I just came across this press piece, headlined "Louisiana Supreme Court to review life sentence over $30 marijuana sale at Tulane hearing," on a notable extreme state sentencing case just argued before a state high court. The details are as troubling as headline:
The weight of marijuana in a typical joint is what Derek Harris handed an undercover agent who knocked on his door in Abbeville in 2008. Harris, a military veteran, handed the agent .69 grams of the drug and pocketed $30 in return. Four years later, a judge found Harris guilty of marijuana distribution, a Vermilion Parish prosecutor invoked the state’s habitual-offender law, and the judge sentenced Harris to life in prison with no chance at parole as a four-time loser.
Harris’ prior convictions dated back to 1991, 17 years before that minor pot bust, and a conviction for dealing cocaine, according to court filings. He was convicted of simple robbery in 1993 and again in 1994. Three years before the ill-fated marijuana sale, in 2005, Harris was convicted again, on a charge of theft under $500.
If the life sentence seemed to some to be excessive — though 15th Judicial District Judge Durwood Conque claimed he had no choice after prosecutors unleashed a “quad bill” on Harris — his trial attorney skipped some key legal steps to seek a lower one and keep the issue alive for an appeal [and] the Louisiana Supreme Court hear[d] oral arguments over whether it's too late for Harris to claim his lawyer botched his sentencing....
Harris’ attorneys are asking the Supreme Court to upend a 24-year-old decision in which the high court ruled that a challenge to a sentence as being excessive can’t be raised after a defendant’s direct appeals have run out. Harris’ attorneys with the New Orleans-based Promise of Justice Initiative argue that he should be allowed to go back and prove his attorney failed him, in spite of that blanket rule.
District Attorney Keith Stutes’ office argues that the Supreme Court has been clear, and that Harris’ attorneys are barking up the wrong legal tree. Conque, the trial judge, told Harris at his initial sentencing that he didn’t think a 30-year maximum sentence was warranted. Instead, he handed Harris 15 years. But after prosecutors invoked the habitual-offender law, Conque said his hands were tied....
It appears prosecutors initially offered Harris a seven-year sentence, but he wanted three years, and the offers got worse for him from there. Harris has claimed he never got the offer. Stutes' office argues that the number doesn't matter, in the end. Any number would have netted life for Harris under the habitual-offender law, and a decision on whether to invoke that is left solely to the prosecutor's discretion.
Prosecutors outside of the New Orleans area rarely wheel out the habitual-offender law to jack up a prison sentence, state data collected by the Pew Charitable Trusts show. But when they do, it is often to follow through on a pre-trial threat aimed at pushing a defendant to take a guilty plea rather than go to trial.
One of three state 3rd Circuit Court of Appeal jurists on a panel that earlier rejected Harris’ appeal offered a blistering dissent. Judge Sylvia Cooks cited Harris’ service as a veteran of Operation Desert Storm and his drug addiction while calling his life sentence “shocking to my conscience.” The state’s high court has set a high bar in deciding when a sentence is unconstitutionally severe. It reserves those decisions for punishment that “shocks the conscience“ amounting to “nothing more than the purposeful imposition of pain and suffering grossly disproportionate to the severity of the crime.”
In one notable case, the high court refused to lower a 13-year sentence handed to Bernard Noble, a New Orleans man caught with the equivalent of a few joints of marijuana. The court found that Noble’s case wasn’t shocking enough to overrule the Legislature’s tough sentencing laws at the time. Harris’ sentence, though, means he'll die in prison.
I find it so sad that even with all the positive sentencing reform momentum in recent years, there are still so many of these extreme sentencing stories of LWOP for the most minor of marijuana offenses or, as noted here, 12 years for harmlessly having a cell phone when booked into jail. As I said before, I fear it is still way too routine for way too many judges and prosecutors to be comfortable with sending people off to live in cages for years and decades without deep reflection on just what these sentences really mean for the defendant and what they say about American as a nation. Sigh.
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