Two years ago, the Louisiana State Legislature passed a law requiring district attorneys to publicly report how often they use warrants to arrest witnesses and victims of crime for allegedly failing to cooperate with prosecutors. The reporting requirement was passed as part of a bill that also put tighter limits on the controversial warrants, called “material witness warrants,” by limiting their use against victims of sexual assault or domestic violence.
But since the law took effect in June 2019, no reports have been released.
Under the law, the Louisiana Commission on Law Enforcement is supposed to make the data publicly available on its website. But it appears that district attorneys’ offices across the state have not been submitting the data. An LCLE spokesperson said that two years after the law passed, the agency had not received any data on the use of material witness warrants until just last week, after The Lens inquired about the missing reports.
Proponents of strict limits on the use of material witness warrants, including the bill’s sponsor, former state Sen. J.P. Morrell, blamed prosecutors’ failures to report on the legislation’s lack of penalties, though they added that a penalty provision would have been a non-starter in the legislature.
Morgan Lamandre, Legal Director of the Sexual Trauma Awareness and Response (STAR) nonprofit organization — who was involved in negotiating the bill in the legislature — agreed.
“If we had a fine attached, we wouldn’t have gotten it passed,” Lamandre said.
The law, which took effect in June 2019, requires district attorneys’ offices and other prosecution agencies to report the number of material witness warrants applied for, issued by judges, and executed, as well as the number of victims incarcerated as a result.
DA’s offices are supposed to report the data to the LCLE by February 15 each year, and LCLE is in turn supposed to publish the data on its website by March 1 each year.
That has not happened.
“We have not received any reports since the statute was passed,” LCLE Director Jim Craft told The Lens in a written statement last week. “We think they may be reporting to [the] Supreme Court.”
But the Louisiana Supreme Court didn’t get the data, either, a court spokesperson told The Lens on Tuesday.
The 2019 bill
Courts can use material witness warrants to arrest and detain witnesses and victims of crime whose testimony is considered material to a criminal proceeding. The warrants are meant to be used when a person refuses to comply with a subpoena requiring their attendance at court, or when a subpoena is otherwise found to be impractical.
But their use is controversial because in some cases, they have resulted in the detention of victims for refusing to testify out of fear for their lives, and sometimes for longer periods of time than the defendants they were held to testify against.
The infrequently used warrants became a major political issue in 2017, after the watchdog group Court Watch NOLA released a report showing that under then-Orleans Parish DA Leon Cannizzaro, at least six victims of crimes were jailed in 2016, including a rape victim who was jailed for eight days.
The law requiring DA’s offices to report material witness warrants was in part intended to ensure that victims of intimate partner violence in particular are not jailed in violation of the limits on their use against victims of sex crimes and domestic abuse, which were passed as part of the same 2019 bill.
“With that bill in particular, the goal was to end district attorneys locking up victims to make them testify, especially in many instances where the victim would end up serving more time than the person they convicted,” said J.P. Morrell, the former state senator who sponsored the bill, in an interview with The Lens.
But the bill’s backers were unable to secure a total prohibition on jailing victims of sex crimes or domestic abuse. The final version prohibited their use in misdemeanor cases, but continued to allow them in felony cases, provided that prosecutors could demonstrate to the courts that they had exhausted other options to secure victims’ cooperation.
A 2019 Amnesty International Report on the Louisiana justice system’s handling of intimate partner violence stated that for this reason, “the bill that was eventually passed falls short of international standards protecting victims from arbitrary detention.”
“Most all of the advocates that had come to the Capitol really wanted to ensure that DV victims and sexual assault victims would never be arrested and incarcerated for failing to appear. So, the fact that the bill itself allowed for exceptions where DV crime survivors could be arrested and incarcerated for failure to appear was certainly contrary to what Court Watch NOLA believed were best practices,” Court Watch NOLA Executive Director Simone Levine said in a Wednesday interview.
“The bill doesn’t outright forbid DV survivors from being incarcerated, so it’s extremely important that the reporting provision is complied with,” she said.
‘Without oversight, the law is merely feel-good legislation’
Morrell said he was not particularly surprised at prosecutors’ lack of compliance with the reporting requirement. He said the problem was that the requirement was toothless. There are no penalties for failing to turn over the data.
“In the state of Louisiana, there is an inherent resistance in how you apply financial repercussions. I can tell you in my experience in the legislature, it is very, very difficult to get the legislature to fine state subdivisions,” Morrell said. “No one wants to require other state subdivisions or people in the family of government to have to pay up because the state makes them.”
But Lamandre said that part of the issue is “several agencies are mutually responsible for this report,” including LCLE and the state legislature. She questioned why they didn’t do more to ensure compliance.
Asked what LCLE would do to facilitate DA compliance with the reporting requirement in the future, Craft said, “After your initial contact I sent a reminder to the DAs and we set up a link to our website with a form for reporting. We began receiving reports last Friday.”
In a Wednesday email, Craft added that of the reports the office has received so far from DA’s offices, all have said that no material witness were issued. The email did not say how many have come in or from which DA’s offices.
Curtis Elmore, director of communications for Orleans Parish DA Jason Williams, said the office did not issue any material witness warrants last year, the last full year of Cannizzaro’s term. It is unclear if the law requires DA’s offices to report to LCLE when no material witness warrants were sought for the previous year. (Other DA’s offices, including Jefferson Parish DA’s office, the North Shore DA’s office and the East Baton Rouge DA’s office, did not provide answers to The Lens’ questions by Wednesday afternoon.)
Still, it is unlikely that no material witness warrants were sought by any district attorney’s office in the state for the last two years. And to Lamandre and Morrell, that lack of oversight is concerning.
“Without proper reporting and oversight on the use of material witness warrants, we have no idea if survivors are continuing to be victimized by systems meant to protect them,” Lamandre said. “Without oversight, the law is merely feel-good legislation that does nothing to protect survivors.”
Morrell said, “It would be very telling to me, and would not surprise me if when y’all finally obtain this data, we find that in some of these smaller parishes which haven’t complied … you’re seeing victims who are being jailed to secure a win even if ultimately the abuser doesn’t serve as much time, or any time at all,” he said.
“Ultimately, in my experience, when someone is not complying with data requirements it’s because the data is bad and they don’t want it to get out.”
This story was updated with additional information from the Louisiana Commission on Law Enforcement regarding the first batch of material witness warrant reports it received as of Wednesday, June 23, 2021.