Louisiana's special legislative session on crime adopts laws that will make things worse

7 March 2024

“Tough-on-crime” policy has been the guiding light of Louisiana’s criminal justice system for decades, with the result that Louisiana leads not only the country, but the entire world in incarceration rates. Despite locking up more criminals per capita than any other comparable society, we still sport higher crime rates than supposedly “lax-on-crime” systems in other states and other countries, including Norway’s legal system, where there is no death penalty, the maximum sentence is 21 years, and where prisons are relatively easy on inmates. Conservatives might be led to wonder why man’s “base animal passions” aren’t running wild in Norway, where clearly the government has such little concern for victims and their families that it won’t even kill people in their name. While Louisiana punishes murderers with life sentences and capital punishment, Norwegian society with neither life sentences nor capital punishment produces fewer homicide victims in a year than New Orleans does in a month.

How could this be? If, as conservatives tell us, we have to punish people harshly in order to show that crime doesn’t pay, why do societies with more lax criminal codes so often produce fewer criminals? One hypothesis that pretty reliably replicates in criminology is that what deters crime is not the severity of the punishment, but the certainty of being punished. It’s intuitive why this is the case. Even when the punishment is death, individual criminals are not making decisions on the basis of what the worst possible outcome is (many are already engaged in dangerous behaviors that could result in an early death), but are instead making decisions based on what the most likely outcome is. One study by Curry, Sen and Orlov in 2016 found high negative correlations between clearance rates and crime rates, suggesting that criminals are less likely to commit crimes when the police are more likely to catch them. Another study, by Entorf and Spengler from 2008, found that in German states, the certainty of conviction had a greater impact on deterrence than the severity of punishment, and that reducing the severity of punishment had no impact on crime rates.

Entorf and Spengler also concluded that reforms which increase the severity of punishment actually increase the risk that “the prison population increases without any effect of deterrence”, and argue that “criminalizing large parts of the population might cause some ‘crime-bears-crime’ problems, as peer effects and social interaction among inmates worsen future legal prospects of released offenders”, before indicating that US prison policies are caught in this feedback loop.

In a city like St. Louis, which leads the country in annual violent crime rates, where 60% of homicides that occurred between 2017 and 2023 went unsolved, and where the clearance rate is even more dismal in cases where the offender is unknown to the victim, the probability of getting caught versus receiving a payoff (for example, removing a rival drug dealer from the market) can skew decision-making in the direction of committing violent crimes. Louisiana’s three major cities - Shreveport, New Orleans, and Baton Rouge - frequently appear in the top 10 with St. Louis, and share many of the same problems. Homicide clearance rates in Louisiana’s urban centers are similarly low, and even lower when the offender is unknown to the victim, a common characteristic of gang violence.

Louisiana recently concluded a special legislative session punitively dedicated to reducing crime rates. Among the proposed measures which passed through our one-party legislature were bills that reduce the age at which a minor can be charged as an adult, unseal juvenile criminal records, give qualified immunity to police officers, and establish suffocation via nitrogen gas as a method of execution. Additionally, bills that eliminate parole and “good time” for inmates were also passed.

Louisiana already has one of the most punitive penal systems in the country. Our prisons are designed and run to make the daily lives of inmates as miserable as possible. The immiseration of prisoners, advocates of the immiseration will tell us, is simply just and deserved, a necessary evil if we want to deter crime. But the immiseration of inmates and institution of harsher penalties has not resulted in Louisiana becoming less violent or more safe compared to places with less punitive legal systems. Norway has a homicide rate that is an order of magnitude lower than Louisiana’s: in 2021, there were only 29 homicide victims in Norway, while Shreveport alone had 90 homicide victims.

Norway’s homicide clearance rate? 97 percent.

There’s no reason to believe that the laws adopted at the special session will have the intended impact on crime. Because it’s not the severity of punishment that makes the difference, the only predictable impacts will be an increased inmate population, the further immiseration of inmates (some fraction of whom, it should be remembered, are wrongfully convicted), more frequent executions, and the deterioration of the relationship between communities and the police as the latter are no longer civilly liable for damages they cause.

Qualified immunity in particular will put stress on existing relations between the police and the poor communities where crime occurs, making it less likely that community members will assist the police with investigations, further driving clearance rates down as useful information is withheld from investigators. The subsequent decline in clearance rates are likely to increase crime rates, as that decline will inform criminals that they are less likely to get caught.

No bills were passed that would conceivably increase clearance rates or improve community relations with the police. When it comes to crime, Louisiana’s conservatives are seemingly driven more by a sadistic drive to punish a certain segment of the population than by the desire to see more peaceful communities. If there were no more criminals to punish, politicians like Landry would have to create new ones so as to have a socially acceptable target for their sadism. Elites like Landry in Louisiana may even see themselves as the heirs to a romanticized plantation system in which they are the masters; the political project of the right-wing in Louisiana can be described as a re-institution of the plantation system in a modern form. Mass incarceration gives them such a form, right down to the re-institution of slavery enabled by the sale of inmate labor. Does it surprise anyone that the Angola State Pen used to be a plantation?

Landry concluded the special session in a typically self-righteous and sanctimonious fashion. As a former prosecutor, he couldn’t help himself but to hide behind “victims and their families” (the vast majority of whom were not exactly polled on their opinions of the legislation, and who are surprisingly diverse in their opinions on crime and punishment) while promising to sign bills into law that will create a lot more victims in the long run.

Here are some words from Friedrich Nietzsche on “the impulse to punish” that always stick in my mind when I see such scenes:

“But thus I counsel you, my friends: Mistrust all in whom the impulse to punish is powerful. They are people of a low sort and stock; the hangman and the blood hound look out of their faces. Mistrust all who talk much of their justice! Verily, their souls lack more than honey. And when they call themselves the good and the just, do not forget that they would be pharisees, if only they had - power.”