On March 31, 2010, the Second Circuit Court of Appeals issued a landmark
decision in which it held that a New York state sentencing law that gave
trial judges the discretion to sentence repeat felony offenders to life
sentences was unconstitutional.
Walsh, 2010 U.S. App. Lexis 6704 (2nd Cir. Mar. 31, 2010). The decision is significant
for many reasons, and it will be interesting to see how prosecutors and
the New York state legislature responds.
Previously, a criminal defendant convicted of a felony was eligible for
"discretionary persistent felony offender" sentencing if he
had two prior felony convictions for which he had received sentences of
one year (or more) in jail.
Penal Law Section 70.10. Then, if the court decided that the "history and character of the
defendant and the nature and circumstances of his criminal conduct indicate
that extended incarceration and life-time supervision indicate that extended
incarceration and life-time supervision will best serve the public interest,"
the court could sentence the defendant to a sentence ranging from 15 years
to life to 25 years to life.
Many defendants sentenced to life sentences as "discretionary persistent
felony offenders" unsuccessfully challenged the constitutionality
of the law in New York state appellate courts. However, in 2004, the U.S.
Supreme Court issued a decision -
Washington, 542 U.S. 296 (2004) - that laid the groundwork for
Besser. In that case, the Supreme Court decided that a Washington state statute
that permitted judges to enhance sentences where they found "aggravating
factors" was unconstitutional, in that it violated the Sixth Amendment
by allowing judges to sentence defendants based upon facts that were not
expressly determined by juries. The Second Circuit relied on this decision in
Besser, explaining: "the Sixth Amendment right to a jury trial, applicable
to the states as incorporated by the Fourteenth Amendment, prohibits the
type of judicial fact-finding resulting in enhanced sentences under New
York's [discretionary predicate felony offender] statute."
Walsh, 2010 U.S. App. Lexis 6704, at *4 (2nd Cir. Mar. 31, 2010).
Besser is not technically binding upon New York state courts, the decision cannot
be ignored for several reasons. First and foremost,
Besser is a straightforward application of the Supreme Court's decision in
Washington, 542 U.S. 296 (2004), which held that a Washington state sentencing statute
very similar to New York's discretionary persistent felony offender
statute was unconstitutional for the reasons explained above.
Besser, 2010 U.S. App. Lexis 6704, at *38-44, 52-59. Thus, it is likely only
a matter of time before either the U.S. Supreme Court or the New York
Court of Appeals issues a decision on New York's discretionary predicate
felony offender sentencing statute in line with
Besser. After all, as a practical matter, the New York Court of Appeals will have
to soon recognize that the Second Circuit's decision provides an almost
foolproof avenue for relief for anyone sentenced in New York state court
as a discretionary persistent felony offender: a writ of habeas corpus.
Indeed, given that the
Besser panel unanimously decided to vacate the sentences of all four of the appellants
sentenced post-Blakely to discretionary persistent felony offender life imprisonment,
Besser, at *62, New York state courts would have to expect defendants to prevail
on federal habeas appeals if they were sentenced to life imprisonment
under this law.
The New York Assembly can probably figure out a way to re-write their law
to accomplish their original objectives. Indeed, it would be easy for
the legislature to restructure the sentencing laws to increase the penalties
for repeat offenders without creating a constitutional problem. The law
could simply provide for wide sentencing ranges for people with three
(or more) felony convictions, with a maximum life sentence. But, in the
meantime, defendants will no longer have to serve life sentences as “persistent
felony offenders,” because the Federal courts will simply overturn
Rivera, 5 N.Y.3d 61 (2005) (upholding the constitutionality of New York's
discretionary persistent felony offender sentencing statute by concluding
that it was distinguishable from the Washington state sentencing statute
Blakely). Notably, however, in
Besser, the Second Circuit explicitly considered
Rivera and flatly rejected its holding.
supra, at *52-59.
Court of Appeals,