Louisiana’s Love Affair With Locking Up Kids For Life

The Supreme Court may have declared life without parole, or LWOP, unconstitutional for juveniles, but Louisiana continues the practice of sentencing children to die in prison.

In its 2012 Miller v. Alabama decision, the Supreme Court ruled that mandatory life without parole sentences for juveniles (or teenagers who were younger than 18) constituted cruel and unusual punishment. Its decision did not specify whether states should retroactively apply the ruling, leaving each state to decide on its own. In four states, courts ruled that the decision only applied to present and future cases. Louisiana was one of those states.

This meant that Henry Montgomery, who had been sentenced to LWOP for the 1963 shooting of a sheriff’s deputy when he was 17, would spend the rest of his life in prison. After his first trial, he was sentenced to death, which was overturned by the state Supreme Court. At his retrial, he was convicted of first-degree murder, which in Louisiana carries an automatic sentence of life without parole.   

After the Miller decision, Montgomery challenged the state’s refusal to retroactively resentence juveniles given LWOP. His case made its way to the U.S. Supreme Court which, in January 2016, ruled that Miller was retroactive and that defendants who had automatically been sentenced to LWOP as juveniles must be resentenced or considered for parole. At that time, Montgomery was among 2,585 people nationwide serving life without parole sentences for crimes they committed when they were children. In Louisiana, 282 people were serving juvenile LWOP sentences.

The Louisiana legislature amended its laws to comply with Montgomery. The initial bill would have prohibited LWOP for all juveniles, including those convicted of first-degree murder. But under pressure from the state’s district attorney association, the version that passed prohibits future LWOP sentences for juveniles who are convicted of second-degree murder. It also guarantees a sentencing hearing for youth who have been convicted of first- or second-degree murder. However, the amendment still allows children to be sentenced to LWOP if they were indicted before Aug. 1, 2017, and later convicted of first- or second-degree murder. The amended article gave district attorneys until Oct. 1, 2017, to give notice of their intent to seek LWOP.

“What this shows is the incredible role of prosecutors in shaping the legislation,” John Pfaff, a professor at Fordham Law School and author of Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, told The Appeal. Under the amended law, he notes, “prosecutors still have tremendous authority.” And they are using it: Prosecutors filed notices about their intentions to seek new LWOP sentences in 92 of the 258 eligible cases (or 32 percent).

If a prosecutor is seeking juvenile LWOP, a separate hearing is required under Miller in which a judge must determine if the person is, in fact, the “worst of the worst” and incapable of rehabilitation. But public defenders have said that they lack the money for resources to mount an adequate defense for Miller hearings, including intensive investigations into the histories of their clients, which includes interviewing family members and former teachers and obtaining education, medical, and incarceration records as well as hiring experts.  Juvenile defendants eligible for re-sentencing under Montgomery, meanwhile, are required to have a similarly resources-intensive hearing. Montgomery hearings are also very expensive—New Orleans’s chief public defender estimates that they cost $56,000 per case—so defendants often receive subpar representation for them or even no hearing at all, especially in states in poor fiscal health like Louisiana.

Louisiana’s amended law did not include a reporting requirement, but the New Orleans-based Louisiana Center for Children’s Rights has been tracking outcomes by checking court dockets and calling the offices of judicial district clerks. The center found that at least 85 defendants still have open resentencing cases under Montgomery. In Orleans Parish, which includes New Orleans, the prosecutor has filed notices intending to seek LWOP in at least 26 of his Montgomery 67 cases (or 39 percent). The prosecutor in neighboring Jefferson Parish has filed notices in 10 of his such 23 cases (or 43 percent). A Louisiana defense attorney recently told The Appeal that the district attorney in Calcasieu Parish files a notice of intent to seek LWOP for all of the juvenile offenders in his parish who are eligible for resentencing under Montgomery.

“It seems like we’re on a carousel repeating the mistakes of the past,”  Jill Pasquarella, supervising attorney of the Louisiana Center for Children’s Rights Campaign to End Extreme Sentencing for Youth, told The Appeal. “The post-Miller data tells us this pattern is likely to persist. Even with instructions from the Supreme Court, kids [convicted of murder] were still sentenced to LWOP at a rate of 62 percent. That’s a far cry from ‘rare’ and ‘uncommon.’”

As with everything related to prosecution and prisons, race remains a key factor in prosecutorial decisions. “This is, without question, disproportionately punishing African-American kids,” Pasquarella noted. In the 23rd Judicial District which encompasses Ascension (22 percent Black), Assumption (30 percent Black) and St. James (50 percent Black), there are five people who are eligible for  Montgomery resentencings. Four of these five people are African-American. The district attorney is seeking LWOP against all four African-American defendants, but not the single white defendant in the jurisdiction.

The 23rd Judicial District is not an anomaly. “Race plays a role in the same way that it plays out throughout the criminal justice system,” reflected Pasquarella. African-Americans comprise slightly less than one-third (or 32 percent) of Louisiana’s overall population but they comprise 74 percent of the people sentenced to life without parole. The children’s rights center found that African-Americans comprise 75 percent of Montgomery-eligible cases in which the state is seeking a new life without parole sentence. In addition, only two of the 39 Miller defendants are white.

These numbers are a far cry from “rare and uncommon,” noted Pasquarella, referencing “the rare juvenile offender whose crime reflects irreparable corruption” that the Supreme Court acknowledged might still be sentenced to life without parole. At the same time, prosecutors retain the discretion to seek sentences long enough to guarantee that a person will die in prison.

But even those who do become eligible for parole may not necessarily walk out the prison gates. Though he was responsible for the change in law, 71-year-old Henry Montgomery remains in prison. Following the Supreme Court decision, Montgomery was resentenced and became eligible for parole. In February 2018, Montgomery appeared before the Louisiana parole board. In a 2-to-1 decision, the board denied him parole, in part because he had not been able to participate in prison programs that are off limits to people serving life sentences. Montgomery is in the Louisiana State Penitentiary, also known as Angola.   

“Even with the Miller and Montgomery opinions, we put very few restrictions on what district attorneys can do,” said Pfaff, the Fordham law professor. “They retain tremendous discretion to be punitive and we see that in their embrace of juvenile life without parole.”