In 2014, a district court sentenced Doretha Mosby to 30 years in prison for selling a small amount of cocaine. She was a fourth time offender, and under Louisiana’s multiple offender law, this was a harsh but unexceptional punishment. The “multi bill,” as this law is also known, requires judges to apply enhanced mandatory minimums for repeat offenders when the district attorney demands it.
Mosby’s case, however, was exceptional in a different way. At 72 years of age, it was virtually a life sentence. When it was upheld in the court of appeal, a dissenting opinion characterized the decision as “grossly disproportionate” and “shocking to the sense of justice.” The punishment was finally ruled to be excessive by the Louisiana Supreme Court, which had never before intervened in cases in which harsh minimum sentences had been applied, but now chose to send sentencing back to the district court. According to Stas Moroz, Clinical Assistant Professor with the Women’s Prison Project, this moment marked a turning point for the Supreme Court, after which it became more critical of sentence minimums for repeat offenders.
Stringent application of multiple offender laws proliferated in the 1990s, premised on the idea that a small number of habitual offenders commit the majority of crimes. Lock these individuals away and society will be safer, the thinking went. But the now 28-year-old policy has not been able to prove its effectiveness, opponents say. Instead, over-reliance on incarceration inflicts harm on offenders and their communities, bringing about trauma and poverty that lead to more crime. Louisiana long held the number one spot in prisoners per capita, driven in no small part by the multiple offender law, and yet it remained among the most crime-ridden US states.
The multi bill increases not just sentences but racial injustice too. Despite making up only 31.2 percent of the population, 79.4 percent of prisoners serving time as repeat offenders are Black, according to a recent report by Loyola professors Andrea Armstrong and Marcus Kondkar. District attorneys “multi-bill” white offenders less often than their Black counterparts in every Louisiana district; on average about eight times less, with huge variation among parishes. A focus-group participant cited in the report called the multi bill “rocket fuel for racial disparities.”
Eager to follow the success of other Southern states in reducing their prison population and spending, the state legislature passed The Louisiana Justice Reinvestment Package in 2017. It comprised ten bills aimed at reforming Louisiana’s criminal legal system. This would be achieved by broadening parole eligibility, lowering sentences for many drug and nonviolent crimes, and reinvesting savings from reduced prison costs in rehabilitation and victim support. The New York Times called it “one of the most ambitious criminal-justice reform packages in the country.”
Major changes to the sentencing of nonviolent repeat offenders included lower minimums for second and third offenses and the elimination of the possibility of life for a fourth offense. It also strengthened judges’ discretion to sentence below the minimum, if the minimum “would be cruel and unusual” for the crime. Still, according to a Pew Charitable Trust brief, if your fourth conviction is the possession of less than two grams of cocaine or the sale of more than four grams, your minimum sentence is 20 years.
The 2017 reforms undoubtedly “had a great impact on the lives of some,” says Moroz. A recent Pew report on the impact revealed that, owing to the combination of measures implemented, the Louisiana prison population has dropped 24 percent. But have they done enough to remedy the harmful aspects of the multiple offender law? Moroz believes they only addressed some of its harshest elements. Louisiana still has excessive penalties for repeat offenders: “You can still and still will get—if the district attorney asks for it—sentences of decades for mere drug possession under the habitual offender law.” Another important qualifier: over the last five years, the number of convictions for violent crimes actually increased, according to the same Pew report.
Since 2017, lawmakers have introduced several additional amendments to the multiple offender law. Democratic Representative Randal Gaines’ 2020 House Bill 364, proposed to restrict the use of the multi bill to persons whose current conviction and prior convictions are violent or sex crimes, exempting all nonviolent offenders. Before reaching the floor for a vote, however, most bills need to pass through a number of committees. In committee, select members of the legislature consult policy stakeholders and make revisions. Few bills make it out of committee, which grants members extensive veto power over what bills become law. Gaines’ bill died in the Republican-dominated Committee on Administration of Criminal Justice.
Representative Jordan’s proposal from March 2022, to exempt marijuana possession of up to 56 grams from counting toward multiple offenses, suffered the same fate. The Baton Rouge representative is unsure what happened to the bill or whether the committee opposed the bill in general or just the amount of marijuana. “It’s possible the District Attorney’s Association had a problem with it,” he says, but he did not have insight into the committee’s deliberations. The habitual offender law isn’t one of Jordan’s areas of focus. His primary concern is the state’s regressive marijuana policy. In over “half the country, adult use of marijuana” is already a nonissue, he says, “and it should not have been criminalized to begin with.”
In 2019 an amendment proposed by Gaines did make it into law. It specifies that when five years have elapsed since a prior conviction or served sentence, the current nonviolent offense will be precluded from enhanced sentencing under the multi bill. Yet, despite incremental progress, it would be premature to conclude that things are looking up for reformers. People in the legislature “are already working on a proposal for next session, to amend parts of the reform,” says Jordan.
Last year proposed legislation by Representative Debbie Villio would have limited parole opportunities for nonviolent offenders, extending the portion of the sentence without the possibility of parole from 25 to 65 percent, a recent Advocate article reported. The legislation was vetoed by Governor John Bel Edwards. Villio’s reasoning is that fourth-time offenders are allegedly getting out before they can benefit from the programs prisons offer, leading to a spike in recidivism.
But perhaps that assessment isn’t fair. In a Local Today article, a former inmate was quoted as saying that there are hurdles in the system that need improvement. Recidivism is high because inmates are getting out without “anything to go to.”
Using upticks in recidivism to criticize parole policies seems related to a current effort to attribute recent spikes in crime to criminal justice reform. “The problem is that there is a strong narrative of making people safer when you incarcerate more [offenders], and until we break from that narrative, anytime that there is a small uptick in crime, there is gonna be a big push to increase criminal penalties,” says Moroz. To be clear, the rationale is unfounded. The Pelican Institute for Public Policy, a nonpartisan think tank, concludes in a study that there is no connection between reform and increased crime and suggests that “reducing incarceration and reducing crime can be carried out independently.”
According to Jee Park, Executive Director of the Innocence Project, the habitual offender law needs to be revised because it is too hard on the wrong people. In a KATC report she stated that “[t]he original intent was probably to get to the dangerous people. But many crimes that are identified as felonies are nonviolent. So because it cast such a wide net, it ended up catching” too many people.
If it were up to Moroz, the state would get rid of the law entirely, as the sentences for the individual charges are already high enough, especially for violent offenses. An armed robbery without physical injury to any victims, in which the offender, for instance, “threatens someone with a knife, carries a minimum of 10 years and up to 99 years.”
More and more people are beginning to view drug offenses as a health issue, but there is still a lot that isn’t properly understood about violence. In many cases there is a history of trauma involved, so even in those cases the multiple offender law is excessive, says Moroz.
However, excessiveness isn’t the only problem. The threat of enhanced punishment hides the full impact of this law. “It makes it very scary to go to trial and results in innocent people taking guilty pleas,” because in that case, the district attorney will agree not to use the habitual offender law, “and so it leads to the conviction of innocent people all the time,” says Moroz.
This sentencing disparity incentivizes those who can’t afford a strong legal defense to plead guilty more than others. The same goes for those who have reason to believe the criminal legal system is biased against them, which means it mostly affects Black and poor Louisianans. Additionally, police practices exacerbate this phenomenon by policing Black, low-income neighborhoods differently, which, according to Moroz, “exponentially ramps up the sentencing exposure.”
Reform efforts meet with tremendous resistance in the Louisiana State Legislature, and opponents are focused on undoing previous reform. Depending on who takes over when Governor Bel Edwards leaves office, things may take a turn for the worse. There really isn’t a way for citizens to bypass the legislature either. In contrast to California, where Proposition 36, a citizen initiative, was able to defang the state’s three-strikes law in 2012, Louisiana ballot measures cannot be initiated by citizens and require a two-thirds majority in both chambers to appear on the ballot. This makes them easy for opponents to block. It is crucial for proponents of reform to keep the pressure on and to keep emphasizing the science, to show that alternatives to incarceration work better.
The 2017 reforms managed to bring down the number of nonviolent offenders serving time significantly. They freed up hundreds of millions of dollars in taxpayer money. There are good reasons to continue on this course, no matter your politics. Penal institutions still battle overcrowding, and the State of Louisiana has plenty of issues that demand those tax dollars. Mass incarceration would not end if policymakers repeal this statute, even if they manage to make it retroactive. The habitual offender law is but one of many grave injustices plaguing the criminal legal system. But like no other issue, it reveals how easily the state gives up on offenders and how satisfied it is to label people incorrigible rather than acknowledge its own failure to address social harm.