By Nicholas Chrastil | The Lens | February 5, 2021
Harry Connick became Orleans Parish District Attorney in 1974 promising to reduce crime in the city, and while an article in the New Orleans States-Item assessing his first eight months in office said it was too early to tell if Connick was effective, his strategy was clear.
“Whether he is right, whether his office can really bring about a reduction in the city’s crime rate, it is still too early to say,” the article read. “But if you ask him whether he believes it can, he stares at you incredulously and replies, ‘You’re darned right I do.’ And if you persist and ask how, Harry Connick turns, and with no small amount of glee, shouts, ‘Multiple billing!’”
Multiple billing, the term sometimes used for when the state’s habitual offender statute is utilized, has allowed prosecutors in Orleans Parish and throughout the state to seek higher penalties than the standard sentencing guidelines allow for a specific crime if a person has been convicted of previous felonies.
The evidence that Connick was serious about the strategy is clear from glancing at old newspaper articles. In 1975, one man was sentenced to life in prison for stealing a TV. That same year, another got 30 years for receiving a stolen camera, and shoplifting meant a man faced 20 years to life in a 1976 case. During the decades that Connick held office, the capacity of the New Orleans jail increased tenfold — from around 850 beds to 8,500. Both the state of Louisiana and the country as a whole saw a dramatic increase in their prison populations. And today, 30 percent of people in prison who were sentenced under the habitual offender statute were convicted in New Orleans.
It is Connick’s legacy — along with that of recently retired DA Leon Cannizzaro — that newly-sworn-in DA Jason Williams has said he wants to reverse. His pledge to end the aggressive tactics of his predecessors includes a blanket prohibition of using or threatening the multiple bill in cases his office is prosecuting.
The abolition of the multiple bill in New Orleans was something reform advocates such as the ACLU of Louisiana, the People’s DA Coalition, and others pushed throughout the 2020 DA campaign.
The statute itself encapsulates many of the broader trends in criminal justice that many scholars say led to the rise of mass incarceration. It grants increased power to prosecutors — restricting judicial discretion — and mandates harsher sentences. It also allows prosecutors to decide when they will and will not use it, opening the door for abuse and discrimination, according to Danny Engelberg, chief of trials for the Orleans Public Defenders. He said that the habitual offender statute and other similar “three strikes” laws were among the “leading factors of why we have such a high incarceration rate in this country.”
“We absolutely want to use the discretion differently than how it’s been applied in the past,” Williams said in a recent interview with The Lens. “And whether it’s with the habitual offender law, whether it is parole, we are in no way abdicating in any way any of the power, authority, and discretion of the office. But we’re trying to be more selective in terms of how it is applied, and when it’s not applied. With public safety being the measure, not revenge or anger.”
While there are few people in the criminal justice system in New Orleans today who are as openly gleeful about the utilization of the habitual offender bill as Connick was in ‘74, it still has its defenders. The law is sometimes described as a “tool” that prosecutors can use to ensure dangerous defendants do not get let back out onto the street by unscrupulous judges.
Former prosecutor and Criminal District Court Judge Keva Landrum, who ran against WIlliams for DA, often said during her campaign the law was meant to be utilized as a “shield” against the most dangerous criminals, but instead was often used by prosecutors as a “sword.” At the start of the campaign, Landrum vowed to limit using the law for its original purpose, and only use it in rare circumstances. But by the end, she had shifted her position, and committed to never using or threatening the multiple bill at all.
Rafael Goyeneche, president of the Metropolitan Crime Commission and a former prosecutor, said that Williams should look at each case individually, and that by taking the habitual offender statute off the table he may be limiting his ability to do his job.
“I don’t think we ever talk in absolutes,” he said. “The habitual offender statute is not inherently evil. If there are problems with it, it’s with the application.”
He also said that now that Williams is in office, he may find the promise difficult to keep.
“There will be circumstances where I believe that he will revisit that policy,” Goyeneche said. “Not because of a philosophical reason, but because the individual facts of that case.”
But so far, according to defense attorneys with the Orleans Public Defenders office, Williams’ office has maintained its commitment. Given that jury trials are suspended at Criminal District Court due to the COVID-19 pandemic, however, the full impacts are still unclear.
‘It is basically an extra punishment for being Black and committing a crime’
Williams predecessor, Leon Cannizzaro, for many years shared Connick’s affection for using the multiple bill— to a much greater extent than most of his counterparts throughout the state. Reporting by the podcast Reveal, from the Center for Investigative Reporting, found that between January of 2009 and 2017, Cannizzaro utilized the law over 2,600 times. The DA’s office in East Baton Rouge Parish used it just 66 times during the same period.
Cannizzaro’s utilization of the multiple bill decreased significantly during his later years in office, however, and the state legislature adjusted the law in 2017, reducing mandatory minimum sentences for some offenses and shortening the cleansing period — the amount of time after a conviction during which it can be applied to a person’s priors under the statute — for non-violent crimes.
But according to Engelberg, in New Orleans, the threat of Cannizzaro’s prosecutors using the habitual offender statute continued to loom over all criminal proceedings at Tulane and Broad, leaving open the possibility for harsh sentences and coercing defendants to plead guilty — sometimes to crimes they didn’t commit — rather than risk going to trial and being multiple-billed.
“In the prior administration, that was always there,” he said. “I don’t remember a situation in which someone exercised their right to trial the district attorney ever said, ‘We will not multiple-bill you.’ ”
Goyeneche said that some of the rhetoric around the habitual offender statute has been misleading because it fails to consider the facts of a person’s criminal history, or the possibility that someone pleaded guilty to a lesser offense than what they were really charged with.
“If you’re in the penitentiary for anything other than a crime of violence, it’s because you have extensive criminal history,” Goyeneche said. “And usually, you can’t just look at the offense that someone pled guilty to, you have to look at what they were charged with. That was part of the plea bargaining process.”
But Emily Maw, the former director of the Innocence Project New Orleans, whom Williams has hired to head up a newly created Civil Rights Division, said in a recent interview that the law has compounded already existing racial disparities in the criminal legal system.
“The thing that you need to understand about habitual offenders, and one of the reasons that we can identify that as an area that we must tackle if we are going to tackle the racial disparities in the criminal legal system, and mass incarceration, and unequal opportunities, is that so many of the enhancing crimes — the crimes of a first offense, second offense — are crimes that everyone is committing, but only Black people are policed for,” Maw said.
Maw pointed to possession of drugs as an example of a crime that Black people are disproportionately charged with, despite the fact that drug use among white and Black people is roughly equal. (A 2013 report from the ACLU found that “on average, a Black person is 3.73 times more likely to be arrested for marijuana possession than a white person, even though Blacks and whites use marijuana at similar rates.”)
“So it is basically an extra punishment for being Black and committing a crime,” she said.
Nearly 80 percent of people in Louisiana prisons serving habitual offender sentences are Black, compared to around 66 percent of the prison population as a whole.
Last week, the DA’s office reached an agreement with defense attorneys to vacate one man’s habitual offender sentence, who was given life without parole after prosecutors in Connick’s office utilized the multiple-bill after a 1998 conviction. The agreement allowed him to be freed from the Louisiana State Penitentiary at Angola after 24 years. Maw said that the Civil Rights Division will be doing a broader review of cases that were multiple-billed, and hopes that the case last week is just the first of many similar agreements to come.
Effect on cases
So far, Engelberg said, having the habitual offender law off the table has allowed for some cases to be resolved more quickly because without the threat of the multiple-bill prosecutors are offering more inviting plea deals.
“You’re seeing cases resolved much better because sentences are just, frankly, more addressed to a person’s individual specific need,” he said.
But he said he suspects that taking the habitual offender table may end up leading to more trials in the future — which he sees as a good thing.
He also said he was hopeful that one of the collateral effects of taking the new policy would be to expose cases that are built on weak evidence, or even police misconduct. Even in cases where prosecutors were aware that their case was weak, he said, they could use the threat of harsh sentences to force a plea deal and make sure that questionable searches or other misconduct was not presented to the judge or jury.
“One of the things you will see very differently — we’ll see more light of day on how police stop and search people, and more light of day on whether that evidence is strong enough in these, quote unquote, victimless crimes — which are really about having something you’re not new supposed to have.”
Goyeneche said he was concerned that without the ability to seek harsher sentences or leverage plea deals, people who could continue to cycle through the system.
“So you know, the responsibility of the district attorney is to the people of Louisiana and you don’t give the same deals to someone when they are a fourth offender that you would offer to the first,” he said, and reiterated that Williams was unnecessarily limiting his ability to prosecute cases by taking the multiple-bill off the table.
Williams said that while he agreed that in some instances the broad discretion of a prosecutor was useful — such as declining to prosecute low-level marijuana charges, or focusing resources on violent offenses — the benefits of that discretion do not extend to the use of the multiple bill.
“If the goal is justice, and the goal is resolving the case in a way that makes the community safe, if a person is using vast discretion to deliver on those things, that’s a wonderful thing,” Williams said. “When someone is using their discretion to harm a certain segment of the community, that’s terrible.”