‘Will I Get Out Today?’

Four days before his scheduled release from a Louisiana prison, Ellis Ray Hicks received a visit from his aunt. Her phone had recently been cut off and she needed to know what time to pick him up from the prison.  

Hicks asked a lieutenant who, after checking the prison’s computer system, returned with stunning news—Hicks’s release date had been moved from January to July. No one in the visiting room could explain this change.

This meant not only that Hicks was looking at an additional six months in prison, but also that Hicks’s aunt had to postpone her open heart surgery. “She has no caretaker,” Hicks told The Appeal. “My uncle has cancer, so can’t move around much.” That meant that his aunt, then in her late 60s, had to wait for her 50-year-old nephew to come home before she could proceed.

After the visit, Hicks contacted the computation officer, or the prison administrator responsible for calculating his release date. Initially, the officer told him that Louisiana’s probation and parole department had changed his release date. That’s also what he told Hicks’s aunt, who called once she got home. But, says Hicks, that wasn’t true. Hicks attempted to get an explanation—if not a change back to his initial release date—without success. Instead, he was issued four release dates, none of which were Jan. 8.

“The law is clear,” William Most, Hicks’s attorney, told The Appeal. “Once a prisoner’s sentence has expired, the jailor has a reasonable amount of time to process and release him. That reasonable time can vary—in some circumstances, even 30 minutes can be illegal. But the courts have reached a consensus that the reasonable time must be less than 48 hours.”

After writing to Most for help, Hicks was released nearly four months after his original date. But Hicks’s delay was no fluke. Most is representing four other Louisianans who were held far beyond 48 hours past their release dates without input from a judge. No one knows how many people are sitting in jails or prisons across the state past their sentence, in part because no agency bothers to collect the data.

“At least hundreds— and probably thousands—of Louisiana citizens have been held past their release date in recent years,” Most said.  

In New Orleans, Rodney Grant was arrested on a 15-year-old burglary charge when he tried to apply for a driver’s license. The judge sentenced him to time served, meaning that Grant should have been released from the sheriff’s department that same day. Instead, the sheriff’s office detained him for two more weeks while they sent his paperwork to the Louisiana Department of Corrections (DOC) for processing. Grant then spent another two weeks in state prison; it took multiple calls and emails from the sentencing judge before he was released. Prison officials dropped him off in Madison and gave him a bus ticket back to New Orleans, over 200 miles away.

Another man, whom Most requested remain anonymous to avoid reputational harm, was imprisoned for 589 days past his release date.

Louisiana may no longer be the nation’s incarceration capital, but the state routinely keeps people behind bars for weeks, if not months and sometimes years, beyond their release date. The extrajudicial practice has been happening at the local and state levels for years—yet no one seems willing to fix it.

Stas Moroz is a staff attorney at the Orleans Public Defenders office. At least once a week, he receives an email about someone who is being overdetained. There are a number of reasons for a person being held past their release date, he told The Appeal.

One common reason is the lag in communication between the Orleans Parish sheriff’s office and the state’s Department of Corrections. If a person has been sentenced to DOC custody, that person remains in the sheriff’s custody while his or her paperwork is delivered to the DOC. Despite the advent of email and digital systems, local sheriffs and the state prison system do not have a shared computer system, so physical papers must be driven to the DOC headquarters in Baton Rouge. That paperwork is driven to Baton Rouge only once a week, meaning that a person sentenced after that particular day may have to wait another week in jail.

Once state prison officials receive the paperwork, they must calculate the amount of time served and the amount of time remaining on the person’s sentence, a process that can take over a week. Only then will they request that the person be transferred into their custody. “The process is so slow that people will be in jail for two or more weeks,” Moroz explained.

Then there’s human fallibility. Prison officials may not include time served in the jail system, either because they did not receive the paperwork or because the numbers in that paperwork are wrong. They also may fail to include good time, or time off for good behavior, when calculating a person’s release date.

“Sometimes people make mistakes,” Moroz acknowledges. But, he notes, “it’s a structural problem that the system isn’t set up to catch these mistakes. We only find out if a client writes to us.” There’s no system in place, either on the local or state levels, for incarcerated people themselves to fix these errors—or to get in touch with someone who can help. This means that those who have intellectual disabilities, mental health concerns, or cannot write a letter are left to sit behind bars for longer than their actual sentence. That’s what Hicks experienced during his time in prison—but many people were unable to write letters or advocate for themselves.

Even just a week of additional time can disrupt people’s lives. But for many, including those represented by Most and Moroz, overdetention has stretched far beyond a week. As Hicks’s experience demonstrates, the additional time means remaining unable to take care of loved ones. And the lack of certainty over what should be a certain release date can also cause or exacerbate depression or anxiety.

In January, Moroz put a call out to the attorneys he knew and asked about instances of overdetention. Between January and July, he received 54 emails. Thirty-nine were from attorneys whose clients were already past their release dates yet still behind bars. The other 15 were from attorneys who anticipated that their clients would not walk out of jail or prison once they had completed their sentences. “That’s a pretty conservative number,” reflects Moroz, noting that 54 only reflects people who have contacted their attorneys who, in turn, contacted Moroz.

The DOC apparently receives queries about erroneous time computations often. Under Frequently Asked Questions, the agency’s  website states, “If there are questions about time computation, offenders housed in state facilities should write the Records Office at his/her assigned facility.  For offenders housed in local facilities, he/she is advised they may submit his/her questions in writing following the Administrative Remedy Process. While offenders often ask family members or friends to contact the Office of Adult Services on their behalf about time computation questions, the offender should be encouraged to follow appropriate procedures to ensure that staff has the information and time needed to respond to his or her concerns.” The DOC declined to comment, citing pending litigation.

But, says Hicks, if an outside attorney had not intervened and helped secure his release, he would have sat in prison for another six months. Meanwhile, his aunt would have continued to postpone the surgery she needed.

You know you’re free. You’re supposed to be a free man.

Johnny Traweek imprisoned 21 days past release date

In court documents, Most identifies numerous past cases of overdetention. In the 1980s, the state of Louisiana paid Jerome Robinson over $250,000 for failing to calculate good time into his prison sentence. Two decades later, in 2003, the state settled a lawsuit for a person who had been held 1,213 days (or over three years) past his release date. In 2005, 2007, and 2009, it made payments to people who were held past their release dates. Most is also the counsel on two other lawsuits on behalf of men who were overdetained. One spent 41 days imprisoned past his release date; the other spent nearly two years in state prison.

Prison employees have also acknowledged the frequency of the practice. In the course of a lawsuit filed by James Chowns who spent 960 days imprisoned past his release date, DOC employees testified about the consistent overdetention that they observed. One employee testified that prison staff discovered approximately one case of overdetention per week for the past nine years. Another DOC employee, who reviewed sentence computations for the department’s assistant secretary, testified that he typically discovered “one or two [people] a week” who were eligible for immediate release yet remained in custody. (Chowns’s petition was ultimately denied by the state’s Supreme Court.)

Yet despite these acknowledgments, the spate of lawsuits and the hefty settlements, Louisiana prisons and jails continue to hold people past their release dates. That’s what happened to Brian McNeal, who spent 41 extra days in prison. He might have sat there even longer had his girlfriend not repeatedly called the DOC, the parole office, McNeal’s probation officer, and Moroz, who had been McNeal’s public defender. McNeal has recently filed suit against the DOC, alleging false imprisonment, negligence, violating his 14th Amendment right to due process, and violating the state Constitution’s due process protections.

If this issue is so widespread, why does this continue to happen? “There is a complete lack of accountability,” stated Most, who is also representing McNeal. “When the DOC finds out that someone has been overdetained, their practice is to change their release date to the date they figure it out, so that it looks like there has been no overdetention. Rarely are there consequences when someone is overdetained.”

Ken Pastorick, the DOC’s spokesperson, disputed Most’s allegations, but declined further comment.

The lack of accountability became apparent in a recent response by DOC Secretary James LeBlanc and Attorney General Jeff Landry. As part of a lawsuit Most is filing on behalf of a man overdetained for nearly two years, LeBlanc was asked to identify all instances of discipline or adverse employment activity for DOC employees who have incorrectly computed sentences or release dates from 2000 to the present. Landry and LeBlanc responded, “To the best of Sec. LeBlanc’s knowledge, no employees meet these criteria.” In other words, employees have faced no consequences for miscalculating release dates.

At other times, however, Landry has noted the department’s ineptitude. In a March 2018 op-ed, he and Senator John Kennedy wrote that there “is a layer of incompetence so deep that the Corrections Department doesn’t know where a prisoner is on any given day of the week or when he should actually be released from prison.”

But it’s not just state prisons that are overdetaining people. In May, after being sentenced to time served, Johnny Traweek still spent 21 days at the Orleans Parish Prison.

“Will I get out today?” the 66-year-old remembered asking the judge. Yes, said the judge. So when Traweek was returned to the jail, he gave away all of the fruits, chips, and candy that he had bought at the commissary earlier that week. “I was sitting in my cell with absolutely nothing,” he told The Appeal. But he didn’t mind—knowing that he was soon leaving the jail meant that he didn’t need to rely on commissary snacks to keep his hunger at bay. That was on May 2.

The next morning, Traweek asked a deputy about his release time. She checked the jail’s computer system and told him that it said HOLD. Every morning after that, he asked her to check the computer. Every morning, he received the same response.

“It was miserable,” he remembered. “You know you’re free. You’re supposed to be a free man.” Traweek, who already suffered from depression, said that the uncertainty deepened his condition. He stopped sleeping, instead staying up and wondering, “When am I getting out? Maybe it’ll be tomorrow.”

The following week, Moroz, Traweek’s public defender, learned that his client was still in jail and that the Orleans Parish sheriff had not sent Traweek’s paperwork to the DOC. He emailed the sheriff’s office, which responded, “Johnny Traweek was just sentenced on May 2, 2018, so his paperwork has not went up yet.” This was on May 9, one week past the day a judge had sentenced Traweek to time served and told him that he would be released that day.

By May 14, Traweek was still sitting in jail. In response to another email by Moroz, the sheriff’s office wrote, “He can’t get released until DOC sends him a release. The whole process takes about two weeks. He has to wait!!!!”

Two days later, on May 16, state prison officials informed Moroz that the sheriff’s office had not sent the key information that they need to calculate Traweek’s sentence. Moroz once again emailed the sheriff’s office, noting, “It has now been two weeks since his sentence ended.” It was not until Moroz filed a petition for habeas corpus that the sheriff’s office released Traweek. By then, it was May 22, three weeks after a judge had told him he would be out that same day.

“I’m not the only one they did that to,” Traweek recalled. “There were three other people whose time was done [and were still in jail].” And, he added, “That’s just on one floor. That’s just one cellblock.”

In several cases, people have spent months beyond their immediate release date after the Orleans sheriff’s office has sent people not to the state prison’s reception center in St. Gabriel, where prison officials would begin calculating time left on their sentence. Instead, they were sent to the Riverbend Detention center, a parish jail in Lake Providence near the Mississippi border in northeastern Louisiana. Meanwhile, no prison officials received their paperwork, let alone began processing and calculating their release date. That meant that, four hours away from New Orleans, family and potential legal help, they were held for months past their release date.

This has happened to at least five other men, who spent between three and five months detained past their release date. All five were only released with the help of the Roderick and Solange MacArthur Justice Center, which is now filing suit against the Orleans Parish Sheriff’s Office, the East Carroll Sheriff’s Office, and the Department of Correction.

These five, says Emily Washington, an attorney at the MacArthur Justice Center and counsel on the lawsuits, which have now been consolidated, represent only a fraction of the numerous phone calls and letters they receive from incarcerated people and their family members about overdetention. But, she adds, no agency tracks the number of people held past their release dates, meaning that no one knows how many people have been affected. At the same time, neither the DOC nor the local jails have put any systems into place to resolve this issue.

Blake Arcuri, general counsel for the Orleans sheriff’s office, disputes that it holds people past their DOC release date. In an email to The Appeal, he wrote, “Judges don’t set a release date as part of a sentence. When inmates are sentenced by a judge to DOC custody, that’s an order of the court transferring them from the jurisdiction of the sheriff (pretrial detention) to the Department of Corrections.  The sheriff has no authority to release a prisoner who was sentenced to the legal custody of the state.” According to Arcuri, if the DOC issues a release for a person still in the sheriff’s custody, that person is released within two to six hours.

“Mr. Arcuri has it exactly backwards,” said Most. “The Fifth Circuit has been very clear: ‘a jailer has a duty to ensure that inmates are timely released from prison.’ Currently, the sheriff is holding inmates sentenced to the custody of the DOC for days or weeks, even when he knows they should be immediately released. If the sheriff’s department doesn’t want to be responsible for DOC inmates’ release dates, he should hand them over to the DOC shortly after sentencing.”

Moroz said Arcuri’s claims are not borne out in practice. He notes that, in the past year alone, the Orleans Public Defenders office has had had multiple clients sentenced to periods of incarceration that they had already served on the day they had been sentenced. “It is common for an individual who is sentenced to receive ‘credit for time served’ in parish jail (meaning that individual is sentenced to serve the amount of jail time that he or she has already completed) during a morning court session to sit in jail until the next day while OPSO [the sheriff’s office] processes their releases,” he wrote in an email.

But, if the person is sentenced to time served in state prison, the delays can stretch for days, if not weeks, while waiting for the sheriff’s office to fulfill its responsibility of driving paperwork to the Department of Corrections.

“Both the Orleans Parish Sheriff’s Office (OPSO) and the Department of Corrections (‘DOC’) have a responsibility to ensure that people in their custody are there lawfully,” Moroz wrote.  

Meanwhile, keeping people past their release dates have impacted their lives—and the lives of their families. “Speaking for the [five] men I represent,” Washington said, “it sounds really bureaucratic when you talk about paperwork and time calculations, but for my clients it’s their lives. It might be days, weeks or months, but these are days, weeks or months that they’re not with their families, they’re not able to work or provide for their families. You’re sentenced to a set amount of time. When that time is up, you should be able to return to your family and to society.”

Hicks went home on April 25, nearly four months past his initial release date. The following week, he took his aunt to the hospital for her long-awaited surgery. He is now caring for her as she recovers.

Others, however, have not been as fortunate. “In the time they were overdetained, my clients have missed their children’s graduation. The birth of their grandchildren. Birthdays. The death of parents. A wife’s stroke,” Most said. “They couldn’t be there for their loved ones in good times and hard times. Even after they are released, there is no going back. And that weighs on them.”