Indigent Defense in Louisiana: Mass Detention, Incarceration, & Conviction
Louisiana is notorious for having long had the nation’s highest per capita incarceration
rate. The state’s practice of mass detention, incarceration, and conviction harms not only the
individuals involved, but also families, whole communities, and the economy of the state. These
harms hit black Louisianans, who are disproportionately ensnared at every step in the criminal
justice process, particularly hard. This in-depth fact sheet briefly outlines the problem.
The State of Incarceration in Louisiana

Louisiana incarcerates people at a higher per capita rate than any other state. 1

In 2015, the state incarcerated adults at a rate one-and-a-half times the national
average, and five-and-a-half times higher than the lowest incarceration rate.2 In 2008, when
the national average first approached 1 out of every 100 adults, Louisiana already incarcerated
1 out of every 55.3

In addition to having the country’s highest incarceration rate, Louisiana also
ranks in the top ten of states with the highest rates of correctional supervision (probation and
parole).4

A disproportionate number of those incarcerated for felonies in Louisiana have
only ever been convicted of non-violent offenses.5 Many of them pose no danger to society.

As of the end of June 2016, more than 100,000 adults were under state
correctional supervision or control: 36,000 in state and local facilities and 71,000 on probation
or parole.6

Nearly 95% of incarcerated adults are serving sentences of two or more years.
More than 85% are serving sentences of five years or more. Fourteen percent are serving life
sentences.7

At any given time, thousands more are held in local jails under local custody.8
Most of those local detainees are held pretrial and presumed innocent. In Orleans Parish, for
example, in March 2016, 90% of the parish prison’s nearly 1,600 detainees were being held
pretrial.9

Millions more continue to carry criminal records as a result of state convictions.
The Harms of Mass Detention, Conviction, and Incarceration

Even brief pretrial detention subjects persons presumed innocent to hardships
potentially including loss of employment or employment opportunities, loss of child custody
and strains on family relationships, interruption of education, loss of housing and/or personal
property, increased exposure to disease and assault, and emotional distress.

Pretrial detainees are also handicapped in consulting with counsel, searching for
evidence and witnesses, and preparing a defense.10

Pretrial detention tremendously increases pressure on defendants to plead
guilty and increases the likelihood that they will do so.11 This is especially true for
misdemeanor defendants, who may face a longer wait in jail for trial than the maximum
sentence for their charges.12

Pretrial incarceration can also significantly increase the likelihood that an
individual will be sentenced to incarceration, the length of incarceration imposed, and the
likelihood of committing another crime.13

Post-conviction incarceration decreases an individual’s earning potential for life
and significantly decreases the chance of upward economic mobility. Incarceration of parents
decreases children’s chances of upward mobility, and increases the likelihood they will live in
poverty, be homeless, experience mental health problems, be expelled or suspended from
school, or themselves become incarcerated in the future.14

Even if no incarceration is imposed or one’s time has been served, the fact of a
criminal conviction automatically and sometimes perpetually subjects a convicted person to an
ever-growing list of collateral consequences. A felony conviction in Louisiana, for example,
results in the convicted individual losing his or her right to vote, to bear arms, and to serve on a
jury, and may affect his or her right to earn a living in a profession of his or her choosing, ability
to enroll in military service, and eligibility to hold public office. Any conviction and/or
conditions of supervision may also affect an individual’s access to food, housing, employment,
student financial aid, and family life, including disposition of child custody disputes, as well as
his or her right to travel and/or ability to remain in the country.15
Black Louisianans are Hit Hardest

Biases infecting government officials’ use of their extremely broad discretion
result in racial disparities at every step in the criminal justice process.16

In New Orleans, for example, in the first quarter of 2016, black men in New
Orleans were 50% more likely than white men to be arrested.17 Black women were 55% more
likely than white women to be arrested.18

Disparities in arrests for marijuana-related offenses are most pronounced: for all
arrests by the New Orleans Police Department between January 2010 through 2015, 85% of
people arrested for marijuana-related offenses were black, and 94% of people arrested for
2
felony marijuana possession were black.19 This is true despite similar rates of marijuana use
among black individuals and white individuals.20

Once arrested, black defendants are likely to face harsher bail conditions and
more likely to be detained pretrial. According to Cynthia E. Jones, Professor of Law and CoDirector of the Criminal Justice Practice and Policy Institute at the American University
Washington College of Law:
[E]xtensive social science research establishes that, in jurisdictions across the
country, when bail officials make the discretionary decision to grant pretrial
release and decide the bond amount to be imposed, the race of the arrestee plays
a role in a way that disproportionately and adversely subjects African Americans
to pretrial detention and harsher bail conditions. Race-neutral explanations of the
persistent patterns of racial disparities are belied by the fact that the relevant
information that bail officials could legitimately use to differentiate bail outcomes
for white and African American defendants is rarely known by the bail official at
the time of the bail determination. Moreover, even when the relevant
background information of white and African American arrestees is taken into
account by researchers, studies confirm that white defendants still receive more
favorable bail decisions than do African American defendants with comparable
backgrounds.21

Consistent with Professor Jones’s analysis, a study of inmates at the Orleans
Parish Prison in the first quarter of 2016 showed that black men were 53% more likely than
white men to stay in jail more than three days and made up 86 % of people held in the jail for
“over a year.”22

In the few cases that go to trial, black jurors are systematically disenfranchised.
In one study conducted in 2003 of 390 trials in Jefferson Parish, for example, researchers found
that prosecutors struck qualified black jurors more than three times as often as qualified white
jurors.23 A similar study of Caddo Parish conducted in 2015 found that Caddo Parish
prosecutors struck qualified black-versus-white jurors at the same rate: 3 to 1.24 Even when
black jurors are empaneled, because State law permits conviction by 10-out-of-12 jurors, and
because juries have so few black jurors to begin with, their votes are often irrelevant.25

Disparities at every step in the process unsurprisingly impact the demographics
of the state’s incarcerated. As of 2010, black individuals were incarcerated at a rate four times
higher than non-Hispanic white individuals, and Hispanic individuals were incarcerated at a rate
nearly double that of the latter.26

The supermajority of the “masses” who are incarcerated in Louisiana are black.
Although only about 33% of all Louisiana residents are black or African American alone,27 as of
June 2016, 67.5% of the state’s adult correctional population (in state and local facilities, as well
as transitional work programs) are black; 65.8% of the State’s Death Row is black; 73.7% of
3
adults serving life sentences are black; 80% of “youthful offenders” in the state correctional
system are black; and 80.1% of adults serving time as “habitual offenders” are black.28

Racial disparities on death row in Louisiana are even more dramatic when victim
demographics are considered. Statewide, data from 1976 to mid-2015 shows that the “killer of
a white female is 12 times … more likely to be sentenced to death, and 48 times … more likely
to be executed, than the killer of a black male.”29 No white person “in the entire history of
Louisiana” has been executed for killing a black male.”30 A review of homicide cases in East
Baton Rouge between 1990 and 2008 revealed that even after controlling for variables such as
the number of aggravating circumstances, victims, or concurrent felonies, “the odds of a death
sentence” were “still 97% higher for those who kill whites than for those who kill blacks.”31

The disproportionate funneling of black Louisianans into and through the
criminal justice system also means that the failings of the state’s indigent defense system
disproportionately affect the state’s residents and communities of color, and black individuals
in particular. Most persons charged with crimes are represented by appointed defenders.
Since people charged with crimes in Louisiana are disproportionately black, usually this means
that public defenders’ clients are also disproportionately black.

A survey of the 12 public defenders’ offices in Louisiana that consistently
reported the race/ethnicity of their clients between 2013 and 2015 to the LPDB shows this to
be true in 11 of those districts.32 The percentage of defenders’ clients who were non-white in
those 11 districts differed from the percentage of district residents who were non-white by a
range of 9 to 31%, averaging a difference of 17%.

The disproportionate funneling of black individuals into Louisiana’s criminal
justice system also means that Louisiana’s black communities are subjected to significantly
more and compound effects of the harms of mass incarceration, conviction, and detention
described above.
1
E. Ann Carson & Elizabeth Anderson, Prisoners in 2015, Bureau of Justice Statistics, U.S. Dep’t of Justice, 8 (Dec.
2016), https://www.bjs.gov/content/pub/pdf/p15.pdf (noting that the imprisonment rate in the United States is 458
prisoners per 100,000 residents; “Maine had the lowest imprisonment rate at year end 2015 (132 per 100,000
residents of all ages)”; and “Louisiana had the highest imprisonment rate for persons of all ages in 2015 (776 per
100,000 state residents)”). See also Reducing Incarceration for Technical Violations in Louisiana, The Pew Charitable
Trusts, 2 (Oct. 2014), http://tinyurl.com/zqff7ax (“Louisiana has long had the highest incarceration rate of any
state.”).
2
Carson & Anderson, supra note 1.
3
Reducing Incarceration, supra note 1.
4
Danielle Kaeble et al., Correctional Populations in the United States, Bureau of Justice Statistics, U.S. Dep’t of Justice,
8 (Jan. 21, 2016), http://www.bjs.gov/content/pub/pdf/cpus14.pdf.
5
Daryl G. Purpera, Evaluation of Strategies to Reduce Louisiana’s Incarceration Rate and Costs for Nonviolent
Offenders, Louisiana Legislative Auditor, 1 (Aug. 31, 2016), http://tinyurl.com/jcxfwjq (stating that “Louisiana
incarcerates a higher number of nonviolent offenders than the national average” and finding that 58.6% of
4
“individuals incarcerated or under DOC supervision during fiscal years 2009 to 2015 [in Louisiana] … had nonviolent
offenses only, meaning they had no violent convictions in their past”). See also Kevin Kane, Louisiana Locks Up More
Nonviolent Offenders Than Neighboring States Without Achieving Lower Crime Rates, The Pelican Institute (Aug. 25,
2016), http://tinyurl.com/jar86qr (“While crime rates in Louisiana, South Carolina, and Florida are nearly identical,
Louisiana sends people to prison for nonviolent offense at twice the rate of South Carolina and three times the rate
of Florida.”).
6
Briefing Book: Demographics, Louisiana Department of Public Safety and Corrections 31, 120 (July 2016),
http://tinyurl.com/hmr6bua [last accessed Feb. 4, 2017].
7
Id. at 32.
8
Peter Wagner & Bernadette Rabuy, How Many People Are Locked Up in Louisiana and Where?, Prison Policy
Initiative (May 2016), http://www.prisonpolicy.org/graphs/50statepie/LA_correctionalcontrol_2016.html.
9
Mathilde Laisne et al., New Orleans: Who’s in Jail and Why?, Vera Inst. of Justice, 2 (Aug. 2016),
http://tinyurl.com/jgcpfbp.
10
Stack v. Boyle, 342 U.S. 1, 8 (1951).
11
Paul Heaton et al., The Downstream Consequences of Misdemeanor Pretrial Detention, Univ. Pennsylvania Law
School Quattrone Ctr. for the Fair Admin. of Justice, 1 (July 2016), https://www.law.upenn.edu/live/files/5693harriscountybail (“find[ing] that detained defendants are 25% more likely than similarly situated releasees to plead
guilty, 43% more likely to be sentenced to jail, and receive jail sentences that are more than twice as long on
average.”).
12
Id. at 1-2.
13
See id.
14
See generally Bruce Western & Becky Pettit, Collateral Costs: Incarceration’s Effect on Economic Mobility, Pew
Charitable Trusts (2010), http://www.pewtrusts.org/en/research-and-analysis/reports/0001/01/01/collateral-costs;
Katy Reckdahl, Mass Incarceration’s Collateral Damage: The Children Left Behind, The Nation (Dec. 16, 2014),
https://www.thenation.com/article/mass-incarcerations-collateral-damage-children-left-behind/; Angela Carter & Bill
McCarthy, Reducing the Effects of Incarceration on Children and Families, 3 U.C. Davis Ctr. for Poverty Research
Policy
Brief
10,
http://poverty.ucdavis.edu/sites/main/files/file-attachments/cprmccarthy_carter_parental_incarceration_brief.pdf.
15
See, e.g., Natasha L. George et al., Now and Later: the Short and Long-Term Consequences of a Louisiana
Conviction, Louisiana Justice Coalition (2011).
16
Law enforcement officers are afforded near absolute discretion to initiate or to decline arrests. E.g., Town of
Castle Rock v. Gonzales, 545 U.S. 748, 760 (2005). Prosecutors’ charging decisions are “entirely” within their
discretion so long as there is probable cause. Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978). See generally Ronald
H. Weich & Carlos T. Angulo, Justice on Trial: Racial Disparities in the Criminal Justice System, The Leadership
Conference, 11-20 (Sept. 28, 2000), http://www.civilrights.org/publications/justice-on-trial/prosecutorial.html.
17
Supra note 10 at 4.
18
Id.
19
Meghan Ragany et al., Racial Disparity in Marijuana Policing in New Orleans, Vera Institute of Justice, 9-10 (July
2016),
https://storage.googleapis.com/vera-web-assets/downloads/Publications/racial-disparity-in-marijuanapolicing-in-new-orleans/legacy_downloads/Racial-Disparity-Marijuana-Policing-Report-Web-July-2016.pdf.
20
Id. (citing, e.g., National Survey on Drug Use and Health, 2013, U.S. Dep’t of Health and Human Serv., Substance
Abuse and Mental Health Serv. Admin., Ctr. for Behavioral Health Statistics and Quality, 11-23 (Nov. 23, 2015),
https://perma.cc/7DYS-A4N5.).
21
Cynthia E. Jones, Give Us Free: Addressing Racial Disparities in Bail Determinations, 16 N.Y.U. J. Leg. & Pub. Policy
919, 944 (2013).
22
Supra note 10 at 4.
23
Richard Bourke & Joe Hingston, Black Strikes: A Study of the Racially Disparate Use of Peremptory Challenges by
the Jefferson Parish District Attorney’s Office, 5 (2003). See also, e.g., Snyder v. Louisiana, 552 U.S. 472 (2008)
(holding Jefferson Parish prosecutors’ reasons for striking black juror in capital trial was mere pretext for strike based
on juror’s race).
24
Ursula Noye, Blackstrikes: A Study of the Racially Disparate Use of Peremptory Challenges by the Caddo Parish
District Attorney’s Office, Reprieve Australia, 9 (Aug. 2015). See also, e.g., State v. Coleman, 970 So.2d 511 (La. 2007)
5
(holding Caddo Parish prosecutor’s reasons for striking black juror in capital trial violated equal protection because
they were not race-neutral).
25
La. Const. art. 1 § 17(A) (“A case in which the punishment is necessarily confinement at hard labor shall be tried
before a jury of twelve persons, ten of whom must concur to render a verdict.”). See also Robert J. Smith & Bidish J.
Sarma, How and Why Race Continues to Influence the Administration of Criminal Justice in Louisiana, 72 La. L. Rev.
361, 371-76 (2012); United States v. Louisiana, 225 F. Supp. 353, 372 (E.D. La. 1963) (discussing history of the
Constitution of 1898 and contemporary reports that the convention’s “mandate” was “to disenfranchise as many
Negroes and as few whites as possible”).
26
Louisiana Profile, Prison Policy Initiative (2010), http://www.prisonpolicy.org/profiles/LA.html [last accessed Feb.
4, 2017].
27
QuickFacts:
Louisiana,
U.S.
Census
Bureau
(Oct.
31,
2016),
http://www.census.gov/quickfacts/table/PST045215/22#headnote-js-a [last accessed Feb. 4, 2017]. This number
reflects data collected between 2010 and 2015.
28
Briefing Book: Demographics, Louisiana Department of Public Safety and Corrections, at 22, 35, 37, 39, 47 (July
2016), http://tinyurl.com/hmr6bua. See also Death Row U.S.A, NAACP Legal Defense and Education Fund, 40-41
(2016), http://www.naacpldf.org/files/publications/DRUSA_Summer_2016.pdf (noting that, as of July 2016,
Louisiana has the highest percentage of black inmates on death row of any state with more than three individuals
on death row).
29
Frank R. Baumgartner & Tim Lyman, Race-of-Victim Discrepancies in Homicides and Executions, Louisiana 19762015, 17 Loyola J. of Pub. Interest L. 129, *6 (2015), https://www.unc.edu/~fbaum/articles/Louisiana-RaceOfVictimLJPIL-Fall2015.pdf [last accessed Feb. 4, 2017].
30
Id. at *1.
31
Glenn L. Pierce & Michael L. Radelet, Death Sentencing in East Baton Rouge Parish, 1990-2008, 71 La. L. Rev. 647,
670 (2011).
32
The districts identified are 6, 8, 12, 17, 18, 19, 20, 24, 25, 26, 37, and 40, based on an analysis of data from the
Louisiana Public Defender Board.
6