Until this year, it looked like Clarence Tolbert would die in the Louisiana State Penitentiary at Angola after serving out a life sentence for a small street sale of crack cocaine.
Tolbert was only 23 at his sentencing in 1998, which happened to be when Louisiana’s habitual-offender laws were at their harshest.
However, a Louisiana Supreme Court ruling in January retroactively applied more lenient sentencing laws to Tolbert’s case and an untold number of others. On July 3, Orleans Parish Criminal District Court Judge Benedict Willard ordered him to be freed.
Tolbert said his fiancée slipped around a courtroom divider to embrace him as he broke down in tears. A deputy moved in to separate them, but the judge interrupted.
“The bailiff is trying to get order in the court,” Tolbert said. “Judge Willard said, ‘It’s all right. Let him cry.’ ”
Although the state Department of Public Safety and Corrections says it has no idea how many other prisoners could be freed or given lighter sentences, the narrowly decided Supreme Court ruling has already set off a small wave of similar courtroom scenes.
The court's ruling applies to certain drug offenders and to some convictions under the state's habitual-offender law. At least two dozen inmates from Orleans Parish have been or could be affected, according to a count by The Advocate.
Now back home in the 7th Ward, Tolbert starts work Monday at a generator company, using skills he learned in prison. He plans to marry his middle-school sweetheart.
He said he and others sentenced under draconian laws in the 1990s see the high court's ruling as a blessing.
“It gave us the ultimate dream: freedom,” Tolbert said. “Your right to be free and pursue happiness in this life.”
As crime rates skyrocketed in the 1980s and 1990s, the Louisiana Legislature passed a series of increasingly punitive laws to ratchet up the sentences for people convicted of drug offenses and multiple felonies.
Tolbert was one of the casualties. He said that as an immature 10th-grade dropout, when he was accused of possession with intent to distribute crack cocaine, he “took the whole charge for a joke.”
Then the office of former District Attorney Harry Connick Sr. invoked two prior nonviolent convictions to deem him a multiple offender.
Tolbert acknowledges being a low-level drug dealer at the time, but he says he was innocent of this particular crack sale. Nevertheless, he was convicted and sentenced to life.
“I just couldn’t believe it,” he said. “Blew my mind. My family and everyone else is like, ‘They can’t do that. It’s got to be against the law.' ”
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However, Tolbert’s life sentence was perfectly legal, courts ruled on appeal after appeal. And in the late 1990s, the state’s prison population swelled in part because of inmates like him.
Starting in 2001, however, the Legislature relaxed the laws and ordered the lower penalties to be applied retroactively.
Yet prosecutors, judges and defense attorneys could not agree on how to implement the lighter terms. In a divided 2006 ruling, the Supreme Court said convicts could apply for relief on their sentences only through a body called the Risk Review Panel that operated like the Parole Board, not through the courts.
The panel was supposed to decide whether inmates posed a risk upon their release. Tolbert went before the panel again and again, only to have his hopes dashed despite what he describes as a record of good behavior in prison.
In 2016, he was full of anticipation when he heard that Gov. Bobby Jindal had pardoned a score of convicts during his last month in office. Surely, other prisoners told Tolbert, he would finally be released.
“You got to be going. One piece of crack! You’re out of here,” Tolbert remembers them saying.
But as it turned out, Jindal pardoned 20 convicts who had already been released. He also commuted the sentence of his personal butler — a trusty who had been convicted of murder. Once again, Tolbert was left bitterly disappointed.
“It was just a long, hard, painful, hurtin’ fight,” he said.
The high court speaks
Tolbert said it did not become clear his misery would end until January, when the Supreme Court revisited its earlier ruling about how to apply the lighter sentencing laws.
The decision centered on an inmate named John Esteen, who was serving a 150-year sentence for drug convictions in Jefferson Parish, but its reach was far wider.
In a 4-3, unsigned ruling that avoided grandiose language, the justices found that district courts should apply the lighter sentences themselves.
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“When courts impose sentences exceeding the express sentencing provisions — either by mistake or, as in this case, because of a retroactive legislative mandate — the sentence must be considered illegal and courts are duty-bound to correct those sentences,” Chief Justice Bernette Johnson wrote in a concurring opinion.
In a dissent, Justice John Weimer said the court was overstepping its authority. He also warned that the ruling could spring “potentially dangerous offenders” without vetting from the Parole Board.
“Regardless of whether any judge, myself included, may personally agree with efforts to avoid Louisiana being castigated as the ‘incarceration capital’ of the nation, in our legal system, judges must act within the bounds established by the Legislature and the Constitution,” Weimer said.
Tolbert said that as he read the ruling, he immediately knew it would apply to him and a host of other prisoners.
Tolbert is one of about 15 inmates thus far who have been assigned representation by the Orleans Public Defenders under the court's ruling. Another five people are seeking to have lengthy parole terms cut short, staff attorney Stas Moroz said.
Moroz is taking the lead on the cases with Robert Jones, a client advocate for the office who knows Tolbert and many of the other inmates personally, having spent 23 years in prison on a life sentence before he won his freedom.
By the time authorities fished Bobby Byrd out of the Red River in 2011, they were pretty sick of him.
In some cases, judges have the discretion to resentence inmates to terms that could keep them in prison for years. Nevertheless, thus far New Orleans judges and the office of District Attorney Leon Cannizzaro have been receptive to requests for immediate release, Moroz said.
The Orleans Public Defenders have secured release for four men so far. Private attorneys have won freedom for at least three others.
“Everyone in the court system seems to respond very differently when they’re coming in for resentencing after 20 years,” Moroz said. “Hopefully, we can just agree that most of these guys have done enough time.”
Cannizzaro declined an interview request, citing the number of open cases involved.
"Our office is giving careful consideration to each case brought before us as a result of the court's decision,” spokesman Ken Daley said in a statement. “There is no overarching philosophy guiding our decisions. Rather, each defendant and case is being evaluated on individual merits and available evidence."
Not every defendant who has gone before the courts for resentencing can boast of a happy ending. Ironically, the man whose case opened the door to the lighter sentences for others once again had his cell door slammed shut.
Esteen, the 50-year-old man convicted of drug charges in Jefferson Parish, went before 24th Judicial District Court Judge Nancy Miller for his resentencing in March.
Defense attorney Miles Swanson said that his client, a Desert Storm veteran, had completed a bachelor’s degree in prison and planned to start a coastal restoration nonprofit upon his release.
Swanson said he told the judge that because Esteen wasn’t given the maximum sentence possible at his original hearing, she should give him a proportionately lenient term the second time around.
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Miller rejected that argument and resentenced Esteen to a 100-year term, which is legal under current laws.
Although the Jefferson Parish District Attorney’s Office took no position at Esteen’s resentencing, prosecutors can still seek lengthy terms.
In June, New Orleans prosecutors asked a judge to "multiple-bill" a man named Bruce Morgan, who was serving a life sentence on his conviction for possession with intent to distribute seven foils of heroin.
Although Morgan, 49, had already spent 16½ years in prison, Assistant District Attorney William Dieters said his office now wanted to invoke, for the first time, a previous marijuana conviction under the habitual offender law. The end result of treating Morgan as a “double bill” would mean just a few extra weeks or months in prison for him — but it would preserve the DA’s ability to invoke old convictions under the multiple bill statute at other resentencing hearings.
Morgan’s attorney, Michael Raspanti, said prosecutors had waited too long to file the multiple bill. Courts have held that they must do so in a timely fashion. “They are trying to say that the previous 16 years don’t count as a delay,” Raspanti said.
Judge Franz Zibilich at first appeared to side with the District Attorney’s Office. He said that since Morgan's original sentence was now illegal in light of the Supreme Court ruling, he was in essence being sentenced for the first time. But then, he invoked a separate provision of the law to rule that Morgan's new mandatory minimum sentence was unnecessarily harsh. He ordered Morgan to be freed.
"Solomon strikes again," Zibilich said.
Morgan’s son was 5 when his father went away for life. Now in his early 20s, he listened as the judge gave Morgan a stern warning to stay out of trouble.
“I’m through with that,” Morgan replied. “I ain't got no time to be back in no jailhouse.”