N.Y. Repeat Felon Law Is Found Unconstitutional

James A. Cohen in The New York Times, March 31, 2010

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By WILLIAM GLABERSON

A key provision of a New York State law under which repeat offenders can be sentenced more harshly is unconstitutional because the longer prison terms are based on findings by judges, not juries, a federal appeals court ruled on Wednesday.

Although the ruling did not directly strike down the provision, it indicated that the state law was flawed. Some prosecutors said new legislation could be required to preserve the politically popular principle that repeat offenders should be subject to longer sentences.

The appeals court’s decision also opened the way for what could be hundreds of challenges to sentences by inmates convicted of felonies like robbery, assault and drug distribution since 2004, defense lawyers said.

The ruling applies only in New York. But it is the latest in a string of rulings based on Supreme Court decisions over the past decade that have rejected sentencing laws that the justices have said curtailed the constitutional right to have all disputed facts decided by jurors with proof beyond a reasonable doubt.

The New York law, the persistent felony offender statute, directed trial judges to determine whether longer sentences were called for after examining “the history and character of the defendant” with three or more felony convictions and to consider the circumstances of the crime. In the ruling handed down on Wednesday, a three-judge panel of the United States Court of Appeals for the Second Circuit in Manhattan said those findings amounted to facts that should have been determined by a jury.

In one of five cases considered by the court, a man convicted of the theft of a wallet at a bus terminal had been sentenced to 20 years to life in prison as a repeat offender because of more than 70 similar thefts. Without the persistent felony provision, he would have faced a maximum of four years.

New York’s highest court, the Court of Appeals, upheld the state law three times in recent years. After a United States Supreme Court ruling in 2004 on the issue, the federal appeals judges said, findings about issues like the character of a defendant could no longer be viewed as permissible judicial fact-finding. Such findings, the panel said, “are amorphous and do not involve hard facts.”

Andrew C. Fine, a Legal Aid Society lawyer who argued against the law in the appeal, said the decision was a judicial reminder of the constitutional role of juries. “It reaffirms the important principle that critical factual determinations that could lead to increased sentences should be made by jurors rather than judges,” Mr. Fine said.

A spokesman for the state attorney general’s office, Richard Bamberger, said the decision was being reviewed. The state could ask the appeals court to reconsider the ruling or could ask the Supreme Court to review the case.

But Kathleen B. Hogan, the Warren County district attorney, who is president of the State District Attorneys Association, said the decision was a blow to prosecutors’ efforts to protect the public. “The most egregious offenders,” she said, “are no longer going to be able to be sentenced to the kinds of sentences courts have imposed.”

In the cases of four defendants who challenged their sentences, the appeals court directed that the trial judges review the sentences. But the appeals judges left open the possibility that those sentences would be approved. They said trial judges could decide that the factual determinations had been “harmless error.”

One of the defendants, who had prior drug and robbery convictions, was convicted of threatening a companion in violation of four orders of protection. Another was convicted of kidnapping after a history of drug charges, parole violations and a carjacking.

A third man, William Phillips, was convicted of robbing a candy store in New York City. His history included minimal sentences, early parole and community service in place of more severe sentences for earlier crimes.

The trial judge found that Mr. Phillips had shown “that he cannot be trusted to function normally in society” and sentenced him to 16 years to life. Without the persistent felony law, he would have faced a maximum of 15 years.

In the ruling on Wednesday, the federal court rejected the appeal of a fifth man, saying he had lost his case before the Supreme Court decision in 2004 that the judges said clarified the law nationally. The ruling on Wednesday was by Circuit Judges Ralph K. Winter Jr. and Robert D. Sack and District Judge John G. Murtha. It was written by Judge Winter.

James A. Cohen, a criminal law expert at Fordham Law School, said the ruling could create new problems for the defense at trials. To repair the flaw described by the appeals court, Mr. Cohen said, judges may require prosecutors to present evidence about defendants’ criminal histories to jurors.

One result, he said, is that jurors might learn about a defendant’s past violence, previous crimes and resistance to rehabilitation. Under the state provision at the center of the appeals court case, jurors are often not told about such inflammatory facts.

“It puts a set of facts which had previously been in the judge’s discretion squarely in the hands of a jury,” Mr. Cohen said. Sometimes, he said, the last thing a defense lawyer wants jurors to consider is the long criminal past of a defendant.