Federal Judiciary

The New York Law Journal reports today that:

A state statute that permits stiffer sentences for "persistent" felony offenders violates the constitutional rights of defendants to a jury trial, the U.S. Court of Appeals for the Second Circuit ruled today.

Citing a series of U.S. Supreme Court rulings, especially Blakely v. Washington, 542 U.S. 296 (2004), a three-judge panel unanimously concluded the state scheme vested unconstitutionally broad discretion in judges to set sentences.

"We hold that 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 [Persistent Felony Offender] statute," Judge Ralph K. Winter wrote for the panel.

Under New York's statute, defendants convicted of two previous felonies who 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.

Sentencing judges make the final decision based on an analysis of the "history and character of the defendant and the nature and circumstances of his criminal conduct." The statute, Penal Law §70.10, also directs the judge to determine if a persistent felony offender declaration would be in the public interest.

The statute does not link the penalty to a specific felony crime, as the Penal Law does for first- or repeat-felony offenders.

In striking down a similar sentencing scheme in Blakely, the U.S. Supreme Court held that "other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

The Second Circuit's decision will be published tomorrow -- Watch for an update to this post.

UPDATE:

The Second Circuit's decision in Besser v. Walsh, No. 05-4375 (2d Cir. Mar. 31, 2010) can be found here.  Here is the key paragraph:

We hold that 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 PFO statute.  We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296 (2004).  Because Besser?s conviction became final before Blakely issued, the state court decisions upholding his conviction were neither contrary to nor an unreasonable application of clearly established federal law.  We therefore affirm the denial of the writ as to Besser.   However, because the relevant state court decisions upholding enhanced sentences for Phillips, Morris, Portalatin, and Washington were issued after Blakely, those decisions were not reasonable applications of clearly established law.  Nevertheless, we remand these cases to the district court for a determination of whether the error was harmless.