The State of Louisiana cannot manage to correctly calculate release dates for those it incarcerates, leaving prisoners held weeks and months beyond expiration of their sentences. These over-detention cases, as the U.S. Court of Appeals for the Fifth Circuit calls them, have spawned numerous opinions revealing a deep divide in remedying this wrong.

State prisons are grossly overcrowded and understaffed, leaving half of the 26,000 prisoners held by the state Department of Public Safety and Corrections (DPSC) in local parish jails. But DPSC remains responsible for them and for calculating their release dates—something it frequently fails to do, thanks to an antiquated tracking process and lack of communication with parish sheriffs. As a result the federal Department of Justice found that more than a quarter of all prisoners released between January and April 2022 were over-detained an average of 29 days, with many held 90 days or more too long, as PLN reported. [See: PLN, Aug. 2023, p.44.]

The Fifth Circuit’s Response

Unsurprisingly, DPSC has been swamped by a wave of federal § 1983 suits. The state Attorney General’s office has responded with an expensive defense that has so far largely failed at the Fifth Circuit, despite vigorous dissents from a contingent of conservative judges on the court.

In Crittindon v. LeBlanc, 37 F.4th 177 (5th Cir. 2022), Judge Patrick E. Higginbotham, an appointee of former Pres. Ronald Reagan (R), wrote for the majority of a panel that found DPSC and Director James LeBlanc were not entitled to qualified immunity (QI) from civil rights charges arising from over-detention. But Judge Andrew S. Oldham, an appointee of former and now President-elect Donald J. Trump (R), dissented that the suit should be barred by Heck v. Humphrey, 512 U.S. 477 (1994), from using § 1983 to challenge the “fact or duration” of a prisoner’s confinement unless he first files for habeas corpus relief—an argument that state Defendants hadn’t even raised. As the majority noted, the prisoner making an over-detention claim was not challenging his sentence, only being wrongfully held past its expiration. The full Court then denied rehearing en banc by a vote of 9 to 7, with all but one Trump appointee—Judge Don R. Willett—dissenting. See: Crittindon v. LeBlanc, 58 F.4th 844 (5th Cir. 2023). The Supreme Court of the U.S. (SCOTUS) also denied Louisiana’s certiorari petition. See: LeBlanc v. Crittindon, 144 S. Ct. 90 (2023).

Next, in Hicks v. LeBlanc, 81 F.4th 497 (5th Cir. 2023), Judges Higginbotham, Willett and Leslie H. Southwick, appointed by former Pres. George W. Bush (R), agreed that the claim of another a Louisiana prisoner held 60 days beyond his release date—after DPSC failed to credit him with time served in another state—was not Heck-barred, and Defendants were not entitled to QI. In her concluding paragraph, Judge Higginbotham noted that the Fifth Circuit “remains plagued by claims arising from inexplicable and illegal over-detention in Louisiana prisons,” for which “explanations scarcely arise, let alone satisfy scrutiny upon our review.”

“The problem is endemic in Louisiana,” the Judge declared, “where 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.”

Finally, in McNeal v. LeBlanc, 90 F.4th 425 (5th Cir. 2024), the Court’s per curiam opinion concluded that the civil rights claim of a prisoner held 41 days past his release date was not barred by either Heck or QI, citing both Crittindon and Hicks. Judge Carl E. Stewart, appointed by former president Bill Clinton (D), wrote for the majority. But in her lengthy concurring opinion, Judge Edith Jones, a Reagan appointee, said she agreed only because circuit precedent compelled her to do so, though she believed it was wrong not to find such claims Heck-barred or excused by QI. Judge Stuart Kyle Duncan, a Trump appointee, dissented that LeBlanc should deserved QI because, as “the head of a large and complex state agency,” he wasn’t “personally liable under § 1983 for causing a prisoner’s overdetention.”

The full Fifth Circuit subsequently voted 9 to 8 against en banc rehearing. See: McNeal v. LeBlanc, 93 F.4th 840 (5th Cir. 2024). Again every Trump appointee but Judge Willett, plus Chief Judge Priscilla Richman, another Bush appointee, along with Judge Jones and fellow Reagan appointee Judge Jerry Edwin Smith. Judges Oldham and Duncan authored the dissenting opinion, repeating many of their complaints from Crittindon and McNeal. SCOTUS denied Louisiana’s certiorari petition on October 7, 2024. See: LeBlanc v. McNeal, 2024 U.S. LEXIS 3824 (2024).

The Drama Continues

But that didn’t conclude the Fifth Circuit’s internal struggle about over-detention. On February 5, 2024, the Court amended its Internal Operating Procedure for implementing Circuit Rule 41, providing that a mandate no longer issues automatically after a petition for rehearing expires or is denied; rather, any “active Fifth Circuit Judge” may now request that the Court “withhold issuance of its mandate.” See: Fifth Circuit General Order No. 2024-02. Though this is “often done” to “resolve differences” between judges, the rule does not require that the judge be identified. There is also no limit on how long the mandate may be withheld.

The next day, on February 6, 2024, an unnamed judge instructed the circuit court clerk to withhold the Hicks mandate. See Hicks v. LeBlanc, USCA (5th Cir.), Case No. 22-30184, Order. The case remained dormant for nearly a year until October 4, 2024, when the parties were instructed to file supplemental “letter briefs” concerning the effect on Hicks of the Court’s three recent en banc opinions in Wilson v. Midland Cty., 116 F.4th 384 (5th Cir. 2024)—“a nine-judge plurality, a three-judge concurrence, and a six-judge dissent” that had failed to “command[] majority support from the en banc court,” the order noted.

This request is concerning. The plurality opinion in Wilson, authored by Judge Oldham and joined by the eight judges who dissented from denying rehearing McNeal, took an extremely expansive view of the Heck doctrine. Judge Willett, in the majority in several of the Court’s over-detention cases, authored the dissent in Wilson. Piecing this together suggests that Judge Oldham’s wing of the Court is trying to overturn the Fifth Circuit’s over-detention precedent—arguably the nation’s largest body of such case law—and force prisoners to proceed first with a habeas petition before filing a § 1983 claim.

In practice, this would shift responsibility for tracking release dates to prisoners, raising a fundamental question of fairness, especially when so many suffer from mental illness or deal with low literacy. It would also prevent most claims for damages, which a habeas petition does not provide. Nor does it incentivize Louisiana to address its prison overcrowding problem, along with the corresponding failure to ensure prisoners are promptly released after their sentences. Meanwhile a jury still hasn’t heard the claims filed by McNeal in 2018 or Hicks in 2019. PLN will update developments in both as they are available.