By Liliana Segura
A holding cell in South Dakota State Penitentiary. (AP/Amber Hunt)
This past August, the Lafayette-based IND Monthly published a story about a 54-year-old man named Bill Winters, incarcerated at a medium-security prison in Epps, Louisiana. Winters, who is black, was arrested in June 2009, after he drunkenly entered an unlocked oncologist’s office on a Sunday morning, setting off a security alarm. When police arrived, he had rummaged through a desk drawer, and was in possession of a box of Gobstoppers candy. Winters was convicted of simple burglary a week before Thanksgiving, and given a seven-year prison sentence—hardly a slap on the wrist. But a few days later, the prosecutor in his case, Assistant District Attorney Alan Haney, sought additional punishment for Winters, under the state’s habitual offender law. Based on his record of nonviolent offenses, which went back to 1991 and ranged from cocaine possession to burglary, the trial court resentenced Winters to twelve years without any chance of parole. But Haney was still not satisfied. He appealed the ruling, arguing that the court had imposed an “illegally lenient sentence” and that the rightful punishment was life without the possibility of parole.
At a subsequent hearing, Lafayette Police Chief Jim Craft estimated that Winters had been arrested more than twenty times, calling him a “career criminal who victimized a lot of citizens in our city.” But it seemed clear that he was more of a thorn in the side of law enforcement than a looming threat to society. His brothers, Dennis and James, testified that Winters had been homeless at the time of his offense and that he had a history of addiction; James had overcome his own drug problems and said that he would be willing to “take [Winters] in and work with him.” A former Lafayette police officer who had once worked at a correctional facility where Winters was held, said that although he did not know him well, Winters “didn’t cause problems” and had potential for rehabilitation. But this past summer, the Third Circuit Court of Appeals issued its decision: “The state asserts that because of the defendant’s particular multiple offender status, the law mandates a minimum sentence of life in prison without benefit of parole, probation, or suspension of sentence. We agree.”
Dennis Winters was incredulous when he heard the news about his brother. “What? This makes no sense,” he told IND Monthly. “I don’t understand what these people are trying to do. He’s not a violent person. He’s fragile. He wouldn’t hurt anybody, except maybe for himself. I just don’t get how they’re going to give him life for some Gobstopper candy.”
Today, Winters joins hundreds of Louisiana prisoners sent to die in prison after committing similarly nonviolent offenses, from drug possession to property crimes. The national numbers are tallied in a major new study released today by the American Civil Liberties Union, titled “A Living Death: Life without Parole For Nonviolent Offenses,” which documents scores of cases with echoes of Winters’s story. Across the country, defendants have been given life without parole for such crimes as having a crack pipe, “siphoning gasoline from a truck” and, in another Louisiana case, shoplifting a $159 jacket.
Tales of outsized sentencing for minor crimes may not surprise anyone familiar with the well-documented excesses of three-strikes sentencing in California, for example. But the ACLU’s report is the first to attempt to grasp the national numbers, specifically concerning nonviolent offenders sentenced to die behind bars. The report found 3,278 prisoners serving life without parole in 2012 for nonviolent crimes, of which 79 percent were for drug crimes. This is not the complete picture—Bill Winters himself is not among the prisoners covered—and crucially, only includes formal life-without-parole cases. It does not include life sentences where parole is a possibility—if largely only in theory, given the increasing reluctance of parole boards to free prisoners. It also does not include, say, 100-year sentences, or the kinds of stacked, decades-long sentences that are, in effect, permanent life sentences. “The number of people serving death-in-prison sentences after being convicted of nonviolent crimes is not known,” the report concludes, “but it is most certainly higher than the number of prisoners serving formal life-without-parole sentences for nonviolent crimes.”
Indeed, a report released earlier this year by the Sentencing Project found that one in nine prisoners in the US are serving a life sentence and that “those with parole-eligible life sentences are increasingly less likely to be released.” Including life with parole, the report estimated that “approximately 10,000 lifers have been convicted of nonviolent offenses.”
Determining what qualifies as “nonviolent” is similarly complicated. As the ACLU points out, “Although the term ‘violent crime’ brings to mind very serious offenses such as rape and murder, some jurisdictions define violent crime to include burglary, breaking and entering, manufacture or sale of controlled substances, possession of a firearm by a convicted felon, or extortion.” In other words, the number of prisoners serving life without parole who are far from the “worst of the worst” is higher still.
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Regardless of the exact numbers, and perhaps not surprisingly for the state known as the prison capital of the world, it is clear that Louisiana is home to a disproportionate number of these sentences. It also provides a dramatic illustration of the explosion of permanent life sentences over the past four decades: “In Louisiana, just 143 people were serving LWOP sentences in 1970,” the ACLU notes. “That number had increased to 4,637 by 2012.” The report found that Louisiana had the highest number of nonviolent offenders serving life without parole out of all the states: 429. Florida was a distant second, with 270. (Thanks to the drug war, federal prisoners accounted for the largest share at 2,074.)
Among the Louisiana prisoners highlighted in the report are Fate Vincent Winslow, who, while homeless, “acted as a go-between in the sale of two small bags of marijuana, worth $10 in total, to an undercover police officer;” Timothy Jackson, who stole a jacket from a department store in New Orleans, Paul Carter, convicted of “possession of a trace amount of heroin residue that was so minute it could not be weighed;” and Sylvester Mead, a Shreveport man who drunkenly threatened a police officer while seated, handcuffed, in the back of a patrol car.
Mead’s case, like Winters’s, shows the way in which prosecutors’ wishes consistently trump judicial power when it comes to sentencing people for such crimes. Not only did his trial judge oppose the initial charge of public intimidation, he made it repeatedly clear he opposed sending Mead to die in prison. Mead’s verbal offense “does not warrant, under any conscionable or constitutional basis, a life sentence,” he said. But Mead’s prosecutor appealed multiple times seeking a harsher sentence because of his old convictions. After his previous sentences were vacated by a higher court multiple times, Judge Leon L. Emanuel was bound by Louisiana’s mandatory sentencing statute to hand down a sentence of life without parole. “No matter how long this Court were to deliberate about this matter, it cannot fashion a legal result to explain that the life sentence without probation or suspension of sentence is unconstitutionally excessive,” he concluded.
Such statements from judges are not unusual, it turns out. “In case after case reviewed by the ACLU, the sentencing judge said on the record that he or she opposed the mandatory LWOP sentence as too severe but had no discretion to take individual circumstances into account or override the prosecutor’s charging decision,” the ACLU found. Mandatory sentencing schemes are certainly to blame—in Louisiana, they account for almost all—97.6 percent—of the surveyed nonviolent LWOP sentences. But while mandatory sentencing ties the hands of judges, such punishments do not impose themselves. Prosecutors have the power to seek or not seek them.
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Bill Winters was not the first defendant to find himself in the crosshairs of Lafayette ADA Alan Haney. Indeed, in 2007, Haney created a “career criminal program,” as described by the local Daily Advertiser, to “identify repeat offenders all over Lafayette Parish.”
“We basically had to start this whole project from scratch,” he told the City-Parish Council in September 2010, according to the Advertiser. Thus far, he boasted, some forty-nine people had been sentenced as habitual offenders with the help of the initiative.
In the fall of 2009, the same year Winters was convicted for stealing Gobstoppers, a 29-year-old black man named Travis Bourda was convicted for possessing 130 grams of marijuana “with intent to distribute.” Writing to the ACLU, Bourda insists that no drugs were actually found in his posession and that his court-appointed lawyer “filed no motions, failed to investigate,” and “made no objections at trial.” His initial sentence of eight years was increased to fourteen after Haney filed habitual offender charges based on Bourda’s previous record, which included “carnal knowledge of a juvenile” when he was 19. Responding to Haney’s attempt to seek a sentence of life without parole for Bourda, the trial judge wrote: “I believe a life sentence under the circumstances…would be an unconstitutional sentence. I believe that fourteen years is more than enough considering the underlying charge was possession with intent to distribute marijuana, and that the amount of marijuana involved was not significant.”
But in 2011 the Court of Appeals for the Third Circuit agreed with Haney, vacating the fourteen-year sentence and imposing life without parole. Today, Bourda is serving his sentence at the Louisiana State Penitentiary, famously known as Angola.
Angola prisoners were not allowed to receive visits or speak on the phone to the ACLU. But in response to the questionnaire sent out by attorney Jennifer Turner, who authored the report and corresponded with more than 600 prisoners, Bourda described himself as “the most miserable person there is.” He wrote that he was diagnosed as schizophrenic when he was 13 and that he hears voices that tell him to do things. In a separate, handwritten letter, he wrote to “share my thoughts about the Habitual Offender law,” which he describes as “the most unconstitutional law there is.”
“We paid our debts to society for the past crimes we committed,” Bourda wrote.” “…There is never any forgiveness once you have a record.” In his opinion, he added, “the prosecution is abusing his discretion on a certain race of people which we know to be black individuals.”
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Whether or not prosecutorial discretion is to blame, Bourda’s observation about race is certainly supported by the numbers. The ACLU report shows, and Turner wrote to me in an e-mail, that “the racial disparity in life without parole sentencing for nonviolent crimes in Louisiana is staggering.” While the state would not provide figures according to race, the ACLU calculated that black prisoners “comprise 91.4 percent of the nonviolent LWOP prison population in Louisiana,” despite the fact that “Blacks make up only about one-third of the general population in the state.” Black defendants in Louisiana “were 23 times more likely than whites to be sentenced to LWOP for a nonviolent crime.”
There are many factors that could explain this. “The racial disparity can result from disparate treatment at every stage of the criminal justice system, including stops and searches, points of arrest, prosecutions and plea negotiations, trials, and sentencing,” Turner explains. She adds, “In Louisiana, it may also have to do with how prosecutors wield their enormous discretion in deciding whether to charge defendants as habitual offenders.”
I contacted Alan Haney’s office by phone and e-mail to discuss his Habitual Offender Division, but have not received a response. In the meantime, the ACLU report is only the most recent to cast a stark light on Louisiana’s sentencing excesses. While some recent reforms in the state have sought to mitigate some of Louisiana’s harshest sentencing statutes, they still preserve the power of the prosecutor to decide if and when to trigger mandatory sentences. In a report released by the Reason Foundation last month, which closely examines the state’s determinate sentencing laws and makes recommendations for reform, the authors found that a 2012 law signed by Governor Bobby Jindal to allow courts to waive mandatory minimums in some cases put all the power in prosecutors’ hands, giving prosecutors “much more power than they previously had.”
The ACLU also makes recommendations for reform. It calls on the states and federal government to get rid of laws that mandate or allow life without parole for nonviolent crimes, and exhorts state governors, as well as the Obama administration, to commute such disproportionate punishments. “Life without parole sentences for nonviolent offenses defy common sense,” it concludes, and “are grotesquely out of proportion to the conduct they seek to punish.”
In Bourda’s words, “I never committed a capital offense such as murder….I don’t deserve to be sentenced like a hard-core criminal.”
