By Phillip Smith

Bernard Noble has already spent nearly four years in a Louisiana prison for being caught with two marijuana cigarettes — and he’s still less than a third of the way through a 13-year sentence with no shot at parole. The sentence is outrageous, but hardly unique in a state with one of the harshest marijuana laws in the country.

Under Louisiana law, possession of any amount of marijuana up to 60 pounds is punishable by six months in jail on a first offense, up to five years in prison for a second offense, and up to 20 years in prison for a third offense. While first- and second-time offenders are eligible for probation, third-time offenders are not. Distributing any amount of pot, even a joint or two, garners a five-year mandatory minimum prison sentence, and that includes possession with intent to distribute.

Add in the gross racial disparities in marijuana possession busts — African-Americans in the state are 3.1 times more likely to be arrested for than whites and account for nearly two-thirds of all pot arrests while making up less than one-third of the population — and you have a pipeline to prison for black Louisianans.

In Bernard Noble’s case, getting caught with a couple of joints morphed into more than 13 years behind bars because of the way the state’s harsh marijuana laws intersect with its harsh habitual offender law (known colloquially as “the bitch.”) Because Noble had two previous drug possession offenses, one 12 years old and one 24 years old, he fell under the purview of the habitual offender law.

Even though his current offense was trivial (marijuana is decriminalized in nearly 20 states and possession is legalized in four others and DC) and even though his previous offenses were low-level and nonviolent, the statute called for the 13 years, without parole.

Taking into account Noble’s minor criminal history, his work record, and his role as the breadwinner for a family with seven children, and making special note of his overpayment of child support to children not living with him, his sentencing judge departed from the statute and sentenced him to only five years. Orleans Parish prosecutors appealed the lower sentence to the state Supreme Court and got the 13-year sentence reinstated last year.

“Thirteen years in prison for two joints is obscene,” said Daniel Abrahamson, director of the Office of Legal Affairs for the Drug Policy Alliance and a lead author of a brief to the state Supreme Court in the case. “The punishment is so far out of proportion to the conduct that we really can’t call it ‘punishment’ — it is more like torture.”

It has also shattered Noble’s family and destroyed his fledgling business, a restaurant in Kansas City. Noble had relocated there after Hurricane Katrina and has just returned to New Orleans for a family visit. He left his grandmother’s house on a bike ride four years ago and never made it back. He’s been locked up ever since.

But there’s renewed hope for the black, 48-year-old New Orleans family man, even if it’s a longshot. Lawyers working on his case are preparing to formally seek a commutation for him from Gov. Bobby Jindal (R) within the next few days, and they, supporters, and advocates are hoping to light a fire under the governor hot enough to make him act. A rally is set for Sunday to draw attention to his case.

If Jindal’s record is any indication, though, it will have to be quite a fire: During his time as governor, Jindal has granted only 40 of 390 commutations requested.

“This is one of the most egregious cases, a real heart breaker,” said Yolanda Cadore, director of strategic partnerships for the Drug Policy Alliance. “He’s been in there 44 months, and he’s not even close to finishing his sentence. He’s just passing time. The only rehab available is drug treatment.”

Noble’s sentence also plays into another ugly dynamic in Louisiana: imprisonment for profit. Back in the 1990s, during another overcrowding crisis, parish sheriffs were offered a cut of future profits if they covered the cost of building prisons in their counties. Now, more than half of state prisoners are held in parish jail administered by sheriffs.

The state pays them $24.39 a day per prisoner, much less than the $55 a day if would cost to house them in state prisons. If a sheriff can keep jails full, he can pull in as much as $200,000 per jail per year, all the while keeping expenses — staffing and inmate care and programs — as low as possible. Other sheriffs lease their prisons to for-profit prison companies in return for guaranteed annual payments.

Sheriffs have a direct financial incentive to keep their jails full, and they know it. Sentencing reforms would hurt their bottom line, and they have organized to make sure that doesn’t happen. The Louisiana Sheriffs Association consistently lobbies against sentencing reforms, and its political action committee uses its financial clout to help elect politicians who agree with them.

Orleans Parish, the most populous in the state, acts as a conveyor belt for low-level, nonviolent drug offenders to fill the cells and the coffers for other parishes.

“Orleans Parish is the parish that is fueling the prison system in other parts of the state, and it’s mostly black men fed into the prison system from there,” said Cadore. “Look at Bernard Noble, look at Victor White, who was stopped, frisked, questioned, and ended up dead in the back of a police car after they found marijuana on him.”

Case after case after case of black men being sent away for years for relatively trivial offenses is starting to have a cumulative effect on public opinion.

“What’s rising to the surface is the impact these current laws have on a particular community — the black community,” Dore pointed out. “We are noticing that the drug war has a color, and that’s black, and it has a gender, and that’s mostly male, and it has a location, mainly urban, where the young black men are. In all of that, Louisiana is no outlier.”

Winning a commutation for Bernard Noble would be a step in the direction of social and racial justice. But he’s just one prisoner. The state has 40,000 more, many of them also nonviolent drug offenders.

“If we are ever going to make a dent in reducing the incarceration rate and having a serious conversation about policy reform, we have to look at the impact of these draconian, regressive policies that are fueling the incarceration problem in the state,” said Cadore.

“We also have to point out where lawmakers are making policy not based on evidence, but on tradition or notions of morality. We’re in an age where evidence-based policy-making is not only the right thing, but the fiscally and socially responsible thing to do,” she continued. “Louisiana has been casting a blind eye to evidence. Is it that they’re not paying attention or that they’re not paying attention to things that are profit-generating?”

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