On Oct. 2, 2008, a teenage boy in Abbeville, Louisiana, led an undercover police officer to his mother’s small shack on the poor side of town to make a small purchase of marijuana from his mother’s partner. There, the officer purchased .69 grams of marijuana for $30 from Derek Harris, an unemployed Army veteran.
Four months later, a warrant was issued for Harris’s arrest. Then, in July 2009, the District Attorney’s Office for Louisiana’s 15th Judicial District, which serves Vermilion, Acadia, and Lafayette parishes, charged Harris with distributing marijuana. Harris posted his bond and then spent nearly three years waiting for his trial to begin. He elected to have a trial by judge instead of facing a jury, and on June 26, 2012, a judge found Harris guilty and later imposed a 15-year prison sentence.
Then, prosecutors with the district attorney’s office filed a habitual offender bill of information based on Harris’s prior convictions. On Nov. 15, 2012, Judge Durwood Conque resentenced Harris to life imprisonment without the possibility of parole.
Louisiana’s habitual offender statute allows prosecutors to file to have a punishment enhanced based on a person’s criminal history. The statute has long played a role in the state’s notoriously long sentences and high incarceration rate. In 2016, Louisiana had one of the nation’s highest rates of people sentenced to life without parole, according to the Sentencing Project. In 2017, The state legislature enacted habitual offender reform which reduced maximum sentences triggered by a fourth offense.
While incarcerated at the Louisiana State Penitentiary at Angola, Harris challenged the excessiveness of his sentence and argued that he did not receive effective legal representation as required by the Sixth Amendment of the U.S. Constitution. Harris now hopes to find relief in a petition he filed with the state Supreme Court on May 23, 2018.
“Nothing that he did deserved life without the possibility of parole,” Harris’s older brother Antoine Harris said in a phone interview. “I’ll be the first to say he made bad decisions. You reap what you sow, most of the time. But if you’re going to reap something, it should match what you’ve sown.”
Prosecutors wielded the habitual offender statute because of a string of prior convictions including distribution of cocaine, simple robbery, and theft of property worth less than $500. His family members insist, however, that the untreated substance use disorder Harris developed after serving in the Army during the Gulf War in the early 1990s contributed to these petty offenses.
But prosecutors have the discretion to not file a habitual offender bill of information, and Harris’s family and post-conviction attorney say that ineffective assistance of counsel by his public defender also played a part in his harsh sentence. “Had my family or, perhaps, someone close to my brother had the financial means to not have him with a court-appointed attorney, maybe the outcome would’ve been different,” Antoine said. “If everything worked out accordingly, he’d be a free man working now and doing whatever he could to better his life.”
More than a year before Harris’s 2012 trial, prosecutors extended a plea offer of seven years in prison. But Jan Rowe, Harris’s trial counsel, never communicated that offer to him, Harris later alleged in a post-conviction legal challenge. When prosecutors came back with a 10-year offer, Harris says he informed Rowe that he was willing to accept the deal.
Harris’s stance on the deal from prosecutors apparently never got back to the DA’s office. Before trial in 2012, a new prosecutor who took over Harris’s case rescinded the 10-year offer and set out the terms of another deal: 30 years in prison, even though the statute allowed for a five-to 30-year sentence. Harris declined that offer and then faced a trial that may have permanently cost him his freedom.
On Dec. 11, 2013, Louisiana’s Third Circuit Court of Appeal ruled against Harris’s claim of excessiveness in sentencing. But in a dissenting opinion, Judge Sylvia Cooks said the sentence was “bereft of fundamental fairness.”
“I believe it is unconscionable to impose a life-sentence-without-benefit upon this Defendant who served his country on the field of battle and returned home to find his country offered him no help for his drug addiction problem.” Cooks wrote. “It is an incomprehensible, needless, tragic waste of a human life for the sake of slavish adherence to the technicalities of law.”
Harris had legal representation “in name only” and Rowe did not provide effective counsel to his client at pivotal stages in the case, said Cormac Boyle, an attorney now representing Harris in his writ of certiorari filed with the state Supreme Court.
“The sheer harshness of the Mr. Harris’ life without parole as an enhancement for selling .69 grams ($30 worth) of marijuana truly shocks the conscience,” Boyle wrote in briefing filed with the court on Sept. 9 of this year. “Now, the state wants to deprive him of any remedy for these wrongs.”
In a phone interview with The Appeal from his home in North Carolina, Rowe said he negotiated with prosecutors over a plea offer for Harris “probably three or four times.” But Rowe acknowledged that he had trouble keeping track of Harris, which he blamed on his client’s substance use disorder. He said he lost track of Harris for about two years until right just before the DA’s office offered its deal of 30 years, which Harris declined.
“Personally, I think that he had a future, if he would’ve given up the drugs,” Rowe said. “I knew several lawyers that went to school with him and they all said he was a great guy, great athlete, all that stuff. I really consider this the worst case I’ve ever had. I was shattered that he didn’t help himself, for the longest time. It didn’t have to happen like that.”
The DA’s office also disputes the claim of ineffective assistance of counsel. In filings with the state Supreme Court, they argued that the seven-year deal was communicated to Rowe, who dutifully noted the deal and other developments in his client’s case file. Prosecutors further argued that the seven-year offer did not come with a commitment that they would “forgo a habitual offender prosecution” and is not excessive because it is in accordance with state law.
“Arguing over the length of the jail term offered is pointless,” Calvin Woodruff, an assistant DA for the 15th Judicial District, wrote in an Aug. 19 brief with the court.
As of publication time, arguments in Harris case before the Supreme Court have yet to be scheduled.
On the day in June 2012 that Judge Conque sentenced Harris to life in prison without parole, his mother stood before the court and offered a plea for mercy.
“My son is not a drug dealer,” she said, according to Harris’s brother Antoine. “What he sold the cop that literally went into the neighborhood posing as a drug addict was the equivalent of a joint or two.”
“And the judge stepped in and told my mother point blank,” Antoine recalled. “He said, ‘Ms. Harris, one joint or two joints, he sold it. He’s a drug dealer.’”
“To me, a piece of her life was gone then,” Antoine said. “She had a broken heart, you know, because one of her kids is locked up in a cage for the rest of his life for nothing more than petty drug crimes.”
But Antoine says that Derek still clings to hope that he will be freed from Angola. Although their mother died in 2015, at least Derek may one day visit her grave, he said.