The car’s window was rolled down. A laptop and $15 in cash lay enticingly on the seat.
New Orleans resident Walter Johnson spotted the open window, grabbed the cash and left the computer. Later he discovered the car had been a “bait vehicle,” a trap laid by police officers to catch petty thieves.
Because Johnson had been previously convicted three times for nonviolent burglary and drug crimes, New Orleans District Attorney Leon Cannizzaro invoked a state law that required he be sentenced to life in prison without the possibility of parole. Normally, a simple burglary conviction would result in a fine or a maximum of twelve years in prison.
This week, Louisiana is considering changes to its uniquely strict habitual offender law as part of a sweeping criminal justice reform package. A broad bipartisan coalition is trying to finally shake Louisiana’s reputation as the incarceration capital of the world. Conservative Republican lawmakers and former law enforcement officers are spearheading many of the bills under discussion, including the abolition of the death penalty, the elimination of juvenile life without parole sentences, and raising inmate wages to $8 an hour.
The habitual offender law greatly enhances the length of sentences based on a defendant’s criminal record, no matter how minor the prior convictions. A bicycle thief recently faced a mandatory minimum of 20 years because he had previously pleaded guilty to stealing packages off people’s porches.
The law requires at least 20 years in prison for any fourth felony offense. If the fourth offense is a violent crime — a category that includes purse snatching, robbery, and home invasion—then the punishment automatically becomes a life sentence without possibility of parole.
Prosecutors aren’t required to seek these harsh sentences. In fact, they are rarely used outside of New Orleans, where prosecutors lengthened sentences for 154 people using the statute in 2015, according to a Pew study. Since Cannizzaro took office, New Orleans’ share of state inmates has shot up while other parishes’ inmate populations have ticked down. The New Orleans Advocate found that there are more inmates from New Orleans doing life sentences than from the rest of Louisiana.
An appeals court overturned Johnson’s sentence in December, calling it “unconscionable.” But many more New Orleanians are serving disproportionately lengthy sentences because of the habitual offender law. A state legislative auditor’s report released in September found that 77.5 percent of habitual offender sentences were for non-violent offenses.
One man faced a mandatory minimum of 20 years for stealing $31 worth of candy bars because of prior theft convictions. Another man was sentenced to thirteen years in prison because he was caught with two joints’ worth of marijuana.
A state task force recommended overhauling the habitual offender law so it may only be used in the most serious repeat felony cases. In response, two Republican state senators have introduced bills to limit how long certain prior offenses can be used for sentence enhancements. The legislation also allows judges to declare a sentence “excessive” and suspend part of the sentence or grant the possibility of parole for people sentenced to life in prison under the enhancement.
Political opponents may have come together in support of criminal justice reform, but there is one powerful lobby that could derail progress this week.
“The battle really is with the DAs and sheriffs,” Republican state senator Jack Donahue said Tuesday.
Like other mandatory minimum laws across the country, the habitual offender law removes sentencing power from judges and places it in the hands of prosecutors. As a tactic, the statute is very effective at pushing people into pleading guilty to crimes they may not have committed, rather than risk a life sentence at trial. By the Louisiana District Attorneys’ Association own count, more than 90 percent of convictions result from plea deals.
The Fair Punishment Project found that Louisiana prosecutors sometimes use the statute to skirt criminal procedure. Some DAs have admitted they will use an enhancement on a minor offense to lock up people who they suspect of a more serious crime, even if they can’t prove it.
As Calcasieu Parish District Attorney John De Rosier told NPR, “we have people all the time that we know have been involved in robberies, rapes and murders. We haven’t been able to prove our cases, but we’re in court with them for second-offense possession of marijuana. What do you think we’re going to do?”
Aviva Shen, a former ThinkProgress editor, is now a freelance writer in New Orleans focused on criminal justice.