« "Incapacitating Errors: Sentencing and the Science of Change" | Main | Terrific new editorial about Ohio Gov DeWine's terrific new "Expedited Pardon Project" »

December 13, 2019

Reviewing LWOP populations in Louisiana and nationwide

5deadab9df7fc.imageI am just finding time to blog about this lengthy terrific piece from last weekend in The Advocate under the headline "Louisiana's life without parole sentencing the nation's highest — and some say that should change." I recommend the piece in full, and here are some excerpts:

About 15 percent of Louisiana's prison population consists of people serving life without parole, which is the highest percentage among all states. Those numbers are the result of sentencing laws enacted decades ago — including mandatory minimums and a 1979 decision from state legislators to abolish parole for all life sentences, creating a rigid structure that critics argue limits opportunities to ensure the punishment fits the crime.

Perhaps the biggest outlier is Louisiana's response to second-degree murder, a broad statute that treats getaway drivers and lookouts the same as trigger pullers. It allows prosecutors to sidestep proving intent in some cases, but nonetheless carries a mandatory minimum sentence of life without parole....

Louisiana has more inmates serving life without parole than Texas, Arkansas, Mississippi, Alabama and Tennessee combined: about 4,700 people behind bars with no chance at release.

Those convicted of second-degree murder make up the largest subset — 51 percent of the total — compared to 19 percent for aggravated rape and 16 percent for first-degree murder, according to Department of Corrections data analyzed by researchers at Loyola University. More than half were under 25 when convicted and about 75 percent are black. When factoring in other long sentences too, almost one in three Louisiana prison inmates will die behind bars, according to the national nonprofit The Sentencing Project.

Many places, including Southern states, make most lifers eligible for parole after 20 or 30 years. But in Louisiana "life means life." People convicted of certain crimes are automatically locked up forever, with no input from judges, juries or the state's parole board.

Opponents of Louisiana's sentencing practices cite extensive research showing people "age out" of crime, meaning their likelihood of getting rearrested decreases the older they get. LSU research published in 2013 shows extremely low — almost nonexistent — recidivism rates among former Louisiana lifers who were released on commuted sentences after decades behind bars. "Giving lifers a chance at parole is about creating a world in which people still keep a little hope," said Jamila Johnson, an attorney with the New Orleans nonprofit Promise of Justice Initiative. "That glimmer of hope changes how people interact in our criminal justice system."

Louisiana lawmakers considered major changes after pledging to pass a criminal justice reform package during the 2017 legislative session. They discussed making lifers eligible for parole after serving at least 30 years and reaching age 50, excluding those convicted of first-degree murder, which carries either death or life without parole.

But the Louisiana District Attorney's Association came out in opposition to all proposals addressing serious and violent offenses. The association, which represents the state's prosecutors, argued that releasing inmates convicted of the bloodiest crimes would pose a real threat to public safety and break promises to victims and their families. Some crimes are so heinous, and cause so much trauma, prosecutors said, that they essentially demand retributive justice.

Those negotiations in the legislature produced a series of reforms that softened sentences and changed parole requirements for minor and nonviolent crimes alone. The changes reduced Louisiana's prison population, but in doing so raised the percentage of inmates serving life sentences.

Other states and the federal government have similarly limited recent prison reform efforts to nonviolent offenses, but advocates now argue that truly addressing mass incarceration must include rethinking the American response to violent crime.

Leaders of the Louisiana Department of Corrections have also argued that keeping aging prisoners behind bars is both expensive and unnecessary, though officials failed to comment further for this story. Some have become vocal critics of Louisiana's most extreme sentencing practices, which often leave the state responsible for the medical treatment and burgeoning healthcare costs of geriatric inmates.

"Part of the challenge is getting the general public to endorse the idea of rehabilitation for violent convicted criminals," corrections department Executive Counsel Natalie LaBorde said during a seminar in Baton Rouge earlier this year. "It is not about absolving anyone of the consequences of crime. … But it is also not about making a decision based on a set moment in time and throwing away the key forever."...

Louisiana hasn't always pursued such harsh sentencing laws despite the current rhetoric surrounding crime and punishment in the Pelican State. For five decades starting in 1926, most people sentenced to life were released on parole after serving just 10 years and six months.

That started to change following the 1972 U.S. Supreme Court ruling that struck down the death penalty nationwide. Louisiana lawmakers responded to the ruling with new policies to keep former death row inmates behind bars longer, delaying parole eligibility for lifers — first to 20 years and then 40. Finally in 1979, the state legislature abolished parole for lifers entirely. 

While Louisiana stands out among other states, America itself is an outlier within the Western world for its use of both life without parole and the death penalty, according to a 2015 article in the Ohio State Law Journal. The author, a University of Mississippi law professor, also asserts a "worldwide consensus against the use of life without parole sentences."

I was not aware that extensions of prison terms in Louisiana were so directly linked to Supreme Court restrictions on the death penalty, but I suppose that story is not all that surprising and may well be a big part of the story in other jurisdictions.

December 13, 2019 at 04:02 PM | Permalink


Louisiana's life without parole policy is unsettling to say the least. In class we discussed how sentencing affects the community at large, not just the victims or their close associates; so I found the comments justifying an unwillingness to change the laws because of "promises to family members" to be ridiculous. Consistent with America's willingness to over criminalize, Louisiana turning a blind eye to statistics showing a decrease in likelihood to reoffend is not that surprising.

If the policies that are in place came as a result of the Supreme Court decision from the early 70's, then lawmakers should have responded to the decision in the late 80's. Keeping prisoners behind bars when studies show it is a waste of financial resources, time, and temper is illogical. At a minimum, serious consideration should be given to changing the laws that incarcerate second degree murderers the same as those most culpable in an offense. If the legislature wants to punish a wave of people caught up from outdated policies, they should at least change the landscape moving forward.

Posted by: Stanton Williams | Dec 13, 2019 10:42:44 PM

Mr. Williams,

Until you have seen firsthand what the conversation with victim families is like when you have to call them and tell them that the rules have changed and the person who took so much away from them might be getting out, you really have no basis to call the concept “ridiculous.” In California, because of a recent bill (SB 1437), we are beginning to have to make thousands of these calls. The pain experienced by these families over things they reasonably thought were settled is immeasurable. I have personally made these calls in numerous murder cases, your classroom experience is no substitute.

You are of course free to reject retribution as a theory of punishment, however for the most vile of offenses and offenders, human nature is not so inclined. Nor am I.

Posted by: David | Dec 14, 2019 6:54:24 PM

The answer of whether or not LWOP makes sense depends strongly on just what the person did in the first place. If they killed someone on purpose and they get LWOP, they should consider themselves lucky in the first place. Whether or not their LWOP is humane is a question that ought to be considered in relation to whether or not what they did to their victim was humane.

If they got LWOP, or effective LWOP, for a different crime, it may be reasonable to give them a hope of a chance, yes. Obviously it will depend on the case, but as a general matter, I don't see a problem.

Posted by: William C Jockusch | Dec 14, 2019 8:57:32 PM


I had experience as a prosecutor for 14 years. I came to realize that it is not really about the victims or their families. If an inmate is ready to be released, we can’t allow a “victim’s veto.” The criminal justice system is a public, not a private good. Prisoners change, and some victims are gracious enough to appreciate that. For the others, frankly, the loss to the victim is sunk — murder victims are not coming back. If they could by keeping the prisoner locked up, that would be one thing. But victims have no “property right” in continued incarceration. Pretty simple. We can’t cater to the vindictive.

Posted by: Mark | Dec 15, 2019 1:21:21 PM


I have been a career prosecutor for more than two decades. I’m not advocating a victim’s veto. I am, however, advocating for the idea that society has the right to impose punishment, not simply individual deterrence. The pain that individuals suffer is a legitimate consideration in society’s collective choice to impose such retributive punishments. I also think that because the idea of retribution is part of
our human nature, we ignore it at our peril to society’s acceptance of the legitimacy of the system.

Posted by: David | Dec 15, 2019 7:51:43 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB