The Louisiana State Capitol. (Philip Kiefer/The Lens)

For nearly two decades, when former judge Calvin Johnson presided in Orleans Parish Criminal District Court, he handed down prison sentences to defendants that he himself felt were too harsh. 

“That happened all the time,” Johnson said. “So many of them were around, of course, drugs. And the requirement that the person who had a small amount of drugs should go to jail for 10 to 20 years. That was just ridiculous. That was absolutely ridiculous.”

The problem was, even as Johnson was presiding over his own courtroom, he was sidelined on sentencing when Orleans Parish prosecutors chose to utilize Louisiana’s habitual offender law — which force judges to hand out harsher sentences when a defendant has prior convictions. 

Critics of the law — including Johnson — say it helped fill the state’s jails and prisons with people who did not need to be there, was applied in a racially discriminatory manner, and gave too much power to elected prosecutors throughout the state.

But a bill at the Louisiana legislature this session could change the law by giving criminal court judges discretion to ignore the sentencing increases requested by prosecutors using the statute. The bill was filed by Rep. Frederick D. Jones, Democrat of Bastrop, and is set to be heard by the House Committee on the Administration of Criminal Justice in the coming weeks. Jones did not return calls from The Lens to discuss the bill.

“What it’s doing is giving judges discretion, essentially, to deviate from the currently mandatory habitual offender enhancement,”  said Chris Kaiser, advocacy director for the ACLU of Louisiana. “So that’s really interesting, because that means that the district attorney would no longer be the only one with agency.”

He said his organization would prefer an outright repeal of the habitual offender statute, but that in the meantime he was hopeful that by putting more discretion in the hands of judges there would be less likelihood of sentences that he considers excessive in response to relatively minor infractions.

He pointed specifically to the case of Fair Wayne Bryant,  a man who was sentenced to life in prison under the habitual offender law for attempting to steal a pair of hedge clippers from a Shreveport carport storage unit in 1997.Though Bryant had multiple convictions prior to then, only one, from the 1970s, was for a violent crime.  

“You see cases like Fair Wayne Bryant, where his sentence was enhanced by the habitual offender statute —  clearly an unjust result,” Kaiser said. “But you had judges in the position where their hands were tied, they just had to follow the law. This would allow judges to look at the situation, the totality of circumstances recognize one outcome, which is clearly unjust, and then have discretion not to follow that extreme sentence.”

After his case received significant national attention, Bryant was granted parole last year.

It is unclear what sort of pushback the bill might receive as it makes its way through the legislature. Loren Lampert, executive director of the Louisiana District Attorney’s Association, said that he wasn’t prepared to comment on the bill.

Rafael Goyeneche, a former prosecutor and executive director of the Metropolitan Crime Commission in New Orleans, said that while he felt the habitual offender law may have been historically overutilized by some DA’s, he didn’t believe more power should be given to judges to check those decisions. 

Instead, he encouraged prosecutors to be more deliberate in applying the law.

“I think we’re trying to legislate a problem that’s less in the law, and more in the way the law has been, and is being applied,” Goyeneche said. “And I think that what has been lacking is a balance. And I think prosecutors have to use discretion.”

He said that over the last five years in particular prosecutors have more often been using the habitual offender statute on a “case by case basis.” 

Utilization of the law does appear to have declined in recent years. The number of people serving prison sentences in Louisiana under the habitual offender statute has decreased by nearly 40 percent since 2015, from 5,572 people to 3,591. 

In New Orleans— where the largest percentage of the habitual offender prison population comes from — the bill has gone from being used more frequently than anywhere in the state to a policy ending its use altogether. When Orleans Parish DA Jason Williams took office in January, he vowed that he would never utilize the habitual offender bill

But the law, if passed, would also add an extra element into the way plea deals are negotiated throughout the state. Historically, prosecutors have been able to use the threat of the habitual offender statute to extract more punitive plea deals from defendants who have prior convictions.

For that to work under the proposed law, they would also need to convince defendants that the judge would be willing to carry out those enhanced sentences. 

Kaiser, with the ACLU, said that in addition to adding a check in the system to potentially excessive sentences, the new bill would expand political accountability in the criminal justice system as well. 

“Right now, if anybody if the public doesn’t approve of extreme sentences, they only have one political actor to talk to,” Kaiser said. “If this bill passes, the public would be able to scrutinize the actions of judges approving these extreme sentences as well.”

“Judges had discretion,” Calvin Johnson said. “And the legislature took that discretion away. They had several reasons, not the least of which they thought locking people up for long periods of time would make crime go away. Well, obviously, that failed. And so now, we’ve tried to figure out a better way.”

Nicholas Chrastil

Nicholas Chrastil covers criminal justice for The Lens. As a freelancer, his work has appeared in Slate, Undark, Mother Jones, and the Atavist, among other outlets. Chrastil has a master's degree in mass...