Resentencing in the Interest of Justice: A Legislative Proposal to Aid in Reducing Mass Incarceration in Louisiana

by Meredith M. Booker

Injecting rehabilitation into the criminal legal system

When a prosecutor is elected on a platform of reducing mass incarceration and enacting rehabilitative policies, that prosecutor not only has an obligation to honor those policy promises, but also has a moral imperative to correct past prosecutorial wrongs and excessive sentences. As the movement to address mass incarceration proliferates across the United States, prosecutors, like recently elected Orleans Parish District Attorney Jason Williams, can and should utilize their power, not only to prospectively reduce incarceration through charging, bail, and plea-bargaining decisions, but also to rectify the harsh and punitive acts of past prosecutors. This Article focuses, specifically, on how prosecutors have contributed to mass incarceration and how they can use their political power to start to undue that damage.

Louisiana has the highest incarceration rate per capita of any state in the country and, in fact, a higher incarceration rate than any other country in the world. Further, Orleans Parish has previously held the title of the “the largest jail system in the country.” While the Orleans Parish jail population has decreased since its peak pre-Hurricane Katrina, it “remains at nearly double the national average.” In 2019, the New Orleans jail has an average daily population of 1,153 incarcerated people and the jail admits approximately 17,400 people each year. A person who is simply arrested and booked into jail can experience lasting societal consequences, including loss of employment and housing, even if their charge is ultimately dropped. If that person is convicted and incarcerated, the collateral consequences are significant. Then, once a person’s sentence is completed and all required fines and fees are paid, the mark of a conviction can still impact a person’s “basic rights of membership in society,” including the ability to vote, access government and housing assistance, keep their family together and, retain a job.

As the incarceration capital of the world, prosecutors in Louisiana, and particularly in New Orleans, have a unique opportunity and moral imperative to reduce mass incarceration by pursuing innovative avenues. This Article will describe one way Louisiana DAs can utilize their position to reduce mass incarceration by advocating for new legislation to expand resentencing. Part I will describe the historical role of prosecutors in fueling mass incarceration by perpetuating racial disparities in the criminal legal system. Part II explains how district attorneys can advocate for legislation expanding the grounds for resentencing motions in Louisiana, modeled after a Washington state law. Part III addresses how the judicial value of finality should not overshadow rehabilitation, a stated goal of the criminal legal system. Finally, it will take collective action for any statewide, lasting change to occur and succeed. 

Mass incarceration and prosecutorial discretion

On any given day, 2.3 million individuals are incarcerated in the United States – a nearly 500 percent increase from forty years ago. Put another way, nearly one in one hundred people in this country are behind bars. In the global context, “the United States has only 5 percent of the world's population, [but] it has nearly 25 percent of its prisoners.” One of the drivers of this exponential increase in incarceration, commonly referred to as mass incarceration, include vast prosecutorial discretion. District attorneys have immense power and discretion in deciding who to prosecute and on what charges. In fact, “they alone determine whom, when, and how they shall prosecute and may dismiss an indictment or a count in an indictment at their discretion.”  In Louisiana, the district attorney “has entire charge and control of every criminal prosecution instituted or pending in his district, and determines whom, when, and how he shall prosecute.” Although these powers are traditionally exercised by prosecutors early in the criminal legal process—when deciding what to charge, whether to argue for bail, and whether to engage in plea bargains—they can also be used after a trial has concluded in post-conviction proceedings. However, this rarely happens in practice, despite a district attorney’s “ethical duty to serve justice after convictions are complete.” Because “prosecutors have more discretion and less supervision” in post-conviction decision making, prosecutors retain power over the defendant but often rarely use it for the defendant’s benefit, or use it punitively to oppose relief efforts. 

Individual case-specific decisions by district attorneys occur in the context of a criminal legal system defined by white supremacy. Mass incarceration and the current criminal legal system continue to reflect the history of slavery and its racist ideological origins. Specifically, the Thirteenth Amendment abolished slavery “except as punishment for a crime.” With this language, the Thirteenth Amendment explicitly allowed for the “re-creation of slavery within the prison walls.” Nowhere is this more apparent than at Louisiana State Penitentiary, located in West Feliciana Parish and known as “Angola.” Angola is the largest maximum security prison in the Unites States, housing nearly 5,500 incarcerated people, three-fourths of whom are Black and most of whom are serving a life sentence without the possibility of parole. The prison was once a slave plantation, also called Angola, “reportedly because the best slaves came from that African country.” Presently, those incarcerated at Angola still work the nearly 3,000 acres of land, farming wheat, corn, soybeans, and cotton for a maximum wage of forty cents an hour. These crops are then sold by prison officials. 

After the Thirteenth Amendment passed, states began to incarcerate and confine Black people for minor violations known as “Black codes,” which came with heavy fines that, once charged with a violation, Black Americans were unable to pay. Then, they would be confined to prisons to work off their debt through convict leasing, “a system in which Southern states leased prisoners to private railways, mines, and large plantations.” Further, “[w]hile states profited, prisoners earned no pay and faced inhumane, dangerous, and often deadly work conditions.” The formal convict leasing system ended in the late 1930s and states replaced it with Jim Crow segregation laws. This, in addition to the codification of “separate but equal” policies, again resulted in the increased incarceration and societal subjugation of Black Americans. Following Jim Crow, the punitive era of the War on Drugs and “tough on crime” politics propelled mass incarceration from the late 1970’s until 2010. Today, racial disparities persist throughout every step of the criminal legal system, including in arrests, searches, decisions to charge kids as adults, plea deals, convictions, lengths of sentences, the imposition of the death penalty, and release decisions.

Louisiana is arguably the prime example of racial disparities in the criminal legal system. The total number of people imprisoned in Louisiana between 1983 and 2015 increased by 152 percent. Additionally, “the Black incarceration rate has increased 201 percent” between 1978 and 2017. Further, although Black Louisianans make up thirty-three percent of the state’s population, they make up sixty-seven percent of the prison population. In contrast, white people make up sixty percent of Louisiana’s population and thirty-three percent of the state prison population. Halfway through 2021, nearly 27,000 Louisianans were serving a prison sentence, and approximately half were incarcerated in local jails due to a lack of space in prison facilities. Of those incarcerated, about forty percent were incarcerated for a non-violent crimes as their most serious offense.

The prosecutor’s role in perpetuating racial disparities and driving mass incarceration has largely escaped public scrutiny. By the 1970s the overwhelming majority of local DAs were elected government officials who began hiring an increasing number of line prosecutors. These offices wielded their expansive discretion in charging and advocating for draconian sentences. More recently, “the role of prosecutors has received increasing attention,” and with that increased attention, more prosecutors across the country are shifting away from the tough on crime platform and are elected on the platform of “reforming their local criminal legal systems.” Specifically, these prosecutors “are implementing a new model of prosecution—one that seeks to reduce the use of incarceration, eliminate racial disparities, and provide second chances.” While prosecutors actively seeking reductions in prison sentences and reviewing past cases with an eye toward decarceration remain rare because of the incentives “against taking action that benefits convicted defendants,” innovative lawyering should allow Louisiana prosecutors to contribute to reducing mass incarceration while keeping their communities safe. 

In Orleans Parish, prosecutors have played a central role in making the parish not only a nationwide leader in incarceration, but also a leader in wrongful convictions. “Louisiana has one of the highest rates of proven wrongful convictions in the nation; each one a painful injustice to the victim of the crime and the wrongly accused.” In 2018, “[o]f the 52 Louisiana exonerations listed in the National Registry of Exonerations, 75 percent involved official misconduct.” Further, the Orleans Parish DA’s office has been plagued with allegations of prosecutorial misconduct for at least the last thirty years. For example, in 2011, “the Orleans Parish district attorney’s office [had to] explain itself before the United States Supreme Court” for the third time in sixteen years regarding constitutional violations for “the failure to turn over crucial evidence to the defense.” Both Harry F. Connick, who served as district attorney from 1974 to 2003, and Leon Cannizzaro, who served from 2008 to 2020, were widely criticized and faced numerous lawsuits for misconduct, mistakes, and “dubious tactics.” Given the prosecutorial history of Orleans Parish and the duty of the DA’s office to do justice, the current district attorney is in the unique position of being able to correct past injustices and help the community heal. 

A bill to allow resentencing in the interest of justice

In conjunction with their role of prosecuting individual defendants, prosecutors can support structural, long-term changes to help facilitate decarceration in a variety of ways. Louisiana district attorneys can urge the Legislature to pass a bill expanding the scope of resentencing motions, namely, to allow them on the grounds that the sentence no longer serves the interest of justice. This legislation could structurally move the Orleans Parish toward a more rehabilitative and effective approach to public safety and can serve as an example for other district attorney’s offices across Louisiana. A new statute could provide prosecutors more flexibility in facilitating resentencing, just as it did when Washington State adopted it in 2020. Journalist Jamelle Bouie once wrote: “[o]ur courts and juries aren't impartial arbiters—they exist inside society, not outside of it—and they can only provide as much justice as society is willing to give.” This sentiment propelled Washington State to pass legislation encouraging prosecutors in the state to rethink sentencing decisions and review past harsh sentences and Louisiana should follow. 

In a statewide effort to encourage prosecutors to seek resentencing, the Washington State Legislature passed a statute in March 2020 to allow prosecutors “to petition a court to resentence felony convictions when it would serve the interest of justice.” The Washington State bill, known as SB 6164, was introduced into the legislature on January 8, 2020, passed unanimously in the House on March 3, unanimously in the Senate on March 10, and was signed into law by the governor on March 27. For the preceding thirteen years prior to the bill’s passage, the King County prosecutor’s office was informally reviewing old cases to determine if the sentence was consistent with current principles of justice. Following the passage of the bill, Dan Satterberg, the King County prosecutor, announced the creation of their formal sentencing review unit. Since the law passed and King County created a sentencing review unit, other prosecutors in the state have begun to rethink overly punitive and life sentences. 

In general, criminal sentences are “not appealable,” but defendants can appeal legal errors and collaterally attack their judgments within a certain time period after the conviction, and the court could only modify the sentence when these attacks were successful. However, under SB 6164, “[a] county prosecuting attorney may petition the sentencing court to resentence an offender if the original sentence no longer advances the interests of justice.” Under this approach, the court treats the defendant as if they had been convicted, but not sentenced, and provides a new sentence with credit for time served that is “no greater than the initial sentence.” Additionally, the court can consider “postconviction factors” including the defendant’s behavior and activities while incarcerated, “whether age, time served, and diminished physical condition, if any, have reduced the [defendant’s] risk for future violence[,] and evidence that reflects changed circumstances since the original sentencing such that the [defendant’s] continued incarceration no longer serves the interests of justice.” Furthermore, “the court must provide an opportunity for victims and survivors of victims of any crimes for which the offender has been convicted to present a statement personally or by representation.”

Although the criminal legal systems in Washington State and Louisiana differ, they both lacked explicit statutory authority for allowing prosecutors to review sentences post-conviction prior to Washington’s passage of SB 6164. In Louisiana, a similar approach could be enacted by adding a new provision to Louisiana Code of Criminal Procedure Art. 881, permitting resentencing in the interest of justice, which the current statute does not allow. Although courts can review whether a sentence is constitutionally excessive on the grounds that “it shocks the sense of justice,” which is a significantly high bar, making relief rarely achievable absent a truly egregious constitutional error. The standard under the Washington law is significantly lower and allows for the consideration of multiple factors, giving the courts the flexibility to assess a defendants current circumstances rather than being confined to constitutional errors that may have occurred when the defendant was initially sentenced. The new Louisiana statute should be modeled after the Washington State statute, creating a new mechanism for prosecutors to revisit sentences that are, under current societal standards, overly harsh and punitive. This statute, like the Washington law, would not mandate any action by any party or proactively direct any prosecutor to review past convictions, it simply affords the prosecutor the opportunity to do so. At the same time, the law properly balances the interests of public safety and the survivors and victims’ interest in being heard by having an individualized sentencing hearing in open court. Armed with a sound legislative proposal and the Washington state case study, Louisiana district attorneys can urge the Legislature to pass the proposal into law. 

Washington State Senator Manka Dhingra, who sponsored the bill, stated that prosecutors “have a responsibility to do justice, not simply get convictions, not simply send individuals to prison, but to do justice—for the victims, for the community, and yes, also for the defendant.” With this legislation now enacted in Washington, prosecutors can more fully fulfill that responsibility and, in Louisiana, prosecutors could do the same by supporting legislation to allow for resentencing in the interest of justice.  

Addressing finality

Underlying this legislative proposal is the belief that our criminal legal system should be more concerned with the development of facts, rehabilitation for offenders, and justice for communities, rather than notions of preserving finality in criminal prosecutions. Because finality is a core principle in our criminal legal system, this proposal may be easy to dismiss. However, the fundamental principles of justice, fairness, and equal treatment under the law should allow prosecutors to retroactively review cases to correct identified errors or advocate for changes in sentences. 

Taken literally, in criminal cases, “finality is normally defined by the imposition of the sentence” or at the conclusion of direct appeals where a court’s “final decision. . . ends the litigation on the merits.” As a policy matter, once a trial court’s verdict is final, the law prefers to maintain that verdict by eliminating the presumption of innocence upon conviction. Justice Harlan, Former Associate Justice of the Supreme Court, once said that it is “a matter of fundamental import that there be a visible end to the litigable aspect of the criminal process. Finality in the criminal law is an end which must always be kept in plain view.” The Louisiana Supreme Court has adopted this view. This judicial preference for finality ensures that “the jury's role [is not] undermined, the criminal justice system [does not] lose efficiency, and victims and society [maintain] closure.” Further, “[b]ecause of interests in finality, there is an intentional thumb on the post-conviction scale of justice. The thumb weighs in favor of maintaining a conviction.” This creates perverse incentives for prosecutors to stand-by potentially unfair or unjust sentences.

The legislative proposal outlined in this Article balances the judicial value of finality against community support and healing, racial justice, and the individual liberty to be free from confinement. Under this proposal, finality does not serve as the countervailing interest that ensures someone remains sentenced to incarceration. In fact, taking finality to its extreme and never allowing review of final judgements creates perverse incentives for prosecutors to obtain convictions quickly and with little fact-finding beyond what is necessary for conviction. Rather, prosecutors should be constantly searching for truth and justice and engaging in ethical practices. Systemically, finality is only appropriate when a conviction or punishment is fair. However, numerous factors that influence the fairness of the criminal legal system, such as historical racial discrimination, individual bias, and proximity or access to power. This calls into question whether any given proceeding can be truly fair and immune from a retroactive review. To the contrary, it is equitable and ethical to recognize that the criminal legal system does not always get it right the first time and subsequent review may be warranted and necessary in the interest of justice. 

In addition, for individual cases, if accepting that the guilt of the defendant is final, it does not necessarily follow that the sentence should remain final. In instances where a long prison sentence has been imposed or where the Louisiana Legislature has subsequently reduced the severity of the sentence, DA’s and judges alike should feel empowered to reduce the prison sentence and either release the defendant or impose alternatives to incarceration that truly foster rehabilitation and a successful transition back into society. Further, as previously stated, where information comes to light that casts doubt on the guilt of a defendant, ensuring the accuracy of the conviction should never give way to finality. Ultimately, although Louisiana has an interest in “securing the finality of their judgments, finality is not a stand-alone value that trumps a State's overriding interest in ensuring that justice is done in its courts and secured to its citizens.” Because DA’s are charged by the state to do justice, and not to incarcerate, justice should include advocating for defendants to be released where prison does not serve the interests of justice.

Conclusion

Justice Stevens once opined that “[f]ew people in the criminal justice system are as powerful, or as central to prison growth, as the prosecutor.” On the other hand, prosecutors have the power and a moral imperative to learn from the past and reverse the prison growth that they contributed to. This Article outlines just one proposal that Louisiana district attorneys can take in order to live up to their duty to do justice. Specifically, they can urge the Louisiana Legislature to statutorily expand the scope of motions to resentence, like the Washington state legislature did, in order to use them when a sentence is no longer in the interest of justice. 

As Justice Anthony Kennedy wrote “[t]he nature of injustice is that we may not always see it in our own times.” In the case of mass incarceration, the injustice is laid bare in our own times, and prosecutors, not just in New Orleans, can rectify it through their post-conviction power and by advocating for structural reform. The judicial value of finality should not stand in the way of learning lessons from past practices, making up for past racial discrimination, and healing communities that have been torn apart by mass incarceration. Since January 2021, the Orleans Parish District Attorney’s office has begun to undergo a structural shift toward reform. Although this work has already begun, there are still many avenues that the office can use to reverse the damage that mass incarceration has inflicted and begin to heal the New Orleans community, one case at a time. 

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[1] This Article uses “District Attorney” and “Prosecutors” interchangeably.

[2] E. Ann Carson, Prisoners in 2020 – Statistical Tables, U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics, 15 (Dec. 2021), https://bjs.ojp.gov/content/pub/pdf/p20st.pdf.

[3] Peter Wagner and Wendy Sawyer, States of incarceration: The global context 2018, Prison Policy Initiative (June 2018), https://www.prisonpolicy.org/global/2018.html#methodology (concluding that Louisiana’s incarceration rate, which is higher than the U.S. average, ranks above all founding NATO countries). To address this, the state of Louisiana enacted numerous reforms in 2017 intended to decrease the state’s incarceration rate. Unfortunately, those efforts have not yet substantially decreased the state’s incarcerated population, and Louisiana remains the nation’s leader in incarceration. WDSU Digital Team, Despite reforms, Louisiana’s incarceration rate leads the nation, WDSU News (Oct. 26, 2020), https://www.wdsu.com/article/despite-reforms-louisianas-incarceration-rate-leads-the-nation/34467334#.

[4] Peter Wagner, Benjamin Greenberg, and Aleks Kajstura, Orleans Parish Prison in National Context, Prison Policy Initiative (Nov. 30, 2005), https://www.prisonpolicy.org/articles/opp.html#table1.

[5] Rose Wilson et al., New Orleans: Who is in Jail and Why?, Vera Institute of Justice (Aug. 2016), https://www.vera.org/publications/new-orleans-jail-population-quarterly-report.

[6] Average daily number of inmates in the Orleans Parish Prison, ResultsNOLA, https://datadriven.nola.gov/results/measures/current/10-6/ (last visited Apr. 23, 2021).

[7] According to a 2018 CJ-9A Form from the Orleans Parish Sheriffs Office, the jail admitted 13.357 males and 4,068 females into their facility. Jails and prisons file CJ-9A forms to the Department of Justice’s Bureau of Justice Statistics when a death occurs in their facility. The form also asks for other general information about the correctional institution. Department of Justice Bureau of Justice Statistics, OMB No. 1121-0094, Mortality in Correctional Institutions 2018 – Annual Summary on Inmates Under Jail Jurisdiction (2018), https://www.incarcerationtransparency.org/wp-content/uploads/2020/03/Death-Reports-2018.pdf.

[8] Gary Fields & John R. Emshwiller, As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime, Wall Street Journal (Aug. 18, 2014), https://www.wsj.com/articles/as-arrest-records-rise-americans-find-consequences-can-last-a-lifetime-1408415402.

[9] Louisiana Justice Coalition, Now and Later: The Short and Long-Term Consequences of a Louisiana Conviction 2 (2010), https://www.opdla.org/attachments/article/104/CollateralConsequencesClientGuide_English.10.pdf.

[10] Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Policy Initiative (Mar. 24, 2020), https://www.prisonpolicy.org/reports/pie2020.html; United States Still Has Highest Incarceration Rate in the World, Equal Justice Initiative (Apr. 26, 2019), https://eji.org/news/united-states-still-has-highest-incarceration-rate-world/; see also Criminal Justice Facts, The Sentencing Project, https://www.sentencingproject.org/criminal-justice-facts/ (last visited Apr. 23, 2021).

[11] Peter Wagner & Wanda Bertram, “What percent of the U.S. is incarcerated?” (And other ways to measure mass incarceration), Prison Policy Initiative (Jan. 16, 2020), https://www.prisonpolicy.org/blog/2020/01/16/percent-incarcerated/.

[12] Lorna Collier, Incarceration Nation, Am. Psych. Ass’n (Oct. 2014), https://www.apa.org/monitor/2014/10/incarceration.

[13] German Lopez, Why you can’t blame mass incarceration on the war on drugs, Vox (May 30, 2017), https://www.vox.com/policy-and-politics/2017/5/30/15591700/mass-incarceration-john-pfaff-locked-in; Eli Hager & Bill Keller, Everything You Think You Know About Mass Incarceration Is Wrong, The Marshall Project (Feb. 9, 2017), https://www.themarshallproject.org/2017/02/09/everything-you-think-you-know-about-mass-incarceration-is-wrong; Nazgol Ghandnoosh, Can we wait 60 years to cut the prison population in half?, The Sentencing Project (Jan. 22, 2021), https://www.sentencingproject.org/publications/can-we-wait-60-years-to-cut-the-prison-population-in-half/.

[14] State v. Reimonenq, 2019-0367, p. 4 (La. 10/22/19); 286 So. 3d 412, 415.

[15] La. Code Crim. Proc. Ann. art. 61 (2022).

[16] Fred C. Zacharias, The Role of Prosecutors in Serving Justice after Convictions, 58 Vand. L. Rev. 171, 173 (2005).

[17] Laurie L. Levenson, The problem with cynical prosecutor’s syndrome: Rethinking a prosecutor’s role in post-conviction cases, 20 Berkeley J. Crim. L. 335, 367-68 (2015) (“[prosecutors] have the discretion to determine whether to provide discovery of any or all of the prosecution files to a petitioner seeking post-conviction release. They have discretion to file an opposition to a petition for habeas corpus. They have discretion to determine whether to oppose requests for evidentiary hearings. They have discretion to decide how much pressure they will put on recanting witnesses to stick with their original testimony. They have the discretion to decide whether they will throw the full resources of their office into opposing a petitioner’s claim for relief.”); see generally Zacharias, supra note 16.

[18] Andrea C. Armstrong, Slavery Revisited in Penal Plantation Labor, 35 Seattle U. L. Rev. 869, 870 (2012) (citing Angela Y. Davis, Are Prisons Obsolete? 22-39 (2003)).

[19] Anat Rubin, Tim Golden & Richard A. Webster, Inside the U.S.’s Largest Maximum-Security Prison, COVID-19 Raged. Outside, Officials Called Their Fight a Success., ProPublica (Jun. 24, 2020), https://www.propublica.org/article/inside-the-uss-largest-maximum-security-prison-covid-19-raged.

[20] Armstrong, supra note 18, at 870 (citing Dennis Shere, Cain’s Redemption 41 (2005)).

[21] Our Crops, Prison Enterprises, https://www.prisonenterprises.org/crops/ (last visited Feb. 13, 2022); La. Rev. Stat Ann. § 15:873 (2022).

[22] Id.

[23] Armstrong, supra note 18, at 876; see also Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness 156-7 (rev. ed. 2012).

[24] Convict Leasing, Equal Justice Initiative (Nov. 1, 2013), https://eji.org/news/history-racial-injustice-convict-leasing/.

[25] Id.

[26] Lopez, supra note 13.

[27] See Bill Quigley, None Dare Call It Justice: Eighteen Examples of Racism in Criminal Legal System, CounterPunch (Oct. 4, 2016), https://www.counterpunch.org/2016/10/04/none-dare-call-it-justice-eighteen-examples-of-racism-in-criminal-legal-system/. See also Wendy Sawyer, Visualizing the racial disparities in mass incarceration, Prison Policy Initiative (Jul. 27, 2020), https://www.prisonpolicy.org/blog/2020/07/27/disparities/; Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System, The Sentencing Project (Apr. 19, 2018), https://www.sentencingproject.org/publications/un-report-on-racial-disparities/.

[28] Jacob Kang-Brown, Incarceration Rends in Louisiana, Vera Institute of Justice 1 (2019), https://www.vera.org/downloads/pdfdownloads/state-incarceration-trends-louisiana.pdf.

[29] Id. at 2.

[30] Id. at 3.

[31] Id.

[32] Briefing Book, Louisiana Department of Public Safety & Corrections, p. 9 (Jul. 2021), https://doc.louisiana.gov/wp-content/uploads/2021/10/0m-Full-Briefing-Book.pdf; Andrea C. Armstrong, The Missing Link: Jail and Prison Conditions in Criminal Justice Reform, 80 La. L. Rev. 1, 9 (2020).

[33] Id.  

[34] See generally John F. Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2017).

[35] “Lead prosecutors and their executive staff define the goals of the office, instruct line prosecutors on how to approach decision making on their cases, and evaluate line attorneys based on those goals and instructions. Line prosecutors are responsible for their caseloads and exercise their discretion in the key decisions of their cases. Depending on the extent to which the lead prosecutor implements policies that guide or dictate line prosecutors’ decisions, how they approach these key decisions can vary significantly not just from office to office, but also within a single office.” The Role of the Prosecutor, The Vera Institute of Justice, https://www.vera.org/unlocking-the-black-box-of-prosecution/for-community-members (last visited Feb. 15, 2022).

[36] See Pfaff, supra note 34, at 128-36.

[37] Fair and Just Prosecution, 21 Principles for the 21st Century Prosecutor, Brennan Center for Justice 3 (2018), https://www.brennancenter.org/sites/default/files/publications/FJP_21Principles_FINAL.pdf.

[38] The Politics of Prosecutors, The Appeal, https://theappeal.org/political-report/the-politics-of-prosecutors/ (last visited Feb. 15, 2022).

[39] Angela J. Davis, The Progressive Prosecutor: An Imperative for Criminal Justice Reform, 87 Fordham L. Rev. Online 8, 8 (2018).

[40] Decarceration is defined as “release from imprisonment” or “the practice or policy of reducing the number of people subject to imprisonment.” Decarceration, Merriam-Webster.com Dictionary, https://www.merriam-webster.com/dictionary/decarceration (Last visited Feb. 15, 2022).

[41] Zacharias, supra note 16, at 174.

[42] Brentin Mock & CityLab, Why New Orleans Leads the U.S. in Wrongful Convictions, The Atlantic (Jun. 9. 2017), https://www.theatlantic.com/politics/archive/2017/06/why-new-orleans-leads-the-us-in-wrongful-convictions/544823/.

[43] State v. Covington, 2020-00447, p. 20 (La. 12/11/20); 318 So. 3d 21, 28 (Johnson, C.J., dissenting).

[44] Alanah Odoms, Prosecutors Must Be Held Accountable for Misconduct, ACLU of Louisiana (Aug. 14, 2018), https://www.laaclu.org/en/news/prosecutors-must-be-held-accountable-misconduct.

[45] See Campbell Robertson & Adam Liptak, Supreme Court Looks Again at Methods of D.A.’s Office in Louisiana, N.Y. Times (Nov. 2, 2011), https://www.nytimes.com/2011/11/03/us/orleans-district-attorneys-office-faces-us-supreme-court.html.

[46] Id.; see also Ellen Yaroshefsky, New Orleans Prosecutorial Disclosure in Practice After Connick v. Thompson, 25 Geo. J. Legal Ethics 913, 913 (2012).

[47] Matt Sledge & John Simerman, New Orleans DA Leon Cannizzaro says he won't run again, ending era and controversial career, Nola.com (Jul. 24, 2020), https://www.nola.com/news/courts/article_d6d32bbe-ccf3-11ea-bed8-cfe3adeacfbc.html.

[48] Jamelle Bouie, Police rarely held accountable, Balt. Sun (Nov. 28, 2014), https://www.baltimoresun.com/maryland/carroll/opinion/ph-cc-bouie-1128-20141128-story.html.

[49] New Unit Announcement, King County Prosecuting Attorney’s Office, https://www.kingcounty.gov/depts/prosecutor/news/sru-announcement.aspx (last visited Feb. 15, 2022).

[50] Bill Information SB 6164, Washington State Legislature, https://apps.leg.wa.gov/billsummary/?BillNumber=6164&Year=2020&Initiative=false (last visited Feb. 15, 2022).

[51] New Unit Announcement, supra note 49; see also Tom Jackman, A growing group of prosecutors, who say the job is more than locking people up, wants to help free criminals, too, Wash. Post (Dec. 7, 2020), https://www.washingtonpost.com/local/public-safety/prosecutors-mass-incarceration/2020/12/07/29cb0786-38a3-11eb-98c4-25dc9f4987e8_story.html.

[52] New Unit Announcement, supra note 49.

[53] Nina Shapiro & Manuel Villa, New laws lead some Washington prosecutors to rethink three-strike life sentences, The Seattle Times (Jan. 3, 2021), https://www.seattletimes.com/seattle-news/new-laws-lead-some-washington-prosecutors-to-rethink-three-strike-life-sentences/.

[54] House Bill Analysis, SB.6164, Washington State House of Representatives, Office of Program Research,  http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bill%20Reports/House/6164%20HBA%20PS%2020.pdf?q=20210129122011 (last visited Feb. 15, 2022).

[55] See SB.6164, 66th Leg., 2020 Reg. Sess., ch. 203 (Wash. 2020), http://lawfilesext.leg.wa.gov/biennium/2019-20/Pdf/Bills/Session%20Laws/Senate/6164.SL.pdf?q=20210304092119.

[56] Id.

[57] Id.

[58] Id.

[59] See State v. Combs, 52,285, pp. 8-9 (La. App. 2 Cir. 1/15/20); 289 So. 3d 202, 207 (citing La. Code Crim. Proc. Ann. art. 881.1(E)).

[60] Public Hearing: SGA 9355, SGA 9357, SB 6316, SB 6164, SB 6202, SB 6530 (proposed sub) Before the S. L. & Justice Comm., 66th Leg., 2020 Reg. Sess. (Wash. 2020) (statement of Sen. Manka Dhingra, Member, S. L. & Justice Comm.), https://www.tvw.org/watch/?eventID=2020011325 (at 20 min.).

[61] Flynt v. Ohio, 451 U.S. 619, 620, (1981) (citing Parr v. United States, 351 U.S. 513, 518 (1956); Berman v. United States, 302 U.S. 211, 212 (1937); Whitus v. Georgia, 385 U.S. 545, 547 (1967)).

[62] Final-judgment rule, Black’S Law Dictionary (11th ed. 2019).

[63] Herrera v. Collins, 506 U.S. 390, 399 (1993) (“Once a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears.”).

[64] State ex rel. Taylor v. Whitley, 606 So. 2d 1292, 1294 (La. 1992) (quoting Mackey v. United States, 401 U.S. 667, 690 (1970) (Harlan, J., concurring).

[65] State ex rel. Taylor v. Whitley, 606 So. 2d 1292, 1297 (La. 1992) (“Further, we find the consideration of finality in criminal proceedings, so well enunciated by Justice Harlan in Desist and Mackey, is equally applicable in state proceedings as well as federal proceedings.”).

[66] David Hamer, Wrongful Convictions, Appeals, and the Finality Principle: The Need for a Criminal Cases Review Commission 37 U.N.S.W.L.J. 270, 270 (2014).

[67] Levenson, supra note 17, at 368.

[68] Kyden Creekpaum, What's Wrong with a Little More Double Jeopardy - A 21st Century Recalibration of an Ancient Individual Right 44 Am. Crim. L. Rev. 1179, 1182 (2007).

[69] Dist. Att’y's Off. for Third Jud. Dist. v. Osborne, 557 U.S. 52, 98 (2009) (Stevens, J., dissenting).

[70] Pfaff, supra note 34, at 127.

[71] Obergefell v. Hodges, 576 U.S. 644, 664 (2015).