Enhanced Sentencing for Persistent Felons Unconstitutional

The Second Circuit Court of Appeals in Besser v. Walsh ruled on an appeal from the Southern District of NY that a state statute permitting enhanced sentences for persistent felony offenders violates a defendant's constitutional rights. New York's Penal Law §70.10 provides that defendants convicted of two previous felonies face sentences of a minimum of 15 years and a maximum of life for conviction of a third felony are eligible for the persistent designation. It also directs the judge to determine if a persistent felony offender declaration would be in the public interest. Citing US Supreme Court case Blakely v. Washington, 542 U.S. 296 (2004) in the 52 page opinion, Judge Ralph K. Winter concluded that the sentencing scheme vests unconstitutionally broad discretion in judges to set sentences of up to life in prison for offenders deemed to be persistent felons saying:

We hold that the Sixth Amendment Right to a jury trial, applicable to the states as incorporated in the Fourteenth Amendment, prohibits the type of judicial fact finding resulting in enhanced sentences under New York's {Persistent Felony Offender] statute.

The New York Law Journal article, Penalties for 'Persistent' Felons Violate Constitution, Circuit Says, stated "The immediate effect of yesterday's ruling was not clear. Second Circuit rulings on New York law are not binding on the state's highest court, the Court of Appeals. The federal panel did not, however that state court rulings upholding the constitutionality of the persistent felony offender statute have been 'unreasonable' in light of seemingly contrary U.S. Supreme Court decisions in similar cases."

The article goes on to say that there are 2,467 inmates now serving sentences in New York as persistent felony offenders. The question of retroactive application was an issue in only one of the five cases decided yesterday by the circuit. The 2d Circuit made its ruling in five cases it heard arguments on at the same time on April 16, 2008. The state solicitor general in Attorney General Andrew M. Cuomo's office and assistant district attorneys in Brooklyn and Manhattan defended the statute at the circuit. A state spokesman said yesterday Mr. Cuomo's office is reviewing the decision and would have no immediate comment.

The Brooklyn Law School Library has this recent item on the topic, Three Strikes Laws by Jennifer E. Walsh (Call #KF9685 .W356 2007) with chapters Rising crime rates and the get-tough movement -- The three strikes solution -- The California controversy -- Constitutional challenges to three strikes and you're out -- Implementation and impact of three strikes laws -- Effectiveness of three strikes laws -- Attempts to reform three strikes laws