For Ellis Ray Hicks it was 60 days. For Robert Parker, it was 337.
Both were convicted of crimes and did their time, but Louisiana kept them imprisoned for months after they were supposed to be released, their lawyers say.
After years of lawsuits by inmates like Hicks and Parker — as well as a drumbeat of scathing state audits — the U.S. Department of Justice launched a two-year investigation that found widespread errors in calculating sentences. Over several months, more than one in four inmates had been imprisoned past their sentences, the investigation found.
The problems are widespread and severe enough that DOJ has threatened to sue the Department of Corrections if it does not upgrade antiquated technology, improve training and take other steps to ensure sentences are served correctly.
Now, in several blunt opinions issued in the last year, including one this week, federal judges have joined in blasting the state for imprisoning people too long.
"As our Court remains plagued by claims arising from inexplicable and illegal overdetention in Louisiana prisons, explanations scarcely arise, let alone satisfy scrutiny upon our review," one panel of the 5th Circuit Court of Appeals wrote in an opinion issued Tuesday. "The problem is endemic in Louisiana."
The 5th Circuit, widely seen as the nation's most conservative federal appeals court, has been grappling with a series of thorny questions in case after recent case brought by former prisoners against the state: What did Louisiana Department of Corrections Secretary James LeBlanc know, when did he know it, and what — if anything — did he do in the face of clear evidence that his agency frequently miscalculated release dates, keeping a huge share of people imprisoned against their rights?
In some cases, the judges have taken the rare step of refusing to grant qualified immunity for LeBlanc and other department personnel, which could leave the state liable in those cases.
Qualified immunity safeguards government officials from lawsuits alleging they violated a plaintiff's rights. That immunity is only voided if plaintiffs can prove officials violated a "clearly established" constitutional right — a high legal bar to clear.
While in some cases judges appear loathe to lay the blame so squarely at the feet of LeBlanc and the state for problems, they have shown no hesitation in doing so in other cases.
"We are seeing with some frequency claims of 'overdetention,' now a euphemism for prisoners illegally incarcerated beyond the terms of their sentence," the Tuesday opinion says. "Unfortunately, many of these cases have come to this Court in recent years. This is yet another from Louisiana."
For their part, state officials have criticized both the DOJ report and the recent rulings.
"We strongly disagree with the referenced decisions and look forward to our day in court," said Department of Corrections spokesperson Ken Pastorick. "Beyond that, we have no further comment because these matters are still in litigation."
'Yet another from Louisiana'
In the opinion issued Tuesday, a panel of 5th Circuit judges ruled DOC personnel under LeBlanc can be sued for deliberate indifference in holding Hicks two months past his release date.
Hicks, who should have received credit for time served from another state, repeatedly addressed prison officials trying to rectify the problem. He was ignored and threatened, the opinion says.
"Clear as day, the government cannot hold an inmate without the legal authority to do so, for that would 'deprive' a person of his 'liberty...without due process of law,'" the opinion states.
The opinion invokes Ernest Hemingway to excoriate the prison system for deficiencies that have failed to be corrected.
"The process for calculating release dates is so flawed (to put it kindly) that roughly one in four inmates released will have been locked up past their release dates — for a collective total of 3,000-plus years," the opinion says.
It is just the latest ruling to deny qualified immunity over bungled release dates.
One case from 2017 brought by Emily Washington of the MacArthur Justice Center describes five men in state custody caught in the shuffle between two local jails as those officials failed to send necessary paperwork to DOC that would have granted their release. Jessie Crittindon, Leon Burse, Eddie Copelin, Phillip Dominick, III and Donald Guidry were held several months beyond their sentences; four had been entitled to immediate release upon sentencing.
Last year, the appeals court denied LeBlanc qualified immunity in the case. The opinion from a 3-judge panel points to a "Lean Six Sigma" study from 2012 that found 2,252 DOC prisoners were annually held past their release date, detained an average of 72 days past their sentence. That study also said it typically took about a month for DOC to receive the paperwork to begin calculating a prisoner’s release date.
"It was obvious that a failure to address those processing delays would lead to unconstitutional overdetentions," the opinion says. "Despite this awareness...Defendants have not pointed to a single effort that any of them took to identify immediate releases more quickly during that month-long delay."
In a more recent opinion issued little more than a month ago, a different panel of judges took DOC to task over a man named Robert Parker, who was incarcerated 337 days past his release date after being misclassified as a sex offender. The court denied LeBlanc qualified immunity, finding that "Parker’s complaint sufficiently alleges that LeBlanc violated a right that was clearly established."
"The appellate court is seeing it is likely that (LeBlanc) has violated a clearly established constitutional right and...furthering a pattern or practice of these constitutional violations," said Jonathan Rhodes, Parker's attorney. "I think it shows the court intends to hold government officials accountable."
Assigning blame
In other cases, though, judges have been less eager to allow lawsuits holding LeBlanc and others directly accountable.
The debate played out again this week in the case of Percy Taylor, an Iberville Parish man who figured out in prison that officials miscalculated his release date by 602 days. They’d failed to credit him for time he’d served in jail after he was arrested again while on parole and returned to prison to face a new charge.
Taylor met with Tim Hooper, a warden at Elayn Hunt Correctional Center, along with another prison official, Robin Milligan, trying to spell it out. Both refused to address the miscalculation, claiming he was wrong. It took years before a court agreed with Taylor, and longer still before his release on Feb. 18, 2020, 525 days late.
Twice in Taylor's case, the same panel issued rulings that granted qualified immunity for LeBlanc, only to retract those decisions.
Taylor’s lawyer, Anya Bidwell, argued in court on Wednesday that LeBlanc was on clear notice for years about the specific errors that ultimately led Taylor to spend several extra months in prison.
“That was 100% in LeBlanc’s control” said Bidwell, an attorney for the Virginia-based Institute for Justice. The two prison officials “did not understand the argument (Taylor) was making, because they weren’t properly trained and there wasn’t a manual they could point to,” she said.
LeBlanc “knew that there were mistakes,” Bidwell argued. “He knew what he needed to do about that and he didn’t do anything.”
In the state's defense, Phyllis Glazer, a lawyer with Attorney General Jeff Landry’s office, pointed to the inaction of the other DOC staffers, arguing that Taylor's case didn’t implicate LeBlanc directly.
“I don’t see a constitutional violation,” she said, adding that Taylor “got the due process he was entitled to when he successfully obtained judicial review of the sentence calculation” and won his release.
Two of the appeals court judges, James Ho and Kyle Duncan, cast shade on Taylor’s argument that his case reflected an unconstitutional pattern, expressing reluctance to pin it to the secretary.
Duncan, an appointee of former President Donald Trump, suggested that the state’s failure was the result of underlings who balked even after the state court found that Taylor was right.
“Is the failure-to-train allegation against LeBlanc, ‘You should have trained them to pay attention to court orders?’” Duncan asked skeptically.
Ho, another Trump appointee, offered that Taylor’s case seemed to suggest “a good-faith legal disagreement.” Ho noted that Taylor's previous lawyers had themselves mistaken what went wrong.
“I really don’t buy that this was such an egregious error that the error itself was actionable to Mr. LeBlanc,” Ho said. “The better argument for Taylor seems to be the violation of a court order.”
Larger questions over qualified immunity
The concept of qualified immunity itself has come under increasing fire in the post-George Floyd era, with criticism focused on its protections of police officers in use-of-force cases.
Michael Avery, a professor emeritus at Suffolk University, said a smattering of appeals court judges nationally have questioned the validity of qualified immunity in legal opinions, but the U.S. Supreme Court has declined to upend it.
“Isolated judges here and there have been speaking out about the problems with qualified immunity. We’re hopeful that eventually we’ll be able to get rid of it,” said Avery. He held little hope of that happening with the makeup of the high court today.
Casey Denson, who represented Hicks with attorney William Most, said in a statement that "it has been a long road" shepherding clients through overdetention challenges in court.
"These appellate court decisions give us the chance to go and prove at trial what we have been saying all along," she said. "People are being overdetained, it’s a violation of their constitutional rights, and it's something every Louisiana citizen should be concerned about."
Editor's Note: This story has been updated to correct the number of inmates in a 2017 lawsuit who were subject to immediate release upon sentencing.
