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. See Besser v. 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. See 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. Id.
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 – Blakely v. 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." Besser v. Walsh, 2010 U.S. App. Lexis 6704, at *4 (2nd Cir. Mar. 31, 2010).
Although 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 Blakely v. 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. See 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 Blakely and 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, see 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 those sentences.
 But see People v. 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 overturned in Blakely). Notably, however, in Besser, the Second Circuit explicitly considered Rivera and flatly rejected its holding. See Besser, supra, at *52-59.