Split Louisiana Supreme Court finds Louisiana’s prosecutor-led review statute unconstitutional under state law

Thanks to a helpful reader, I saw that the Louisiana Supreme Court today issued a notable ruling that finds unconstitutional, as a matter of state constitutional law, a state statute that allowed prosecutors to petition for review of past convictions and sentences.  The majority opinion in Louisiana v. Lee, No. 2022-KK-01827 (La. Sept. 8, 2023) (available here), gets started this way:

We granted the writ application in this case to address an issue of constitutionality: whether Article 930.10 of the Code of Criminal Procedure, which governs post-conviction plea agreements, violates the state constitution’s separation of powers provision, La. Const. art. II, § 2.  More specifically, the question presented is whether Article 930.10 permits the judicial branch to exercise the governor’s power under La. Const. art. IV, § 5(E) to pardon a final conviction.  We hold that because Article 930.10 permits a court to overturn a final conviction without a finding of legal defect pursuant to La. C.Cr.P. art. 930.3, the article unconstitutionally allows the judicial branch to exercise the governor’s exclusive pardon power, and, therefore violates the doctrine of separation of powers as found in La. Const. art. II, § 2.

Though I am not an expert on Louisiana law, the close of the majority opinion seems to suggest that prosecutor-supported motions for resentencing would be possible in some cases if tethered to another provision of Louisiana procedure:

[O]ur decision does not mandate that collateral review of criminal convictions be unnecessarily adversarial, nor does it serve as a bar to cooperation between parties in post-conviction proceedings to achieve the ends of justice.  Such a mandate would be inconsistent with Article 2 of the Code of Criminal Procedure, which instructs that the Code is “intended to provide for the just determination of criminal proceedings,” and the provisions “shall be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable delay.” See also State v. Shallerhorn, 2022-1385, pp. 6–7 (La. 6/27/23), --- So.3d ---.  A court’s ruling on a collateral challenge to a final conviction may follow an adversarial hearing, an unopposed presentation by the defendant, or a joint effort by both parties to convince the court that the law and evidence support vacating the conviction.

Our decision does mandate that courts overturn a final conviction only after finding a ground for relief enumerated in La. C.Cr.P. art. 930.3.  Were a court to vacate a conviction without such a finding, as is permitted by Article 930.10, it would amount to an unconstitutional exercise of the governor’s exclusive pardon power in violation of the doctrine of separation of powers as provided in La. Const. art. II, §2.

A lengthy and short dissent followed the majority opinion, and the closing passages of the long dissent by Justice Weimer speaks to some of the broader issues implicated here:

Any concern over the court usurping the pardon power by reducing a sentence is relieved by the codal requirement that the district attorney and the defense jointly agree, and by the fact that the district court judge is given the authority thereafter to determine if the joint motion will be granted.  It goes without saying that the discretion afforded to the district court will only be exercised if the facts demonstrate that justice and the interests of the society warrant the court’s decision.

The importance of La. C.Cr.P. art. 930.10 cannot be overstated. Louisiana incarcerates more citizens per capita than any state in the Union and any nation in the world. Non-unanimous juries exacerbated the problem and increased these numbers.  It is well-documented that the poor and minorities have been disproportionally impacted by the ill-conceived practices of the past.  Perhaps as a direct consequence, Louisiana experiences a significant number of exonerations of incarcerated individuals.

The post-conviction legislation at issue here was unanimously enacted by the legislature, the people’s representatives, and signed into law by the governor.  Its obvious purpose is to insure justice is done and to act as a counter balance or check on the renegade practices and prejudices of the past.  It will only afford a postconviction remedy in those matters in which an individual is proven to be not guilty of the crime charged and is designed to right wrongs in certain specific cases.  The legislature was obviously concerned about past practices and the ineffectiveness of the poorly developed post-conviction relief procedures.  Carried to its logical conclusion, the attorney general’s effort could have the disastrous effect of undermining, and further limiting, the post-conviction relief procedure that has operated to correct the evils of the past.  Finality for finality’s sake is an important concept, but our system of justice and our sense of fairness recoil at the thought that an innocent person remains punished for a crime not committed.

The multi-step process established by Article 930.10 is replete with checks and balances, requiring opposing sides to agree.  Just as the governor is granted authority to commute sentences, the district attorney is charged with prosecuting cases and the courts are charged with deciding cases properly brought.  The attorney general is seeking to strip the district attorney and judiciary of authority to resolve injustice on a case-by-case basis.  The decision of the district attorney and defendant to bring this case to the court is not commutation from a constitutional standpoint, which is wholly within the authority of the governor, but the resolution of a case that was carefully reviewed by the district attorney.  After that careful review here, the district attorney obviously determined that it was not in society’s best interest to spend untold resources in trying this matter. Rather, exercising the prudence and discretion afforded to his office, the district attorney determined the additional facts presented by defendant here dictated the agreed-upon resolution, which the district court evaluated and granted, promoting judicial economy and saving other valuable public resources.  That is not a commutation by the governor but the resolution of a case.  Such an interpretation of Article 930.10 is reasonable and does not result in a violation of separation of powers. See LeCompte, 406 So.2d at 1311 (on reh’g).  Accordingly, I respectfully dissent from the majority’s reversal of the district court’s June 15, 2002 ruling, as I believe that La. C.Cr.P. art. 930.10 is not facially unconstitutional and is, in fact, constitutional, as applied in this case.