The way Louisiana sentences juveniles convicted of capital crimes has been the subject of indirect and direct rulings by the Supreme Court of the United States since 2012. SB16 by Sen. Dan Claitor was intended to bring the state's juvenile sentencing guidelines in line with those SCOTUS decisions.
However, amendments made to SB16 in the House Administration of Criminal Justice Committee authored by committee chair Rep. Sherman Mack would leave the state out of compliance with SCOTUS rulings on the matter, according to the attorney who won a ruling against the state in the nation's highest court.
Mark Plaisance is the public defender in Lafourche Parish. He represented Henry Montgomery in a suit against the state of Louisiana that was decided by the Supreme Court in 2016. In that case, Plaisance argued that an earlier court ruling that declared sentencing juveniles to life sentences without the possibility of parole was unconstitutional applied retroactively to Montgomery and others already serving those types of sentences in Louisiana. Plaisance says there are 300 other Louisiana inmates affected by Montgomery's win.
Plaisance says the 2012 SCOTUS decision in Miller v. Alabama did not distinguish between the classifications of the murder charges when sentencing juveniles. SB16 as amended by Mack would do just that.
"Miller talks about all cases of murder without distinguishing between classifications," Plaisance told The Independent in a Friday morning interview. "The court ruled that you cannot just flat out sentence a juvenile to life without the possibility of parole like we do now. The court said that, when it comes to juveniles, science has shown us that their brains are structured differently, and they should have the right to argue that they should have the opportunity for parole."
Mack amendment SB16 when the bill was up before his committee on May 10 to allow prosecutors the discretion of pursuing life without parole sentences in cases involving "the worst of the worst." The amendment allows prosecutors to pursue those sentences in first and second degree murder cases.
Plaisance says that the state will face more litigation if the bill is enacted as written. The Independent contacted Rep. Mack on multiple occasions this week to talk about SB16 and his amendment. He had not responded to any of those requests at press time.
Jill Pasquarella is the supervising attorney for the Campaign to End Extreme Sentences for Youth. She works for the New Orleans-based Louisiana Center for Children's Rights. The LCCR has been working on juvenile sentencing reform in Louisiana for several years. She told The Independent on Friday morning that Mack's amendment perpetuates the status quo on juvenile sentencing.
"The Louisiana Legislature has a history of doing as little as possible to bring the state into compliance with Supreme Court decisions on this issue, and this is another example of that," Pasquarella says. She cited the state's foot dragging on juvenile sentencing reform dating back to 2010.
"Everyone could see after the Graham case where this was headed," Pasquarella says, referring to the 2010 Supreme Court decision in Graham v. Florida. In that case, the court ruled that juveniles could not be sentenced to life without parole in cases that did not involve murder.
"So, the Legislature changed the law, ending life sentences without parole for non-murder cases, but it was clear then that the court was going to address the issue in murder cases," Pasquarella explains. "The court likes to leave states the option to act. When they don't the court will use a case to direct them to act."
The Miller v. Alabama case in 2012 was the next case.
"Louisiana was one of seven states to enact laws in response to Miller that did not address the issue of those people who had already received life without parole sentences," Pasquarella points out. "There really is no difference between being 16 in 1973 and being 16 today."
Nonetheless it took Henry Montgomery's case argued by Plaisance to get the court to direct Louisiana and the six other states to provide a pathway to parole for those who were juveniles when they were sentenced to life.
"Let's be clear, it is not a guarantee of parole" Plaisance says. "It is the right to have the opportunity for parole. Even Justice Kennedy made that clear in his opinion."
Plaisance notes that anecdotal evidence suggests that very few paroles have been granted to those who have sought them in the wake of the Miller and Montgomery cases: "The number of paroles granted has been few and far between," Plaisance offers. "In Miller, the Supreme Court said that only the rarest of the rare of those former juveniles would not qualify for parole at some point. I can't believe that all of these people are 'the rarest of the rare.'"
Plaisance says the low percentage of paroles granted raises questions about the nature of the hearings. "Are they just pro forma to be able to say that they had the opportunity for parole," he asked rhetorically. "At some point, that will have to be looked at."
Pasquarella says prosecutors in Louisiana have continued to seek life without parole sentences in cases involving juveniles even after the Miller decision.
"We're finding that while prosecutors have been given the option of seeking these sentences, they are doing it in 75 percent of the cases involving murder," Pasquarella says. "We think this raises questions about compliance with Miller that could lead to further litigation."
She adds that Mack's bill does nothing to change that.
Both Pasquarella and Plaisance say that in order for prosecutors to seek those kinds of sentences the courts must conduct "Miller Hearings" to assess the defendant's mental development.
"Those sentencing hearings should be quite extensive and include a detailed review of the juvenile's entire life experience," Pasquarella says. "The fact that these sentences are imposed so frequently raises questions about the fairness and thoroughness of those hearings."
Plaisance says, done right, those hearings can be very expensive to both defense and prosecutors. "They can run up to about $50,000 per case for us and about the same for prosecutors," Plaisance says. He adds that the same costs would apply to the 301 Louisiana cases involving former juveniles who are still serving their life without parole sentences. He notes that Henry Montgomery is now 70 years old.
Pasquarella gets to the core of the conservative argument in support of criminal justice reform — the financial cost of the process.
"The Supreme Court has set guidelines about what these hearings must consider," Pasquarella explains. "They're expensive to both sides. The state doesn't have the resources to continue pursuing these."
Pasquarella hopes that the Senate will reject Mack's amendments and send SB16 to a conference committee where the bill that emerges will end the practices. If not, she and Plaisance agree that the state will face more litigation.
"If nothing changes, I can guarantee you that there will be a flood of litigation," Plaisance declares. "I can't imagine the case against the state not succeeding."
SB16 as amended in the House was received in the Senate on Thursday. It can be considered for concurrence with the House amendments when the Senate reconvenes on Tuesday at 4 p.m.