Misdemeanor Murder

New Orleans is a convenient place to commit murder these days. Here's the City's new tourism ad copy, Soprano style: Whack your biggest foe, get busted, cool off in jail, and be back on the street in just 60 days!

On the local battlefields, it's called a 60-day murder. The term is derived from the criminal code provision, article 701, that requires the State to release a defendant from jail if no felony charges have been filed within 60 days. Criminal defendants, including murder suspects, are being released at alarming rates under this provision. This, no doubt, contributes to the revolving-door image of the local criminal justice system. It also fuels the public fear that hardened criminals are exploiting State-sanctioned get-out-of-jail-free cards to take a slap on the wrist and strike again. Hence, the misdemeanor murder.

Blame the silly 60-day rule, right? Think again.

Let's be clear about what Article 701 (ie, the 60-day rule) is and is not. The 60-day rule is not designed, nor should it be used (as avowed by the current D.A.), as a default 60-day jail sentence. (Remember the presumption of innocence?) It simply provides that someone accused of a felony cannot be held in jail without charges for more than 60 days. It does not mean that the case is lost forever; the D.A. is always free to file charges, subject to the applicable statute of limitations. (There is no limitations on murder.) Thus, build a good case and you can still prosecute. Better yet, don't arrest someone until you have probable cause.

Of course we want to keep violent criminals off the street. Thus, sixty days is allotted to detain someone after arrest while the State prepares the prosecution and conducts follow-up investigation to ensure it has probable cause to bring charges. But most accused criminals do not need to be detained. I'll save for another day my objections to the bail system here. Suffice it to say, there are way too many people awaiting trial who are locked up simply because they are too poor to pay for even a modest bail bond, not because they pose any threat to the community. If those people are being released under Article 701, consider that a net positive.

Even for those persons who should be detained, in most cases 60 days is an extraordinary amount of time to bring formal charges. An informal survey shows that many jurisdictions do just fine with much less -- typically 20 days. (If someone knows of a formal nationwide survey, I'd be curious to see it.) The vast majority of arrests -- I've heard upwards of 90% in New Orleans, though I have no data -- are simple drug cases. It should take almost no time at all to screen a simple drug possession case. After all, there is very little, if any, investigation that needs to be done. Such cases usually involve a single witness: the arresting officer. What further investigation needs to be done? Either the defendant has what the officer says or he doesn't. Of course, the purported drugs must in fact be an illicit substance. That brings up a unique problem in New Orleans.

Now almost 20 months removed from Hurricane Katrina, the City's crime lab remains shuttered. Thus, local authorities have to rely on crime labs in other jurisdictions to get their work done. That explanation is wholly unacceptable. If the City wants to fight crime, it absolutely must invest in a suitable crime lab. There are plans to do so, but enough talk! The steady tortoise beat the dozing hare, but New Orleans seems to be both slow and sleeping.

Apart from the crime lab issue, why can't local prosecutors file charges more quickly? The D.A. says police don't write their reports fast enough, and the police say the D.A.s are either inept or don't communicate their needs. Cut through the recriminations, and they're probably both right to some extent. Police should be writing reports quickly as a matter of routine, if for no other reason than to be sure that the reports contain details that otherwise may be lost as the officer's memory fades. The D.A., however, must communicate with the police.

Having Assistant D.A.s in the police station available to screen cases as they're brought in would make a big difference. That is common in other jurisdictions, and goes a long way to speeding up the charging process. This serves at least two functions. First, the police can be trained on the spot to know what needs to go into a police report for prosecution and can be dispatched promptly to conduct necessary follow-up investigation. Second, the prosecutors can help weed out weak or faulty cases right at the jailhouse door. This is an important function because it saves a lot of innocent people the heartache of being locked up for no good reason, and it also lessens the burdens on the system that is overloaded with pretrial detainees in cases that should not be proceeding to prosecution.

Unfortunately, New Orleans just wouldn't be the same without some good old fashioned inefficiency. If there is a system in place for prioritizing cases, it is not evident. There is absolutely no excuse for the D.A.'s office to be surprised when the 60-day clock is about to expire. A simple calendar system should be alerting prosecutors at various intervals (eg, 30 days and 10 days before expiration) so cases don't get "lost" in the system. The D.A. also needs to set some realistic prosecutorial priorities. Stop wasting so much time prosecuting petty, victimless crimes, and concentrate on the bad stuff. It amazes me how many resources go into prosecuting petty drug users, and how the D.A.'s attention and resource allocation isn't ratcheted up for the serious violent offenses. We all agree that no one wants streets full of petty thieves, prostitutes, and drug addicts, and reducing such crime may help diminish more serious crime (the broken window theory of enforcement). But headlines are made when innocent people have to dodge bullets, not step over drunks on the sidewalk.

This is serious business, and I certainly don't pretend to have all the answers. Two things are clear, however: the old way of doing things doesn't work, and throwing up your hands accomplishes nothing. The criminals know that, which is why they seem to literally get away with murder.