Gavel and handcuffs

Louisiana Supreme Court Makes It Harder to Reduce Unjust Sentences

Citing the governor’s exclusive pardon power, the court struck down a law providing a new path for post-conviction relief.


In September, the Louisiana Supreme Court struck down a law intended to make it easier for prosecutors to seek relief for individuals serving unduly harsh sentences. 

The 2021 statute was proposed by a local district attorney’s office and passed unanimously by the state senate and house and signed into law by the governor. It allowed a district attorney and defendant to jointly enter into a post-conviction plea agreement, with the approval of the district court, “for the purpose of amending the petitioner’s conviction, sentence, or habitual offender status.” But in a 4–3 ruling, the Louisiana Supreme Court held that the law unconstitutionally usurped the governor’s pardon power. 

Since the Innocence Project opened its doors and educated the country on the prevalence of innocent men and women condemned to years of imprisonment, state legislatures around the country have crafted laws to allow post-conviction relief for the wrongfully convicted. To qualify for relief post-conviction under the U.S. Constitution, the U.S. Supreme Court made clear in Herrera v. Collins that being convicted while innocent is not sufficient. Rather, a petitioner must identify a separate constitutional deficiency with their trial or sentence. 

Louisiana, like many other states, has long had a law allowing a gateway to relief for persons claiming innocence. Essentially, the law commands that a court shall grant relief if the petitioner has shown factual innocence by clear and convincing evidence. 

While this law works to achieve relief in some innocence cases, there were many other cases where district attorneys wanted more leeway for relief — for example, from excessive sentences in weak cases that may not necessarily meet the clear and convincing standard of factual innocence. This was the intent behind the statute declared unconstitutional by the Louisiana Supreme Court in Louisiana v. Lee.  

In William Wayne Lee Jr.’s case, he and the St. Tammany Parish district attorney filed a joint motion to amend his conviction and sentence for second degree murder. The motion spelled out new evidence that would have supported Lee’s claim at trial that the victim’s fatal injuries were caused by her falling of her own accord. A medical expert had examined the victim’s brain and found lesions consistent with multiple sclerosis. Further new evidence suggested that the victim was having incidents of falling close to the time of her death. 

The parties agreed that “a fair and just resolution” would be to change the conviction from second-degree murder to manslaughter. After a hearing, the district court accepted the plea of guilty to the amended charge and resentenced Lee to 35 years of imprisonment. 

But in an unprecedented move — and one consistent with a broader trend of attacking the power of local prosecutors who seek to ameliorate excessive punishment in the justice system — the state attorney general intervened after the fact to argue that the statute unconstitutionally permitted the judicial branch to grant clemency to criminal defendants. This power, the attorney general argued, is exclusively granted to the governor in the executive branch. While arguably the attorney general lacked standing and his intervention was untimely, a majority of the Louisiana Supreme Court embraced this novel argument over a powerful dissent that pointed out that the pardon power and the post-conviction statute operate nothing like each other. 

The majority asserted that because the post-conviction statute did not explicitly require any legal grounds for the amendment of a conviction or sentence, but only the agreement of the defendant, the prosecutor, and the court, it was equivalent to the “act of grace” of a governor issuing a pardon. As such, the court reasoned, it amounted to an unconstitutional exercise of the governor’s exclusive pardon power in violation of the doctrine of separation of powers provided in the Louisiana Constitution. 

Yet as the dissent argued, as part of the agreement Lee entered into under the post-conviction statute, Lee pled guilty to a crime, waived his rights to a trial, and agreed to serve a sentence — all far from an act of grace by a governor that invalidates and erases a conviction.

The majority took pains to note that a prosecutor could always choose to join in a defendant’s motion for post-conviction relief because, after all, the prosecutor’s responsibility is as “a minister of justice and not simply that of an advocate.” Yet the intention of the statute — and what happened in Lee’s case — is precisely to allow the prosecutor to act as a minister of justice. 

With the prosecutor, the defendant and the state district court all having to agree, it goes without saying that the post-conviction statute required a showing that the interests of justice would be served by reducing or amending a person’s sentence. 

Louisiana is one of a number of states where there have been aggressive measures to curb the power of local prosecutors invoking policies and practices aimed at reducing incarceration. For many prosecutors, the question simply becomes, where is the attack going to come from? In Louisiana, it was the state attorney general who made the unprecedented decision to intervene in a post-conviction case seeking to have a statute declared unconstitutional. His position was ironic given he is also engaged in ongoing litigation to stop the governor from pardoning individuals on death row before he leaves office.

One can only hope another state court does not latch onto this weak analogy to undermine the efforts of the district attorney to do justice through traditional post-conviction plea agreements. A pure act of grace by a sitting governor it is not. 

Janet Hoeffel is the Catherine D. Pierson Professor of Law at Tulane Law School.


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