Prosecutors in These States Can Review Sentences They Deem Extreme. Few Do.

Prosecutors in These States Can Review Sentences They Deem Extreme. Few Do.

Updated 10:30 a.m. 10.31.2023

In September 2023, the Louisiana Supreme Court struck down the state legislation that allow prosecutors freely assessment previous instances and, with a judge’s approval, scale back sentences they deemed excessive. The ruling, the results of a lawsuit by state Attorney General Jeff Landry, left open the potential of prosecutors and protection legal professionals revisiting certain cases.

It had been a protracted day of mowing brush within the Louisiana warmth, so Jeffrey Fornea and his 69-year-old father rested on their again porch in Angie, a small city about 90 miles north of New Orleans. They had been sipping Cokes, toes propped up, once they heard a gunshot.

A gaggle of younger males in bandanas approached, Jeffrey testified later in court docket. One hit his father within the head with a pipe. Another took Jeffrey’s pockets. They pressured father and son inside and made them open the household protected. The males took about $700, some jewellery, and a pink Toucan Sam lunchbox.

Five males had been arrested for the theft in September 2011. Four obtained jail sentences of 15 to twenty years.

But one, 23-year-old Demenica Westbrook, confronted a distinct destiny. In addition to theft, prosecutors argued that Westbrook had dedicated aggravated kidnapping by serving to coerce the Forneas into the home. In 2013, a jury discovered Westbrook responsible, and he obtained the necessary sentence: life with out parole.

Now 34 years previous, Westbrook has exhausted his appeals. Louisiana’s governor rarely grants pardons, so Westbrook has just one hope for eventual launch: a new Louisiana law that lets prosecutors assessment previous instances and scale back sentences they deem excessive, so long as a judge agrees.

“I’m not asking for quick launch,” Westbrook mentioned in a telephone interview. “I’m asking, ‘Don’t let me die in right here.’”

Louisiana is considered one of 5 states that has just lately handed prosecutor-initiated resentencing legal guidelines, together with California, Washington, Illinois and Oregon. Five others — New York, Minnesota, Massachusetts, Georgia and Maryland — thought of comparable payments this yr, although none had been dropped at a vote.

Many incarcerated folks view these legal guidelines as a option to get contemporary eyes on their instances. Advocates for prison justice reform say the legal guidelines are wanted to assist scale back mass incarceration.

But their attain to date has been concentrated within the places of work of some district attorneys, primarily in city areas, in response to a assessment by The Marshall Project. One purpose is the excessive price of reviewing previous instances, prosecutors say. There are additionally ethical and political points. Some prosecutors are philosophically against the notion of overturning sentences handed down by a judge, and others concern pushback from voters.

All of those points are at play within the workplace of Warren Montgomery, the Republican district lawyer in conservative Washington Parish, a largely rural space north of New Orleans on the Mississippi border.

Montgomery will not be among the many progressives pushing aggressively for resentencing. But he has expressed an openness to correcting previous injustices in a district the place his predecessor had zealously pursued lengthy sentences. He represents an essential take a look at case for whether or not prosecutor-initiated resentencing has a future exterior liberal cities.

And he’s Westbrook’s finest hope for launch.

The U.S. jail inhabitants has been reducing because it peaked at 1.6 million in 2009, due partially to an general decline in violent crime and modifications in sentencing legal guidelines. But on the present fee of decarceration, it might take until 2091 to cut the prison population in half. That’s as a result of these modifications, together with diminished necessary minimal sentences and treatment-based jail options, usually aren’t retroactive. They haven’t any affect on the tons of of hundreds of individuals already serving lengthy sentences.

In the absence of strong parole and clemency applications — which state legislatures and governors axed through the “truth-in-sentencing” period of the Nineteen Eighties and ‘90s — resentencing is among the few authorized pathways for revisiting a lot of these severe instances, advocates say.

But in Louisiana, which has one of many nation’s highest incarceration charges, all however a handful of resentencings have taken place in New Orleans, one of some blue cities in a principally pink state. District Attorney Jason Williams has secured early releases for at the least 168 folks, most of whom had been freed utilizing statutes that predated the brand new resentencing legislation. The workplace has recognized greater than 1,500 others — roughly half the state prisoners from New Orleans — as attainable candidates for assessment.

“We have put plenty of emphasis on having progressive prosecutors flip the system round,” mentioned Jee Park, govt director of Innocence Project New Orleans, which helped write the state’s resentencing legislation together with the influential Louisiana District Attorneys Association. “And we’re realizing now that that’s not all it takes.”

For resentencing to actually make an affect, Park says prosecutors want to think about a wider vary of incarcerated folks. “In order to actually decarcerate, you possibly can’t simply do the low-hanging fruit: non-violent drug instances,” she mentioned. “You should get to the violent instances.”

That boils right down to prosecutors, like Montgomery, contemplating instances like Westbrook’s.

Montgomery was elected district lawyer of Washington and neighboring St. Tammany parishes in 2014. He changed Walter Reed, whose 30-year tenure ended with his federal conviction in a corruption scandal. For years, Reed drew criticism for bringing the very best attainable expenses and demanding lengthy sentences. Defense legal professionals referred to St. Tammany Parish as “St. Slammany,” which Reed relished. Four folks prosecuted throughout Reed’s tenure have been released after judges discovered they’d been wrongfully convicted.

Montgomery ran on a promise to revive transparency and public religion within the workplace. A longtime protection lawyer, he rapidly established a screening division to attenuate bias when deciding whom to cost and with what crimes. He additionally created applications to assist folks clear minor warrants and delete previous prison data with out paying the state’s $550 payment.

Unlike the district lawyer in New Orleans, nevertheless, Montgomery doesn’t have a particular unit that systematically evaluations previous prosecutions. Still, he has begun trying again at just a few previous instances and has provided offers to 2 folks.

One is Benny Carter, who was sentenced to twenty years in jail for stealing a radiator from an unoccupied automotive. Reed’s workplace had charged him as a routine offender, subjecting Carter to a 20-year necessary minimal sentence. After Carter served greater than eight years with a near-spotless disciplinary file, his household and legal professionals satisfied Montgomery to resentence Carter to time served. He was launched in October 2021.

The different case was William Lee, who in 2007 was sentenced to life in jail for homicide. Lee has maintained he’s harmless, and his legal professionals just lately confirmed that the sufferer’s post-mortem was lacking info that is likely to be exculpatory. Montgomery agreed to alter Lee’s conviction to manslaughter, in a plea deal in January that resentenced Lee to 35 years. Montgomery has mentioned he spoke with the sufferer’s household earlier than providing the deal.

But Lee’s case has ignited the strongest opposition but to the state’s resentencing legislation, from Louisiana Attorney General Jeff Landry. A Republican who’s working for governor subsequent yr, Landry has been a vocal critic of the legislation, which the GOP-controlled legislature handed unanimously. He didn’t reply to repeated requests for remark. But his workplace has argued in court docket that the brand new legislation usurps the governor’s unique energy to grant clemency underneath the state structure, and that Montgomery’s deal to resentence Lee is unlawful. Montgomery didn’t oppose Landry’s movement, however a state judge rejected the lawyer basic’s argument in June. Landry has appealed.

Even for prosecutors who’re open to reviewing previous instances, the price of doing so is commonly an impediment, and jurisdictions which have taken on large-scale resentencing have allotted vital sources to take action. In California, for instance, a three-year pilot program that started in 2021 will present $18 million to pay for applications in 9 counties, the place to date, roughly 200 folks have been resentenced.

Williams’ workplace in New Orleans employs 9 folks in its Civil Rights Division — the division answerable for resentencing — an funding that different DAs could view as unrealistic for his or her places of work. Williams’ workplace argues that resentencing is in the end cost-effective as a result of it’s so costly to incarcerate folks. The estimated financial savings for the state from the folks launched due to Williams’ actions are over $10 million per yr, based mostly on Department of Corrections calculations. But these financial savings aren’t despatched to the district attorneys’ places of work.

Montgomery mentioned his chief barrier to resentencing is, certainly, monetary. His finances barely covers prosecutions, he mentioned. Statewide cuts to funding for public defenders — who usually assist establish instances for resentencing — could tighten this squeeze.

“I might like to have the sources to do that,” Montgomery mentioned. “But we don’t, so we have now to prioritize.”

Hadvert it originated in New Orleans, Westbrook’s case would in all probability draw consideration in Williams’ workplace. Emily Maw, chief of Williams’ Civil Rights Division, mentioned issues like an obvious penalty for going to trial typically qualify a case for assessment. Kevin Linder, considered one of Westbrook’s public defenders at trial, mentioned Westbrook probably obtained a harsher sentence than his co-defendants as a penalty for going to trial. (Jeffrey Fornea, one of many victims of Westbrook’s crime, couldn’t be reached for this story, and his father declined to remark.)

Montgomery condemned arbitrary charging discrepancies and trial penalties as “evil” abuses of prosecutorial energy. But he mentioned he’s additionally cautious of overreaching.

“If a jury has rendered a verdict, absent some uncommon circumstance, that verdict must be ultimate,” he mentioned. “If some new DA is available in and says, ‘I’ve received a distinct opinion and that jury was improper,’ there must be finality to judgments.”

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Perhaps essentially the most elementary disagreement between Montgomery and his extra progressive counterparts is to what extent prosecutors ought to take into account historic racial disparities in resentencing selections. Williams’ workplace cites disparities in prosecutions as a major purpose for revisiting sure instances. But Montgomery chafes at this reasoning.

“I don’t imagine our prison justice system is systematically racist,” Montgomery mentioned. “Is it true that African Americans are prosecuted at a distinct fee than whites? Yes. But I don’t imagine all these juries had been racist, and I don’t imagine the typical policeman is a racist.”

Some advocates for resentencing legal guidelines say prosecutors like Montgomery — conservative DAs who nonetheless are open to resentencing — signify a supply of untapped potential for decarceration.

“There are various levels of acknowledgment round phrases like ‘mass incarceration’ and ‘racial justice,’” mentioned Hillary Blout, a former prosecutor whose California-based nonprofit For the People works to influence district attorneys to view resentencing as a part of their mandates. “Some prosecutors really feel every thing ought to be about public security, so I strategy it from a public security body.”

Echoing research during the last 20 years, Blout argued that permitting folks to return house and make a dwelling “strengthens their households and the protection of their communities.” Blout mentioned that getting a prosecutor to revisit even a single case can open the door to wider-ranging retrospective work. “Moderates, conservatives, DAs in rural counties — all of those folks will be introduced round to the view that it’s solely acceptable to reevaluate whether or not previous sentences nonetheless serve the pursuits of justice,” she mentioned.

Last yr, Blout lobbied the California legislature to fund the three-year pilot program that pays for resentencing applications in 9 counties. She mentioned she believes it could possibly be a mannequin for states like Louisiana, the place many district attorneys in small jurisdictions can’t afford to assessment previous instances. Some of the California counties within the pilot program have progressive DAs, however others are extra conservative.

A White man with short white hair, wearing a suit, stands in his office.

In principally rural Yolo County, close to Sacramento, District Attorney Jeff Reisig has opposed measures like bail reform. But since assembly with Blout and receiving funding via the pilot program, he has resentenced extra folks per capita than every other DA in California, in response to Blout. Jonathan Raven, Yolo County’s chief deputy district lawyer, mentioned Reisig’s repute as a extra conventional prosecutor has helped.

“The native police and sheriffs don’t view us as an oppositional power, so there’s a lot much less potential for pushback to resentencing,” Raven mentioned.

The pilot program has additionally helped the DA’s workplace rethink its mission. “A number of us have historically approached our work with the mindset that instances are nails, and we’re the hammers,” Raven mentioned. “But resentencing has helped us evolve.”

At Elayn Hunt Correctional Center, south of Baton Rouge, Westbrook has watched dozens of individuals from New Orleans, many with convictions as severe as his personal, have their sentences diminished. Many have been launched.

If he’s launched, Westbrook mentioned he want to work with younger folks, serving to them to keep away from the herd mentality that he mentioned led him to crime. His sister Shannon mentioned he may additionally assist assist his ageing mom and his two daughters.

While Westbrook helps decarceration, he believes the precept underlying resentencing ought to be one thing much less divisive: proportionality of the sentence in comparison with the crime.

“In my case, I do imagine a while ought to have been handed out, however I don’t imagine that I ought to have gotten life,” he mentioned. He in contrast his sentence with the much less extreme punishment for manslaughter, against the law wherein somebody is killed. In Louisiana, manslaughter has no necessary minimal sentence, and a 40-year most.

“How is that comparable,” he requested, “to somebody being taken from their carport to their lounge and me getting life?”

Editor’s observe: This story was up to date to make clear that many of the instances reviewed by New Orleans’ District Attorney Jason Williams’ workplace had been completed underneath statutes that predated the brand new resentencing legislation.



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