The Ins and Outs of Louisiana’s Habitual Offender Statute
Habitual offender laws, also known as "three strikes" laws, are designed to impose harsher penalties on individuals who have multiple conviction records. Louisiana Revised Statutes Title 15. — Criminal Procedure (LRS 15:529.1) outlines that the intent of the Louisiana habitually offender law is to counter the issue of recidivism or repeat offenses of criminal activity. These laws are explained in many law journals and schoolbooks, and the general concept is to impose harsher penalties on habitual offenders to deter them from committing additional crimes in the future. The mechanics of Louisiana’s habitual offender sentencing law can be complex, and the penalties that the law imposes differ depending upon the number of prior felony convictions that the current defendant has.
The general language of LRS 15:529.1, Louisiana’s habitual offender law, refers to the habitual offender as a "multiple offender". The statute establishes that a "multiple offender" is any person convicted a second time of a felony offense. A "second felony offense", or second offense under the "multiple offender" law, carries a harsher penalty than the first conviction. LRS 15:529.1(1) establishes that upon the second felony conviction, a defendant’s imprisonment can be increased to twice the years of the maximum sentence for the offense for which he was convicted. Normally, Louisiana’s maximum sentence for a criminal conviction is determined by finding the greater of: i) The maximum penalty prescribed for a first conviction for the same offense; or ii) The maximum penalty prescribed for a first conviction of any crime carrying a term of imprisonment. Simply put, if a defendant has been convicted of a second felony offense, the maximum imprisonment for the defendant cannot exceed twice the punishment for the first offense or the maximum available for any first-degree felony crime, whichever is greater.
In most circumstances, the sentencing enhancements for a second felony conviction apply only if the defendant has served a term of imprisonment for his prior felony conviction. However , LRS 15:529.1(1)(a) provides two limited exceptions to this general rule: (1) If the defendant status as a second felony offender is based on a prior conviction for a crime of violence as defined by La. R.S. 14:2(B), or upon a prior conviction for a sexual offense as defined by La. R.S. 15:541, the provisions of La. R.S. 15:529.1 shall apply whether or not the defendant has served a term of imprisonment in connection with the previous conviction [i.e., before the second offense]. (2) In any case where the court determines by a preponderance of the evidence that the defendant did not receive adequate notice, before his initial conviction on the predicate crime, that his conviction would be used for enhancement purposes; further, in any case where after his original conviction on the predicate crime, he was charged with and convicted of a subsequent crime with an enhanced penalty prospectively attached under the provisions of La. R.S. 15:529.1, the defendant shall be subject to sentencing enhancement under the provisions of La. R.S. 15:529.1.
If a defendant is a "third felony offender", or has been convicted three previous felony crimes, then the penalty for a third felony offense is higher than the penalty for a second felony offense. LRS 15:529.1(2)(a) states that if a defendant has been convicted a third time, then the punishment for imprisonment cannot be less than i) Life imprisonment at hard labor without parole, probation, or suspension of sentence; or ii) Death-if the third felony conviction is for certain enumerated crimes of violence, such as manslaughter, second-degree murder, aggravated kidnapping, and aggravated sex-offenses.
Louisiana’s habitual offender law imposes much harsher penalties than for first and even second-degree felony offenses. Generally, it is understood that a defendant’s prior criminal history is important to the state when making the charging decision. The more prior convictions that a defendant has, particularly violent and sex-related offenses, the stronger the case against them.
How the Statute Impacts Sentencing
Convictions under the habitual offender law carry harsh penalties. In Louisiana, a first felony conviction does not usually come with significant penalties, but every subsequent felony conviction ratchets up the penalties. For example, a first-time felony conviction can result in incarceration for up to five years. Alternatively, a second felony conviction may subject the convicted felon to a maximum sentence of 10 years. A third-time or subsequent felony conviction can result in either life imprisonment or a maximum sentence of 15 to 50 years without parole. The penalty for a prior felony conviction is typically far less than the increased penalty for a second or third conviction for a felony. Also, upon conviction, an individual is more likely to be found guilty of more than one charge. For example, a defendant charged with possessing a firearm, battery on a police officer, and resisting arrest by force will often receive multiple convictions. If the defendant has a prior felony conviction, he will most likely receive a severe penalty enhancement for each charge. However, while the habitual offender law sometimes leads to lengthy sentences, it can also result in reduced sentences. If the prosecution recommends a downward sentencing enhancement, then a defendant may be eligible for a lesser sentence. For example, first convictions under the habitual offender law often carry a definite sentence of five years. However, a defendant may receive a sentence of only three years with eligibility for parole after only 18 months.
How to Tell if Someone is a Habitual Offender?
One of the most fundamental requirements for classification as a habitual offender is that the prior convictions must not only have occurred, but they must have also been final. This means any appeal or similar motion that could have been filed with the trial court would have had to have already been filed and denied. Courts have then consistently held that the important date for this matter to be when the trial court made its final ruling on the matter, even if a motion for reconsideration is to still be filed in the hope that it may be granted. When it is, that is the date the courts then look to as final. Moreover, it is important to remember that prior felonies may be obtained by the mere acceptance of a guilty plea or adjudicating the defendant as a delinquent. However, the law has taken hard-line approaches against both the defense and prosecutor attempting to get habitual offender status. For example, while the defense is prohibited from using anything related to a prior conviction, the court has ruled that the prosecutor is not limited in any similar way. The prosecution does not have to disclose any of the facts that were established during the habitual offender hearing if those facts are also part of the conviction in the second offense up for classification.
The Practicalities and Legal Ramifications
The legal implications of being declared a habitual offender cannot be understated. If such a designation is made, then a person convicted of a fourth felony – even if none of those felonies were violent – can be sentenced to the maximum sentence allowed by law, up to and including life in prison without the possibility of parole. Underscoring the severity of such a possibility, a 2018 study revealed that 73% of habitual offender charges in Louisiana are for non-violent crimes. It is no wonder that there has been an effort in recent years to challenge the constitutionality of the habitual offender law.
In a June 2019 ruling, the Louisiana Supreme Court addressed the constitutionality of the habitual offender statutes in light of Miller v. Alabama, the U.S. Supreme Court case holding that the Eighth Amendment forbids the imposition of a sentence of life in prison without parole on a juvenile who did not commit the homicide at issue. In doing so, the state Supreme Court drew a line between a juvenile offender whose culpability merits a life sentence and a juvenile offender who is already beyond rehabilitation. The Court found that it was entirely permissible under the Eighth Amendment for the habitual offender statute to impose a life sentence of a non-violent offender whose repeated criminal acts were evidence of incorrigibility.
Given the wide array of felonies which can trigger the habitual offender designation, from theft and drug possession to crimes of violence, it is not hard to see how lifting the bar on a life sentence without parole for repeat, non-violent offenders may be subject to debate as a consequence of the habitual offender statute.
Recent Changes and Legislative Developments
The habitual offender law has not been substantially changed in Louisiana law since 2003. A revision was passed in 2009, but it merely updated terminology in parts of the law (changing "enhancement" to "habitual offender" and "felony conviction" to "conviction of a felony offense"). The 2009 revision did, however, update the language of certain sections to clarify that imposition of the enhanced penalty for those convicted of multiple felonies does not constitute double jeopardy, an issue the Louisiana Supreme Court had previously addressed. Aside from the changes made in 2009, the last significant revision to the habitual offender law occurred in 2003. Act 1204 of the 2003 Legislature was enacted specifically to address sentencing issues for certain drug offenses (trafficking of cocaine, heroin, or any mixture of these two substances), which typically result in rather insignificant mandatory minimum terms of imprisonment for non-violent first-time offenders. Moreover, Act 1204 provided that a second violation of trafficking cocaine, heroin, or a mixture of either substance would be punishable by a mandatory life sentence without benefits, except for parole. These mandatory penalties appear harsh and likely make sense to most of us because the trafficking of cocaine, heroin, or a mixture of either substance are associated with violent drug activity, even if the convictions are not for violent offenses. However, the mandatory minimums for a second offense implemented by Act 1204 seem quite excessive, especially in comparison to other penalties in the habitual offender framework . Due to the potential for a life sentence without the possibility of parole for repeat non-violent offenders who might be doing nothing more than sustaining a cocaine, heroin, or a mixture of either substance addiction, the Louisiana Legislature addressed this issue again in the 2009 Legislative Session. The amendments to the habitual offender law in Act 256 of 2009 provide for a minimum sentence of five years and a maximum sentence of 20 years as a habitual offender if the second felony conviction is for trafficking cocaine, heroin, or a mixture of either substance. This revised penalty was further revised from the 20 year maximum and a 25 year minimum that was previously proposed during the legislative session. While the new penalty still seems potentially severe because it raises the habitual offenders minimum from 3 years to 5 years of imprisonment, the maximum remains just slightly under the prior lifetime mandatory punishment. Thus, habitual offenders sentenced in Louisiana for trafficking cocaine and/or heroin, or a mixture of either or both, will now serve sentences that are not guaranteed to cause irrevocable havoc in their lives. Instead, these habitual offenders have the opportunity for rehabilitation and a second chance after a relatively short sentence of not more than 20 years as a second time offender. This is a fair middle-road approach to handling habitual offenders with a history of non-violent drug offenses and arguably places Louisiana’s habitual offender scheme ahead of habitual offender schemes of most other states in the country.
Precedents and Real-Life Examples
Consider the following scenarios:
Example 1: Armed Robbery
In his second trial for armed robbery, a defendant pleaded guilty to a lesser charge of simple robbery, which lead to his receiving a 10-year sentence. As this was his third conviction, he was sentenced as a habitual offender. Without the habitual offender bill, the defendant would have received a 7-year sentence, but with the enhancement he was sentenced to 15 years. On appeal to the Louisiana Supreme Court, the defendant argued that the state failed to prove that he had prior convictions and that he would have failed his motion to quash if the state had not violated the law. The defendant further alleged that since Louisiana’s Habitual Offender Law did not apply at the time of his arrest, the trial court lacked authority to sentence him in accordance with the law. The Supreme Court concluded that the evidence did not prove the prior convictions and that the Habitual Offender Law was in effect at the time of the defendant’s arrest. The Habitual Offender Law applies if the offense is committed after the law’s effective date and conviction occurs after its effective date. As such, the Habitual Offender Law applied.
Example 2: Distribution of a Controlled Dangerous Substance
A defendant was charged with distribution of a controlled dangerous substance within 2000 feet of a school. He had previously been charged and convicted several times for distribution of a controlled substance, but none of the charges related to the current case. Nevertheless, the prosecution sought to have the defendant sentenced as a habitual offender and filed an allegation of habitual offender status. He was sentenced at hard labor for eight years. Upon appeal, the defendant argued that the prosecution failed to prove he was a habitual offender. In response, the State raised two points: (1) even if the habitual offender statute was not applicable, the evidence of the predicate convictions was sufficient to prove that he was a multiple offender for purposes of enhancement and (2) even if the habitual offender statute was not applicable, the evidence of the predicate convictions was sufficient to enhance the sentence under La. R.S. 14:64.3. The defendant argued that distribution of a controlled dangerous substance within 2000 feet of a school was graded as a felony. The Louisiana Supreme Court examined the defendant’s predicate convictions and concluded they were both felonies. The trial court relied on the defendant’s prior convictions to sentence him to a greater term than what he would have received had he not been a multiple offender. The Supreme Court stated that the defendant’s argument did not take into account that the trial court relies on the prior convictions to establish that he is a multiple offender for the purpose of applying enhanced sentencing. The defendant’s sentence as a multiple offender was affirmed.
Potential Legal Defenses
A critical aspect of representing individuals or entities charged as habitual offenders under Louisiana law is the early involvement of experienced criminal defense counsel. Careful examination of the prior convictions to see if they are a proper basis for the habitual offender enhancement to the charges can make a significant difference in the outcome of the case. For example, if an enhancement indication (a fingerprint) on the certificate of conviction is missing, the State cannot prove that the person named in the certificate of conviction is the defendant. Many Certificates of Conviction are admitted to evidence and when this happens, the attorney cannot then later challenge the proper identification of the purported habitual offender. Nevertheless, it is always advisable to have legal counsel review the Certificate of Conviction in a timely manner.
Other issues often arise as to whether the defense can see the underlying documents which led to the conviction being relied upon by the District Attorney. There might be more than one document involved and a witness from another parish may be necessary to prove that the proper conviction might be used for enhancement. This often happens when the original defendant’s name is missing from the judgment (why did the conviction not have the defendant’s name on it?). Further, where the underlying conviction is a plea bargain for greater consideration in another case, the underlying guilty plea transcript may contain specific promises made by the State in that case to the defendant for a lesser sentence. This information may be helpful to the habitual offender defendant.
Where the individual now has a family and many years have past since he committed the prior offenses being relied upon to enhance the current charges, it may be argued that the sentence should only be the maximum term for the underlying offense to act as an enhancement to the previous convictions, but not enhancement of the underlying offense. There are no guarantees of success as the sentencing judge may disagree with your argument.
One of the significant defenses to habitual offender charges is to argue that the time period between the 2 prior convictions relied upon as the basis for the enhancement allegations has passed. The District Attorney has to prove that the conviction used for enhancement activity occurred within 5 years of the current charge. In the case of multiple prior convictions being relied upon, the State has to prove that each conviction relied upon occurred within 5 years of the date of the current charge.
Perceptions and Societal Effects
The general public’s opinion on the habitual offender law varies widely, influenced by perspectives on crime, rehabilitation, and inequality. Many citizens believe that tougher laws contribute meaningfully to public safety, deterring would-be criminals from committing repeat offenses. Conversely, a large number of critics argue that such laws contribute to systemic injustices, disproportionately affecting communities of color and perpetuating cycles of inequity.
The impact of the habitual offender law extends far beyond sentencing individuals to lengthy prison terms. Critics of the law express concerns that it disproportionately affects marginalized communities, particularly people of color, leading to long-term collateral consequences. The law is said to exacerbate social inequalities by contributing to mass incarceration in states, such as Louisiana, that already lead the nation in incarceration rates. Critics argue that the law unfairly targets low-level nonviolent offenders, making it nearly impossible for them to reintegrate into society, maintain employment , and support their families, thereby creating cycles of poverty and violence.
Such critics focus on the disproportionate sentencing that can happen under the law. In Louisiana, for instance, a person with one prior felony conviction can be eligible for a "second strike", which can result in 40 years in prison for a non-violent crime; and a "third strike" can result in life imprisonment for a non-violent crime. The law has been found to disproportionately impact African-Americans – in Louisiana, 77% of offenders under the habitual offender law are Black, despite making up over 30% of the state’s population. Advocates argue that, at its core, this is a class issue. The law has become virtually the only way for indigent offenders to receive legal representation, effectively eviscerating the effect of U.S. Supreme Court rulings that declared that all felony defendants are entitled to counsel. Such advocates have argued for the abolition of this law in Louisiana, criticizing it as a cruel, costly, and ineffective means of "fighting crime."
