- Louisiana allows discretionary parole for most crimes.
- Louisiana allows for mandatory LWOP and JLWOP. See La. R.S. 14:30 (2012).
- Juveniles can be transferred to adult court at age 14.
La. Const. Art. I, § 20 (2012)
§ 20. Right to humane treatment -- No law shall subject any person to euthanasia, to torture, or to cruel, excessive, or unusual punishment. Full rights of citizenship shall be restored upon termination of state and federal supervision following conviction for any offense.
NOTE: Article I, Section 20 is broader than the Eighth Amendment.
- Sentencing Guidelines System – Louisiana Sentencing Guidelines -- While sentencing reports are required, a sentencing judge may impose any proportionate sentence on the offender within the appropriate statutory range. The judge must state his reasons for departure on the record. Departures are not appealable.
- La. C.Cr.P. Art. 894.1 (2012) -- Art. 894.1. Sentencing guidelines; generally
- Habitual Offender Statute – La. R.S. 15:529.1 (2012) -- § 15:529.1. Sentences for second and subsequent offenses; certificate of warden or clerk of court in the state of Louisiana as evidence
- Proportionality Review for Death Sentences – La. C.Cr.P. Art. 905.9 (2012)
Art. 905.9. Review on appeal
The Supreme Court of Louisiana shall review every sentence of death to determine if it is excessive. The court by rules shall establish such procedures as are necessary to satisfy constitutional criteria for review.
“C.Cr.P. art. 905.9 requires a review of every death sentence in Louisiana. The criteria for this review are found in La. Sup. Ct. Rule 28, § 1: Every sentence of death shall be reviewed by this court to determine if it is excessive. In determining whether the sentence is excessive the court shall determine:
(a) whether the sentence was imposed under the influence of passion, prejudice or any other arbitrary factors, and
(b) whether the evidence supports the jury's finding of a statutory aggravating circumstance, and
(c) whether the sentence is disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.“
State v. Reeves, 11 So. 3d 1031, 1083 (La. 2009).
In general, statutes are presumed to be constitutional. Therefore, the party challenging the statute bears the burden of proving the statute unconstitutional. State v. Fleming, 2012 La. App. LEXIS 781, 3-4 (La.App. 4 Cir. May 30, 2012) (citing State v. Hatton, 985 So.2d 709, 719 (La. 2008); State v. Fleury, 799 So.2d 468 (La. 2001)).
Unlike the Eighth Amendment, Article I, Section 20 explicitly prohibits excessive sentences. This explicit prohibition allows Louisiana courts to determine whether the range of available sentences is excessive and whether the sentence is excessive as applied to a particular offender. State v. Baxley, 656 So. 2d 973, 976-977 (La. May 22, 1995); State v. Perry, 610 So. 2d 746, 762 (La. 1992). SeeState v. Jones, 639 So. 2d 1144, 1154 (La. July 5, 1994).
The excessive punishment provision of the Louisiana Constitution “adds a protection which surpasses those provided by the federal constitution.” State v. Jones, 639 So. 2d 1144, 1154 (La. July 5, 1994). Article I, Section 20 goes “beyond the scope of the Eighth Amendment in some respects” and provides at least the same level of protection in all others. State v. Perry, 610 So. 2d 746 (La. 1992) (citing State v. Sepulvado, 367 So.2d 762 (La. 1979)).
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To determine excessiveness under both the Eighth Amendment and Article I, Section 20, “the harshness of the penalty must be compared with the severity of the offense.”State v. Goode, 380 So. 2d 1361, 1364 (La. 1980).
The “cruel and unusual” provisions of Article I, Section 20 prohibits the arbitrary infliction of harsh punishments. Conversely, the “excessive” provision of Section 20 prohibits punishment that does measurably contribute to Louisiana’s goals of punishment or any punishment that is grossly disproportionate to the severity of the offense. State v. Jones, 639 So. 2d 1144, 1154 (La. July 5, 1994) (citing State v. Perry, 610 So. 2d 746, 764 (La. 1992); State v. Lobato, 603 So. 2d 739, 751 (La. 1992); State v. Bonanno, 384 So. 2d 355 (La. 1980)).
When reviewing an excessive sentence claim, the proper question is whether the trial court abused its discretion, not whether a different sentence is more appropriate. The court should not set aside a sentence that the record supports. State v. Boudreaux, 2012 La. App. LEXIS 987, 7-9 (La.App. 4 Cir. July 25, 2012).
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To review a sentence for excessiveness, Louisiana courts pass a two-prong test: (1) The record must reflect that the court established a factual basis for the sentence in compliance with Louisiana’s Sentencing Guidelines under La. C. Cr. P. Art. 894.1; and (2) the sentence must not be grossly disproportionate to the offense and must not purposelessly and needlessly inflict suffering on the offender. State v. Barton, 80 So. 3d 713 (La.App. 2 Cir. 2011) (citing State v. Dorthey, 623 So. 2d 1276 (La. 1993)); SeeState v. Boudreaux, 2012 La. App. LEXIS 987, 7-9 (La.App. 4 Cir. July 25, 2012).
The goal of Art. 894.1 is to ensure that an adequate factual basis for the sentence exists, and does not require strict mechanical compliance with its provisions. If such a factual basis exists, resentencing is not necessary, even if the court has not fully complied with the provisions of Art. 894.1. State v. Coleman, 828 So. 2d 1130, 1141 (La.App. 4 Cir. Oct. 2, 2002) (citing State v. Lanclos, 419 So. 2d 475, 478 (La.1982)); State v. Boudreaux, 2012 La. App. LEXIS 987, 7-9 (La.App. 4 Cir. July 25, 2012); State v. Davis, 448 So.2d 645, 653 (La. 1984).
Once the court has determined that the trial court complied Art. 894.1, the court must then determine if the sentence is excessive. State v. Boudreaux, 2012 La. App. LEXIS 987, 7-9 (La.App. 4 Cir. July 25, 2012). A sentence is excessive if it is grossly disproportionate, “if, when the crime and punishment are viewed in light of the harm done to society, it shocks the sense of justice or makes no reasonable contribution to acceptable penal goals.” State v. Barton, 80 So. 3d 713 (La.App. 2 Cir. 2011) (citing State v. Guzman, 769 So. 2d 1158 (La. 2000)); State v. Skinner, 84 So. 3d 764, 767-768 (La.App. 3 Cir. 2012); State v. Davis, 666 So. 2d 400, 407 (La.App. 1 Cir. Dec. 15, 1995); State v. Campbell, 404 So.2d 1205 (La. 1981).
The Supreme Court of Louisiana has identified four factors useful for determining whether a sentence is grossly disproportionate: (1) the nature of the offense and the offender; (2) the comparison of the offender’s punishment to the punishments imposed for similar crimes; (3) the legislative purpose of the offender’s punishment; and (4) the comparison of the offender’s punishment to those punishments imposed for the same offense in other jurisdictions. State v. Fleming, 2012 La. App. LEXIS 781, 10-11 (La.App. 4 Cir. May 30, 2012) (internal citations removed); SeeState v. Jarreau, 921 So. 2d 155, 160 (La.App. 4 Cir. Dec. 14, 2005); State v. Bonanno, 384 So. 2d 355 (La. 1980).
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Although a sentence may fall within the statutory limit, it may still violate a defendant's constitutional right against excessive punishment that is enforceable on review. State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979); State v. Boudreaux, 2012 La. App. LEXIS 987, 7-9 (La.App. 4 Cir. July 25, 2012); State v. Every, 35 So.3d 410, 417 (La. App. 4 Cir. March 24, 2010); State v. Davis, 666 So. 2d 400, 407 (La.App. 1 Cir. Dec. 15, 1995).
Statutory minimums, such as those provided by the habitual offender statute, can also be excessive. State v. Kingston, 668 So. 2d 395, 397 (La.App. 4 Cir. Jan. 19, 1996); State v. Dorthey, 623 So. 2d 1276 (La. 1993).
Leading Court Discussions of Graham and Miller
- State v. Shaffer, 77 So. 3d 939 (La. 2011) – Case is a consolidation of three appeals to review life imprisonment sentences for aggravated rape convictions committed while under age. Inmates sought to have their convictions set aside and to be resentenced in light of Graham. The Supreme Court of Louisiana held that Graham does not require the state to release and resentence inmates, but requires the state to delete restrictions on parole eligibility.
In the following cases, inmates sought to have conviction set aside and/or resentenced in light of Graham:
- State v. Macon, 86 So. 3d 662 (La.App. 2 Cir. 2012) – Convicted of aggravated rape as a juvenile. Cited Shaffer, listed above, with same result.
- State v. Mason, 89 So. 3d 405 (La.App. 4 Cir. 2012) – Same, but inmate was eligible for parole consideration immediately. The court directed the Dept. of Corrections to reflect an immediate eligibility date for consideration by the Board of Parole.
- State v. Richards, 78 So. 3d 864 (La.App. 4 Cir. 2011) – Cites & relies on Shaffer.
- State v. Skipper, 79 So. 3d 1011 (La. 2012) –
- State v. Handley, 79 So. 3d 1010 (La. 2012) –
- State v. Straub, 2012 La. App. LEXIS 1187 (La.App. 1 Cir. Sept. 21, 2012) –
- State v. Smith, 2012 La. App. Unpub. LEXIS 579 (La.App. 1 Cir. Sept. 21, 2012) –
- State v. V. L. G., 2011 La. App. Unpub. LEXIS 721 (La.App. 3 Cir. 2011) –
While the following cases mention Graham, they provide no significant analysis of Graham:
State v. Dyer, 77 So. 3d 928 (November 23, 2011) (Amend the sentence to a juvenile convicted of rape by deleting restriction on parole eligibility under Graham) (dissent: ad hoc exercise of the executive's power of commutation does not afford juveniles sufficient protection, and such inmates have nowhere else to go for relief other than the judiciary; these cases should be remanded with order to resentence to a fixed term of years.)
State v. Leason, 77 So. 3d 933 (November 23, 2011) (same as Dyer)
State v. Shaffer, 77 So. 3d 939 (November 23, 2011) (same as Dyer)
***After Dyer, Leason and Shaffer, the court consistently strike down all applications of rehearing under Graham in following cases and Justice Johnson dissent in every case for same reason in Dyer.
State v. Hanley, 79 So. 3d 1009 (February 1, 2012)
State v. Skipper, 79 So. 3d 1011 (February 2, 2012)
State v. Hanley, 85 So. 3d 681 (April 9, 2012)
*** In following cases, court remand cases pending in collateral review for Graham to district cases for consideration for both Graham and Miller
State v. Simmons, 99 So.3d 28 (Oct. 12, 2012)
State v. Graham, 99 So.3d 28 (Oct. 12 2012)
State ex rel. Landry v. State, 106 So.3d 106 (Jan 18, 2013)
*** The following judgments were issued on the same day and all remanded cases pending in direct review under Miller.
State v. Williams, 108 So. 3d 1169 (March 8, 2013)
State v. R. Williams, 2013 WL 857334 (March 8, 2013)
State v. Williams, 109 So.3d 351 (March 8, 2013)
State v. Jones, 134 So.3d 1164 (Feb 28, 2014)
State v. Brown, 118 So.3d 332 (May 7, 2013) (Defendant was sentenced to imprisonment of 40 years without possibility of parole for 40 years. The court hold that Graham does not address the issue of multiple convictions and does not apply to sentence of years without the opportunity of parole, even when the imprisonment matches or exceeds offender’s life expectancy. )
State v. Tate, 130 So. 3d 829 (November 5, 2013) (Miller does not apply retroactively in state cases on collateral review because it is a new rule of criminal constitutional procedure that is neither substantive nor a watershed rule that alters understanding of the bedrock procedural elements essential to the fairness of a proceeding.)
*** Following Tate, Louisiana Supreme Court consistently strike down all application of collateral review under Miller. Chief Justice wrote the same dissenting opinion for each case.
State v. Williams, 2014 WL 2818650(March 8, 2013)
State v. Williams, 2014 WL 281887(March 8, 2013)
State v. Shaw, 140 So.3d 1163 (June 20, 2014)
State v. Funches, 140 So. 3d 1165 (June 20, 2014)
State v. Collins, 141 So. 3d 264 (June 20, 2014)
State v. Montgomery, 141 So.3d 264 (June 20, 2014)
State v. Gillam, 141 So.3d 265 (June 20, 2014)
State v. Toca, 141 So.3d 265 (June 20, 2014)
State v. Olivier, 141 So.3d 266 (June 20, 2014)
State v. Landry, 2014 WL 2818874(June 20, 2014)
State v. Huntley, 2014 WL 2818876(June 20, 2014)
State v. Williams, 2014 WL 2818886(June 20, 2014)
State ex rel. Johnson v. State, 2014 WL 3858544 (Louisiana, July 31 2014)
State ex rel. Davis v. State, 2014 WL 3858545 (Louisiana, July 31 2014)
State ex rel. Humble v. State, 2014 WL 3858546(Louisiana, July 31 2014)
State ex rel. Czere v. State, 2014 WL 3858547(Louisiana, July 31 2014)
State ex rel. Sneed v. State, 2014 WL 3858548(Louisiana, July 31 2014)
State ex rel. Thomas v. State, 2014 WL 3858549(Louisiana, July 31 2014)
State ex re. Hauser v. State, 2014 WL 3858550(Louisiana, July 31 2014)
State ex rel. Thomas v. State, 2014 WL 3858551(Louisiana, July 31 2014)
State ex rel. Hall v. State, 2014 WL 3858553 (Louisiana, July 31 2014)
State ex rel. Sullivan v. State, 2014 WL 3858554(Louisiana, July 31 2014)
State ex rel. Tolliver v. State, 2014 WL 3859583 (Louisiana, July 31 2014)
State ex rel. Fasola v. State, 2014 WL 3859585(Louisiana, July 31 2014)