State Rep. Ted James Leads the Fight Against Pretrial Incarceration in Louisiana

HB 46 aims to shorten the time arrestees can wait in jail without being charged

Photo courtesy Rep. Ted James official Facebook page

In April 2020, the American Civil Liberties Union (ACLU) released a scathing report on Louisiana’s pretrial system. Justice Can’t Wait found that Louisiana’s pretrial incarceration system is now three times the national average, and higher than any state on record since 1970, and 57% of inmates had been arrested on nonviolent offenses. This broken pretrial system does nothing to promote public health, ruins lives, and costs taxpayers around $290 million each year.

“When we say ‘pretrial incarceration,’ we mean people who are still legally innocent in the eyes of the law, but they’re forced to await their trial behind bars,” noted A’Niya Robinson, Advocacy Strategist at the ACLU. “The people in our study had actually been held behind bars on average for about 5 1/2 months.”

The outcomes are even worse for Black Louisianans, particularly in Orleans Parish. The study found that Black Louisianans were more than twice as likely to be incarcerated pretrial, particularly young Black boys and men ages 15 to 24. In New Orleans, that rate jumped to 20 times more likely.

Rep. Ted James hopes to change that. On March 5, 2021, Rep. James introduced House Bill 46, based on policy recommendations included in the ACLU report. The bill would limit the amount of time Louisiana could hold a person in jail without charging them. Under current Louisiana law, a person could be jailed for 45 to 60 days for a minor offense, or up to 120 days for a serious offense before deciding whether to bring charges. HB 46 would shorten that to five days for most offenses and 30 days for serious offenses.

“[The current system] actually invites folks to go and take pleas out of what they consider to be comfort - to get back to life that they know as somewhat normal,” Rep. James said. “You’re not thinking about the 389 different rules and regulations we have here in Louisiana that say ‘you have a felony, you can’t work here, you can’t get this license, you can’t apply, you can’t get this house.’ You’re just thinking about getting back to the job that you may still have waiting on you.”

The bill also changes the way that that the pretrial system works in the state. Under current Louisiana law, offenders cannot be represented by a public defender until after charges have been filed - meaning many languish for months in jail without ever having spoken to a lawyer.

“What folks may not realize is that when you are arrested in Louisiana, you don’t necessarily have a right to counsel at that arrest,” noted Derwyn Bunton, Chief Public Defender in New Orleans. “You are not a client of the public defender’s office until charges are filed. So you will sit without counsel for 45, 60, and on a serious offense 120 days.”

That’s time that evidence could be lost or destroyed, Bunton notes. Witnesses who may help a defendant’s case can easily forget important details in that length of time - or they could move, or otherwise become difficult or impossible to locate. HB 46 would make every arrestee immediately eligible for counsel by making them eligible for a preliminary hearing even before charges are filed. “That’s going to change the trajectory of cases immediately,” Bunton said.

When asked why now is the right time to introduce HB 46, Rep. James noted that the Black Lives Matter movement and post-George Floyd conversations had opened the way.

“I think we have to continue to push all of these social justice issues because folks are paying attention … there’s not this huge onslaught of opposition right now. This is an issue that we’ve been having some very - in my opinion - very positive conversations about.”

If you would like to learn more about how to support the ACLU and Rep. James' efforts on this issue, you can sign up for Part 1 of “Werk the LEGE: ACLU of Louisiana’s Legislative Advocacy Training” here.