Louisiana courts have held for decades that state convicts can’t challenge their sentences as excessive once they’ve appealed a conviction and lost.

The Legislature in 1980 laid out specific grounds to file such “post-conviction” claims — new DNA evidence is now a common one — and didn’t include a review of sentencing errors, the state’s highest court would reason 16 years later.

But last week, the Louisiana Supreme Court dealt that stance a constitutional blow, as it granted a new hearing to an Abbeville man now serving life in prison as a habitual offender over a $30 marijuana sale.

In the case of Derek Harris, a Desert Storm veteran who got addicted to drugs after returning home from the war, the issue was whether his attorney failed him by not stopping the judge who said his hands were tied as he handed Harris his terminal sentence.

The Louisiana Supreme Court has found that judges can and must deviate below a mandatory minimum sentence in a case if they determine it “shocks the conscience.”

Harris had offered up .69 grams of the drug to an undercover agent who knocked on his door in 2008.

Four years later, 15th Judicial District Judge Durwood Conque found him guilty of marijuana distribution and said at Harris’ initial sentencing that he didn’t think a 30-year maximum sentence was warranted; he opted for 15 years instead.

But after Vermilion Parish prosecutors invoked the state’s habitual-offender law, Conque sentenced Harris to life, saying he had no choice under the law.

It was then that his lawyer should have told the judge otherwise, argued Cormac Boyle, Harris’ attorney with the Promise of Justice Initiative, at a hearing before the high court at Tulane University in January.

Harris’ prior convictions dated back to a 1991 conviction for dealing cocaine, according to court filings. He was later convicted of simple robbery in 1992 and 1993, simple burglary in 1997, theft under $500 in 2005 and distribution of marijuana.

Retired Judge James Boddie, sitting ad hoc as a justice, wrote that Harris’ sentencing warranted an exception to a rule laid out by the court in 1996, and repeatedly cited since, that found state law provided no basis for “review of claims of excessiveness or other sentencing error post-conviction.”

His lawyer’s “failure to object to the sentence or file a motion to reconsider at the habitual offender proceedings deprived (Harris) of an important judicial determination by the trial court,” Boddie wrote, “and also failed to correct any inaccurate assumptions concerning the law and the court’s capacity to deviate downward if warranted.”

All but one justice – Will Crain – agreed last week that it would violate Harris’ right to due process not to grant him a proper hearing before a district court judge on his claim. But three justices said labeling Harris an “exception” undersold the court’s decision.

Justice Scott Crichton, in a concurring opinion joined by Chief Justice Bernette Johnson and Justice James Genovese, wrote that the court was rightly overturning its 1996 ruling, which he called “egregiously wrong when it was decided.

“The consequences of it have been significant and negative,” Crichton added, “leaving defendants like this one with no real remedy for the denial of the Sixth Amendment right to effective representation during sentencing, a critical stage of the proceedings.”

Crichton also panned an argument raised by the Louisiana District Attorneys Association, that granting Harris a new hearing would open the floodgates to thousands of new challenges to sentences handed down long ago.

“The State has been unable to explain why the legislature would have decided that the Sixth Amendment somehow matters less during sentencing than it does during trial,” Crichton wrote.

He downplayed the potential impact of a change, citing the views of a few conservative justices on the U.S. Supreme Court recently in a different Louisiana case, when they outlawed non-unanimous jury verdicts.

Crain, the lone dissenter, objected to what he described as the court “creating an additional basis for post-conviction relief” under the state law. The court could review the constitutionality of Harris’ sentence without touching the state law, “and leave any needed amendments … to the legislature,” Crain wrote.

Harris’ attorneys described it as a “landmark” decision.

“The opinion rightly recognizes that the Louisiana courts made a mistake in foreclosing from review an entire class of important constitutional claims, and that there must be an opportunity for a person to challenge their unconstitutional sentence in state post-conviction,” Boyle said.

Kristin Wenstrom, an attorney who argued for Harris on behalf of the state public defender board, said the message to the Legislature was clear.

“The Louisiana Supreme Court did the right thing for Mr. Harris and others like him who are serving unconstitutional sentences,” she said.

“What’s left now is for the Legislature to bring the relevant statute in line with the court’s ruling; we hope they will do that in the next session.”

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