26 December 2016

Louisiana Makes Rare Finding That Sentence Is Unconstitutionally Excessive

A life imprisonment sentence entered for a man with three prior non-violent felonies (twenty, fifteen and eight years old respectively) for taking $15 out of a car set up by police as a "bait-vehicle" was vacated as excessive under the Louisiana constitution, but would have probably survived 8th Amendment review under the U.S. Constitution.

Both 8th Amendment jurisprudence, and the criminal statutes that make this kind of sentencing possible, are deeply flawed. It also represents a gross abuse of prosecutorial discretion in New Orleans (no doubt for reasons not unrelated to  the defendant's race), and the law enforcement tactics used to tempt someone who might not otherwise have committed the crime at all to commit a technical felony are dubious, even if this ruling upheld their legality.
Walter Johnson reached into a “bait-vehicle” and stole $15. The jury convicted him of simple burglary of a vehicle, a violation of La. R.S. 14:62. In due course, following Mr. Johnson‟s adjudication as a fourth felony offender under the provisions of La. R.S. 15:529.1 A(3)(b), the district judge sentenced him to imprisonment for the remainder of his natural life, which is the statutorily mandated minimum sentence. His life sentence, as imposed, was without the benefit of parole, probation or suspension of sentence. . . . 
Mr. Johnson appeals his life sentence without benefit of parole, probation or suspension of sentence as excessive, violating our state‟s constitutional protection against such sentences under La. Const. art. 1, § 20. The sentencing judge found that none of Mr. Johnson‟s four felony convictions involved any violence. Because we find that the “hidden death penalty”1 imposed in this case is unconscionable and shocks our sense of justice, and is thus excessive, we vacate the sentence as imposed. We remand this matter with instructions to the district judge to conduct an evidentiary hearing on Mr. Johnson‟s motion for downward departure from the statutory minimum sentence and to impose a sentence which is not, in the constitutional sense, excessive. . . .  
A police task force situated a Jeep Cherokee vehicle on a street in Uptown New Orleans. The Jeep was outfitted with interior and exterior surveillance equipment. The Jeep‟s driver side window was left down and its doors unlocked. A $10 bill and a $5 bill, the serial numbers of which were recorded by police, as well as a laptop computer were situated in the vehicle such that any passer-by could easily observe the money and the device. On the video surveillance tape, Walter Johnson is seen to be walking past the bait-vehicle and glances into it. He immediately reappears in the videotape and is seen snatching something from inside the Jeep. He then moves out of camera range. Shortly thereafter, the police officers confronted him and located the same two bills on his person. The laptop was undisturbed in the vehicle. . . . 
Our state constitution prohibits any law that subjects an individual to “cruel, excessive, or unusual punishment.” La. Const. art. 1, § 20. The Louisiana Constitution differs from the Eighth Amendment to the U.S. Constitution in its explicit prohibition of excessive sentences. Cf. U.S. Const. Amend VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”). This “deliberate inclusion by the redactors of the Constitution of a prohibition against "excessive‟ as well as cruel and unusual punishment broadened the duty of this court to review the sentencing aspects of criminal statutes.” State v. Baxley, 94-2982, p. 4 (La. 5/22/95), 656 So. 2d 973, 977 (citing State v. Goode, 380 So. 2d 1361, 1363 (La. 1980)). 
A sentence is excessive and therefore unconstitutional if “it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” See State v. Dorthey, 623 So. 2d 1276, 1280 (La. 1993) (internal citation omitted). Thus, even though an imposed sentence may be within the statutory sentencing range, and therefore “legal,” it may still violate a defendant‟s constitutional right against excessive punishment. See id., at 1280; State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). And, although we give great deference to the legislature‟s authority to determine the appropriate punishment for a crime, we emphasize that “no penalty is per se constitutional.” Solem v. Helm, 463 U.S. 277, 290 (1983); see also State v. Pernell, 14-0678, p. 4 (La. App. 4 Cir. 10/15/14), 151 So. 3d 940, 944. 
At the outset, we note that Mr. Johnson was sentenced under a provision of the Habitual Offender Statute that mandates a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence as a fourth felony offender. See La. R.S. 15:529.1 A(4)(b). Thus, the sentence imposed on Mr. Johnson is “legal” in the sense that it falls within the statutory range. See State v. Gibson, 16-0132, pp. 8-9 (La. App. 4 Cir. 3/16/16), 192 So. 3d 132, 137-38.  
Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive.2 
2 Notably, the United States Supreme Court has stated that an unconstitutional sentence “is not just erroneous but contrary to law and, as a result void.” Montgomery v. Louisiana, 577 U.S. ---, ---, 136 S.Ct. 718, 731 (2016). Thus, a sentence which is unconstitutionally excessive is also illegal. 
Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars. He is now condemned to die in prison for that crime.  
We acknowledge that Mr. Johnson‟s life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well. See State v. Johnson, 97-1906, p. 7 (La. 3/4/98), 709 So. 2d 672, 677. Legitimate sentencing goals notwithstanding, Mr. Johnson‟s status as a fourth felony offender “cannot be considered in the abstract.” Solem, 463 U.S. at 296. As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes. See id., at 297; see also Johnson, 709 So. 2d at 676. And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature. No person was harmed, nor any property damaged.  
Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft. See La. R.S. 14:67 B(4). Notably, the grades of theft are divided based on the amount misappropriated—the legislature set the maximum amount for misdemeanor theft at $750. The amount in this case is relevant— fifteen dollars is extraordinary in its triviality. 
We do not deny that, as a recidivist, Mr. Johnson should face some form of punishment. The inquiry of whether a sentence is grossly disproportionate, however, focuses on whether “a person deserves such punishment, not simply on whether punishment would serve a utilitarian goal.” Rummel v. Estelle, 445 U.S. 263, 288 (1980) (emphasis added) (POWELL, J., dissenting). Although a lifewithout-parole sentence may well serve to deter recidivism, the immense severity of the punishment does not fit the crime(s) in this case.  
 “[L]ife without parole is the second most severe penalty permitted by law.” Graham v. Florida, 560 U.S. 48, 69 (2010) (internal quotation marks omitted) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)). Only a sentence of death, which is not authorized in this case, exceeds it. Cf. La. R.S. 14:30 C (providing for capital punishment in first degree murder convictions).3
3 The United States Supreme Court has recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Graham v. Florida, 560 U.S. 48, 69 (2010)(citations omitted).  
Thus, Mr. Johnson has received the harshest punishment possible for his crimes. And, even though he is not subject to capital punishment, his sentence is comparable in that it irrevocably forfeits his life, freedom, and any aspirations he had for the future. Indeed, “[l]ife in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” Graham, 560 U.S. at 79.   
Mr. Johnson is thirty-eight years old. He has three prior felonies: simple burglary in 1996, possession of heroin in 2001, and distribution of cocaine in 2008. Notably, the provision under which Mr. Johnson was sentenced subjected him to the same sentence as repeat violent offenders and sexual predators, despite his history of non-violence. The life-without-parole sentence imposed on him forgoes any possibility for redemption, and means that any character improvement or good behavior on his part is immaterial; he has been determined to be irredeemably and irreparably corrupt. And, barring the remote possibility of executive clemency, Mr. Johnson will spend the rest of his days in prison. See Solem, 463 U.S. at 303 (“Recognition of [the] bare possibility of commutation would make judicial review under the Eighth Amendment meaningless.”). We cannot condone a sentence which condemns Mr. Johnson to a life—and inevitable death—within prison walls, in light of his non-violent criminal history and the extraordinarily minor crime in this case.4  
4 Indeed, Louisiana courts have recognized that some sentences imposed legally under the state‟s Habitual Offender Statute are nevertheless unconstitutional. See, e.g., State v. Mosby, 14-2704, p. 1 (La. 11/20/15), 180 So. 3d 1274, 1274 (thirty-year sentence for seventy-two-year old nonviolent offender is “unconscionable.”); State v. Dorthey, 623 So. 2d 1276, 1280 (La. 1993) (twenty years for non-violent habitual offender may be excessive); State v. Ladd, 15-0772, p. 16 (La. App. 4 Cir. 4/13/16), 192 So. 3d 235 192, 244 (seventeen-year sentence excessive for defendant with history of drug possession convictions); State v. Combs, 02-1920, p. 6 (La. App. 4 Cir. 5/21/03), 848 So. 2d 672, 675 (life sentence excessive for defendant with history of non-violent offenses); State v. Burns, 97-1553 (La. App. 4 Cir. 11/10/98), 723 So. 2d 1013, 1019 (twenty-five-year old defendant sentenced to life as fourth felony offender is “young enough to overcome his addiction” and has “the possibility of a productive future.”). 
We thus vacate the life-without-parole sentence imposed on this defendant and remand for resentencing.  
Full opinion here.

Johnson's fate is now in the hands of a trial court judge in New Orleans who has immense discretion in sentencing in this case, but unlike the original verdict, has some discretion. In all likelihood, the final sentence will not be life in prison without parole, but will probably, at least, be the maximum sentence for the offense without a habitual offender enhancement.


A local newspaper story has more background on the case.
He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law. 
Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon. Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no chance for parole. . . .
Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws. The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases. 
But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. 
Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't "exceedingly rare" enough to allow a sentence below the mandatory 13-year minimum under the statute. 
Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more often than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to data analyzed by the Pew Charitable Trusts. 
"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. 
"If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law." 
According to a state corrections spokesman, Johnson has returned to prison frequently on probation and parole violations, as well as new charges, since his first conviction, in 1996, for simple burglary. 
He has shuttled in and out of prison, with convictions for heroin possession in 2001 and cocaine distribution in 2008. His record also includes a conviction for possession with intent to distribute counterfeit drugs, records show. . . . 
[Appeals panel] Judge Joy Cossich Lobrano agreed with them in denying Johnson's bid to overturn his conviction — he had argued entrapment — but declined to declare his life sentence excessive. Lobrano said she would have ordered Herman to hold a hearing first before making that determination.
Colorado Habitual Sentencing Compared

Colorado's recidivist sentencing regime is not as draconian as that of Louisiana.

* One problem with the Louisiana statute is that it classified an offense that should have been a misdemeanor as a felony. Colorado law would not classify removing $15 from a vehicle without breaking into the vehicle as a felony. It would be a class one petty offense, see C.R.S. § 18-4-401 and would not be eligible for habitual offender enhancement which apply only to felony offenses.

In Colorado, this offense by this offender would have resulted in up to a six month jail sentence (about half of which could be reduced for good behavior in addition to any credit for time served), a $500 fine, court costs, and restitution or seizure of the $15 stolen.

* Another problem is that Louisiana unreasonably elevated a prior mere drug possession offense to a felony, something that states like Colorado are moving away from now. One of this man's prior felonies, possession of heroin, is currently a misdemeanor in Colorado, although it would have been a felony at the time.

* A third problem is that it allows life imprisonment without parole for less serious new offenses and prior offenses. Colorado's statutes require more serious priors, or more recent priors, or do not carry a life imprisonment consequence and instead have an enhanced sentence proportionate in some way to the current offense. No habitual criminal statute in Colorado carries a life without possibility of parole sentence.

Colorado's life in prison with parole after forty years for habitual criminals statute requires that the current conviction be for a class 1 felony (first degree murder or aggravated kidnapping), a class 2 felony (e.g. second degree murder), or a class 3 violent felony (e.g. armed robbery), specifically excludes burglary offenses, and requires two prior convictions of similar seriousness, or a current conviction for a violent felony and has a previous habitual criminal conviction. C.R.S. § 18-1.3-801(1) and (2.5).

None of this man's priors wold have counted for the purpose of this Colorado statute even if he had committed a felony this time.

Colorado's other general habitual criminal provisions requires a felony conviction two prior felonies within the last ten years that are not of the least serious (class 6) class, and triples the maximum sentence, C.R.S. § 18-1.3-801(1.5), or to a felony conviction other than a minor drug conviction with three prior felonies that are not the least serious at any time resulting in quadruple the maximum sentence, C.R.S. § 18-1.3-801(2).

He would have only one prior for the purpose of tripling statute, but might have been eligible if he had committed a Colorado felony for the quadrupling statute.

Colorado's habitual burglary statute includes only first or second degree burglary, not lesser burglary offenses, requires a prior serious burglary offense to be within the last ten years, and sets a maximum sentence of double the usual offense, and a minimum sentence equal to the usual maximum sentence. C.R.S § 18-13-804.

He would have had no priors for the purpose of this statue in Colorado.

Colorado's habitual offense statutes, unlike those of some states, also only allows one strike for criminal episode, even if multiple convictions for felonies resulted from that criminal episode.

* Finally, don't take this blog post as a definitive statement of Colorado recidivist sentencing law. While I capture the highlights, there are several fine details not applicable in this fact pattern that are relevant.

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