Jul 112013
 July 11, 2013

Louisiana MarijuanaBy Clarence Walker

In 2010, Jody Butler — Louisiana inmate# 152110 — was sentenced to life without parole. New Orleans Judge Robin Pittman sentenced the skilled painter and father of an adoring daughter to spend the rest of his days in the infamous Angola state penitentiary, the nation’s toughest and largest maximum security prison, located in the Louisiana swamps and surrounded by water.

So what did Butler do to get life in “the Alacatraz of the South”? It wasn’t murder, rape, or child molestation; it was the possession of small amounts of marijuana and crack cocaine found on him after police stopped and frisked him as he rode away from them on his bicycle. Butler had been talking to the passengers of a parked SUV when he noticed police and decided to leave the area.

Because he had more than two previous convictions for drugs, as well as one for robbery, Butler was prosecuted under the state’s draconian habitual offender law, which mandates perpetual imprisonment for selected repeat offenders.

“I was serving life without parole for a nickel bag of marijuana and five rocks of cocaine,” Butler lamented in a letter he wrote from prison.

In Louisiana, life means life. Butler would stay at Angola until the day he died unless a miracle happened.  Last October 3, it appeared it had. On that date, the Louisiana 4th Circuit Court of Appeals overturned his conviction, ruling that New Orleans police officers “illegally searched Butler and seized his drugs without probable cause.” Citing the New Orleans Police Department’s (NOPD) notorious history of subjecting its citizens to illegal searches, as evidenced by a US Justice Department report, the appellate panel held that NOPD officers violated his constitutional right against unreasonable search and seizure under Fourth Amendment.

“There is no evidence the defendant was involved in any suspicious or illegal activity, prior to the pat-down,” according to the judges. “In fact, the police officers specifically testified they had a clear view of the defendant from a short distance and saw no interchange between the defendant and the occupants of the vehicle.”

“I was very pleased the 4th Circuit recognized the police violated Mr. Butler’s rights and that he would be granted a second chance and not have to waste the rest of his life behind bars,” said attorney Ariel Harman, who had represented Butler for the New Orleans Public Defenders Office during his 2011 trial.

Butler hastily contacted loved ones to inform him that the appeals court’s decision could soon set him free — if the Orleans Parish District Attorney’s office decided not to try the case or if it agreed to a plea bargain that would allow him to be resentenced on reduced misdemeanor charges. In either case, Butler told kin, he should be home soon.

But it wasn’t to be. In May, responding to an appeal from the DA’s office, the Louisiana Supreme Court effectively undid the 4th Circuit’s decision. Splitting with the federal court, the state Supreme Court held that the NOPD did indeed have probable cause to stop and search him, upholding the original life-without-parole sentence — because he had ridden his bicycle on a sidewalk as he rode away from police!

“While NOPD officers may have had no legal cause to frisk Jody Butler after seeing him leaning into an SUV at a drug hotspot on Danneel street, the fact he (Butler) pedaled away on his bicycle on the sidewalk — a municipal violation — was enough to pat him down,” the court said.

The Supreme Court decision came just days after Butler’s mother died while he sat in Angola. While Butler was shell-shocked, his attorney was appalled.

“I was bitterly disappointed when the state Supreme Court sanctioned the unconstitutional actions of the police in Mr. Butler’s case,” attorney Harman said. “And I am terribly sorry for him, who will likely have to spend the rest of his life behind bars because he possessed a very small amount of marijuana. Nobody should ever have to die in prison because they had some marijuana.”

According to court records, it all began with NOPD officers seeing what they could spot as they patrolled a poor, inner city neighborhood. On June 27, 2010, NOPD Sixth District officers spotted Butler, age 40, leaning into an SUV on Daneel Street between Sixth and Seventh. Police said that when he saw them, he looked startled, and sped off  on his bicycle onto the sidewalk.

Both officers testified when the SUV driver saw them coming, Butler hopped on his bike and rode down Danneel before they stopped him. Officer Goines testified he had Butler place his hands on the police car, then patted him down for officer safety and discovered marijuana on the lip of Butler’s shoe and pieces of crack cocaine in his front pocket.

Butler was charged with two counts of drug possession. Defense attorney Harman filed a motion to suppress the drug evidence as the fruit of an illegal search. Judge Robin Pittman denied the defense motion.

Particularly appalling to attorney Harman was the fact that prior to trial she agreed to a plea-bargain to have Butler sentenced without the habitual statute attached, which meant he could have received state jail time or a few years in the slammer. Harman appealed the suppression denial and was waiting to hear back from the appellate court on this matter when it became evident the DA was going to play hardball.

“They pulled their plea offer for Butler right before trial,” Harman said. “I am confident we could have reached an agreement but the judge would not grant a continuance. “Since DA Leon Cannizarro took office in New Orleans, his policy has been to charge everybody under the habitual offender act. Despite the fact Cannizarro campaigned on the promise that he would focus on violent crimes and not tie up the courts and jails with drug offenses, he filed multiple bills in nearly every eligible habitual case. A plea bargain for Butler was in everybody’s best interest. But the end result was injustice for everybody.”

Instead, the case went to trial in January 2011. Based on the evidence derived from the officers’ disputed search, he was convicted of drug possession and sentenced to life without parole. He appealed, and the 4th Circuit agreed.

“The best suspicion the officers gave was that Butler looked ‘kinda startled’ when he saw the officers and rode off,” the appeals court noted. “The defendant was arrested without probable cause.”

But in its wisdom, the state high court begged to differ.

“We may assume the police had no actual subjective intent to arrest defendant for riding his bicycle on the sidewalk in violation of the city ordinance because actually they were looking for high-profile criminals,” the court held. “We agree with the state that purely as an objective matter, the officers ultimately did nothing more than what the law entitled them to do by detaining the defendant after observing him commit a misdemeanor offense in their presence and searched him for weapons.”

“The idea of a municipal violation — riding a bicycle on the sidewalk — as a pretext for the search was never raised until the 4th Circuit threw out the state’s original grounds for the search,” said Butler’s appellate attorney, Chris Aberle. “The state only raised the argument on appeal. Under current law, police can arrest someone for a particular offense and then conduct a search incident to arrest, even if that offense was not what he police were interested in. But in the Butler case, the state Supreme Court expanded that doctrine so that police can conduct a search incident to arrest if the state after the fact decides that the person could have beenarrested for that particular offense, even if police at the time were not aware the offense had been committed. With this ruling, the burden has shifted from the state to prove the stop was valid to the defense to prove it wasn’t.”

Aberle contends the DA’s office erred in its appeal to the state Supreme panel by mentioning that Butler violated city ordinance by riding his bicycle on a sidewalk, a fact never mentioned in the original trial court’s denial of the motion to suppress evidence nor included in the appeal to the 4th Circuit.

“The traffic stop had nothing to do with my case.” Butler said.

“I think this is a big step backwards in terms of our rights to privacy,” fumed Harman. “What’s next? Is the court going to say it’s okay for police to stop someone and strip-search them because they were littering?”

Butler’s case is shocking, but not unusual in Louisiana. It is arguably the toughest state in the nation on punishing criminals, even harsher than Texas, California, New Jersey, and New York. The state has nearly 200 habitual offenders whose most recent crimes involved marijuana or crack possession serving life without parole. Of those 200, not one had previously been convicted of a violent crime.

Inmate Cornell Hood can attest to Louisiana’s draconian stance toward drug convictions. In 2011, Hood, a resident of Slidell, Louisiana, was convicted of distributing marijuana. With three prior marijuana convictions, the priors triggered automatic life without parole in Angola. His attorney appealed, but before a decision was rendered, the DA offered a deal, agreeing to reduce Hood’s sentence — to 25 years.

The draconian sentencing has its costs. The Louisiana Department of Corrections spends more than $24 million a year just to care for more than 300 long-term inmates who are now too physically infirm to commit a crime.

The state Supreme Court is indifferent to such considerations and eager to uphold habitual offender life sentences. Butler’s isn’t the only case in which it has effectively overruled the 4th Circuit Court of Appeals.

Timothy Jackson was serving life without parole as a habitual offender in Angola prison when the 4th Circuit reduced his sentence, calling it “excessive and a prime example of an unjust result.”  But Jackson’s joy at realizing he would be paroled turned to ashes when the state Supreme Court effectively overturned the 4th Circuit decision by ruling appellate judges cannot second-guess the habitual offender law except in rare cases.

With a reputation growing worldwide as a state that doles out sentences of perpetual imprisonment for nonviolent offenders, Louisiana elected officials have begun to act, even as the state’s judiciary remains callous. Last year, the legislature passed and Gov. Bobby Jindal (R) signed into law House Bill 543, which allows nonviolent offenders serving life to seek parole — after serving at least 25 years.

But the new law may not help Jody Butler. Whether to make the law retroactive, so it would actually provide some relief to currently imprisoned nonviolent lifers like Butler, is still being decided by the state parole board. If it does, he’ll still be serving a 25 year sentence — for slinging weed. Butler has appealed to the state Supreme Court to reconsider its initial decision in his case, but given that court’s performance so far, he probably shouldn’t be holding his breath. If that appeal is denied, the case could head for the US Supreme Court In the meantime, Jody Butler remains in Angola, hopeful that someday, freedom will ring, he will get out and get to get back to painting houses, and watch his daughter grow up.

“We have to really start taking a deep look at how we are treating human beings,” lamented state Representative Terry Landry (D-New Iberia) told the New Orleans Times-Picayune in May.  Referring to Holy Bible, Landry spoke solemnly. “Somewhere in a book it says, ‘There but for the grace of God go I.’”

Article From StoptheDrugWar.org - Creative Commons Licensing - Donate

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About Johnny Green

Johnny Green is a marijuana activist from Oregon. He has a Bachelor's Degree in Public Policy. Follow Johnny Green on Facebook and Twitter. Also, feel free to email any concerns.
  • Matao

    Life for drugs are stupid! If this happens. Im losing hope.

    • Coke killed my son

      Cocaine kills! and you are stupid or at least ignorant

      • Matao

        So he should be in jail for life for cocaine?No people should be able to put whatever they want in there bodies. I do realize cocaine does kill I’m not saying it doesn’t. They shouldn’t go to join and go to treatments instead. Im not stupid nor ignorant here.

  • The Grim Reefer

    Oh cry me a river! Robbery, and several arrests, Crack Cocaine, This is not about a weed head who was mistreated but about a repeat offender with prior felony convictions who fucked up again and again. The weed blog is discrediting itself with this kind of yellow journalism. This website is about marijuana not hardcore criminals and hard drugs. Give me a fucking break!!!!!!!

    • Pat Cowdin

      A hardcore criminal? Oh, please. Whitey Bulger is a hard-core criminal. This guy is a very minor player, probably very poor, lacking an education and any opportunity to better himself. Take the hundreds of thousands of dollars it will take to prosecute and incarcerate him and teach him some skills instead. I’m sure he’d rather be a plumber than a bottom-level dealer (and he’d make a lot more money).

      • Ray

        I have been a plumber, trust me I would rather be a bottom level dealer, guess you have never crawled in human feces a foot deep to repair a broken pipe coming from a toilet. Just keep warming us with the sunshine that beams from your ignorant asshole Pat!

        • Pat Cowdin

          Ray, it’s never too late for a career change. You seem to possess the exact qualifications to become a successful crack dealer: a complete and utter disregard for your fellow human beings.

          • Ray

            Pat you ignorant slut, I have 3 guys working for me that were homeless because they could not find work after getting out prison for drugs, robbery, car theft. I paid for their training and they now have good lives. So go fuck yourself Pat !

          • Pat Cowdin

            Ray, I admire you for hiring those guys. Sincerely. I wish more small business owners would do the same. But I hope, for your employees’ sake, they don’t disagree with you. By the way, I assume you’re no longer in the plumbing business?

        • 2buds

          Ray – I too know the thrill of being in the basement – repairing a 4″ line when through the open pipe you hear that fatefull FFFLLLUUUSSSHHH from an apartment on the second floor. Run for it!!!

          Such fun to be a real working dude.

    • Matao

      Today marijuana is a hard drug. Schedule 1, it shouldn’t be. Im your a weed head then the most of the world sees you as a hardcore criminal so i would watch what you say comparing weed to cocaine. There in the same schedule

      • The grim reefer

        I never compared weed to coke, Coke has killed so many, weed Zero!

        I do not know have I gave you that impression?

      • chris9465

        Actually cocaine is schedule 2 and marijuana is schedule 1……so the argument prohibitionists like to make about the gateway theroy is marijuana is a gateway to less dangerious drugs like cocaine…….doesnt make sense doesnt it? Not a lot makes sense in the drug war……

    • Dav Leeder

      some of us are pro legalizing everything. some of us want all victimless crimes to be abolished. simply possessing crack harms exactly as many people as posessing marijuana. why try and discern the two. not to mention the ridiculous amount of taxpayer money that feeds and incarcerates them with no intention on rehabiliitation. you give me a break.

      • Dr. Kush

        Dav, crack is dangerous stuff, a good friend of mine had a stroke after smoking it, now he has seizures and has suffered loss of his left arm, your opinion is a true reflection of the genius that are DAv. You are a complete moron, your statement totally validates your profound stupidity

        • Dav Leeder

          nice personal attack awesome reflection of the intelligence level I’m dealing with here first of all let me say this your friend that smoked crack on purpose is an idiot. Now let me pose you this if cocaine and its derivatives and opiates and their derivatives were legalized tomorrow how many of you would go smoke some rock? or shoot some smack? would you???? Hmmm? I can say with a absolute certainty that I will not. I don’t know if you have the strength and mental fortitude to resist, but i say let those that can’t stop kill themselves. Leave the mature adults to running the world. I don’t know if you get this form the above but I could give a rats ass about your idiot friends poor personal decisions and how they affected his life I don’t think they should determine how I live mine. thanks and good day

        • Sean

          Clams can be very dangerous and lethal for people that are allergic to them. So can too much salt and sugar. Lets jail people for that. As much as I believe that crack is a foolish pursuit, the idea of jailing people for it makes as much sense as putting people on trial for witchcraft in 17th century Salem. I visited Salem just recently, and it seems that humans and their hysteria are just the same today as they were several centuries ago. Hunting “witches” has been replaced with the War on Drugs, and the so-called War on Terror. Not attacking you personally, just attacking the folly of human hysteria.

    • steve linsemeyer

      i agree, with everthing your saying , took the words right out of my mouth

  • Joe Voll

    Hopefully it was the crack cocaine that got him life in prison and not the marijuana.

  • Pitchman101

    It looks like everybody that posted a coment realy just didnt get it here. This could be any one of you doing time here over something very minor at best. Were talking destroying this mans life over what he had on his possession but worse, the reasoning for the state supreme court to overturn the 4th curcuit was over him riding on the sidewalk even though that was’nt part of the original reason the officers stopped him or even brought up in his original sentence.
    The state supreme court basicly added there own charge based on observations brought to there attention after the original sentence. Do any of you get what happened here?. Pretty fucked up! This guy may have deserved a bit of time and some probation but the rest of his life over this?. I have zero respect for the system that would do this to another human being. Nothing but contempt for da’s and judges that abuse the system!

  • 2buds

    In all seriousness – they pay $80,000 a year to feed, cloth and house a person who probably didn’t earn more than $20,000 a year during his time as a NON-violent offender.

    They’re making $24,000,000 a year for 300 coppertops. I’d ask who’s worse – man or machine (system), but I think it’s obvious – greedy men. Shame – taking money in trade – for the lives of these 300.

  • Sean

    Louisiana is the world’s number #1 jailer. Louisiana imprisons more people per capita than any other US state and any other country on this planet. Yet many Louisianans don’t bat an eye over this atrocious and dubious distinction.