Sentence reductions will survive court’s overturn of reform law, attorneys say

by Richard A. Webster

On September 25, 2023

Earlier this month, the Louisiana Supreme Court issued a ruling that, at first glance, appeared to be a major blow to criminal justice reformers seeking to shrink the state’s bloated prison population. But experts say it didn’t completely shut the door on efforts to reduce long sentences and may have even affirmed a path forward.

The 4-3 ruling struck down a law that empowered prosecutors to revisit and reduce excessive sentences through post-conviction plea agreements with defense attorneys. The law, which passed the state Legislature unanimously in 2021 and had the backing of the Louisiana District Attorneys Association, was meant to create a formal process to release prisoners serving decades-long sentences, in many cases for relatively minor crimes. 

Verite News and ProPublica recently featured the story of Markus Lanieux, who might have been helped by that law. Lanieux was convicted in 2009 of aggravated flight from an officer, a crime that typically carried a two-year sentence. But two previous drug felonies allowed the Jefferson Parish District Attorney to try Lanieux as a habitual offender, which resulted in a sentence of life without parole.

If Lanieux had been convicted under today’s rules for habitual offender sentence enhancements, the most he could have gotten is four years. 

The Supreme Court’s ruling came as the result of a legal challenge filed last year by Louisiana’s conservative attorney general Jeff Landry, who claimed the law encroached on and usurped the exclusive power of the governor to grant clemency or pardons. Landry intervened in the case of William Lee, whose life sentence had been reduced using the now overturned law.

His legal challenge was seen as part of a growing backlash across the country against prosecutors who have pushed to end mass incarceration and caused many district attorneys in Louisiana to temporarily drop negotiations to reduce excessive sentences while the case was pending.

Immediately after the court announced its decision, Landry, who is running for governor on a tough-on-crime platform, hailed it as a victory for public safety.  

“This unconstitutional legislation resulted in some rapists and murderers receiving ‘get out of jail free’ cards,” Landry said. “That recklessness ends now.”

In a dissenting opinion, state Supreme Court Chief Justice John Weimer criticized Landry’s challenge and warned that the majority’s decision could “have the disastrous effect of undermining, and further limiting, the post-conviction relief procedure that has operated to correct the evils of the past.”

“The post-conviction legislation at issue here was unanimously enacted by the legislature, the people’s representatives, and signed into law by the governor,” Weimer wrote. “Its obvious purpose is to insure justice is done and to act as a counter balance or check on the renegade practices and prejudices of the past.”

News of the ruling quickly spread throughout the state’s prisons, said attorney Nick Trenticosta, who argued on behalf of the law before the Supreme Court and visited several inmates at the Elayn Hunt Correctional Center in St. Gabriel the following week.

“It’s on every prisoner’s mind,” he said. “My clients are now in distress.”

‘It’s not fine but it will be OK’

Trenticosta, however, was in the prison to tell them not to worry, that far from dealing a death blow to post-conviction resentencing efforts, the attorney general might have inadvertently given them new life. Three other defense attorneys with extensive experience in post-conviction deals generally agreed with Trenticosta’s analysis of the ruling’s language, though one of them was concerned about its real-world consequences.

The justices said the new law was unconstitutional because it didn’t require prosecutors or judges to identify a specific legal problem with a prisoner’s sentence before granting relief. The ability to adjust a sentence without a specific legal basis, they said, amounted to an “act of grace,” like a pardon, which is considered the domain of the governor.

If the decision stopped there, it could have been extremely damaging, Trenticosta said. But the justices went on to uphold the “absolute discretion” of prosecutors to provide such post-conviction relief, emphasizing it was the duty of prosecutors to “see that no innocent man suffers.” 

According to Trenticosta, the decision affirmed, for the first time explicitly, the right of prosecutors and defense attorneys to cooperatively reach post-conviction deals. 

The court then spelled out the eight grounds on which district attorneys could reduce someone’s sentence through post-conviction plea agreements.

Some of those are fairly narrow, including whether the sentence amounted to double jeopardy or the requirement that DNA testing provides “clear and convincing evidence” of innocence. Others are more general and create a wider lane through which an attorney can argue for someone’s freedom, such as proof that “the conviction was obtained in violation of the constitution of the United States or the state of Louisiana.”

Importantly, the justices added, when defense attorneys assert one of those grounds in seeking a sentence reduction, prosecutors have no obligation to demand evidence. 

“If a defendant seeks post-conviction relief pursuant to one of these grounds, a district attorney is not required by this decision to oppose the application.”

Prior to the passage of the 2021 reform law, it was common practice for defense attorneys and prosecutors to meet informally to discuss the reduction of someone’s sentence. If both sides came to an agreement, they would take the plea deal to a judge to authorize, which avoided costly and timely litigation. There wasn’t, however, a court- or legislatively-approved structure to this process, which caused concern among some judges, said Colin Reingold with the Promise of Justice Initiative and other defense attorneys interviewed by Verite News.

While one court where these deals happened frequently might have been comfortable authorizing them, others in more rural parishes where such deals were rare might have balked. This resulted in an unequal administration of justice across the state, said the defense attorneys. 

The 2021 reform legislation set out to fix this problem. In its short time in existence, though, the resentencing law was used sparingly. The Jefferson Parish DA, which co-authored the legislation with Innocence Project New Orleans, used it eight times, once to reduce a death sentence to life and the other seven times to vacate convictions for juveniles who were unconstitutionally tried as adults.

In St. Tammany and Washington parishes, the district attorney only used it twice: once to reduce the sentence of Lee, the focus of Landry’s challenge, and a second time to reduce the sentence of Bennie Carter who got 20 years as a habitual offender in 2013 after he stole several car radiators. The DA agreed to reduce Carter’s sentence to time served after he spent more than eight years in prison.

Even in New Orleans under District Attorney Jason Williams, who was elected as part of a wave of so-called progressive prosecutors across the country, the overturned law was only used 13 times to free so-called “10/6 lifers.” These were people who pleaded guilty in the 1970s to crimes that carried a life sentence with the understanding that they would be eligible for parole in 10 years and six months, only to have the chance at parole taken away a few years later when the law was changed. 

The Supreme Court ruling allows such deals to go forward as long as both sides agree on one of the eight established grounds for sentence reductions. 

Jee Park, executive director of the Innocence Project New Orleans, said she worries that the ruling could create obstacles to negotiating lesser terms, and that judges might demand more evidence than previously required to prove a reduction in sentence is legally necessary.  

But she agreed that it wasn’t the end of post-conviction relief. “It’s not fine but it will be ok,” Park said. “There are definitely still claims available to attack unjust and excessive sentences.”

For people like Lanieux, this comes as welcome news. Lanieux’s attorney, Amy Myers, was in negotiations with the Jefferson Parish District Attorney to reduce his sentence under the now-overturned law when Landry filed his challenge. The DA, like many prosecutors across the state, temporarily halted those negotiations pending a decision. 

Myers feared that a Landry victory before the Supreme Court would permanently end such efforts, but the ruling reaffirmed arguments she had previously been making, that Lanieux’s sentence was unconstitutional because he had an ineffective lawyer, which is a violation of the Sixth Amendment, and that his sentence is cruel and unusual, which violates the Eighth Amendment. Both are included in the eight grounds listed by the court.

“Markus has always had good legal issues,” Myers said. “If we have a district attorney who is willing to consider the merits of those legal issues, we can resolve Markus’ case.”

In an emailed statement, the Jefferson Parish District Attorney’s Office, which prosecuted Lanieux, said it was “not inclined to further comment as to Mr. Lanieux’s case at this time.”

During his 14 years of incarceration, the Iberville Parish native lost his mother in 2020 to Covid and his sister last year to unknown causes. And in a tragic turn of events, his son was found dead in his cell at the Raymond Laborde Correctional Center in Cottonport on Sept. 7, the day before the news organizations published Lanieux’s story.

Lee, the prisoner whose case was the subject of Landry’s challenge, also maintains hope following the court’s decision, said his attorney Trenticosta. 

Lee was found guilty in the 2003 death of Audra Bland. But new information came to light, and in October 2021, citing the reform law, prosecutors in St. Tammany Parish worked out an agreement under the resentencing law to reduce Lee’s second-degree murder conviction and life sentence to manslaughter and 35 years.

When the Supreme Court ruled in the attorney general’s favor, it reinstated Lee’s life sentence. Warren Montgomery, the district attorney for St. Tammany and Washington parishes, was not available to comment due to medical reasons, according to his office.

Despite the setback in Lee’s case, Trenticosta expects to restart negotiations with the district attorney under the parameters established by the court. He said Lee’s case could fit under a number of them, including ineffective counsel, the unconstitutional withholding of evidence or a claim of innocence based on new evidence. 

“Warren Montgomery believed that the new evidence shook the integrity of the conviction, and I don’t think anything has changed,” he said. “I fully predict that Mr. Lee will come home in the near future.”

This piece was republished from The Verite News.