Earlier this month, Orleans Parish District Attorney Jason Williams announced that he was going back on his campaign promise to never utilize or threaten to use the state’s habitual offender law, which can dramatically increase prison sentences for people who have been convicted of prior felonies. And for the first time last week, prosecutors with Williams’ office signaled their intent to invoke the law in the second degree rape case of 33-year-old Orlando Brown.

To critics of the law, the way prosecutors planned to use it in Brown’s case illustrates one of the more insidious elements of how it can function: to ramp up the “trial penalty”  and take sentencing discretion away from the judge for people who would prefer to have their case heard by a jury than take a plea deal.

A conviction for second-degree rape absent the habitual offender law  — sometimes called the multiple bill — carries a minimum sentence of five years, and a maximum sentence of 40 years, without parole. In a court filing prior to trial noticing their intent to multi-bill Brown, prosecutors said that they had offered Brown a deal of somewhere in between — 20 years in prison – if he plead guilty to the crime. 

Brown, who had at least four prior felonies, rejected that offer. 

But instead of proceeding with trial, attempting to secure a conviction, and asking a judge for the 20 year sentence, prosecutors with Williams’ office instead said they would invoke the multiple bill against Brown if a jury found him guilty. 

According to their filing, that would turn Brown’s maximum sentence of 40 years without the multi-bill to his minimum sentence, with the possibility that he could get up to life in prison without the possibility of parole.

Sarah Omojola, with the Vera Institute of Justice, said that when the prosecutors signal their willingness to seek sentences well beyond what they offered in a plea deal, it can force defendants to take deals even when the evidence against them is weak, or they are in fact innocent.

“It’s coercive,” said Omojola, “With the invocation of a multi-bill, the maximum sentence possible then becomes the minimum. So people are less likely to take a chance at trial, and they just plead.”

It’s a concern Williams is well aware of. The first recommendation of his transition team’s report issued shortly after he took office when it came to plea bargaining was that his office “should work to ensure that defendants are not threatened with the habitual offender law or other massive consequences for exercising their right to a trial.”

Several national organizations have also issued reports taking issue with trial penalties in plea bargaining, including Fair and Just Prosecution, the National Association of Criminal Defense Lawyers, and the American Bar Association, which argues that a substantial difference between the amount of time offered in a plea deal and that received after trial “undermines the integrity of the criminal system.”

The DA’s office did not respond to questions from The Lens regarding the habitual offender law, and declined interview requests.

In addition to its potentially coercive effect, utilizing the multi-bill to secure a sentence that years beyond what was offered by his office in a plea deal — as in Brown’s case — undermines Williams’ argument that the lengthy sentences are necessary from a public safety standpoint, said Alexis Chernow, chief of trials with the Orleans Public Defenders. 

“If the whole point of this is public safety, then multiple billing people on cases where the judge already has the power to sentence someone to as much or more time than what you’re trying to get them to plead to — it doesn’t seem to me like you’re actually meeting that goal,” Chernow said. Instead, she said, “it’s about taking people’s Sixth Amendment right to trial and making it a really dangerous proposition.”

Trials require significantly more resources than plea bargaining. And with Willliams office currently struggling with staffing, a backlog of cases still lingering after court shutdowns due to the COVID-19 pandemic, and political pressure to secure guilty pleas without reducing charges, some are speculating that the move to utilize the multi-bill could a decision to maximize efficiency.

“The impact of the multi-bill is racist, and it is coercive, and it’s problematic for us to use it to just move things along for expediency sake,” Omojola said. 

Brown took the risk, and went to trial last week. Jurors found him guilty, but of the lesser charge of third-degree rape, which carries maximum sentence of 25 years without parole, but with no minimum. He is set to be sentenced on Thursday.

It is unclear if the prosecutors will still move forward with their intention to apply the multiple bill in his case, which occurs after sentencing. If they do, it appears that Brown could still face life in prison, as third-degree rape is still a crime of violence.  

Rafael Goyeneche with the Metropolitan Crime Commission, a frequent critic of Williams’ progressive stances, said that utilizing the habitual offender Brown’s case was “appropriate.”

“He’s a quad offender,” Goyeneche said, using a term to refer to someone with at least three prior felony convictions. “Right? So this isn’t his first offense, it’s not a second offense….The district attorney’s office is capable, and I believe should invoke the habitual offender stance on this.” 

‘We have to be very very honest about how we got here’

During his campaign for district attorney in 2020, Williams separated himself from the other candidates in the race by pledging to never use the habitual offender law, which he argued was racist and mandates unnecessarily lengthy prison sentences that do nothing to improve public safety but exacerbate mass incarceration — a major selling point for his progressive supporters. 

“I am the only person who has made a commitment to not use the multiple offender law because all it does is perpetuate the racism of the ‘94 crime bill,” Williams said at a campaign forum in 2020, referring to federal Violent Crime Control and Law Enforcement Act of 1994, which is regularly cited as a key driver of mass incarceration. “We have to be very very honest about how we got here. People have not been marching in the street because the system is broken. The system is working just as it was designed.”

Williams not only promised to never utilize or threaten people with the law in New Orleans, but also said he would go to the state legislature to have it repealed altogether. (The other candidates said they would use it sparingly, only for the most serious offenses.) 

He also cast doubt on the idea that lengthy prison sentences in general were necessary to create safe communities, saying that “part of the problem with the American criminal justice system is this idea that more time creates public safety.” 

“I don’t believe maximum sentences make us safer,” Williams said at the same forum. 

But like several other progressive campaign promises, Williams reversed course on the habitual offender bill.

Earlier this month he announced his decision to begin using the law in certain cases, defending it by pointing to high levels of violent crime in the city. Echoing his challengers in 2020, he now says he will use the law sparingly and only in cases where a defendant is charged with a crime of violence. 

It is not entirely clear when and how exactly the law will be utilized beyond that. While Williams has indicated the office has a written policy dictating the use of the statute, they have not provided a copy to The Lens, despite multiple requests.

Chernow, with the public defender’s office, said they had not been given a written policy either, but had been told that prosecutors will only utilize it in cases where a person is being charged with a crime of violence or a sex offense, and also where one of their prior felonies was a crime of violence or sex offense. 

‘There will be people who are innocent that plead because of the threat of the multiple bill’

For years, under the previous DA Leon Cannizzaro, New Orleans prosecutors used the habitual offender law more often than any other parish in the state. But Williams has said that despite his decision to utilize the law, he will use it with more discretion than Canizzaro did. 

Goyeneche, with the Metropolitan Crime Commission, said that utilizing the habitual offender law to ramp up sentences when plea talks fall through is just part of the regular mechanics of the criminal legal system. 

“Any kind of plea deal, whether a multi-bill is applied or not, is: this is your offer right now,” Goyeneche said. “And if you go to trial, that offer is not on the table. That’s what negotiations are about.”

Chernow acknowledged that historically there has been an element of coercion in plea deals in New Orleans. 

“I would say that in my time working as a public defender and Orleans Parish, I agree that this has been kind of the way it’s been is that there’s a trial tax,” Chernow said. “If you reject the plea, then we’re really going to stick it to you at trial. I don’t know that that’s how plea negotiations have to work. That’s a choice.”

The consequences of increasing the severity of the trial penalty threats, she said, were that people may be forced to plead guilty when they are in fact innocent. 

“We know that people plead guilty when they’re innocent,” Chernow said. “And we know that happens a lot in Louisiana. I have no doubt that there will be people who are innocent that plead because of the threat of the multiple bill.”