percent to the Louisiana Property and Casualty Insurance Commission for its use in studying other ways to reduce drunk driving and insurance rates.

 

(3)(a)  An offender sentenced to home incarceration during probation shall be subject to special conditions to be determined by the court, which shall include but not be limited to the following:

 

(i)  Electronic monitoring.

 

(ii)  Curfew restrictions.

 

(iii)  Home visitation at least once per month by the Department of Public Safety and Corrections for the first six months.  After the first six months, the level of supervision will be determined by the department based upon a risk assessment instrument.

 

(b)  The court shall also require the offender to obtain employment and to participate in a court-approved driver improvement program at his expense.  The activities of the offender outside of his home shall be limited to traveling to and from work, church services, Alcoholics Anonymous meetings, or a court-approved driver improvement program.

 

(c)  Offenders sentenced to home incarceration required under the provisions of this Section shall be subject to all other applicable provisions of Code of Criminal Procedure Article 894.2.

 

(4)(a)  If the offender has previously been required to participate in substance abuse treatment and home incarceration pursuant to Subsection D of this Section, the offender shall not be sentenced to substance abuse treatment and home incarceration for a fourth or subsequent offense, but shall be imprisoned at hard labor for not less than ten nor more than thirty years, and at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole.

 

(b)  If the offender has previously received the benefit of suspension of sentence, probation, or parole as a fourth offender, after serving the mandatory sentence required by Subparagraph (E)(1)(a), no part of the remainder of the sentence may be imposed with benefit of suspension of sentence, probation, or parole, and no portion of the sentence shall be imposed concurrently with the remaining balance of any sentence to be served for a prior conviction for any offense.

 

(5)(a)  Notwithstanding the provisions of Subparagraph (1)(a) of this Subsection, the two-year period described in Paragraph (1) of this Subsection which shall otherwise be imposed without the benefit of parole, probation, or suspension of sentence may also be suspended if the offender is accepted into a drug division probation program pursuant to R.S. 13:5301 et seq.  The provisions of Paragraph (2) of this Subsection shall also be applicable to any offender whose sentence is served with the benefit of probation, parole, or suspension of sentence pursuant to the provisions of this Subparagraph.

 

(b)  If the offender has previously participated in a drug division probation program pursuant to the provisions of Paragraph (D)(4) of this Section, the offender shall not be eligible to serve his sentence with the benefit of probation, parole, or suspension of sentence pursuant to the provisions of Subparagraph (a) of this Paragraph, but shall be imprisoned at hard labor for not less than ten nor more than thirty years, and at least three years of the sentence shall be imposed without benefit of suspension of sentence, probation, or parole.

 

F.(1)  For purposes of determining whether a defendant has a prior conviction for violation of this Section, a conviction under either R.S. 14:32.1, vehicular homicide, R.S. 14:39.1, vehicular negligent injuring, or R.S. 14:39.2, first degree vehicular negligent injuring, or a conviction under the laws of any state or an ordinance of a municipality, town, or similar political subdivision of another state, which prohibits the operation of any motor vehicle, aircraft, watercraft, vessel, or other means of conveyance while intoxicated, while impaired, or while under the influence of alcohol, drugs, or any controlled dangerous substance shall constitute a prior conviction.  This determination shall be made by the court as a matter of law.

 

(2)  For purposes of this Section, a prior conviction shall not include a conviction for an offense under this Section, under R.S. 14:32.1, R.S. 14:39.1, or R.S. 14:39.2, or under a comparable statute or ordinance of another jurisdiction, as described in Paragraph (1) of this Subsection, if committed more than ten years prior to the commission of the crime for which the defendant is being tried and such conviction shall not be considered in the assessment of penalties hereunder.  However, periods of time during which the offender was awaiting trial, on probation or parole for an offense described in Paragraph (1) of this Subsection, under an order of attachment for failure to appear, or incarcerated in a penal institution in this or any other state shall be excluded in computing the ten-year period.

 

G.  The legislature hereby finds and declares that conviction of a third or subsequent DWI offense is presumptive evidence of the existence of a substance abuse disorder in the offender posing a serious threat to the health and safety of the public. Further, the legislature finds that there are successful treatment methods available for treatment of addictive disorders. Court-approved substance abuse programs provided for in Subsections B, C, and D of this Section shall include a screening procedure to determine the portions of the program which may be applicable and appropriate for individual offenders and shall assess the offender’s degree of alcohol abuse.

 

H.  “Community service activities” as used in this Section may include duty in any morgue, coroner’s office, or emergency treatment room of a state-operated hospital or other state-operated emergency treatment facility, with the consent of the administrator of the morgue, coroner’s office, hospital, or facility.

 

I.  An offender ordered to participate in a substance abuse program in accordance with the provisions of this Section shall pay the cost incurred in participating in the program. Failure to make such payment shall subject the offender to revocation of probation, unless the court determines that the offender is unable to pay.  If the court determines that the offender is unable to pay, the state shall pay for the cost of the substance abuse treatment.  An offender sentenced to home incarceration and to participate in a driver improvement program shall pay the cost incurred in participating in home incarceration and a driver improvement program unless the court determines that the offender is unable to pay.  However, if the court determines that an offender is unable to pay the costs incurred for participating in a substance abuse treatment program, driver improvement program, or home incarceration, the court may, upon completion of such program or home incarceration, require that the offender reimburse the state for all or a portion of such costs pursuant to a payment schedule determined by the court.

 

J.  This Subsection shall be cited as the “Child Endangerment Law”.  When the state proves in addition to the elements of the crime as set forth in Subsection A of this Section that a minor child twelve years of age or younger was a passenger in the motor vehicle, aircraft, watercraft, vessel, or other means of motorized conveyance at the time of the commission of the offense, of the sentence imposed by the court, the execution of the minimum mandatory sentence provided by Subsection B or C of this Section, as appropriate, shall not be suspended.  If imprisonment is imposed pursuant to the provisions of Subsection D, the execution of the minimum mandatory sentence shall not be suspended.  If imprisonment is imposed pursuant to the provisions of Subsection E, at least two years of the sentence shall be imposed without benefit of suspension of sentence.

 

K.(1)  In addition to any penalties imposed under this Section, upon conviction of a first offense if the offender had a blood alcohol concentration of 0.20 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood the driver’s license of the offender shall be suspended for two years.  Such offender may apply for a restricted license to be in effect during the entire period of suspension upon proof to the Department of Public Safety and Corrections that his motor vehicle has been equipped with a functioning ignition interlock device in compliance with the requirements of R.S. 32:378.2.  The ignition interlock device shall remain installed and operative on his vehicle during the first twelve-month period of suspension of his driver’s license following the date of conviction.

 

(2)(a)  In addition to any penalties imposed under this Section, upon conviction of a second offense, any vehicle, while being operated by the offender, shall be equipped with a functioning ignition interlock device in accordance with the provisions of R.S. 15:306.  This requirement shall remain in effect for a period of not less than six months. In addition, the device shall remain installed and operative during any period that the offender’s operator’s license is suspended under law and for any additional period as determined by the court.

 

(b)  In addition to any penalties imposed under this Section and notwithstanding the provisions of Subparagraph (2)(a) of this Subsection, upon conviction of a second offense if the offender had a blood alcohol concentration of 0.20 percent or more by weight based on grams of alcohol per one hundred cubic centimeters of blood, the driver’s license of the offender shall be suspended for four years.  The offender may apply for a restricted license to be in effect during the period of suspension upon proof to the Department of Public Safety and Corrections that his motor vehicle has been equipped with a functioning ignition interlock device in compliance with the requirements of R.S. 32:378.2.  The ignition interlock device shall remain installed and operative on his vehicle during the first three years of the four-year period of the suspension of his driver’s license.

 

(3)(a)  Notwithstanding the provisions of Paragraph (1) of this Subsection and R.S. 32:414(D)(1)(b), upon conviction of a third or subsequent offense of the provisions of this Section, any motor vehicle, while being operated by the offender, shall be equipped with a functioning ignition interlock device in accordance with the provisions of R.S. 15:306.  The ignition interlock device shall remain installed and operative until the offender has completed the requirements of substance abuse treatment and home incarceration, or, if applicable, the requirements of the drug division probation program provided in R.S. 13:5301 et seq., pursuant to the provisions of Subsections D and E of this Section.

 

(b)  Any offender convicted of a third or subsequent offense of the provisions of this Section shall, after one year of the suspension required by R.S. 32:414(D)(1)(a), upon proof of the Department of Public Safety and Corrections that the motor vehicles being operated by the offender are equipped with functioning interlock devices, be issued a restricted driver’s license.  The restricted license shall be effective for the period of time that the offender’s driver’s license is suspended.  The restricted license shall entitle the offender to operate the vehicles equipped with a functioning interlock device in order to earn a livelihood and to travel to and from the places designated in Paragraphs (D)(3) and (E)(3) of this Section.

 

(4)  The provisions of this Subsection shall not require installation of an ignition interlock device in any vehicle described in R.S. 32:378.2(I).

 

A recent case in the Fifth Circuit highlights the on-going evolution of legal doctrines addressing race and jury selection.  Courts have been wrestling with these issues at least since the Supreme Court announced in Batson v. Kentucky that attorneys could not discriminate on the basis of race during jury selection.  (Batson was a criminal case, but the Supreme Court has extended its rule to civil cases as well.  See Edmonson v. Leesville Concrete Co.  The Supreme Court has also prohibited discrimination on the basis of ethnicity and gender in jury selection.  See Hernandez v. New York (ethnicity) and J.E.B. v. Alabama (gender)).  In the recent United States v. Thompson, the Fifth Circuit addressed issues related to “pretext”– that is, when the attorney accused of racially discriminating in jury selection offers a “race neutral” reason for striking a prospective juror but there is suspicion that the proffered reason is not in fact true.

Batson issues generally involve a three step inquiry.  First, a litigant alleges that the other side’s attorney has used his or her jury challenges in a discriminatory manner.  Second, if the court believes a prima facia case of discrimination has been shown–for example, if the accused attorney has used all or most of his or her strikes against a certain demographic group–then the court will require the accused attorney to explain his or her reasons for the strikes.   Third and finally, the court will determine whether the proffered reasons are credible or whether they are actually just pretexts masking impermissible discrimination.

In Thompson, the prosecutor used 71% of his strikes against African-American jurors, and the district court believed that was sufficient to make out a prima facia case of discrimination.  The court therefore required the prosecutor to provide his reasons for the strikes.  The reasons the prosecution proffered were primarily based on his (alleged) perception of the potential jurors’ demeanor in court.  For example, for one of the jurors, the prosecutor claimed to have struck him because “he sat there with his arms folded . . . with a mean look on his face.”

In relying on in-court demeanor to justify his strikes of these jurors, the prosecutor took a somewhat risky course.  Although Batson challenges are very difficult to win, those that are won usually involve an attorney’s claim to have based the strike on the juror’s demeanor or the attorney’s “gut feeling” about the juror.  Such subjective reasons are much more likely to be found to be pretexts than are objective reasons supported by the record.  See, e.g, the Supreme Court’s decision in Snyder v. Louisiana, which found a prosecutor’s proffered race-neutral reasons for striking a juror, one of which was based on demeanor, to be likely pretext and remanded the case for an evidentiary hearing on the issue.

The Fifth Circuit in Thompson, however, ultimately agreed with the district court that the prosecutor’s reasons, though based on a subjective evaluation of demeanor, were credible.  In doing so, the Court also held that Snyder does not require the district court to make specific factual findings on the record regarding a prospective juror’s demeanor.  The Fifth Circuit thus aligned itself with the Eleventh Circuit on this issue, and rejected the contrary reading of Snyder adopted by the Seventh Circuit in United States v. McMath.

Although somewhat involved and technical, these issues regarding diversity on juries are vitally important both for the individual and society.  Being able to serve on juries is a constitutional right, and, according to 19th century commenter  Alexis de Tocqueville, one of the most vitally important institutions in American democracy.  In our heterogeneous society, diverse juries also probably add legitimacy to the verdicts they render– witness the widespread social upheaval that occurred after a nearly all-white jury (and one which contained no African-Americans) acquitted the officers in the Rodney King beating.  Furthermore, and in some ways even more interesting, empirical research has shown that juries containing a diverse collection of people from different races, genders, and socio-economic backgrounds may in fact work better as fact finders.   Samuel Sommers of Tufts University has conducted a number of intriguing studies in this area, and his findings suggest that jurors within a diverse group tend to get fewer facts wrong and rush to judgment less often.

 

 

Stephen Haedicke was recently selected as one of the Top 100 Criminal Defense Lawyers in Louisiana by the National Trial Lawyers Association.  The National Trial Lawyers is a professional organization of America’s top trial lawyers.  Membership into the organization is by invitation only and is extended to those individuals who exemplify superior qualifications, trial results, and leadership in their respective fields.

A case newly filed by the Law Office and alleging a police beating and subsequent cover up is receiving extensive coverage from Fox 8 news here in New Orleans.  The new suit alleges that police beat a young tourist from Alabama while he was chained to a bench at the 8th District Police Station in the French Quarter.  It also alleges a subsequent cover up, including attempts to destroy surveillance video of the incident.

You can read the story and watch the segment, which includes an interview with me, at the link below.

http://www.fox8live.com/story/21292878/attorney-for-alabama-teen-talks-about-nopd-custody