Cops, prosecutors balk at new law

July 5, 2014 11:02:19 PM

Sarah Fowler - [email protected]


Local law enforcement officials are questioning the wisdom of a new law that changes several felonies to misdemeanors and reduces jail time for convicted offenders. 


In the spring legislative session, legislators passed House Bill 585, a bill that is designed to cut costs by reducing the prison population within the Mississippi Department of Corrections. 


Mississippi has the second highest incarceration rate in the nation, trailing only Louisiana. Mississippi currently has approximately 9,100 inmates in three state-run prisons. When regional and private-run prisons are included, that number jumps to just over 24,000. To help combat the growing costs of housing and providing medical care for those inmates, MDOC Commissioner Chris Epps threw his weight behind HB 585. Supporters of the bill have said it will save Mississippians $266 million over the next 10 years.  


The sweeping law, which covers 194 pages, took effect Tuesday and sent law enforcement scrambling to understand the implications of the law's language. Under the new law, non-violent offenders must serve only 25 percent of their sentences. Violent offenders must serve 50 percent.  


Lowndes County District Attorney Forrest Allgood met with Lowndes County Sheriff's Department's investigators and narcotics agents early last week to explain the law and its ramifications. 


Allgood said it is obvious to him what the legislators' goal was in writing the new law. 


"I think the legislature decided that cost containment was a priority for them in the realm of criminal justice," Allgood said. "I think they acted accordingly. I genuinely think the whole measure was about cutting cost. I don't think it was about anything else. 


"It's about money. That's my opinion. That was the primary thrust of the legislation." 


While the bill will cut the financial costs to the Department of Corrections, Allgood questions what the long-term costs will be for the public. 


"Everybody has different opinions about what it means to the justice system," he said. "I think it's going to make our job, in some respects, much more difficult. 


"In other respects, it will be easier in the sense that our numbers are going to go down. There's going to be a lot less cases come to circuit court.  


"It's like this one guy said once, 'If you want to solve the crime problem, you can solve the crime problem. Just don't make anything a crime and you don't have any more crime.'  


"In some respects, it's somewhat the same way. If you make everything a misdemeanor, then we don't have any more clogged courts in here, in the felony system. So in that respect, it's going to make our job easier but in the other respect, it's going to make our job harder. The notion that we're here to protect the public, and that is our job, that goal is going to be more difficult to obtain." 




Sentencing Habitual Offenders 


In Mississippi, if a person is convicted three times, the person can be sentenced as a habitual offender. If sentenced as a habitual offender, the person must serve his full sentence without the possibility of parole. While the Habitual Offender Act is still in place, under the reduced sentences outlined in the new law, violators would serve less time than they would have served before July 1, Allgood said. 


"A number of offenses, a large number of offenses, had the maximum sentence reduced," Allgood said. "A lot of times, the only thing that you have to protect John Q. Public is the Habitual Offender Act and if there is a long maximum on that Habitual Offender Act, then functionally, you can prevent that particular offender from ever troubling John Q. Public again. That won't be the case now. 


In addition to affecting the sentencing of habitual offenders, Allgood said he is worried how the new law will affect shoplifting offenses.  


Before July 1, anything over $500 was considered felony shoplifting. Now, the amount has been raised to $1,000. 


Allgood said shoplifters are notorious repeat offenders. He fears the new law may open a floodgate of shoplifting. 


"Drug offenders do re-offend frequently but shoplifters may be the worst," he said. "I do see that being a real difficulty, particularly the provision where your third offense is no longer a felony unless you've got two that were previously above $500. When they find that out, shoot, these people aren't half as stupid as folks think they are. They're going to figure it out in a hurry." 


Plea deals were minimal during the May term of Lowndes County Circuit Court because offenders were waiting for the new law to kick in, Allgood said. An opinion issued by the Attorney General said those who were arrested before July 1 but not yet convicted will be sentenced under the new guidelines. 


"They're talking about it back in the jail," Allgood said. "They ain't stupid. They played the game the last term of court. Nothing happened. Nothing went on. Nobody was going to plead guilty because every one of them was waiting for this thing to kick in." 




Dealers aware of new law 


Captain Archie Williams, Lowndes County Sheriff's Department Narcotics Commander, said drug offenders would use the new law to their benefit. 


"It's not going to take long for the drug violators to realize these guidelines," Williams said. "They keep up with it just as much as we do. They're going to know the weights they can have on them. They're going to know the weights they can sell to have a drastically reduced sentence. They already do it now. Before July 1, they were doing it then. You're going to have people, if we catch them, getting small little sentences, if any." 


Williams said he fears the crime rate will increase because now, "they have nothing to fear." 


He expressed frustration at the law and said he feels that it puts the general public at risk. 


"I feel the changes made in the bill are going to do more harm than good," Williams said. "I feel that this is going to put the public at risk because you're going to have more violators walking the streets.  


"Drugs lead to other crimes, which include burglary, robbery, theft, larceny. So you're going to have more violators walking the streets because they're not going to be in jail as long and even when they end up in prison or get a sentence, they're going to do, in some cases, 25 percent of that sentence.  


"As if our job isn't hard enough already, you now have to catch violators with more amounts of drugs just to obtain a felony, which, after that, they're still going to serve less time because the sentencing guidelines were reduced. So it's more drugs, less time. It's more work on us, less time for them. It doesn't make sense." 




The law explained 


Brett Watson, Oktibbeha County Sheriff's Department Commander of Investigations, said under the new law, criminals could do twice the amount of crime for the same amount of time in jail in some cases. 


"A guy that's going to stand on the street corner and sell (smaller amounts of drugs) or a guy that's going to come steal your trailer is going to be happy now," Watson said. "Criminals read this stuff. They read the laws just like the lawyers and just like we do. They know what they can do and what they can't do. They know what's going to happen to them and now they know that they can do twice as much." 


Referencing the increased amount to obtain a felony grand larceny charge, Watson said he expects frustration from the average citizen. 


"One of my main concerns is, I don't think the public really has a good idea about what exactly was in (the new law) and what the stipulations, the changes, are going to be," he said.  


"As it stood until the (July 1), if a man came to your house and stole your 5x8 trailer, generally speaking, he's looking at a felony crime and spending some amount of time in the penitentiary. As it stands now, the way the law has changed, that's not going to be the case. Likely, that trailer, that trailer is going to be less than $1,000. Likely, the penalties are going to be that they spend less than a year in the county jail if we want him to go to jail.  


Obviously in the past, at least the legislature felt strongly enough that this crime should be one in which a person should go to jail. Somebody comes to my house and steals $500 worth of my stuff, I want them to go to jail. I doubt in the public's mind, that's changed. I think you ask any general citizen if somebody comes to their house and steals $500 worth of stuff, they're going to want them to go to jail." 




Constitutional issues?  


When it comes time for the offenders to be sentenced, the law still gives judges discretion on the length of the sentence and fine imposed. However, when it comes to probation revocation, Circuit Court Judge Jim Kitchens is worried the law may be unconstitutional. 


Prior to July 1, probation revocation was at the will of the sentencing judge. Wording in the law suggests MDOC can now decide how to handle offenders who may have violated their probation. Kitchens said that might be giving the executive branch powers that are reserved for the judiciary, something he believes is unconstitutional. 


"I think what the legislature has done is give the executive branch power to modify my sentence and I don't think they have that power," Kitchens said. "The court suspends the sentence. The court decides when the sentence should be revoked. Not the legislature. Not the executive branch. So, I think that part of it may very well be unconstitutional because it gives the executive branch the power to decide a punishment that I've not imposed. The court is the one that sets forth punishment, not the executive branch. 


"If they do that without my permission, I'm concerned that they're creating some legal issues." 




Shifting costs to counties? 


Watson, who has referred to the bill as 'the tail wagging the dog,' said while the new law will serve its purpose of cutting MDOC costs, local taxes could rise. Referencing the scenario of the stolen trailer, Watson said if the victim wanted the offender to go to jail, the offender would now serve time in the county jail, not the state penitentiary. Watson said in order for the county to be able to financially support the new influx of inmates, local taxes might need to increase. 


"Let's assume for a minute they do want them to go to jail," he said "The burden of paying for that incarceration has now moved from the state to the counties. The counties are going to be the ones that are faced with coming up with the monies to now directly incarcerate these people on misdemeanor crimes.  


"Taxes for the average citizen are not going to go down for this reduction in people in the state correctional facility. Our taxes aren't going down, but our taxes at the local level are going to have to go up if we want to continue putting the same people in jail for the same types of crimes because now the burden is on us.  


"I think that burden automatically flows back to the average citizen and I don't think a lot of people realize that. Effectively, now you're going to be able to steal twice as much stuff before you go to the penitentiary for it." 


Watson also referenced the changes in drug sentencing. 


"If you look at some of the drugs laws, and the way they've changed, I think it's going to put a burden on local law enforcement that we've never had before," he said. "I've always been an advocate of street level drug enforcement. Targeting those guys that are standing on the street corners that are selling that kind of stuff right here in our town.  


"It's a great thing to go after the cartels of this world. It's a necessary thing and it's a great thing but the cartels are not standing on the corner of the street in Starkville, Mississippi, selling drugs. They're not breaking into cars, breaking into houses and fighting turf wars with each other here in Starkville, Mississippi.  


"We've always been able to go out and find these street-level dealers and put them away and remove them from our society for a period of time; Get them out of our town. Stop them from shooting up other drug dealers. Stop them from breaking into cars. Stop them from breaking into our houses. We've always been able to do that. To me, the way this (law) reads, it's going to make it virtually impossible for us to do that at a local level until we've caught them multiple times. How fair is that to the citizens of Oktibbeha County and the citizens of Starkville? It's not." 


Williams said his department would continue to target the street level dealers in addition to distributors. 


"Our mindset hasn't changed," he said. "We're still going to do what we do. We're still going to catch them. We'll have to change some things up but we're still going to do what we do." 


While law enforcement officers from around the state gave lawmakers input as the new law was being written, Williams said he feels legislators don't have a real sense of what dealers are capable of, or what they will do to feed their supply. 


"I wouldn't say it's discouraging but maybe in some way it is," he said. "It kind of seems like the lawmakers don't care. You know, they live in these other neighborhoods where they don't have these problems. Other people, who actually have to worry about these violators being out, doing whatever it is they're going to do to get their drugs -- whether it's burglary, robbery, what have you, they don't have to worry about that because normally they're not around these types of people." 




Defending the new law  


Local law enforcement may not agree with the reduced sentences but Columbus resident Vicky Bankhead believes they are a good idea. Bankhead lives on Southside in Columbus and has several relatives who have served time in prison on various charges. 


Bankhead's son is currently in prison on burglary charges. He was sentenced to 15 years in prison, Bankhead said. Her brother has also served time in prison. According to Bankhead, her brother served 11 years on a 12-year drug charge. 


"That wasn't necessary," Bankhead said. "That didn't make no sense." 


She admits that some people do return to selling drugs after returning from prison, but said she feels most of the first-time offenders could be reformed. 


"They know they are going to get right back out, do it again and go right back (to prison), but some get out and try to better themselves but law enforcement don't want them to better themselves," she said. "I think it's a good idea for them to reduce the sentence because it really don't make no sense. These people out here are getting in this trouble and they are taking them and throwing their life away instead of giving them a chance, you know. We all make mistakes, you know, but that don't mean we got to be punished for it for all our lives.  


"They have families out here. They have children, and a lot of them need to be out here trying to help. They're locked down when they could be out trying to help themselves. Yeah, reduce they sentence because a lot of them don't deserve it. There ain't no reason for them to do all them years on one doggone drug charge." 


A male relative of Bankhead's said that he, too, agreed with the reduced sentences. The man declined to reveal his name for fear of law enforcement retribution. Holding his infant son while he spoke, he said many people who sell drugs are doing it to support their families. 


"It will make it better," he said. "Some people don't deserve all that time. Some people get 20, 30 years for one count. I think it's a good idea because some people ain't out here; they just ain't out here for no reason. They are trying to take care of their families, you know. It's hard to get a job some places. I don't fault them for what they do. They're consequences behind everything you do out here, though." 


Local criminal defense attorney and public defender Carrie Jourdan said while there are consequences for criminal actions, the new law will help unclog the system. 


"I think what this new bill does is give the system a better chance to be successful," Jourdan said. "First of all, it allows more remedies in dealing with non-violent property crimes by making a lot of the statures swing statures and raising the limits, which were very low to begin with compared to other states.  


"Second, it helps in dealing with drug possession crimes for small-time drug dealers, mainly (those people) who are supporting their own habit. It gives you more remedies in dealing with them.  


"The reason that's important is because we are breaking the system. We are putting everybody in jail. We're overloading the system and it's indiscriminate. We're mixing a lot of petty offenders and drug addicts with hardened criminals. Not to mention, Mississippi can't afford it. So this gives the court systems, attorneys and prosecutors, more remedies besides automatically putting somebody in jail. And a lot of this is dependent on being a first offender, small amounts in terms of drugs or small amounts of property damage. So we're not talking murderers are going to walk free." 


Jourdan said she felt prosecutors are overreacting. 


'"I don't know why," she said. "To me, it's sensible and gives them a lot more remedies. You've got more decisions with victim-less crimes. Let's get those people some help or get them in a drug court, but let's not put them all in prison. Even the same thing with small time first offenders. These remedies will prevent the overcrowding, which will then allow room for very serious criminals to be maintained as serious offenders. 


"To me, (prosecutors) should be glad. This leaves more room in the system to handle serious violent offenders instead of clogging the system with victim-less crimes or minimal crimes." 


She said prosecutors used the threat of lengthy jail time as a "big stick." The new law reduces that power. 


"You know why I think the prosecution is upset about it?" she said. "Because they had a big stick before that they could pretty much use indiscriminately and I think that they dislike that their stick isn't quite as big.  


"They had a really big stick before because everything was a felony and getting a felony is so bad in terms of your ability to get work and whatever.  


"I think what prosecutors are upset about is the court was given more remedies, the clients were given more remedies and the prosecution's stick was made smaller. That's what they're upset about." 


Allgood said his main concern with the law is not how he will win cases but how the public will ultimately be affected. 


"From my point of view, I do not think in any way this is going to staunch the recidivism rate," he said. "I think, instead, it's going to get worse. When you make the...offenses less erroneous, so to speak, then you're not discouraging people from indulging in that activity and if they continue to indulge in that activity, then I think the rest of the crime is going to proliferate. I think that's a given."

Sarah Fowler covered crime, education and community related events for The Dispatch.