Criminal Justice
 

Habitual offender prosecutions down in New Orleans

Charles Maldonado / The Lens

An Orleans Parish jail inmate. Recent data from the state show significant decreases in Orleans prosecutors’ use of the state habitual offender law.

Orleans Parish District Attorney Leon Cannizzaro’s office has scaled back its use of the state habitual offender statute, a law used to raise potential prison time on repeat offenders, often by decades.

The New Orleans DA’s office once led the state in so-called “multiple bills.” A 2016 report by the Pew Charitable Trusts showed Cannizzaro’s office used the statute 154 times the previous year. The Jefferson Parish DA’s office was second in the state, with 116 habitual-offender charges, followed by the North Shore DA’s office — comprising St. Tammany and Washington Parishes — with 64. No other DA’s office came close to those three.

But data from the state Department of Corrections, obtained by The Lens, show that Cannizzaro’s office now lags behind other large jurisdictions in the state. Orleans prosecutors used the statute as a sentencing enhancement in just 63 felony convictions between Nov. 1, 2017 — when new state laws meant to scale back the state’s tough habitual offender statute went into effect — and Oct. 28, 2018, compared to 73 times in Jefferson Parish and 76 times on the North Shore. But Orleans Parish is still far ahead of similarly sized East Baton Rouge Parish, where the habitual offender law was used only once during the same period.

At a City Council hearing on his 2019 budget this month, Cannizzaro said that his prosecutors employed the statute in about 6 percent of cases so far this year in which defendants were eligible, compared to 13 percent last year and 21 percent the year before.

When prosecutors charge people with the habitual offender law, mandatory sentences kick in, and judges’ discretion in setting sentences is limited. At the budget hearing, Cannizzaro, a former judge himself, attributed his office’s reduced use of the law in part to a deference to judges.

“Sentencing is something that is an exclusive parameter of the judges,” Cannizzaro said.  “That is, in my opinion, the most important thing that judges do. Therefore, in an effort to go along with that, we have seen that the multiple bill is not needed as frequently as when we first took office.”

Former Orleans Parish prosecutor Greg Thompson, who is now a private defense attorney, said he thinks the new changes to the law — reducing mandatory sentences and taking life sentences off the table for non-violent offenders — have a lot to do with the decrease in Orleans Parish because they often force prosecutors to offer more “reasonable” plea deals.

“The overall effect of these changes is that the amount of time that an alleged offender faces, based on the offense and their criminal history, has been reduced considerably,” Thompson said. “[Prosecutors’] leverage in plea negotiations is thus diminished.”

But even if convictions under the habitual offender statute have gone down, Thompson said, using it to leverage plea deals is “very much still in constant use.”

Cannizzaro did not respond to repeated questions from the Lens regarding his prosecutors’ use of the law.

Decrease of 86 percent

In a recent report for Reveal, from the Center for Investigative Reporting, I found that between January 2009 — when Cannizzaro was sworn in — through 2017, Orleans Parish prosecutors charged people under the habitual offender statute more than 2,600 times. By comparison, DA Hillar Moore of East Baton Rouge Parish — which at about 450,000 residents is larger than post-Katrina New Orleans — used the law 66 times during the same period.

Cannizzaro’s office made national headlines in 2016 when prosecutors charged Jacobia Grimes — who was charged with stealing $31 worth of candy — as a habitual offender, exposing him to 20 years to life in prison. Grimes had five prior theft convictions. Under an agreement, Grimes was ultimately sentenced to two years.

Cody Brown was a public defender in East Baton Rouge Parish for several years. There, Brown said, the habitual offender law was something he rarely considered because it was rarely used.

In East Baton Rouge, Brown said, “The district attorney’s office policy was to reserve the habitual offender bill for the worst of the worst.”

Brown is now a public defender in Orleans Parish.

“Now I have the law memorized,” he said “And the first thing I do when I get a case is calculate my client’s risk under the law.”

Since 2013, though, Orleans prosecutors have steadily decreased their use of the the habitual offender law. Between Nov. 1, 2012 and Oct. 31, 2013, Cannizzaro prosecuted 436 cases under the habitual offender law.  Fast forward five years, and between Nov. 1, 2017 and Oct. 28, 2018, Cannizzaro’s office prosecuted 63 cases under the law, a decrease of 86 percent.

Asked about this decrease during the budget hearing, Cannizzaro attributed it in part to 2017 state legislative changes known as the Justice Reinvestment Package.

“There have been greater restrictions placed upon [the habitual offender law],” he said. “They narrowed the time limits that the multiple bill can be used.”

In an attempt to curb Louisiana’s sky-high incarceration rates — the highest in the country at the time — in 2017, legislators passed a bipartisan package of criminal justice reforms.

Those included reductions to some habitual offender sentences, eliminating the possibility of life sentences for nonviolent crimes, and shortening the time limit — known as the “cleansing period” — that allows past crimes to trigger habitual offender eligibility.

These changes impact how all Louisiana DAs can apply the law, including Jefferson Parish DA Paul Connick Jr., whose office’s use of the habitual offender law is most comparable to Orleans. Connick’s office has also seen a drop since the changes to the law went into effect. According to state data, Jefferson Parish used the law in 141 cases from Nov. 1, 2016 to Nov. 1, 2017. Between then and the end of October this year, that went down to 73, a nearly 50 percent decrease.

The changes to the law are “more than likely” the reason for this decrease, said Paul Purpura, spokesman for the Jefferson Parish DA’s office.

Thompson agreed. He said that for nonviolent crimes in particular, the new laws effectively force prosecutors to make better plea offers.

Under the old guidelines, Thompson said, if the prosecutor used the habitual offender law, a third-time offender with a cocaine conviction could face 20 to 60 years in prison — without the benefits of probation, parole or early “good time” release.

Now, he said, the same third-time offender would face a much shorter sentence under the habitual offender enhancement: between 5 and 20 years. These changes to the law have impacted the plea deals being offered.

“In previous years, the offers would often entail the D.A. agreeing to reduce the bill status by one level … with an agreed-upon sentence,” Thompson said. In other words, the  offer was: plead out as a second-time offender, rather than a third-time offender.

But with the current changes to the law, knocking the multiple bill to a lesser level isn’t as good a deal, he said.

Now, Thompson said, he sees prosecutors offering pleas in which the deal being offered is: plead guilty and the habitual offender law won’t be used at all.

Threat still used often to obtain pleas, defense attorneys say

Official records only tell a fraction of the story in how prosecutors have used the habitual-offender law to put New Orleanians behind bars, defense attorneys told The Lens.

The vast majority of criminal cases across the United States – upwards of 90 percent — end in plea deals. But because plea negotiations between prosecutors and defense attorneys are not part of official court records, the vast majority of instances in which Orleans Parish prosecutors threaten to use this law go unrecorded.  Only cases in which the law is charged remain part of the record.

Defense attorneys who spoke to The Lens said the habitual offender statute is still used on a regular basis to extract plea deals from defendants, even when it doesn’t appear in official charges.

“It is always threatened to be employed,” Laura Bixby, an Orleans Parish public defender, said. “It’s the number one most important thing that influences how [my client’s] case is going to go. Not their guilt or innocence.”

Bixby said this is especially true for low-level felonies, especially drug cases.

“Murderers don’t go out and commit five murders over their lifetime. That’s very unusual,” she said. “But people who are drug addicts commit many crimes because that’s what their addiction drives them to do.”

Yet most of Bixby’s drug cases never go to trial.  That’s because her clients’ past criminal records, or “multiple bill status,” allows them to be charged under the habitual offender law. So instead, these cases end in plea deals.

“I have absolutely seen clients who have maintained their innocence decide to plead guilty because of their multiple-bill status,” Bixby said. “Because they are rational. They know the risk is not worth it. You never know what a jury is going to do, and even if you’re most likely going to win, it’s just not worth potentially facing the rest of your life in prison.”

‘The next frontier of criminal justice reform’

Louisiana criminal justice reform advocates had a major victory on November 6, when voters overwhelmingly passed Constitutional Amendment 2, which as of January 2019 will require unanimous jury verdicts in all criminal cases. Since 1974, the state has allowed 10 of 12 jurors to decide felony cases. Prior to that, it allowed just nine out of 12 to agree to a verdict.

State Sen. J.P. Morrell, who sponsored the bill that put unanimous juries on November’s ballot, told The Lens that the habitual offender statute is “the next frontier for criminal justice reform.”

He said the 2017 changes to the habitual offender law weren’t nearly enough.

“There’s been appetite to nibble around the edges of the law, but we haven’t really scratched the surface.”

Morrell would like to see the habitual offender law changed so that it only applies to violent crimes. The Louisiana District Attorneys Association — which lobbies for state prosecutors — resisted a proposal last year that would have limited its usage primarily to violent and serious sex crimes.

“Prosecutors need a meaningful tool to remove career criminals from our communities,” said Pete Adams, executive director of the Louisiana District Attorneys Association, adding that he did support the changes that went into effect. “These changes addressed the need for reform while preserving the habitual offender statute as a tool to address such offenders.”

But Morrell puts the habitual offender statute and non-unanimous juries in the same box: prosecutorial shortcuts district attorneys use to obtain convictions.

Public safety, said Morrell, is the reason behind every reform, and Louisiana’s rush to incarcerate has not netted positive outcomes.

“We’re not safer because of the habitual offender statute,” he said.

According to Department of Corrections data cited in the 2016 Pew report, nearly three-quarters of those admitted to prison with an enhanced sentence under the habitual offender law in 2015 were convicted of drug or property crimes, not violent crimes.

Morrell said use of the habitual offender statute among Louisiana prosecutors is far more widespread than non-unanimous juries, and therefore harder to tackle.

“When prosecutors get used to a crutch, it’s hard to take away the crutch.”

Listen to reporter Eve Abrams’ earlier story on the habitual offender law, “10 Years or Life,” on Reveal, from the Center for Investigative Reporting.

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