A life prison sentence over a $30 marijuana sale appeared a bit too much for at least a few Louisiana Supreme Court justices to swallow on Monday during oral arguments over the fate of an Abbeville man who landed on the wrong end of the state’s habitual offender law.

Chief Justice Bernette Johnson and Justice Scott Crichton were the most vocal in questioning a Vermilion Parish judge’s claim, when he handed Derek Harris a life sentence in 2012, that he had no other choice.

During oral arguments that drew a spillover crowd to Tulane Law School on Monday afternoon, the state’s highest court grappled with Harris’ legal dilemma -- having failed to challenge the constitutionality of his terminal sentence, due to what he argues was fatally bad lawyering.

A state court precedent more than two decades old says convicts can’t challenge their sentences after they've exhausted their direct appeals.

Louisiana Supreme Court to review life sentence over $30 marijuana sale at Tulane hearing The weight of marijuana in a typical joint is what Derek Harris handed an undercover agent who knocked on his door in Abbeville in 2008.

Harris’ trial attorney never brought up an earlier Supreme Court ruling that says judges can override minimum mandatory sentences if they find that the punishment so far outweighs the crime as to “shock the conscience.”

If there was a case that warranted mention of that ruling, Harris' case might have been it.

Harris, an Army veteran said to have served honorably in Operation Desert Storm, offered up .69 grams of the drug to an undercover agent who knocked on his door in 2008. Four years later, 15th Judicial District Judge Durwood Conque found Harris guilty of marijuana distribution, a Vermilion Parish prosecutor invoked the state’s habitual-offender law, and Conque sentenced Harris to life as a four-time loser.

Harris’ prior convictions dated back to a 1991 conviction for dealing cocaine, according to court filings. He was subsequently convicted of simple robbery in 1992 and 1993, simple burglary in 1997 and theft under $500 in 2005, said Cormac Boyle, an attorney with the Promise of Justice Initiative who argued Harris’ case Monday.

Boyle said ample evidence suggests a struggle with mental illness linked to his military service, not a penchant for criminality behind his rap sheet. But that mitigating evidence never came up as Conque dealt Harris a life sentence with no shot at parole under a habitual-offender law that gives prosecutors broad discretion.

“Courts have a duty to make sure the punishment fits the crime. That didn’t happen here,” Boyle argued Monday. “This court has always retained the right to say a sentence is excessive.”

Dale Lee, an attorney for the Louisiana District Attorneys Association, countered that the court would open the door to thousands of sentencing challenges if it broke with 24 years of precedent and allowed Harris a new hearing at this stage.

'It means the world for him': New Orleans man serving life for pot possession gets lighter term A New Orleans man who was ordered to spend the rest of his life in prison for marijuana possession as a habitual offender will instead walk fr…

He said the 3rd Circuit Court of Appeal long ago dismissed an appeal that included a challenge to Harris' sentence, a decision the Louisiana Supreme Court declined to upset.

Johnson, the chief justice, was the most vocal in casting doubt on that argument, and whether Conque even knew he could deem a life sentence for Harris unconstitutional and settle on a lower prison term. Harris’ attorney never brought it up.

“Mandatory life for the smallest amount of marijuana. Does it violate the 8th Amendment? Is it excessive? That’s what we’re talking about,” Johnson said.

Law students and others filled the hall for the hearing, and more filled a side classroom where they watched on a screen.

Johnson offered a nod to the large student turnout, and the topic at hand.

“We’re talking about .69 grams. Most students understand it’s legal” in many states, Johnson said. “We won’t ask who smokes it.”

The comment drew laughter.

Crichton, a more conservative jurist, pointed to what appeared to be a lack of mitigating evidence presented to the judge to argue for a lower sentence during the habitual offender proceedings.

“We depend on the lawyers to provide us with aggravating factors as well as mitigating factors,” Crichton said.

Crichton also noted no evidence in the court record that the judge considered much of that, if any, when he handed Harris a life sentence.

Conque told Harris at his initial sentencing -- before the multiple-bill hearing -- that he didn’t think a 30-year maximum sentence was warranted. Instead, he handed Harris 15 years. But after prosecutors invoked the habitual-offender law, the judge said he had no choice.

“I agree that you’re not what we would think of as a drug dealer, so far as I can tell,” he told Harris. “But you are a four-time felon, and that presents problems that I can’t overcome for you no matter how much I would want to.”

Kristen Wenstrom, an attorney arguing on Harris’ behalf for the Louisiana Public Defender Board, said the way the law has been interpreted, convicts like Harris are in what Justice John Weimer described as a “trick bag,” with no good option to argue that their lawyers failed them at sentencing.

“It’s clear he received ineffective assistance of counsel at sentencing,” Wenstrom argued. “When that’s violated, we need a remedy.”