Louisiana's prosecutors believe about one-third of prisoners serving life for murders they committed as juveniles should be denied a chance to seek parole, despite criticism from advocates that this disregards U.S. Supreme Court rulings that a life behind bars for those who kill at a young age should be "rare" and "uncommon."
East Baton Rouge District Attorney Hillar Moore III has looked at 31 such cases since the highest court in 2016 told Louisiana they needed to re-examine these sentences, and decided 12 of those defendants — or 38 percent — should stay in prison until they die. In the judicial district serving Ascension, Assumption and St. James parishes, District Attorney Ricky Babin filed in court to keep four out of five eligible offenders incarcerated without the opportunity of parole. And in the district over West Baton Rouge, Iberville and Plaquemine, the DA's office filed in every possible case, four of four.
"We had to look at all of the factors in every one of them, we had to make decisions on a case by case basis," said Tracey Barbera, Moore's first assistant district attorney. "These were extremely difficult decisions to make."
But advocates for these prisoners believe prosecutors are trying to block far too many inmates from seeking an eventual release. They note that the Supreme Court has found that young killers are fundamentally different from adults and only in rare cases — those where a crime or defendant reflects "irreparable corruption" — should they be deemed unable to be rehabilitated.
"The (Supreme Court justices) make clear that there shouldn't be many kids who get these penalties, so when I look at (the number of filings in Louisiana), that is not rare, that is not uncommon," said Jill Pasquarella, a supervising attorney for the nonprofit Louisiana Center for Children's Rights. "We put ourselves again not in compliance with what the Supreme Court has said."
'Worst of the worst'
Over more than a decade, the Supreme Court has issued a handful of rulings that emphasize young criminals are different from their adult counterparts. Justices noted the developments in neuroscience that show teens are naturally more reckless and impetuous than adults, saying that this needs to be taken into consideration along with the circumstances of the crime. Most recently, the high court in January 2016 ruled in a Baton Rouge case that states must apply these rulings retroactively, giving prisoners already convicted of murders committed when they were teenagers an opportunity for release.
After spending a half-century serving life without parole for a murder committed as a teenager, Henry Montgomery is now preparing for a parole…
Earlier this year, the Legislature set a deadline for district attorney offices to figure out how to proceed with those cases, as a part of a comprehensive criminal justice reform package. Prosecutors across Louisiana were required to file notices of intent by last month about whether they would seek a court hearing before a judge to block an inmate from eventually going to the parole board. In those cases where prosecutors don't ask for a hearing, a new state law allows prisoners convicted of killing someone when they were younger than 18 to become parole eligible after serving 25 years for their conviction of first or second-degree murder.
In neither situation is parole automatically denied or granted. In cases challenged by prosecutors, judges will hear testimony and arguments from both prosecutors and defense attorneys about whether a defendant can take a case to the parole board. The Louisiana Board of Pardons and Parole will make the final determination in cases it hears, weighing whether inmates meet the rehabilitation requirements for release.
Barbera said prosecutors in the East Baton Rouge Office evaluated a myriad of factors to decide if they wanted to fight against parole eligibility at a hearing. They looked at each prisoner's master record from the Department of Corrections, which details in-custody discipline, educational and vocational successes and evaluations from prison wardens. She said they also got in contact with most of the victims' families, looked at the prisoner's previous run-ins with the law, the circumstances of the crime, and their mental health. Prosecutors also tried to consider a prisoner's upbringing, as this can be a factor in court proceedings.
"I can't tell you there was one determining factor that dictated our decision, in each case we had to look at the totality of circumstances," Barbera said. "The final decision is with the court."
Babin said their office also spoke with the victims' families of the crimes, when possible, but most critically tried to determine if the juvenile lifer would be a risk on the outside.
"I'm making the decision that I think is keeping the community safe," Babin said, adding that he also looked back at the circumstances of the crimes and prisoners' records while incarcerated. While he said he understands that people can change over time, he doesn't want people using the science behind the Supreme Court decision as an excuse for killing innocent people.
"Let's not forget there are two parts of the penal system, rehabilitation and punishment," Babin said, emphasizing the latter. "You've got to pay a price for it."
But Pasquarella said prosecutors' arguments about public safety are missing the point of the high court's rulings, which said juveniles should have the opportunity to reform.
"It's sad to me that they believe so many children are the worst of the worst... that so many children in our state can never change," Pasquarella said. "This is about giving a child a shot at redemption."
In some smaller judicial districts, Louisiana prosecutors didn't file for any re-sentencing hearings, according to records compiled by the Louisiana Center for Children's Rights. In East and West Feliciana, prosecutors didn't file against parole eligibility in the one applicable case, and for the two juvenile lifer cases at stake in the 21st Judicial District, serving Livingston, Tangipahoa and St. Helena parishes, no notices were filed, the LCCR records show.
However, the percentage of prisoners prosecutors hope to keep without parole eligibility across Louisiana was just above 30 percent, according to the LCCR data.
A pair of teenagers walked up to a security guard in a New Orleans East apartment complex on a September night in 2010, scheming to rob him of…
Assistant District Attorney Tony Clayton, who prosecutes in the 18th Judicial District for West Baton Rouge, Plaquemine and Iberville parishes, said he has to worry about what might happen if parole is granted and then the offenders commit another heinous crime. He said these cases where the juveniles were punished without parole were sentenced that way for a reason.
"How much worse can it get than taking someone's life?" Clayton said. "Murder is the worst of the worst."
Babin said the four cases he hopes to keep as life without parole are what he views as those rare and uncommon cases. The applicable juvenile lifer cases he reviewed span the last 60 years, the oldest one from 1958, he said.
"At the time, it was reserved for the worst of the worst," Babin said. "We've always had that mindset."
Pasquarella said she understands the Supreme Court did not give any proportion to determine what amount of juvenile cases should result in a life without parole sentence but she said it's definitely not 80 or 100 percent, as seen in Babin and Clayton's districts, or even the 38 percent in East Baton Rouge.
"There's no number given that is rare and uncommon, but this is not," Pasquarella said. She noted the statewide percentage of cases prosecutors hope to keep without parole: "We're talking about one in three — there's just no world that 1 in 3 is uncommon or rare."
Parole vs. court hearings
Keith Nordyke, president of the nonprofit Louisiana Parole Project that works with prisoners through parole eligibility and once its been granted, said he has found that juvenile lifers are some of the safest inmates, even beyond their release.
"(Prisoners sentenced to life in prison as a juveniles) are disproportionately trusties, disproportionately assigned to jobs working with free people," Nordyke said. "These guys are the safest to be around."
Three of the juvenile lifers Babin filed to keep their sentence without parole have reached minimum trusty status at Louisiana State Penitentiary at Angola, said Department of Correction spokesman Ken Pastorick. He called that position a "privilege" to reach, one inmates have to earn through good behavior over the years.
Moore, the East Baton Rouge DA, said the cases his office is bringing back before a judge need extra scrutiny, a standard he can confirm will be reached by his prosecutors, but would be out of his control if only brought before the parole board.
A Baton Rouge judge Wednesday gave a 71-year-old man convicted of killing a sheriff's deputy when he was 17 a chance to leave prison before he dies.
State public defender James "Jay" Dixon countered that the courtroom hearings just create a new burden for already cash-strapped public defenders. This will tilt the balance towards prosecutors, he argued.
"When the Legislature said these hearings were going to take place, it was an unfunded mandate," Dixon said. "We don't have the assets and the funding to provide a proper hearing in every case."
Nordyke said prosecutors should have more faith in that process. The current board is one of the most educated and well certified, he said.
"The parole committee has an extensive pre-parole investigation done on every case," Nordyke said.
And while a parole hearing is done completely by the committee, the standards to defend a re-sentencing hearing in court for parole eligibility are almost as stringent as a sentence for capital punishment, Dixon said. They will each require investigators, expert witnesses and bringing back victims to court.
"It's important to realize that what we're talking about is whether or not after (about) 30 years we're going to have a parole hearing," Dixon said. "And that's what we're spending millions of dollars on, and that's just absurd."