After the 2020 legislative session was largely derailed by COVID-19, and following the unprecedented summer protests in the wake of the killings of Breonna Taylor and George Floyd, Louisiana’s 2021 legislative session sought to deliver on many deferred promises. Against that backdrop, the session was marked by reactionary racial resentment, attacks on transgender youth, and fierce battles over police accountability and mass incarceration.
The result was a mixed bag for civil rights and civil liberties. We made important gains in some areas, suffered hard-fought losses in others, and defeated many of the worst threats to civil liberties and equal protection under the law.
Perhaps most importantly, we saw the community come together time and again to hold our state accountable. The ACLU of Louisiana came away from the session invigorated to keep fighting and keep the pressure on wherever your rights are at stake.
Here are some of the issues that were most important to us, including some crucial ones that may not have made the news:
Criminal Law Reform
The ACLU of Louisiana’s priority bill, HB 46 by Rep. Ted James, sought to reduce the length of time that the state can jail a person without criminal charge from as long as 120 days to 5 days in most cases. Our research found that Louisiana has the highest pretrial incarceration rate in the country, and research by the Pew Charitable Trusts has shown that this crisis has been driven by longer lengths of stay, not necessarily more people being put in jail. By allowing people to be jailed for prolonged periods without charge, Louisiana state law contributes to our state’s outlier status.
With the help of an outpouring of support from the community and ACLU of Louisiana supporters, HB 46 passed into law, but not before legislators bowed to pressure from district attorneys and amended the bill. Under the new law, people arrested for misdemeanors may only be held in jail for 30 days without charge, rather than 45 days under previous law.
We are clear-eyed about the incremental step this represents. People in this state can still be held in jail for weeks or months without being charged with a crime. Nevertheless, many legislators now understand and agree with us that the status quo is unjust and affront to due process. Moving forward, we will continue to sound the alarm about the injustice of pretrial incarceration and press lawmakers to address this crisis once and for all.
Decriminalization of Marijuana
One of the bright spots of the session was the long-overdue attention given to marijuana legalization. Racial disparities in marijuana enforcement are staggering, and statistics show Louisiana residents favor legalizing marijuana.
Although marijuana legalization failed to pass, legislators did take a small step forward with the passage of HB 652 by Rep. Cedric Glover. Under this new law, possession of up to a half ounce of marijuana will be a misdemeanor carrying a fine of up to $100, rather than $300, with no possibility of jail time.
Unfortunately, legislators declined to pass HB 524 by Rep. Nelson and HB 243 by Rep. Candace Newell, which both attempted to decriminalize marijuana. HB 243 further attempted to provide redress for those convicted of possession of marijuana. All of these measures failed, but the fight is still on.
The war on drugs has been devastating to communities, while wasting taxpayer money and failing to improve public safety. The ACLU of Louisiana will continue to press for full legalization of marijuana and an end to the war on drugs.
Although we were hopeful that the Justice Reinvestment Legislation of 2017 would decrease incarceration numbers, Louisiana still has the highest incarceration rates in the nation and in the world. Louisiana’s harsh sentences have a disproportionate impact on Black communities, with Black people accounting for 73 percent of all people serving life sentences in the state of Louisiana. Throughout the session, the ACLU of Louisiana supported our coalition partners in pressing lawmakers to continue reducing Louisiana’s sky-high prison population, and oppose harmful “tough on crime” policies that would turn back the clock and make Louisiana’s mass incarceration crisis worse.
For example, HB 479 attempted to implement a harmful “truth in sentencing” law in Louisiana, which would have required individuals in prison to serve out their full sentences without any credits for good time served. Thanks to collaborative efforts and strong opposition from the ACLU and our allies, HB 479 was deferred in the House and did not become law.
Another positive development was the passage of HB 32, which allows incarcerated individuals to earn credits upon earning Bachelors and/or Masters degree while in prison.
While the reforms passed in 2017 remain intact, this session legislators generally declined to take further meaningful steps toward reducing mass incarceration. Despite a public outcry calling for an end to solitary confinement, legislators refused to pass HB 68, which would have placed restrictions on solitary confinement for people with mental disabilities. Lawmakers also failed to provide people serving sentences due to non-unanimous jury convictions with a chance at justice and fair trials. Despite Louisianans overwhelmingly voting for the passage of Act 2, which outlawed non-unanimous juries, approximately 1,500 individuals convicted by split juries are still serving sentences due to this racist and unjust practice.
Post Conviction Relief
While legislators largely punted making real progress to reform our criminal legal system, they did take small strides for people who are released after being wrongfully convicted and other formerly incarcerated Louisianans:
- Legislators passed HB 92 to increase compensation for innocent individuals who are languishing in prison after being wrongfully convicted. Prior to the passage of HB 92, individuals found factually innocent were compensated at a rate of $25,000 per year for every year of wrongful incarceration – limited to up to $250,000 in total. HB 92 increased the annual rate to $40,000 per year with a $400,000 cap.
- Lawmakers also passed two bills aimed at lowering the barriers faced by many formerly incarcerated individuals upon their release, including fines, obstacles to gaining employment, and even registering to vote. HB 707 directs businesses to not consider arrests that did not result in convictions and to not consider the amount of time since the individual’s previous conviction when applying for employment. HB 84 by Rep. Denise Marcelle permits previously incarcerated individuals to serve on juries as long as they are not on probation or parole and have not been jailed in the previous five years.
Policing and Surveillance
After the summer of 2020, Louisianians demanded systemic changes to policing. Although some lawmakers fought hard to answer those demands, the legislature was unwilling to adopt any reforms that were not supported by law enforcement. Nevertheless, some meaningful reforms were enacted.
In June 2020, during a special legislative session held in the wake of Derrick Chauvin’s murder of George Floyd, the legislature established the SCR 7 Task Force to make policy recommendations for the 2021 session. Several task force recommendations became law. These included HB 430, which amended the “Law Enforcement Officers’ Bill of Rights” to require sustained complaints against officers to be recorded for 10 years and HB 129, which created a new authorization to revoke an officer’s certification based on sustained misconduct complaints, instead of requiring a criminal conviction. SB 34 also placed moderate limits on officers’ use of neck restraints and no-knock warrants.
HB 609 by Rep. Edmond Jordan sought to eliminate certain immunities for peace officers in tort suits brought under Louisiana law. Despite broad support from the Louisiana Sheriffs’ Association, the Louisiana Association of Chiefs of Police, and advocates from the right and the left, the legislature bowed to opposition from police unions and killed the bill.
The ACLU of Louisiana supported these efforts while emphasizing that stronger measures are needed. In particular, Louisiana’s Law Enforcement Bill of Rights statute impedes investigations into unlawful police violence and should be significantly weakened or repealed.
A bright spot in policing legislation was HB 325 by Rep. Ed. Larvadain III, which provides new minimum standards for the treatment of minor and dependent children when their parent or guardian is arrested.
Finally, the legislature considered two significant bills related to facial recognition systems and other surveillance technology. First, the ACLU of Louisiana and allies defeated HB 185, which would have granted a blanket exemption from the Public Records Act to the Louisiana State Police Fusion Center, which operates its facial recognition program. Second, HB 611 by Rep. Edmond Jordan sought to regulate the use of facial recognition by law enforcement. That bill failed in committee but was replaced with HR 199, which requires the House Committee on Administration of Criminal Justice to study the use of facial recognition by law enforcement and make recommendations concerning its use, including safeguards for privacy, due process, and civil liberties.
Louisiana was one of more than 30 states this year where legislators participated in a coordinated attack on the rights of transgender youth. Dozens of states saw near-carbon-copy bills seeking to ban trans youth from receiving crucial, clinically indicated health care and counseling, and to ban trans youth from playing sports with their classmates.
We are proud to say that these dangerous, discriminatory bills were defeated in Louisiana, thanks to the leadership of trans youth, their families, and health care providers across the state. Two bills seeking to ban health care for trans youth and one bill to prohibit youth from playing sports were defeated in committee. A fourth bill, also a sports ban, passed the full legislature but was vetoed by Governor Edwards.
Advocates for LGBTQI rights also went on the offensive with HB 282, which would have prohibited discrimination in rental housing on the basis of sexual orientation or gender identity. Unfortunately, that bill did not advance out of committee.
Fortunately, Louisiana did not see the rafts of aggressive voter suppression legislation that some other southern states did this year. In some areas, we even made progress to expand ballot access.
HB 286 by Rep. Fred Jones extends early voting in presidential elections by three days. HB 285 by Rep. Ted James doubles the amount of time voters have to complete their ballots from 3 to six minutes. And HB 378 by Rep. Sam Jenkins streamlines the process for formerly incarcerated people to regain their right to vote. In addition, we applaud SR 22 by Sen. Katrina Jackson, which requires an interim study of voting rights and ballot access for people held in jail pretrial.
Some dangerous bills were also defeated or weakened. Advocates killed HB 313, which would have increased criminal penalties for misstating a person’s immigration status on a voter registration. The law already prohibits fraud in voter registrations, and this bill was unnecessary. In addition, SB 244 initially sought to ban ballot drop-boxes in Louisiana. After strong opposition from voting rights advocates, the bill was significantly watered down to require only that absentee ballots include a voter’s driver’s license number or last four digits of the voter’s social security number, if the voter has those documents.
Finally, the legislature adopted joint rules for this year’s upcoming redistricting process as HCR 90.
Gender Equality and Reproductive Rights
Advocates for gender equality scored some wins this session, even as the legislature continued its assaults on reproductive freedom. HB 7 by Rep. Aimee Adatto Freeman eliminates state sales tax on feminine hygiene products and diapers for children and adults, and SB 215 by Sen. Regina Barrow adds many pregnancy-related conditions that are not recognized as disabilities under the Americans with Disabilities Act to the conditions which employers must reasonably accommodate for their workers. Abortion rights advocates also succeeded in defeating HB 255, which would have imposed an unconstitutional ban on abortion for people under interdiction and curatorship.
Despite these wins, anti-abortion interests advanced several bills through the legislature. HB 357, which was filed as a data-collection measure related to minors who obtain abortions, was amended in the final week of session to dramatically restrict which courts can receive an application from a minor for a judicial bypass. This bill will limit access to abortions for many of the most vulnerable minors in our state who are unsafe to disclose pregnancy or sexual activity at home. HB 423 adds yet another unnecessary reporting requirement for abortion providers. And HB 578 requires that medication abortion prescriptions be accompanied with a dangerous notice, based on misinformation, that the procedure can be “reversed” during the course of medication. The FDA has not approved such a “reversal” protocol, and some women have even died as a result of complications from attempting it.
Advocates for free speech succeeded in killing multiple bills that sought to censor or compel speech.
HB 564 by Rep. Ray Garofalo sought to ban instruction on “divisive concepts” in Louisiana public schools, including subjects related to racism and sexism. HB 21 by Rep. Charles Owen sought to create new civil liability for publicly disclosing identifying information of public officials. And a set of three similar bills, HB 14, HB 602, and SB 196, sought to compel private social media companies to publish certain political speech, as dictated by the state government. Each of these bills ran afoul of fundamental First Amendment principles, and, fortunately, each failed to pass.
In addition, Rep. Charles Owen passed HB 23, which repeals the criminal offense of defamation. Portions of this statute had already been struck down as unconstitutional, but in some cases it had still been wielded in acts of political intimidation. We applaud its repeal.
Overall this session underscored the importance of making our voices heard at the statehouse and at the ballot box. Lawmakers in Baton Rouge wield enormous power over issues that impact the daily lives of millions of all Louisianians, and all of us have a responsibility to hold them accountable for defending our fundamental civil and human rights.
Moving forward, the ACLU of Louisiana will continue pressing its advocacy agenda in the Capitol and working to empower communities across the state.