Report sheds light on how often threat of habitual offender sentence may factor into guilty pleas

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Charles Maldonado / The Lens

An Orleans Parish jail inmate in 2016.

Orleans Parish District Attorney Leon Cannizzaro became notorious for using Louisiana’s habitual offender statute more than any other DA in the state. The law — an enhancement that can be applied when a repeat offender is convicted — can raise prison sentences by years, even decades.

In 2016, Cannizzaro made national headlines when his office used the law against a man accused of stealing $31 worth of candy, exposing him to a potential 20-year sentence.

For years, Cannizzaro’s office used the habitual offender statute more than any other DA’s office in the state: 2,600 times between 2009 and 2017, compared to 66 in East Baton Rouge Parish over the same period. But a 2018 analysis by The Lens found that over the past several years, Orleans Parish prosecutors have steadily scaled back their use of the enhancement, from 436 times from November 2012-October 2013 to 63 times from November 2017-October 2018.

But as that report noted, it was unclear how often prosecutors were threatening to employ the habitual offender law — but not actually using it — as a way to secure plea deals.

A new report sheds some light on that.

Volunteers for Court Watch NOLA sat in on hundreds of hearings in Orleans Parish Criminal District, observing 456 guilty pleas in 2017 and 487 in 2018. In 2017, about 73 of those please came after a prosecutor referred to the defendant as a multiple offender in court. In 2018, it happened about 63 times.

“You want defendants who are going to be pleading guilty in order to take responsibility for crimes that they themselves have taken part in,” said Simone Levine, the Executive Director of Court Watch NOLA. “You don’t want defendants pleading guilty to offenses they aren’t involved in because they’re fearful of the consequences if they actually go to trial.”

The findings are not exactly a shock to New Orleans defense attorneys. In November, two Orleans Parish public defenders told The Lens that regardless of the lower number of defendants convicted under the statute, the law routinely plays a role in plea negotiations.

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

The vast majority of criminal cases in the US end in a plea deal rather than a full trial. That means that the use of the habitual offender statute in plea negotiations is perhaps more consequential for New Orleans defendants than its official use in convictions.

“At the end of the day, the habitual offender law is a tool,” Levine said. “There’s a lot of discretion that’s involved there. The question when it comes to different tools that a prosecutor has in his or her arsenal is how they use that discretion.”

‘A change in culture’

A report from the Pew Charitable Trust found that in 2015, Cannizzaro had prosecuted 156 people using the statute. Similarly sized East Baton Rouge Parish used the statute only three times that year.

In November, during city budget hearings, Cannizzaro told the City Council that his office was using the law less frequently. He said that in 2016, his office deployed it in 21 percent of eligible cases. He said that number dropped down to 13 percent in 2017 and only 6 percent up to that point in 2018.

An analysis by The Lens found that by late 2018, Orleans Parish no longer led the state in number of defendants convicted under the habitual offender law.

Cannizzaro attributed part of the decrease to criminal justice reforms passed by the state legislature in 2017 that changed aspects of the habitual offender statute. New non-violent offenses can no longer subject a defendant with prior convictions to life in prison. Mandatory minimums were shortened. And the new laws reduced the amount of time that a past conviction can be used to trigger the statute.

The Court Watch report suggests that, even with the drop, the threat of a so-called “multiple-bill” may still factor into a significant number of guilty pleas.

It found that in 2017, 16 percent of plea deals were made after someone on the prosecutorial team referred to the defendant as a “habitual offender,” “multiple bill,” “double,” “triple,” “quad,” or “lifer.” In 2018, that rate fell slightly to 13 percent.

Plea negotiations between defendants and prosecutors aren’t part of public court records, creating a challenge to measuring how often Cannizaro’s office is using the habitual offender statute as leverage. The statistics from Court Watch NOLA track when the law is mentioned in court, not in the plea negotiations.

“We are going to keep collecting this data in 2019 as well.” said Levine. “So we’re going to continue to measure whether this stays the same, goes up, or decreases.”

She said that although the decrease of three percentage points wasn’t as dramatic as the decrease in habitual offender law convictions during the same period, it is still a step in the right direction.

“We’re seeing a change in culture in court,” she said. “The trends are going the right way.”

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