by Kevin W. Bliss
In the wake of a 2017 state audit that revealed Louisiana prisoners were regularly being held for weeks, months and sometimes even years past their scheduled release dates, a 2019 investigation of court records reviewed by the Times-Picayune, a New Orleans paper,found that at least one prisoner was over-detained in a state prison or local jail every week over the previous decade, with one prisoner serving 960 days after his sentence ended.
Where to place blame has been the subject of multiple lawsuits filed against the state Department of Corrections (DOC) and the Orleans Parish Sheriff’s Office (OPSO), which serves the city of New Orleans. When contacted by an attorney from the Orleans Public Defender’s Office, Stanislav Moroz, five days after his client’s sentence expired in 2018, OPSO responded that it was up to the DOC to authorize a prisoner’s release, even from a parish jail. But the DOC said it could take up to 90 days to calculate how much of a sentence must be served; only after that process is complete can it issue an official release date.
Moroz’s client, Johnny Traweek, had pleaded guilty to second-degree battery after spending seven months in OPSO’s custody awaiting trial because he couldn’t afford bail. The 66-year-old believed he was innocent, but guessed a judge would not sentence him to more than the time he had already served. He was correct – the court sentenced him to seven months with credit for time served. Traweek went back to his cell to await the call for his release – but that call did not come for 22 days, and then only after Moroz intervened.
“We certainly don’t think it’s right or perhaps even legal, but it’s part of what we expect to happen,” Moroz said. “DOC gives themselves a lot of time to calculate when people are eligible to be released. That’s their policy.”
Moroz filed a lawsuit on behalf of Traweek in February 2019, citing 14 other cases of over-detention. Those were among 46 prisoners held past their release dates in 2018 alone, the attorney found, when tasked by the Orleans Public Defender’s Office with determining the number of over-detention cases.
In 2016, Rodney Grant had just been released after serving a seven-year sentence for simple burglary and unauthorized entry of an inhabited dwelling when he was rearrested on a 16-year-old warrant for simple burglary. He pleaded guilty before Criminal District Court Judge Camille Buras, who imposed a sentence of one year in DOC custody with credit for the seven years he had just served, telling OPSO attorney Blake Arcuri to request an expedition of Grant’s release.
Arcuri forwarded the request to Sheriff Marlin Gusman, noting that Grant “really shouldn’t have to actually serve any time.” However, OPSO followed a procedure it claimed was dictated by the DOC, sending Grant from the New Orleans jail to the Elayn Hunt Correctional Center in St. Gabriel, 68 miles away. Since the DOC has no electronic records transmission system, Grant was forced to wait for his paperwork to be completed at OPSO and then wait again for an OPSO employee to make a weekly drive to hand-deliver the paperwork. That process took 13 days.
State Rep. Joe Marino, who helped pass Louisiana’s 2017 criminal justice reform bill, was taken aback to hear that local sheriffs still physically transport paperwork to the DOC.
“Almost everything we do now in the criminal justice system is done electronically,” he observed. “I’m not sure what the logistics would be for a statewide system but maybe it is time for a resolution authorizing a study to determine how to get this done.”
By the time Grant’s paperwork reached Elayn Hunt, the DOC had already transferred him to the Madison Parish Correctional Center, a facility run by private prison contractor LaSalle Corrections.
When Judge Buras learned of the situation she called both Sheriff Gusman and the warden at Madison. When nothing happened, the judge held a hearing – over two weeks after requesting expedition of Grant’s release – in which she vacated his sentence and substituted a judgment of “credit for time served.” But the DOC continued to hold Grant. After several more calls, Judge Buras finally secured his release – 27 days late – and Grant was put on a bus back to New Orleans.
State and federal courts have found over-detention to be unconstitutional. The Fifth Circuit Court of Appeals held in 2011 that a “timely release” is one that occurs within 48 hours of the expiration of a sentence. Now a senior judge in that court, Judge Julie E. Carnes was on the federal bench in Atlanta when she ruled in 2005 that she was “unable to find any case” in which over-detention was “constitutionally permissible.”
“The criminal justice system is based on the idea that if you do a crime you serve your time and then you go free,” said civil rights attorney William Most. “And that going free part is not being carried out correctly in Louisiana.”
Most represents Grant, who is one of five clients with over-detention lawsuits pending against the DOC and local sheriff’s offices. Two other cases have settled for a total of $250,000.
State prison officials incorrectly calculated “good time” credits for Kenneth Owens, shaving about three and a half years off his 21-year sentence for attempted manslaughter instead of the nearly seven years he deserved. The DOC settled his lawsuit in 2016 for $130,000. Prison officials also incorrectly recorded a 10-year sentence for James Chowns, who actually received a five-year sentence plus ten years of probation after pleading guilty to two counts of aggravated incest. By the time the error was identified and corrected, Chowns had served 960 days past his release date. The DOC settled that suit for $120,000 in 2018.
“When a court sentences somebody, you have a debt that has to be paid just like if you have a debt with the bank,” said Shreveport attorney Nelson Cameron, who represented both Owens and Chowns. “It would not be right if you went to the bank after paying your loan off and they demanded you pay 50 percent more.”
It’s also expensive for taxpayers. In addition to the settlements in his clients’ over-detention cases, Cameron calculated the cost to keep them in prison beyond their release dates – a combined 2,216 days – exceeded $120,000 based on the state’s average cost of $54.20 per day to house a prisoner. He warned, “It’s not just these two guys. It’s widespread.”
A recent DOC review of 200 prisoners’ cases found they had been over-detained an average of 49 days. By comparison, Judge Carnes’ 2005 ruling was based on a finding that Georgia prisoners had been held an average of just 3.6 days too long. According to a grant request submitted by the DOC to the U.S. Department of Justice in January 2019 – seeking funds to improve its case processing system – over-detentions cost Louisiana $2.8 million annually.
DOC Secretary James LeBlanc said the current system causes delays because it must follow a “very complex and ever changing” process covering as many as 20 different criteria. When the state auditor who prepared the 2017 report asked two DOC staff members to perform sentence calculation for a single offender, for example, “each used a different method [and] the results differed by 186 days” – over six months.
“Training for this job is ongoing and takes time to truly understand the intricacies of how each case is handled,” LeBlanc said, adding that “time computation staff are expected to know all laws, old and new.”
But even though the task is complicated and the volume of cases large – an average of 4,213 files per month – the DOC assigns it to staff comprised largely of entry-level workers, with a turnover rate of 33 percent in 2017. LeBlanc also blamed an outdated data system, the Criminal and Justice Network (CAJUN).
In use since the 1980s, CAJUN can no longer keep up with the changes in sentencing laws, LeBlanc said. The DOC invested $3.6 million for a replacement system in 2015, but it lasted just 46 days before a state auditor determined the DOC had failed to properly test it or train staff to use it. It was abandoned in 2017 after prison officials paid a private contractor another $49,000 to determine it was unsalvageable. DOC spokesman Ken Pastorick said a replacement system has been planned, though no date has yet been set for implementation. [See: PLN, Dec. 2018, p.28].
“We know that there is an issue here and we want to solve it,” Pastorick promised.
A separate lawsuit against the DOC and OPSO for over-detentions is pending before U.S. District Court Judge Shelly Dick. Denying the defendants’ motion to dismiss in early 2019, Judge Dick summarized the claims raised by the MacArthur Justice Center, which filed the suit on behalf of five prisoners who were over-detained, by stating: “the defendants have either deficient or nonexistent policies for processing and releasing DOC inmates who are ultimately sentenced.”
MacArthur attorney Emily Washington said the case was about more than “mere paperwork and bureaucracy,” focusing instead on “holding public actors accountable.”
“And it’s about the value we place on liberty,” she added, “whether that is a day, a week, or months in someone’s life.”
In March 2019, Governor John Bel Edwards took up the challenge of “improving our system of releasing eligible state offenders in a timely manner,” according to communications directorShauna Sanford.
DOC general counsel Jonathan Vining agreed, saying “there needs to be a group put together of all the stakeholders ... to figure this out,” but he warned, “If you just pass a law that says, ‘DOC do it better,’ that’s not going to get us to where we need to be.”
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