By. Chris Pennanen
In the city of New Orleans, one in fourteen black men is missing—absent from home and work alike, never seen in public, gone from civil society. Parades are missing revelers; schools are missing students. Instead, this man is one of the 40,000 Louisianans behind bars. Louisiana holds the dubious honor of America’s highest incarceration rate, yet this has not made the state any safer. Many non-violent offenders languish in for-profit prisons, where they become only numbers, a mass of faceless prisoners who create a certain cost and a certain revenue—a world of cold facts and homogenous realities. Yet on the other side of the equation lies a world of extreme subjectivity, where each person is different and no two experiences with the law are the same.
Various forces within the state have clashed over how—and whether—to bring Louisiana’s incarceration figures down. Among many disputed factors is the state’s byzantine felony code, a web of hundreds of laws that may mete out a hundred different penalties, which can vary even further, depending on one’s crime. The vast majority of states have a far simpler code, with a few basic “classes” of felony, and consistent penalties for each.
There was a time when stealing crawfish commanded an entirely different penalty than simple theft. While this particular code has been revised, Louisiana remains a state whose bevy of criminal laws confuse everyone from offenders and their families to attorneys themselves. Ordinary citizens have little to no idea of what penalties await for various offenses, diminishing the law’s capacity as a deterrent. Instead it’s a bloated mystery. Indeed, only a handful of people in the entire state accurately know how long an accused individual might spend in jail if convicted, as a result of the junction between confusing sentencing laws and confusing parole laws. For some years, only one state official was said to know. This the same state that already sends the largest proportion of its population to jail. The whole system reads, in part, as almost comical—sprawling, bloating law for the sake of law, kind of relishing in its own absurdity and inconsistency—a piece of postmodern art that can throw people in jail.
Reformers have long desired to untangle this system, along with other modifications to sentencing, parole, policing, and prison ownership. Changes to some of these other issues became law late last year. Additionally, Governor Bel Edwards directed a task force led by former New Orleans federal prosecutor Kenneth Polite to investigate sentencing reform as part of ongoing efforts to reduce the state’s incarceration rate. The committee voted in January to recommend a simplified system that would divide all felonies into only a few categories with their own respective penalties, similar to the method employed by most other states.
Reformers have welcomed the notion of changes of this sort. Gina Womack, President of Families and Friends of Louisiana’s Incarcerated Youth—an activist organization advocating for young prisoners—said she supports a felony class system, and believes in taking action “Whenever we can simplify the system and make it a more equitable system.” However, this particular avenue may not cut to the root of the state’s incarceration problem. “We can’t keep locking kids up,” Womack said, “When they have needs, and thinking that’s going to solve the problem. We need to cut this off in the beginning and make sure that our young people are taken care of.”
Womack compared the inconsistent legal code with inconsistent school disciplinary codes. Many young offenders begin by being punished at school, especially by suspension, which seeks to remove them from the educational environment rather than improving their behavior. School discipline often depends on the preferences or biases of educators—who first and foremost would like to remove “difficult” students from class, just as society often desires to remove “difficult” adults. The adult and juvenile sides of the law may also intersect. “Children can be arrested for things in school that they wouldn’t necessarily be arrested for when they’re not in school,” noted Womack. “The discipline codes, who’s suspended, and for what reason, are also very subjective.” In general, whether or not someone seems redeemable can be arbitrary, depending on the feelings and forgiveness of authority figures, or the law’s decision to render similar crimes better or worse—or the line between those eligible and ineligible for parole.
One might see the common problem between discipline for students and criminal penalties for adults as an overabundance of subjectivity, in which every person is considered different and is treated individually. On paper, this sounds like a rather “progressive” approach. After all, treating people as unique and with an understanding for their “subjective realities” and “personal truths” and so on and so on would fulfill a good many buzzwords. But this kind of attitude can become unhelpful or even malicious when applied to actual authority. The more subjective authority is, the less fair it’s likely to be. Arbitrary distinctions between similar crimes introduces opportunities for bias. Some crimes may be more commonly committed by African Americans, young people, men or women. Might demographic biases inform our idea of how serious these offenses are? It’s certainly possible—perhaps likely. According to Womack, “The large array of laws and sentences definitely leaves an opening for too much discretion.”
Certainly, there’s a strong case to be made for a simpler, more objective system with a few clear rules rather than many confusing rules and subjective judgments. But that alone is enough to solve the problem. While efforts to reform the justice system are certainly important, focusing on figures and numbers (the number of “strikes,” the number of years in prison for a given crime, the number of laws, the number of incarcerated citizens) runs the risk of reducing a deeply interconnected community issue into a math problem. “We definitely need to work on changing the system, but we also need to incorporate more community-based services,” Womack said. This includes helping young and vulnerable populations by addressing poverty, mental health, and education. On the other end, she believes that communities must also do a better job reintegrating those who’ve been released from prison.
Solving Louisiana’s justice system requires some subjectivity—but of a different nature than that of confusing and inconsistent penalty codes. Subjectivity belongs to the community—those who can look in the eyes of one who has committed great offense, and treat them with love and compassion.
By. Chris Pennanen