Louisiana Prosecutors Buck Supreme Court Mandates Regarding Children

In a series of recent decisions, the U.S. Supreme Court has ruled that sentencing children to die in prison is unconstitutional in all but the rarest cases.  Yet Louisiana prosecutors are pursuing this sentence in almost one-third of cases that are eligible for resentencing due to the Court’s mandate and recent legislative changes.

In response to scientific evidence that children’s brains are fundamentally different than adults, the Court banned mandatory juvenile life without parole (JLWOP) sentences in Miller v Alabama in 2012.  Four years later, they deemed their decision retroactive in Montgomery v Louisiana, making 258 Louisianans entitled to relief from unconstitutional sentences.

After failing to address this situation in 2016, the Louisiana legislature voted in June to eliminate JLWOP sentences in new second-degree murder cases, but to allow prosecutors to seek it in new first-degree cases and in all cases that predate the legislation’s August 1 implementation date.

In doing so, the legislature left it up to prosecutors to ensure compliance with the Supreme Court’s rulings that only the “rare” and “uncommon” child be sentenced to die in prison.

Senator Dan Claitor, the sponsor of Act 277, acknowledged as much on the Senate floor: “It’ll be up to the District Attorneys from this point out to follow the law and not declare every single person the ‘worst of the worst.’  And if that’s what they end up doing, then it’ll be on them.”

Prosecutors had until Monday, October 30, to notice their intent to seek JLWOP in cases prosecuted before Miller. Of the 258 cases that were eligible for relief, prosecutors are seeking JLWOP in 82 cases.

“32% is a far cry from ‘rare’ and ‘uncommon.’ The District Attorneys are not using their discretion as the Supreme Court mandated nor are they heeding the explicit will of the legislature,” said Jill Pasquarella, attorney at the Louisiana Center for Children’s Rights, which has advocated for an end to juvenile life without parole.

“The legislation means nothing if the state does not comply with the Constitution in practice.”

It is clear that Act 277 has also failed to guarantee an equal application of the law.  The rate at which DAs are seeking JLWOP varies by jurisdiction, suggesting that a person’s fate can be determined by happenstance of location rather than by their individual circumstances.

Lafourche Parish’s DA is not pursuing JLWOP in any of its five cases, while the West Baton Rouge DA’s Office has filed in all four of its cases, and the 23rd Judicial District in four out of five instances.

In 2016, Caddo and Jefferson Parishes had roughly the same number of people serving illegal JLWOP sentences.  Caddo DA James Stewart has filed for JLWOP in only one case, whereas DA Paul Connick has filed in 10 of 24, or 43%, of cases.

Like Jefferson Parish, other districts with the highest numbers of cases are also seeking JLWOP at the highest rates.  In East Baton Rouge Parish, DA Hillar Moore is pursuing JLWOP at a rate of 42%.  In Orleans Parish, DA Leon Cannizzaro has filed notices in 44% of cases in his district.

If a prosecutor is pursuing JLWOP, the case must go before a judge for a resentencing hearing to determine if the person is, in fact, the “worst of the worst” and incapable of rehabilitation.  The financially-strapped Louisiana Public Defender Board has made it clear that there is no money to properly conduct these intensive hearings, which conservative estimates put at a cost of $58,000 each.

If a prosecutor is not pursuing JLWOP, a person’s sentence is converted to life with the possibility of parole after 25 years.  If they meet a stringent set of requirements after this period, they will have the opportunity to make their case before the parole board.

“Every person sentenced as a child should have an opportunity for parole review as an adult. While resentencing hearings are impractical and prohibitively expensive, the parole board is uniquely able to determine if someone is truly rehabilitated or not,” said Ms. Pasquarella.