HABITUAL OFFENDER STATUTES: A NEED FOR CHANGE

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Habitual Offender Statutes: A Need for Change

Jacob Bush[*]

Introduction

Many states have habitual offender statutes, which label those who violate the statutes as either habitual felony offenders or persistent felony offenders (hereinafter referred to as HFO).[2] While these statutes differ state-by-state, they all serve as a deterrent to those who may recommit felonies. In addition to longer sentences, many of those convicted under a HFO statute are also restricted in their eligibility for the different types of probation.[3]

While it may seem fair to punish those who are reoffenders harsher than first time-offenders, HFO statutes have a detrimental effect to our society. First, these kinds of statutes can be used by prosecutors in a way that interferes with traditional notions of fairness. Second, the punishment for those who have committed the lowest level of felonies, such as drug possession or petty theft can be sentenced similarly to felons convicted of violent crimes.[4] Finally, the public suffers financially from how they are currently used.[5] The solution to these issues requires two changes. First, to ensure fairness is preserved, the procedures that apply to HFO statutes should be similar to the procedures for capital punishment defendants. Second, HFO statutes should be revised to exclude low-level felonies.[6]

This Article can be broken down into five parts. Part I introduces the reader to the article and provides a broad view of the arguments to be made. Part II contains four subparts that discuss arbitrary use of persistent felony offender statutes. Part III involves amending HFO statutes. Part IV provides a short section of some of the changes being made or attempting to be made to remedy the problems with HFO statutes. Part V concludes the article by recognizing and refuting a potential counterargument and summarizing the content of this article.

 I.     Arbitrary Use of the Persistent Felony Offender Statute

To uphold the fairness our judicial system claims to promote, policies need to be applied to everyone equally. HFO statutes, however, are not applied equally to African Americans.[7] Four subparts will provide readers with sufficient evidence to support this. Subpart one introduces the reader to how prosecutorial discretion affects HFOs. Subpart two highlights how minorities are more often convicted of being a HFO than white people. The third and fourth subpart offers a solution to this issue.

A.    Prosecutorial Discretion

Prosecutorial discretion comes from the common law principle that the government has “broad discretion” on who to prosecute.[8] The purpose of this discretion is to provide for a more efficient way to prosecute crimes while staying in line with the public interest.[9] Broad discretion also extends to whether a defendant will face a HFO charge. An example of this can be seen in Bordenkircher v. Hayes.[10] This case involves the denial of a HFO’s habeas corpus claim.[11] The Supreme Court held that the prosecutor seeking a HFO charge, after the defendant denied a plea deal from the prosecution, was not a violation of due process because of the prosecutor’s broad discretion.[12] A palatable solution would be for states to adopt procedures that will ensure a fair sentencing process for defendants. Adopting these new procedures would take away the ability for prosecutors to use these statutes to impose a heftier sentence on a person solely because of a prosecutor’s personal biases.

Making changes to a specific kind of prosecution is not a foreign concept. In cases before the U.S. Supreme Court, counsel appearing on behalf of death penalty petitioners have urged that such cases are inherently “different.”.[13] With the steep sentences sometimes being imposed lower-level felons, HFO statutes should fall under this “different” category as well. The additional protections added for capital cases are very expensive and in some circumstances cost four times the amount of a non-death penalty case.[14]

Due to the large number of defendants facing a HFO charge, it would be unreasonable to expect all of the additional protections to apply to HFOs.[15] Applying all protections would create an overwhelming financial strain on the criminal justice system.[16] Instead, states should adopt select policies from the capital punishment procedures that would lower the amount of people being charged as a HFO. Specifically, instead of a prosecutor deciding if HFO status will apply to a defendant, that should be left up to an unbiased jury. Additionally, defense counsel should be required to do mitigation investigation and should be allowed to offer mitigating evidence to the jury.[17]

B.     Racial Disparity Among Habitual Offenders’ Sentencings

Many states leave it to the prosecutor to decide who will be charged as a HFO, which can create an environment where personal bias or prejudice can influence the sentence of the defendant.[18] One of the biggest areas for potential prejudice is race.[19] Several studies have looked at the disparities between race and when HFO statutes are applied. These studies have used data to show that in areas where there is increased “racial threat,” African Americans are more likely to be sentenced under the HFO statute compared to their similarly charged white counterparts.[20] The term racial threat refers to those in power feeling threatened by minorities.[21] Combining this fear with stereotypes about crime often leads to minorities receiving harsher sentences.[22] The disparity between race and HFOs are not exclusive to one state either.

In Mississippi, seventy-five percent of HFOs are African American.[23] While this statistic could be the consequence of a higher African American population in the general public of these states and in prison, the race disparity regarding HFOs is worse than the disparity of being incarcerated within the state of Mississippi.[24] African Americans make up fifty-eight percent of Mississippi’s prison population and comprise less than forty percent of the state’s population as a whole.[25] Maryland is another example of racial disparity among HFOs outside of the south.[26] In Maryland, seventy-five percent of people sentenced to life in prison under the HFO statute are also African American.[27] This is not an argument that prosecutors are inherently racist, but statistics show that there is a large disparity between which races are sentenced under the HFO statutes.[28] Because of this disparity, extra safeguards are needed to make sure that the justice system is fair and absent of personal bias.

C.     Taking the Decision Away from the Prosecutor

Allowing the jury to decide whether a person should be considered a HFO would provide an avenue less likely corrupted by prejudice. In Apprendi v. New Jersey, the Supreme Court looked at a statute that would allow a defendant to be convicted of a second-degree offense by a jury but then have a sentence imposed on them as if it was a first-degree offense.[29] New Jersey allowed the sentence to be enhanced because it was considered a hate crime on top of the original offense committed.[30] The Supreme Court decided that other than a prior conviction, anything that could increase the penalty for a crime beyond the possible maximum penalty for the statute had to be submitted to the jury and proved beyond a reasonable doubt.[31] While this rule eventually was applied to capital sentencing and provided substantial protections to defendants facing the death penalty, the court expressly excluded prior offenses from the holding.[32] Doing so sets the stage for HFO statutes to continue to be used to sentence defendants to extreme sentences compared to what it would be without HFO status.

In 2002, the Supreme Court reinforced the belief that a defendant has the right to a jury determination that he or she is not only guilty of the crime but that the aggravating circumstances exist as well.[33] In Ring v. Arizona, the Court looked back to Apprendi and relied on the same logic in coming to the conclusion in the current case.[34] Summing up this connection, Justice Ginsburg makes a comparison between the two cases stating, “[t]he right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant’s sentence by two years, but not the factfinding necessary to put him to death.”[35] This quote from Justice Ginsburg highlights the core problem with those facing HFO sentencing. If someone who is facing an enhancer of two years is required to have that determined by the jury, why are those facing up to life enhancements not offered the same opportunity?

Recently, in 2016, the Court took a step further than Ring, in Hurst v. Florida.[36] In Hurst, the Court determined that a recommendation of death is not enough; it must be a determination made by the jury.[37] Many HFO statutes do technically leave this decision to the jury, but they have very little actual say in the sentence.[38] For the statute to activate, the jury just has to decide whether or not the defendant has prior applicable offenses. Once that is established, HFO status applies. For a more just outcome, the jury should be able to consider factors like those in death penalty cases that can provide context for a possible lighter sentence. Look at the case of Fair Wayne Bryant.[39] Bryant, a Louisiana man, was sentenced to life in prison for stealing a pair of hedge clippers.[40] Stealing hedge clippers on its own does not lead to a life sentence, but Louisiana’s HFO statute was used in this case due to Bryant’s four prior felonies.[41] Had Apprendi applied to prior convictions, Bryant may have received the same sentence, but it would have been up to the discretion and determinations of the jury and not a statute that automatically applied regardless of the crime.[42] This is not an isolated occurrence. Charles Collins is another person who was sentenced to life without the possibility of parole in 2010 for drug charges. [43] Again, his life sentence came from the HFO statute in Illinois, tying the hands of the judge who had no choice but to impose that sentence.[44] Illinois Governor, JB Pritzker commuted Collins’s sentence to allow life with the possibility of parole.[45] Fortunately, Bryant was paroled in 2020[46] and Collins in 2023,[47] but many non-violent HFOs have not received the same fate. A 2005 study in California showed that out of those sentenced under the state’s HFO statute, a little over half of those inmates were convicted of nonviolent offenses.[48] In some circumstances, the judge or jury lacks the authority to decide whether someone is considered a HFO.[49] In some states, once the prosecutor convicts on the original-charged felony, they then only have to prove the defendant has prior felony convictions within the statutory time frame.[50] Look back to Collins’s case, where the judge made the comment that there was nothing she could do in regards to the sentence.[51] A blanket approach to stopping repeat offenders has created a risk of non-violent offenders slipping through the cracks and being lumped in with violent offenders.

D.    The Need for Mitigating Evidence

Capital punishment has been a controversial topic for decades, which has led to ample case law that has provided protections for defendants facing the death penalty.[52] One protection is requiring defense counsel to do investigation into mitigating evidence.[53] Even more important, however, is requiring the jury to consider that mitigating evidence before imposing the sentence.

Before a jury can be required to hear and consider mitigating factors of a potential HFO, the defendant’s attorney must produce it. In the realm of capital punishment, this is a requirement. In Wiggins v. Smtih, Wiggins sought relief after his ineffective assistance of counsel claim was denied by the United States Court of Appeals.[54] In his original case, Wiggins was convicted of murder and sentenced to death.[55] Partially to blame for the sentence, is his defense team not providing mitigating evidence on Wiggins’s behalf.[56] On appeal, the Supreme Court analyzed Wiggin’s mitigating evidence, which included several instances of severe trauma.[57] It then concluded that a competent attorney would have introduced the mitigation evidence at trial, and that it would be relevant to the defendant’s mitigation argument..[58] They reason this is because society believes that defendants with a traumatic background are held to be less culpable those who do not.[59] Not only does this show that the Supreme Court recognizes how important it is to humanize people before a sentence is imposed on them, but that society believes that those with difficult life history are less culpable.[60] Establishing this procedural rule is necessary to implement the next point.

Mitigating evidence must be considered by the jury before imposing a sentence upon a defendant in a death penalty case. In Lockett v. Ohio, the defendant was convicted of murder and under the Ohio statute, the sentencer, did not consider certain mitigating evidence.[61] The Supreme Court analyzed this and recognized that, the lack of a requirement for mitigating evidence to be considered is attributable to a public policy decision, enacted through statute..[62] Even so, they recognized that treating defendants with “respect and uniqueness” is much more important in capital cases as there are not as many remedies for those defendants and because of the severity of the punishment.[63] The Court then held that a statute that prevents the sentencer in capital cases from considering the “defendant’s character and record” as well as circumstances of the offense, can create a situation where a lesser penalty would be imposed instead.[64] While this case does involve the most severe punishment in the United States, these cases normally involve the most heinous crimes. This logic should also be applied to HFO statutes. HFOs face punishments as severe as life in prison without the possibility of parole for drug or property crimes, which are much less severe than a capital offense.[65] It seems just as important to make sure these defendants should be just as protected from the harsh penalties under the HFO statutes as capital defendants are against capital punishments.[66]

An argument is likely to be made against these revisions from those who hold a staunch tough-on-crime mindset.[67] While the proponents of these kinds of laws are concerned about a real issue in the United States,[68] making the amendments proposed above would not be as light on crime as some may argue. If the changes suggested above were adopted, the prosecution would be allowed to offer up aggravating circumstances as well, to sway the jury toward applying HFO status just as if they were deciding for the death penalty in a capital punishment case.[69]

Jurek v. Texas, a capital punishment case, sets out this capital punishment procedure.[70] In this case, the Court observed that the jury weighed aggravating circumstances against the mitigating evidence, and the jury found that the prosecution’s aggravating circumstances weighed heavier.[71] The same procedures can be applied to HFO cases. For example, a defendant who is charged with felony drug possession could offer up facts such as a traumatic childhood, that their parents were addicted to drugs, or any information that could justify a lighter sentence. The prosecution could then point out factors that could sway the jury to not be as sympathetic.

While not as automatic as most states’ current HFO statutes, adopting some of the procedures from capital punishment cases would make sentencing fairer for defendants, while still maintaining a toughness toward crime. This would be done by taking the decision away from the prosecutor and allowing a jury, who is unbiased, to hear contextual information about the defendant and then make the decision to give them an enhanced sentence or not.

 II.     Excluding Lower-Level Felonies from Habitual Offender Statutes

Many states’ HFO statutes include lower-level felonies, which is detrimental for two reasons. First, many lower-level felonies are influenced by a person’s addiction to some sort of substance. Second, the financial impact that sentencing low-level felons to substantial prison time is a heavy burden on the public and the state prisons. Part III of this note will analyze this issue in two subparts. Subpart A will examine the kinds of lower-level felonies that are often included in HFO statutes. Subpart B will then examine the financial impact of lengthy sentences on lower-level felons.

A.     The Relationship between Substance Abuse and Lower-Level Felonies

When thinking of people who are serving the rest of their lives in prison, people’s minds are likely to go to murderers. Despite that, an ACLU study from 2012 shows that, throughout nine states, there were a total of 1,205 people sentenced to life without the possibility of parole (LWOP) for non-violent crimes.[72] Some examples of crimes that have resulted in LWOP include: possession of stolen wrenches, shoplifting, breaking into a liquor store afterhours, and possession of a crack pipe.[73] Many of those convicted under these kinds of statutes, also have a substance abuse disorder.[74] As many statutes currently stand, many people with a substance use disorder are at a risk of receiving sentences similar to those who have been convicted of murder.[75]

This fact is made worse considering society has recently developed a better understanding of substance use disorders. In addition, other experts have determined that a person’s environment (e.g., traumatic experiences) can increase their chances of developing a substance use disorder.[76] Furthermore, if a person lives in a neighborhood that is high in poverty and/or violence, they are also more likely to develop a substance use disorder.[77] These facts have led some to believe that there are more effective ways to rehabilitate people with substance use disorders, rather than giving them a lengthy prison sentence.[78]

One alternative to a prison sentence is, placing offenders in cognitive-behavioral therapy (CBT). CBT is a psychological treatment that focuses on changing an addict’s thought process.[79] This form of therapy is based on three key tenants:.First is the principle that psychological problems can be the result of negative thoughts; .Second, patterns of unpleasant behavior can also cause psychological problems; Finally, people can learn to cope with these psychological problems, which will give them relief from their symptoms.[80] A 2010 study, which included over 2,000 people with a substance use disorder, determined that CBT was an effective method of treatment.[81] They concluded that to get the highest chance of success in CBT, the patient should combine this therapy with another form of treatment.[82] Accomplishing this would be difficult if the person is confined to a prison, where they have limited treatment options. A 2005 report highlights this issue. The author in this report uses a chart to show that 71 percent of prisoners do not receive substance abuse treatment because of budgetary issues.[83] The next two biggest reasons for not receiving treatment is space limitation (51 percent of prisoners) and limited counselors (39 percent of prisoners).[84] If people with substance use disorders were required to complete CBT rather than sentenced to years in prison, they could receive the treatment they need to solve their issues long term. Instead, when they are sentenced to prison, they have a high likelihood of using drugs again when they are released.[85]

CBT is not the only alternative either. While not a particular kind of treatment, in-patient rehabilitation centers can offer a “best of both worlds” approach. On the one hand, the patient, who has committed a crime, is sent to a facility where he or she will be punished for leaving prematurely. On the other hand, the patient is in a facility for a much shorter period than if he or she was sentenced under a HFO statute. Even more importantly, this facility would focus on rehabilitation, whereas a prison serves multiple purposes.[86]

One of the main benefits of an in-patient rehab, compared to any service offered in prisons, is the ability to personalize treatment. To determine which treatment would be the most beneficial to a specific client, a medical professional looks at the substance the person is addicted to.[87] For example, for those addicted to opioids, the preferred treatment is methadone, buprenorphine, extended-release naltrexone, and lofexidine.[88] To emphasize the importance of medicinal rehabilitation, look at its effectiveness.[89] For example, in a 2009 study, those being treated with methadone, “had 33 percent fewer opioid-positive drug tests and were 4.44 times more likely to stay in treatment."[90] This inclusion is important as most prisons do not use medicinal rehabilitation for prisoners who suffer from some substance use disorder.[91] If some of the most effective forms of rehabilitation are not permitted in prisons, then it is time to ask whether or not some prisoners — as well as the public — would benefit more from lower-level felons receiving proper drug treatment, rather than sitting in prisons for years.

B.     Financial Impact of Habitual Offender Statutes

At least two factors impact the cost of how much money HFO statutes cost taxpayers: the normal cost for annually housing an inmate, and healthcare cost for elderly inmates who are serving under HFO statutes.

First, state prisons are significantly funded by the citizens of the state.[92] From 1987 to 2008, state expenditures for corrections went from $10.62 billion to $47.73 billion, an increase of 349 percent.[93] As of 2021, this number had increased to around $80 billion.[94] To add some context to this data, one can look at states that are in different parts of the country and see the costs it takes to house inmates. First, in California, it is estimated to cost about $106,000 to incarcerate an inmate per year.[95] This number is 117 percent higher than a decade prior due to staff and medical costs.[96] In total, California spends around $8.5 billion annually for their incarcerated population.[97] HFOs specifically cost $5.5 billion from 2010 to 2020.[98] On the other side of the country, New York pays around $115,000 per year for each inmate incarcerated.[99] This figure as a whole is a part of a $3.5 billion annual budget for corrections in New York.[100] While California’s cost is the highest in the country, those states not mentioned also are burdened by extreme costs. For example, eleven other states spent at least $ 1 billion annually to incarcerate individuals.[101]

To see how expensive HFOs can be, one must look at the number of HFOs who have been sentenced for a substantial amount of time in a particular state. Take this number and multiply it with the average sentence for those offenders. Then take this number and multiply it with the amount of money a state spends on a prisoner per year. The result will give the average amount of money that the HFOs, with the longest time to serve, will cost the state over the course of their sentence. In 2019, a study was done in Mississippi that highlights these offenders.[102] Mississippi had over 2,600 people incarcerated under its HFO statute in 2019.[103] Of this number, 906 people have been sentenced to at least twenty years, with 439 more being sentenced to at least fifty years in prison.[104] Even by being conservative and using the lowest possible number for each set, the average sentence of these individuals is thirty-five years in prison.[105] Moreover, Mississippi pays around $20,000 per year per inmate, which is one of the lowest in the country.[106] To get the average cost of HFOs in Mississippi over the course of their sentence, multiply the total number of HFOs with substantial sentences (900 inmates) by the average sentence (35 years), which equals 31,500 total years.[107] Then take the total years (31,500 years) and multiply them by the annual cost per inmate ($20,000), which equals $630 million. This is the total amount of money spent over the course of the inmates’ sentences. For transparency, it is important to note that it is unclear how many of the HFOs with substantial sentences are charged with lesser level felonies. The statistics are nonetheless important, however. Removing those who are significantly sentenced for lower-level felonies from the pool would still save the state money, which it could use to combat other issues affecting its citizens.

Furthermore, aside from the normal costs of incarceration, when inmates are sentenced to prison for their entire life or until they are elderly, which are the sentences given to many HFOs, the state becomes responsible for their healthcare. In the United States, the average medical cost per prisoner, per year, is around $6,000, which makes up 18 percent of the average state prison’s expenditures.[108]

These statistics, however, are an average of all prisoners, when the more expensive medical care comes from the aging prison population.[109] This is because senior citizens, regardless of incarceration status, have a higher chance to develop dementia, have impaired mobility, and are more likely to suffer from hearing and vision loss.[110] When incarcerated, however, the Bureau of Justice Statistics concluded that older inmates are more likely to have chronic conditions as well as age quicker than those not incarcerated.[111] This can require the facility to have structural and security accommodations, treatments, and staff trained for special care.[112] Some studies have shown that the cost of incarcerating aging inmates is around $16 billion a year.[113] Maryland recognized this issue as well when it reduced prison sentences with the purpose of lowering the age of the age of its incarcerated population.[114] This move saved them around $185 million over the course of five years.[115] Using Maryland as an example, other states, should look to releasing some of its aging inmates who are only convicted of lower-level felonies. Not only would it benefit those incarcerated, but it would free up some state funds to solve other problems that the public may need assistance with.

Some may argue that compassionate release is already a remedy to this problem and those who are not granted release should still be in there. The problem with this line of thought is the infrequency in which compassionate release is used. 49 states, with the exclusion of Iowa, have some sort of compassionate release, but rarely use them.[116] To add some perspective, in Pennsylvania and Kansas from 2009 to 2016 only sixteen people were granted compassionate release.[117] Statistics for many states are hard to find as only thirteen states are required to track them.[118] Even without the tracking, the difficulty in being granted compassionate release can be seen in the statutes permitting it. California, one of the more severe statutes, requires the person to be, “permanently medically incapacitated, and unable to perform … breathing, eating or eliminating, and require round-the-clock care.”[119] Geogia has a similar statute, which requires the person to be totally incapacitated and expected to die within a year.[120] While it may seem like there is already a remedy for aging inmates, in the form of compassionate release, it is not accessible enough to fix the problem.

III.     A Step in the Right Direction

While the status of HFO statutes paints a bleak picture to many Americans, some states are taking, or attempting to take steps in the right direction. In 2017, Louisiana revised its HFO laws to prohibit life sentences for repeat offenders charged with drug crimes.[121] In addition to these changes, Louisiana judges can also suspend or reduce the sentences of HFOs.[122] Attempting to remedy this issue further, Louisiana extended parole eligibility to over three thousand inmates in 2021.[123] Kentucky is another example of a state where there has been an unsuccessful attempt to fix its HFO statute. Kentucky’s attempt comes in the form of SB 225 which, if passed, would allow the jury to reject the application of the HFO status, allow parole for those serving for non-violent crimes, and prohibit the use of the statute for simple drug possession crimes.[124] Not only was this bill not passed, but Kentucky has passed several laws that will worsen the state’s substantially high incarceration rate.[125]

What happened with Kentucky’s efforts to amend its HFO statutes is not the only example of injustice for HFOs. Even in states like Louisianna, problems remain for thousands of HFO inmates. The remedies provided in the 2017 law are helpful for many inmates, but the benefits do not apply retroactively.[126] When remedying this issue, it is important to not think of those who may be hindered in the future, but to also look back on those already sentenced under HFO statutes.

Conclusion

The public has an interest in punishing repeat felony offenders. The changes that this article suggests would work toward the same goal, while amending the harsh HFO statutes. First, by removing the decision to apply HFO status from the prosecutor and placing it in the hands of the jury, the risk of one person’s potential bias is removed, and the jury would decide if a prolonged sentence were necessary. Secondly, by removing lower-level felonies from HFO statutes, many people who are motivated by drug use can get the help they need, which could give them a better chance of being a productive member in the future. If alternative treatment is not convincing, the money saved, could be put back into the community and would benefit the public more than incarcerating a person with substance use disorder.

The solution to the biggest problems with HFO statutes is simple: Fix the arbitrariness of their application to ensure that every defendant has an equal chance and exclude lower-level felonies from the statutes to ensure the public does not have to bear the financial burden and the defendant gets proper treatment instead.

[*] J.D Expected 2025, University of Kentucky J. Rosenberg College of Law; BA History & Legal Studies 2021, Morehead State University.

[2] See Matt Mencarini, Chris Kenning & Jonathan Bullington What is a persistent felony offender? The law fueling Kentucky’s huge incarceration rate, Courier J. (Feb. 3, 2022), https://www.courier-journal.com/story/news/investigations/2022/02/03/what-to-know-kentucky-persistent-felony-offender-pfo-law/8811901002/ [https://perma.cc/E3VE-WMFP]; see also Emily Frances Lynch, Johnson v. United States: The Impact on Texas’ Habitual Offender Statute, 45 Hastings Const. L.Q. 187 (2017).

[3] Ky. Rev. Stat. Ann. § 532.080 (West 2012).

[4] Ky. Rev. Stat. Ann. § 218A.1415 –1417 (West 2011); Mencarini, Kenning & Bullington, supra note 2.

[5] See Infra Part II B.

[6] Ky. Rev. Stat. Ann. § 532.060 (West 2011).

[7] See Matthew S. Crow & Katherine A. Johnson, Race, Ethnicity, and Habitual-Offender Sentencing: A Multilevel Analysis of Individual and Contextual Threat, 19 Crim. Just. Pol’y. Rev. 63, 63 (2008); See also Charles Crawford, Gender, Race, and Habitual Offender Sentencing in Florida, 38 Criminol’y 263, 276–278 (1998) (noting that black females are more than twice as likely to be habitualized in areas where economic inequality along racial lines is comparatively low).

[8] Wayte v. United States, 470 U.S. 598, 607 (1985) (citing United States v. Goodwin, 457 U.S. 368, 380, n.11 (1982)).

[9] See Peter Krug, Prosecutorial Discretion and Its Limits, 50 Am. J. Compar. L. Supp. 643, 643–47 (2002).

[10] Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

[11] Id at 360.

[12] Id. at 364–365.

[13] James D. Zirin, Death is Different, The Hill (Dec. 14, 2020, 1:30 PM), https://thehill.com/opinion/criminal-justice/531564-death-is-different/; accord Furman v. Georgia, 408 U.S. 238, 248 n.11 (1972) (Douglas, J., concurring).

[14] See., Facts about the Death Penalty, Death Penalty Info. Ctr. (Dec. 7, 2016), https://www.supremecourt.gov/opinions/URLs_Cited/OT2016/16-5247/16-5247-2.pdf [https://perma.cc/AE4A-NMH8].

[15] See Caitlyn Lee Hall, Good Intentions: A National Survey of Life Sentences for Nonviolent Offenses, 16 NYU J. Leg. & Pub. Pol’y. 1101, 1139–41 (2013).

[16] See Death Penalty Info. Ctr., supra note 12; see also Hall, supra note 13.

[17] Lockett v. Ohio, 438 U.S 586, 605 (1978).

[18] See e.g., Ky. Rev. Stat. Ann. § 532.080 (West 2012); see also LA R.S. 15.529.1 (West 2019).

[19] See Death Penalty Info. Ctr., supra note 12.

[20] See Crow & Johnson, supra note 5; see also Crawford supra note 5.

[21] See Crow & Johnson, supra note 5, at 64.

[22] See Id.

[23] Tana Ganeva, ‘Habitual Offender’ Laws Imprison Thousands for Small Crimes – Sometimes for Life, Scheerpost (Sep. 28, 2022), https://scheerpost.com/2022/09/28/habitual-offender-laws-imprison-thousands-for-small-crimes-sometimes-for-life/. [https://perma.cc/5NXP-ZX6L].

[24] Id.

[25] Id.

[26] Race and Sentencing, Nat’l. Ass’n. Crim. Def. Law., (Nov. 23, 2022), https://www.nacdl.org/Content/Race-and-Sentencing. [https://perma.cc/DZQ6-5NSE].

[27] Id.

[28] See Death Penalty Info. Ctr, supra note 12; See also Crow & Johnson, supra note 5; see also Crawford, supra note 7; see also Ganeva, supra note 21; see also Beth Shelburne, Alabama’s Habitual Offender Law: Driving Mass Incarceration Since 1977, ACLU Alabama (May 1, 2020), https://www.alabamasmartjustice.org/reports/hfoa (providing evidence of disparity between races when it comes to habitual offender statute application); [https://perma.cc/QHA8-2QFK]; see also, Race and Sentencing, supra note 24.

[29] See Apprendi v. New Jersey, 530 U.S. 466, 490–91 (2000).

[30] Id.

[31] Id.

[32] Id. at 490-97.

[33] Ring v. Arizona, 536 U.S. 584, 602 (2002).

[34] Id.

[35] Ring, 536 U.S. at 609.

[36]See Hurst v. Florida, 577 U.S. 92 (2016).

[37] Id. at 97.

[38] Ky. Rev. Stat. Ann. § 532.080(1) (West 2012); La. Stat. Ann. § 15:529.1 (2019).

[39] See Matthew S. Schwartz, Black Man Serving Life Sentence for Stealing Hedge Clippers Granted Parole, NPR (Oct. 18, 2020, 8:06 AM), https://www.npr.org/2020/10/18/925198663/black-man-serving-life-sentence-for-stealing-hedge-clippers-granted-parole [https://perma.cc/5AWS-WSEC].

[40] Id.

[41] Id.

[42] See Apprendi, 530 U.S. at 490.

[43] Beth Hundsdorfer, Prisoner Review Board releases final Illinoisan serving life sentence for ‘three-stikes’ drug offense, NPR Ill. (Dec. 21, 2023, 1:15 PM), https://www.nprillinois.org/equity-justice/2023-12-21/prisoner-review-board-releases-final-illinoisan-serving-life-sentence-for-three-strikes-drug-offense [https://perma.cc/ZYN6-T9HT].

[44] Id.

[45] Id.

[46] Schwartz, supra note 39.

[47] Hundsdorfer, supra note 43.

[48] Brian Brown & Greg Jolivette, A Primer: Three Strikes – The Impact After More Than a Decade, Legis.Analyst’s Office (Oct. 2005), https://lao.ca.gov/2005/3_Strikes/3_strikes_102005.htm [https://perma.cc/A5G8-X9XM].

[49] See generally, Hundsdorfer, supra note 43 (Providing an example of where a judge explicitly stated their hands were tied when it came to habitual offender sentencing).

[50] See Ky. Rev. Stat. Ann. § 532.080 (West 2012); see N.Y. § 70.10 (McKinney 2010); see Fla. Stat. Ann. § 775.087 (West 2023).

[51] Id.

[52] See ACLU, The Case Against the Death Penalty (Dec. 11, 2012), https://www.aclu.org/documents/case-against-death-penalty. [https://perma.cc/66PR-E5GV].

[53] SeeWiggins v. Smith, 539 U.S. 510, 534–38 (2003) (deciding that mitigating evidence could have influenced the outcome of the case, so ineffective assistance of counsel under the Sixth Amendment was a valid claim).

[54] Id. at 514.

[55] Id. at 515–16.

[56] Id.

[57] Id. at 535.

[58] Id.

[59] Id (citing Penry v. Lynaugh, 492 U.S. 302, 319 (1989)).

[60] Id.

[61] Lockett, 438 U.S. at 602–06.

[62] Id. at 604–05.

[63] Id. at 605.

[64] Id. at 605.

[65] See ACLU, A Living Death: Life without Parole for Nonviolent Offenders 35–36 (2013) [hereinafter “A Living Death”].

[66] See Id.

[67] See Charis E. Kubrin & Rebecca Rublitz, How to Think about Criminal Justice Reform: Conceptual and Practical Considerations, 47 Am . J. Crim. Just. 1050, 1053 (2022).

[68] Id. at 1057.

[69] See Jurek v. Texas, 428 U.S. 262, 270 (1976).

[70] Id. at 267, 270.

[71] Id. at 271 n.6.

[72] A Living Death, supra note 61, at 22.

[73] Id. at 5, 22.

[74] Cf. Abigail A. McNelis, Habitually Offending the Constitution: The Cruel and Unusual Consequences of Habitual Offender Laws and Mandatory Minimums, 28 Geo. Mason Univ. Civ. Rts. L.J. 97, 97–98 (2017) (Proving an example of a man sentenced to LWOP for cultivating marijuana for his own personal use).

[75] Id.

[76] Prevention, Nat’l. Inst. on Drug Abuse (Sept. 2023), https://nida.nih.gov/research-topics/prevention#risk-and-protective-factors-impact [https://perma.cc/P75H-K7R4].

[77] Id.

[78] See Nora Volkow, Addiction Should Be Treated Not Penalized, Nat. Inst. on Drug Abuse (May 7, 2021), https://nida.nih.gov/about-nida/noras-blog/2021/05/addiction-should-be-treated-not-penalized [https://perma.cc/W6JV-F8VE].

[79] Stephan J. Bahr, Amber L. Masters, & Bryan M. Taylor, What Works in Substance Abuse Treatment Programs for Offenders. 92 Prison J. 155, 157 (2012).

[80] What is Cognitive Behavioral Therapy, Am. Psych. Assoc. (2017), https://www.apa.org/ptsd-guideline/patients-and-families/cognitive-behavioral [https://perma.cc/QJK2-N44J].

[81] R. Kathryn McHugh, Bridget A. Hearon, & Michael W. Otto, Cognitive-Behavioral Therapy for Substance Use Disorders, 33 Psychiatric Clinics N. Am. 511, 512 (2010).

[82] Id. at 520.

[83] Center for Substance Abuse Treatment, Substance Abuse Treatment for Adults in the Criminal Justice System 190–91 (2005).

[84] Id.

[85] See Ingrid A. Binswanger, Carolyn Nowels, Karen F. Corsi, Jason Glanz, Jeremy Long, Robert E. Booth, & John F. Steiner, Return to drug use and overdose after release from prison: a qualitive study of risk and protective factors, 7 Addiction Sci. & Clinical Prac., no. 1, 2012, at 1–5.

[86] Manuel Escamilla-Castillo, The Purposes of Legal Punishment, 23 Ratio Juris 460, 460 (2010).

[87] Drugs Brains and Behavior: The Science of Addiction, Nat’l. Inst. Drug Abuse (July 2011), https://nida.nih.gov/publications/drugs-brains-behavior-science-addiction/treatment-recovery [https://perma.cc/V7MJ-Z7CM].

[88] Id.

[89] See How effective are medications to treat opioid use disorder?, Nat’l. Inst. Drug Abuse (May 2017), https://nida.nih.gov/publications/research-reports/medications-to-treat-opioid-addiction/efficacy-medications-opioid-use-disorder [https://perma.cc/7PPV-7S37].

[90] Id.

[91] How is opioid use disorder treated in the criminal justice system?, Nat’l. Inst. Drug Abuse (May 2017), https://nida.nih.gov/publications/research-reports/medications-to-treat-opioid-addiction/how-opioid-use-disorder-treated-in-criminal-justice-system. [https://perma.cc/33UB-WDA6].

[92] See Dave Adkisson et al., Right-Sizing Prisons, Pew Ctr. on States (Jan. 2010), https://www.pewtrusts.org/-/media/legacy/uploadedfiles/pcs_assets/2010/rightsizing20prisonspdf.pdf [https://perma.cc/63EL-PLHZ].

[93] Id.

[94] Ronnie K. Stephens, Annual Prison Costs A Huge Part Of State and Federal Budgets, Interrogating Just. (Feb. 16, 2021), https://interrogatingjustice.org/prisons/annual-prison-costs-budgets/ [https://perma.cc/6GNS-45X2].

[95] How much does it cost to incarcerate an inmate?, Legis. Analyst’s Off. (Jan. 2022), https://lao.ca.gov/policyareas/cj/6_cj_inmatecost [https://perma.cc/RQ7C-4AF6].

[96] Id.

[97] Stephens, supra note 93.

[98] See Anthony Nagorski, Arguments Against the Use of Recidivist Statutes That Contain Mandatory Minimum Sentences, U. St. Thomas J. L. & Pub. Pol’y, Fall 2010, at 214, 228 (2010).

[99] Jullian Harris-Calvin, Sebastian Solomon, Benjamin Heller, & Brian King, The Cost of Incarceration in New York State, Vera (Oct. 2022), https://www.vera.org/the-cost-of-incarceration-in-new-york-state [https://perma.cc/D5BV-96MC].

[100] Jullian Harris-Calvin, Sebastian Solomon, Benjamin Heller, & Brian King, An Analysis of the New York State Department of Corrections and Community Supervision’s Budget, Vera (Oct. 2022), https://www.vera.org/downloads/GJNY_DOCCS-Budget-Explainer_10.25.22.pdf. [https://perma.cc/X9H6-X53W].

[101] See Stephens, supra note 93.

[102] FWD, We All Pay: Mississippi’s Harmful Habitual Laws (Nov. 2019), https://www.fwd.us/criminal-justice/mississippi/we-all-pay/ [https://perma.cc/C2AY-MS5C].

[103] Id. at 2.

[104] Id.

[105] See Id.

[106] National Institute of Corrections, Mississippi 2019, https://dev-nicic.zaidev.net/resources/nic-library/state-statistics/2019/mississippi-2019 (last visited Sep. 6, 2024).

[107] See generally, FWD supra note 101.

[108] Shivpriya Sridhar, Robert Cornish, & Seena Fazel, The Costs of Healthcare in Prison and Custody: Systematic Review of Current Estimates and Proposed Guidelines for Future Reporting, Frontiers Psych., Dec. 2018, at 5.

[109] Matt McKillop & Alex Boucher, Aging Prison Populations Drive Up Costs: Older individuals have more chronic illnesses and other ailments that necessitate greater spending, Pew (Feb. 20, 2018), https://www.pewtrusts.org/en/research-and-analysis/articles/2018/02/20/aging-prison-populations-drive-up-costs. [https://perma.cc/6763-R7ZG].

[110] Id.

[111] Id.

[112] Id.

[113] Hope Reese, What Should We Do about Our Aging Prison Population?, JSTOR Daily (July 17, 2019), https://daily.jstor.org/what-should-we-do-about-our-aging-prison-population/ [https://perma.cc/4ASX-DELF].

[114] Id.

[115] Id.

[116] Mary Price, Everywhere and Nowhere: Compassionate Release in the States, Release Aging People in Prison 8, 12 (June 2018), https://famm.org/wp-content/uploads/2023/12/Exec-Summary-Report.pdf [https://perma.cc/UN9Y-G3SZ].

[117] Id. at 12–13.

[118] Id. at 12.

[119] Id. at 13.

[120] Id.

[121] Dan Copp, Changes Coming to Habitual Offender Law, Houmatoday (Updated Jan. 22, 2018, 3:25 PM), https://www.houmatoday.com/story/news/crime/2017/09/25/changes-coming-to-habitual-offender-law/16029712007/ [https://perma.cc/NE6C-P9SR].

[122] Id.

[123] Mark Ballard, About 3,000 Inmates in Louisiana Could Get Parole Under New Law; Here’s Who Would be Eligible, The Advocate (July 31, 2021), https://www.theadvocate.com/baton_rouge/news/politics/legislature/article_6461957c-f234-11eb-9813-677f50cb4b9a.html [https://perma.cc/XZ9K-9ALL].

[124] Kaylee Raymer, Progress Made on Drug Policy in 2023 Though the Legislature Increased Other Criminal Penalties, KyPolicy (Apr. 13, 2023), https://kypolicy.org/kentucky-criminal-legal-recap-2023/ [https://perma.cc/T6KQ-9L7G].

[125] Id.

[126] Ballard, supra note 122.