Marijuana Possession: Tough on Crime or Smart on Crime?

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We certainly have all heard the old cliché to support a tough-on-crime stance: You do the crime; you serve the time. But, what does that actually mean if you simply possess marijuana in Louisiana? The first conviction for simple marijuana possession presently carries a potential sentence of six months at parish prison and a $500 fine. With the second conviction, the offense becomes a felony with the potential punishment jumping to as much as five years at the Department of Corrections and a $2,500 fine. A third conviction for simple possession of marijuana can bring a 20-year prison term and a $5,000 fine. These are some of the toughest penalties in the nation. Nevertheless, Louisiana’s tough-on-crime approach has not deterred many from using marijuana. Many also blithely fail to acknowledge that it is financially difficult to be tough-on-crime because of the expense of incarcerating people, particularly large numbers of people.

Given Louisiana’s yearly budget shortfalls and well-documented incarceration rates widely recognized to be the highest in the world, Louisiana has appeared determined to incarcerate people well beyond its means. As such, is it time for Louisiana to consider being smart-on-crime rather than tough-on-crime? Many of our neighboring southern states have already done so. Texas, a state that will never be accused of coddling criminals, has led the way by passing extensive criminal justice reform, resulting in a drastically reduced prison population, and, in turn, saving tax payers billions. Georgia and Mississippi have now followed, with Mississippi passing its sweeping reform into law as recently as March 2014.

Perhaps Louisiana is not quite ready to go to the same lengths as Texas, Georgia and Mississippi in criminal justice reform; nor would Louisiana appear prepared to outright decriminalize marijuana like Colorado or Washington. But, Louisiana could at least take a baby step in reducing the criminal penalties for a non-violent offense like simple marijuana possession, right? While Kentucky has not gone as far as Texas, Georgia, Mississippi, Colorado or Washington, it nonetheless changed its law in 2011, making 45 days in jail the maximum penalty for all marijuana possession convictions. Furthermore, even before its most recent reform, Mississippi had already reduced its penalties for marijuana possession over 10 years ago, where first offense is punishable by a fine and all subsequent convictions are misdemeanors.

With 10 marijuana-related bills being offered at the latest legislative session and the reform being implemented around us, many had reason to feel optimistic that Louisiana could at least accomplish some small reform in regard to marijuana possession, especially since most of these bills would have left the penalties for simple possession of marijuana far greater than most states.

Senate Bill 323, for example, sought to reduce the penalties for marijuana possession and prohibit the application of enhanced sentencing laws to second and subsequent offenses. The penalty for first offense under this bill would have been a fine of $100 and/or six months in jail, and the second and subsequent offense provisions that made possession of marijuana a felony punishable by up to five and 20 years in prison, respectively, would have been deleted entirely. House Bill 14 was much less progressive than Senate Bill 323, seeking only to reduce the maximum penalties for subsequent marijuana possession convictions from five to two years for a second offense and from 20 to five years for a third offense. Lastly, Senate Bill 541 sought to establish a comprehensive system for administering marijuana for medicinal purposes.

However, arguing that any change in the present law would lead to legalization, the Louisiana District Attorney’s Association and the Louisiana Sheriff ’s Association have thus far strongly opposed Senate Bill 323, House Bill 14 and Senate Bill 541, effectively killing each bill in committee. Which begs the question: has criminal justice reform in Louisiana already gone up in smoke?

Being a life-long New Orleans Saints fan, I guess that I will just rely on my own favorite cliché: There’s always next year.

Stephen D. Hébert

After gaining invaluable experience while working in the Orleans Parish district attorney’s office and a highly regarded commercial litigation firm, Stephen D. Hébert started his private practice in July 2010, representing clients in criminal matters across Louisiana. Stephen’s out-standing work as a criminal defense attorney has been recognized by Super Lawyers Magazine, selecting Stephen as a Rising Star in criminal defense, and New Orleans Magazine, naming Stephen a Top Lawyer in criminal defense. Stephen has also successfully represented many clients in various civil litigation matters, such as personal injury, wrongful death, construction, property and other contractual disputes, in state and federal court. For more information call (504) 528-9500 or visit

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