La.’s Chief Justice calls life sentence for hedge clippers cruel

10th August 2020   ·   0 Comments

By C.C. Campbell-Rock
Contributing Writer

Louisiana Supreme Court Chief Justice Bernette J. Johnson’s recent dissent in a case where a man received a life sentence for allegedly stealing hedge clippers from a homeowner’s storage room underscores the use of the habitual offender statute to disproportionately incarcerate Black people.

Johnson is the first and only African American to reach Chief Justice status on the state Supreme Court. She remains the only African American on the state’s highest court. For the first 179 years of its existence, the Court only had white justices. Johnson’s ascent to the highest position of the court in 2013, after a protracted court battle in the storied Chisom case, was heralded as a victory for the African-American community in New Orleans, which finally got the option of electing a representative of their choice.

However, Fair Wayne Bryant’s petition to the state Supreme Court for a review of his 1997 life sentence for attempted burglary and the Court’s denial to review the lower court’s life sentence of Bryant for stealing hedge clippers, put the spotlight on the cruel and unusual impact that the habitual offender statute can have on people such as Bryant, a petty thief, who was not only punished for stealing hedge clippers but he received the life sentence for being a habitual offender. Bryant was convicted of three other theft incidents, served the time, but in the case of the clippers, he drew a life sentence.

“It is cruel and unusual to impose a sentence of life in prison at hard labor for the criminal behavior which is most often caused by poverty or addiction,” Johnson wrote in her dissent. She likened the habitual offender law to the “Pig Laws” created and used post-Reconstruction to convict Black people. In reality, the laws were used to “re-enslave” Black people.

“Pig Laws were largely designed to re-enslave African Americans. They targeted actions such as stealing cattle and swine – considered stereotypical ‘negro’ behavior – by lowering the threshold for what constituted a crime and increasing the severity of its punishment.

“Pig Laws undoubtedly contributed to the expansion of the Black prison population that began in the 1870’s. These laws remained on the books of most southern states for decades. And this case demonstrates their modern manifestation: harsh habitual offender laws that permit a life sentence for a Black man convicted of property crimes. This man’s life sentence for a failed attempt to steal a set of hedge clippers is grossly out of proportion to the crime and serves no legitimate penal purpose. For the reasons cited, I would grant the defendant’s writ application,” Johnson wrote.

“One of the largest disparities even within Louisiana’s racially imbalanced prison population is in who is those serving long sentences under the habitual offender law for non-violent crimes. Seventy-eight percent of prisoners sentenced under habitual offender laws – like Mr. Bryant – for non-violent offenses are Black, compared to 32 percent of the state’s population,” said Emily Maw, a law clerk for Chief Justice Johnson, who directed Innocence Project New Orleans for 16 years before joining the Chief Justice’s staff. “It’s an extreme example but not unusual,” she added.

“Widely-acclaimed scholarship documents that southern states began using extreme sentences for crimes of petty theft and other facially ‘race neutral’ offenses that were considered stereotypical Black behavior in the years following the end of Reconstruction. These extreme sentences were a widely successful effort to re-enslave recently-emancipated Black citizens (as convict laborers) on plantations and in the burgeoning industrial centers of the Southern states. Habitual offender laws – first widely used in the 1920’s – followed easily from the tolerance of extreme sentencing that legislatures and white citizens developed during the post-Reconstruction years. Habitual offender laws were reinvigorated by legislatures and aggressively used by prosecutors as part of the 1980’s War on Drugs. It is a War that, in this region of the country, has been waged almost exclusively against Black people. Extreme criminalization of the survival behaviors of poverty and excessive punishments for violations are as old as the abolition of slavery,” Maw explained.

Although the Louisiana State Supreme Court stated that courts have the power to declare a mandatory minimum sentence excessive under Article I, Section 20 of the Louisiana Constitution, the majority of the state Supreme Court did not exercise their discretion to review Bryant’s life sentence and declare it excessive for an attempted non-violent burglary.

None of her fellow justices on the Louisiana State Supreme Court agreed to review Bryant’s case. Johnson declined to discuss why her peers declined a review but said, “Some people can rationalize things on procedural grounds and the exhaustion of procedural remedies.”

Johnson also found the cost of incarcerating Bryant to be an excessive cost to the state. Since his conviction in 1997, Louisiana taxpayers have paid $518,667 to keep Bryant behind bars. He was 38 years old when he went to prison and he is now 60. “If he lives another 20 years, taxpayers will have paid almost one million dollars to punish Mr. Bryan for his failed effort to steal a set of hedge clippers,” Johnson said in her dissent.

The ACLU of Louisiana condemned the Louisiana Supreme Court’s refusal to review Bryant’s life sentence for stealing a pair of hedge clippers. The ACLU reiterated its call for Louisiana legislators to repeal the extreme sentencing law that allows people to spend life in prison for minor offenses and called on district attorneys to stop seeking enhanced penalties under the law altogether.

“A system that condemns a man to life in prison for stealing a pair of hedge clippers is not justice,” said Alanah Odoms Hebert, ACLU of Louisiana executive director.

“The sheer cruelty and unfairness of Mr. Bryant’s sentence is enraging and inexcusable, but it is no anomaly: it is part and parcel of a system designed to perpetuate racial injustice and white supremacy. Louisiana’s so-called ‘habitual offender law’ has condemned thousands of Louisianans to life imprisonment for minor offenses – and its longevity is a prime example of how our legal system continues to oppress, brutalize and imprison Black and Brown people. Legislators have a clear choice to make when they return to session: defend these extreme and unjust sentences or stand with Fair Wayne Bryant and repeal this unjust law once and for all.”

“Importantly, even without legislative action to repeal the statute, district attorneys can stop seeking enhanced penalties under the law,” Odoms affirmed.

“A prosecutor never needs to file a habitual offender bill. It is a law at a prosecutor’s disposal, but it is never, ever compulsory. Every single extreme sentence for a non-violent offense that a court reviews was imposed by a judge because a prosecutor chose to ask for an extreme sentence. That a discretionary device has been used with such racially discriminatory effects reveals its invidious nature,” Maw concluded.

This article originally published in the August 10, 2020 print edition of The Louisiana Weekly newspaper.