The Demise of Three Strikes in New York?

prison_bars.jpgWhen discussing modern sentencing, “three-strikes” laws ( laws which enhance sentences based on prior crimes and criminal history) are always a hot topic. Although California can lay claim to the most infamous three-strike law, New York has one as well–a law that was successfully challenged under Blakely last week in Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (hat tip Doug Berman).

This is big news for New York’s criminal justice system, particularly if the decision is affirmed on appeal. If upheld, Portalatin could spell the demise of judicial discretion in the application of NY’s three-strike law…


So what does Judge Gleason’s excellent opinion say? Clocking in at 41 pages, it is chock-full of goodies, but my particular interest here is its application of Blakely to NY’s discretionary persistent felony offender statute, P.L. 70.10.

Under P.L. 70.10, a New York trial court is authorized—but not required—to sentence an offender with two prior felony convictions to a much longer incarceration period than would normally be permitted. The determination of whether the offender is eligible for the “persistent felony offender” status is left to the judge alone. As I argue in my forthcoming Ohio State article, however, this kind of judicial fact-finding seems to flatly violate Blakely‘s dictates.

Essentially, when a NY prosecutor requests discretionary persistent felony offender status for a defendant, the court, in a special sentencing hearing, determines whether the convicted offender is classified as a persistent felony offender by evaluating her past criminal history. The offender’s criminal history can include past behavior on parole, prior convictions, statements from probation and parole officers, and acquitted conduct–i.e., far more than just the facts found by the jury.

Blakely, however, dictates that only the jury can increase an offender’s sentence. beyond the maximum. Since persistent felony offender classification results in a substantially lengthened sentence for the offender–based on facts found by a court, not a jury–P.L. 70.10 runs counter to Blakely’s mandate.

As Judge Gleason argues, “It does not matter what type of factfindinga judge makes; if a finding is “legally essential” to the enhanced sentence, the Sixth Amendment is violated unless that fact is either admitted by the defendant or found by a jury beyond a reasonable doubt.” In other words, when there is discretion, only a jury may decide whether to enhance an offender’s sentence due to her past crimes and criminal history.

Of course, as the opinion points out, one way the New York legislature could get around this Blakely problem is to just classify *every* convicted offender with more than two felonies as a persistent felony offender. And although I’ll all for giving more discretion to the jury, I’m not sure that reacting to Blakely by eradicating all judicial discretion is in the best interests of anyone. Thus I’ll be following this case with interest and a bit of trepidation.

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