In Nation’s Incarceration Capital, a New D.A. Is Freeing People From Prison

New Orleans DA Jason Williams is making changes to remedy excessive sentencing, obstacles to parole, and convictions made by nonunanimous juries.

Katie Jane Fernelius   |    April 21, 2021

New Orleans District Attorney Jason Williams speaking at a press conference. (Facebook)|New Orleans District Attorney Jason Williams speaking at a press conference. (Facebook)

This article originally appeared on The Appeal, which hosted The Political Report project.

New Orleans DA Jason Williams is making changes to remedy excessive sentencing, obstacles to parole, and convictions made by nonunanimous juries.

In recent years, prosecutors on a mission to challenge mass incarceration have been using their power to keep people out of prison, but now they’re beginning to turn their attention to those who are already locked up. Few have pursued this as promptly and publicly as Jason Williams, the new district attorney of New Orleans, who may be setting the bar for DAs nationwide. And this focus could be transformative in New Orleans, the largest city in a state known as the nation’s incarceration capital.

Since he entered office in January, Williams has rolled out sweeping changes. He has granted new trials to nearly two dozen people convicted by split juries, announced he would no longer oppose parole applications, dropped his predecessor’s efforts to maintain life without parole sentences for people convicted when they were minors, and moved to secure the release of multiple wrongfully convicted people.

“There are innocent people in jail,” said Williams, who was elected in 2020 on a progressive platform. “There are people in jail for sentences that are far longer than they should be. … There are people who got convicted without a fair trial.”

This retrospective approach to addressing injustice is taking shape beyond Louisiana too; prosecutors like George Gascón in Los Angeles County and Marilyn Mosby in Baltimore have established resentencing units that have reviewed lengthy sentences and released those serving them. 

This is a big departure from what has been the norm for decades. The traditional focal point of conviction integrity units has been innocence claims. But the post-conviction reviews that are springing up, in certain places thanks to legislative changes in state law, are taking a broader look at redressing excessive sentencing and other drivers of mass incarceration. 

“[Prosecutors] can have an enormous impact for post-conviction review because it’s not limited to people who are factually innocent,” said Lara Bazelon, a law professor and the director of the criminal juvenile justice and racial justice clinical programs at the University of San Francisco School of Law. “They can work backward and try to rectify really draconian sentences, and I feel like Orleans Parish is kind of ground zero for that.”

Williams has also taken steps to prevent people from going to jail in the first place by directing his staff not to prosecute for possession of personal amounts of most drugs.

One driver of mass incarceration in Louisiana is the “multiple-bill” statute, an “habitual offender” sentence enhancement. The statute enables prosecutors to use prior convictions as leverage to force longer sentences.

While campaigning last year, Williams pledged never to use the multi-bill statute. That commitment has expanded as his office now also reviews multi-bill cases handled by previous DAs. In Louisiana, nearly 40 percent of those imprisoned are serving maximum sentences that exceed 20 years.

“The fact that they are looking at these cases is really unprecedented,” said Norris Henderson, founder and executive director of VOTE, an organization of formerly incarcerated people who work to end mass incarceration. “The ‘long-timers’ are there [in prison] because they got these habitual sentences … And what we found out during our research was that it wasn’t really but three or four parishes using the multi-bill exclusively, [including] Orleans Parish.”

Emily Maw, the Civil Rights Division chief under Williams, estimates that nearly 700 people are in prison from Orleans Parish because of excessive sentences imposed by  prosecutors who used the multi-bill statute. 

In her first weeks on the job, Maw joined with a group of defense attorneys to motion for a “negotiated settlement” in court which enabled Herbert Estes, a New Orleans man with leukemia, to be released from prison. Estes had been serving a life without parole sentence after former DA Harry Connick Sr. used the multi-bill statute to compel the sentence. This month, the office supported the release of Guy Frank, who received a multi-bill sentence during Connick’s tenure and was in prison for 20 years for stealing two shirts.

“We know that Orleans Parish is mass producing often-inaccurate convictions and certainly excessive sentences,” Maw said. “We have to try to remedy those cases by category, because there’s just so many of them—more so than any other district attorney’s office in the country.”

Maw, a former director of the Innocence Project New Orleans, which advocated for Frank’s release, says that in addition to tackling multi-bill cases, her division is identifying who is in prison because of nonunanimous juries. 

In Louisiana, nonunanimous, or split, jury convictions were written into the state constitution in 1898 as a defense by white lawmakers eager to quell the influence of Black jurors. This law disadvantaged Black people, according to The New Orleans Advocate, by acting “as a capstone to trial system that becomes more titled against black defendants at each stage: when jurors are summoned, when they’re picked for juries, and in deliberation rooms, where voices of dissent can be ignored.” 

According to Maw, approximately 340 New Orleanians are in state prison based on a conviction by a split jury.

The Supreme Court ruled in 2020 that guilty verdicts for criminal trials must be unanimous. The Court’s decision in Ramos vs. Louisiana affected cases still in the appeals process, but doesn’t apply to old cases. However, Williams’s office has decided to waive objections to new trials for those convicted by split juries even if those cases are no longer pending appeal. Already, two dozen new trials are underway.

Ben Cohen, one of the lawyers who led the Ramos lawsuit, now serves as chief of the Appeals Division under Williams.  

“Our job is to do justice, not to defend convictions or secure convictions,” Cohen said. “We would be avoiding our legal and moral responsibility if we didn’t look backward, and we only looked forward.”

There are numerous ways to do that, Cohen told the Appeal: Political Report. Prosecutors have the discretion to permit opportunities for commutations, clemency, or parole. These can be avenues to remedy cases where the factors working against defendants aren’t as cut and dry. “[Nonunanimous juries and the habitual offender statute] are the most obvious catalysts for injustice, but they are not the only ones,” Cohen said. He noted that shoddy police work, speedy courtroom trials, and broader conditions of poverty have also stacked the deck against people accused of crimes.

Cohen added that the office will no longer use procedural barriers to slow down appeals or motions for post-conviction relief. This is part of a broader policy of the office to stop creating obstacles to release by default.

“One of the first policies that [Williams’s office] produced was that they were no longer going to send [prosecutors] to parole hearings and contest everything,” Henderson said. “That was the first thing that gave me an indicator that promises made were going to be promises kept.”

Williams announced in January that his office would no longer oppose any parole or pardon application. This is a major departure from his predecessor’s policy of routinely opposing applications.

Williams’s office has also withdrawn his predecessor’s bids to maintain life without parole sentences for people convicted as children, enabling them to apply for parole. 

In 2012 and 2016, the Supreme Court ended mandatory juvenile life without parole sentences, and applied this ruling retroactively. In response, Louisiana made people sentenced while minors automatically eligible for parole unless DAs filed notices in court objecting to this. Williams’s predecessor Leon Cannizaro was doing just that in many cases. But Williams’s decision to withdraw those motions means that a dozen people will now be newly eligible to apply for parole.

Throughout the state, approximately 300 people are serving life without parole sentences for crimes that they committed while children. 

“I know all 300 of them,” Henderson said. “Other people just see something abstract. But I see an individual who I know personally who is serving life without parole because he was a kid. … To see, one day, there’s no hope of you ever getting out of prison, and the next day you’re walking out the gate—that speaks volumes.”

Besides expanding the scope of post-conviction review, Williams’s office is still intent on rooting out wrongful convictions and freeing innocent people. In March, prosecutors worked with Bazelon to secure the release of one of her clients, Yutico Briley, who was serving a 60-year sentence for an armed robbery he didn’t commit.

Bazelon said the weighty sentence was handed down in a process that “probably lasted five minutes. It took less than five minutes to just throw him away. And I don’t think people understand that that is routine.”

Williams and his team have faced obstacles to their efforts: Not only is the new approach a vast culture change for many of the staff, but the processes for post-conviction review also have to be developed in an office with limited capacities and poor paperwork. 

“This is extremely painstaking and difficult work,” Williams told the Political Report. “Our file clerks literally had to find these records that are all over the place and not in good working order. … They’re not well organized. They’re not electronically available. So, this review involves moving boxes in and out of the office.”

Williams hopes that all of these changes will improve the reputation of the office and encourage community members to want to work with prosecutors when they experience crime.

“We are repairing that breach of trust with our community,” said Williams. “I believe that we will find more robust participation in the process going forward in terms of new and existing cases if we can show that we are willing to do the hard work of confronting the sins of past administrations.”