FREEDOM SNATCHED FROM HEROIN LIFER

Top State Court Rules Against Resentencing

In the six months since he got out of Louisiana State Penitentiary at
Angola, Wesley Dick has been trying to get his life on track.

The Lacombe man had been sentenced to life in prison for selling
heroin to an undercover cop. But after a judge in Covington ordered
his release in July, he quickly got a job, started to pay child
support for his daughters, 9 and 12, and saved enough to buy a pickup truck.

But Dick, 50, knew his freedom might be temporary, and he learned
Wednesday that a Louisiana Supreme Court decision will send him back
to Angola for life.

The justices had considered two cases, involving Dick and Melvin
Smith of New Orleans. Both men got life sentences for dealing heroin.
Both based their appeals on a 2001 law that lessened the crime's
punishment, which had been a mandatory life sentence.

Prosecutors, who had opposed the men's release from prison, hailed the ruling.

"Our interpretation of the law has again been upheld by the Louisiana
Supreme Court," Orleans Parish District Attorney Eddie Jordan said.

"The original life sentence for this crime was a strong deterrent,
and I am pleased that the Louisiana Supreme Court has maintained the
conviction and the penalties imposed under the law at the time of
conviction," St. Tammany Parish District Attorney Walter Reed said.

Smith has remained in state custody, and Dick likely will return to
prison following a scheduled March 20 status hearing. But the Supreme
Court's opinion will have a wide-ranging effect beyond those two
defendants, according to Joseph Raspanti, Dick's attorney.

"This is going to spread through Angola like wildfire," he said.
Raspanti said he represents about 20 heroin lifers and about 12
others sentenced as repeat offenders. He estimates about 90 prisoners
are serving life terms in Louisiana for selling heroin.

Fate hinges on phrase

Smith's and Dick's cases illustrate how the interpretation of law can
vary within the judiciary, and the Supreme Court's opinion shows that
disagreement can hinge on how to parse a four-word phrase: "shall be
entitled to."

In 2001, the Legislature reduced the penalty for distribution of
heroin or possession with intent to distribute heroin from life in
prison to between five and 50 years. Proponents said a life term was
too strict and was causing prisons to fill up with nonviolent offenders.

The law took effect June 15, 2001, but whether it applied to people
already serving life terms for previous convictions was an open
question. Smith was convicted of possession with intent to distribute
heroin in June 1977. Dick was convicted of distribution of heroin in May 1999.

Both men went to court seeking retroactive application of the new
law. State Judge Calvin Johnson granted Smith's motion in New
Orleans, and state Judge Patricia Hedges granted Dick's motion in Covington.

Jordan and Reed filed appeals and got different results from separate
jurisdictions. The 1st Circuit Court of Appeal reversed Hedges'
ruling; the 4th Circuit Court of Appeal affirmed Johnson's. But the
Supreme Court, in its 6-1 decision, said the judges didn't have the
authority to resentence heroin lifers.

"We find the Legislature did not intend, nor did it legislate, that
these offenders may seek resentencing in the courts after a sentence
has become final," Justice Jeannette Knoll wrote in the majority opinion.

As a general rule, she said, the court has held that the law in
effect at the time of the crime must determine the penalty. Only the
governor has powers of clemency, Knoll wrote, and the Legislature
could not have given judges a commutation power that is
constitutionally vested in the executive branch.

Way out provided

The 2001 law that reduced the penalty for dealing heroin also created
the Louisiana Risk Review Panel, which is charged with reviewing the
cases of nonviolent offenders to assess how much danger they would
pose to society if released. The panel can recommend release from
prison for an eligible defendant.

The Legislature subsequently changed the law to enable heroin lifers
to seek consideration by that panel. According to the Supreme Court,
lawmakers intended for eligible lifers convicted before 2001 to go
through that process -- not to seek resentencing in the courts.

Justice Bernette Johnson, who wrote the dissenting opinion, argued
that the risk review panel is not the heroin lifer's only remedy. She
cites a paragraph of the statute that says "such persons shall be
entitled to apply" to the panel. If lawmakers had left out the words
"be entitled," she wrote, then the panel would be the defendants' only option.

The risk review panel can recommend clemency to the state Board of
Pardons or suggest consideration by the Board of Parole. Although
Raspanti was disappointed by the Supreme Court's ruling, he was
thankful that it emphasized the panel as an avenue of relief for lifers.

Facing a setback

Smith had been resentenced to 28 years in prison when the judge
ordered his release. But Jordan had requested that he remain at the
House of Detention until the high court issued its ruling.

Dick, however, has been free. He had been resentenced to a 10-year
term and given credit for time served. Since July, he has worked as a
truck driver and welding inspector.

He had been striving to re-establish a relationship with his
daughters, who live with his ex-wife in Mandeville.

"We just worked back to where we were comfortable with each other,"
he said, adding that he has been spoiling them with gifts.

Two weeks ago, Dick took his 2004 Chevrolet Silverado and travel
trailer -- both financed since his release -- to Texas, where he
found a better-paying job. He is working on the outskirts of Houston
inspecting oil refineries. He was saddened to hear from a reporter
that he will likely lose the life he started to make.

Raspanti said such lifers anticipating the Supreme Court's decision
may despair at the result, but he said the risk-review process can
help. "I know it works because I've done it," he said, referring to
other clients.

"We're not going to give up, and I don't want them to," he said. "I
want these people to have hope."