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April 2, 2010

"2,500 cons could get 'spring' break"

The title of this post is the headline of this New York Post article discussing the possible consequences of the Second Circuit's important ruling earlier this week that declared unconstitutional New York state's Persistent Felony Offender sentencing law (basics here).  Here's more:

The cell doors aren't being sprung open just yet -- but as many as 2,500 career criminals statewide could challenge their lengthy prison sentences because of a controversial federal court ruling. The ruling effectively killed a popular "three strikes and you're out" provision of the criminal code that gave judges great leeway in sentencing habitual offenders to life in prison.

There were 2,467 inmates serving 15 years to life as "persistent felony offenders" as of Jan. 1, according to the state Department of Correction. Many of these felons could now request their sentences be overturned after the US 2nd Circuit Court of Appeals ruled Wednesday that the repeat-offender sentencing laws for nonviolent offenders is unconstitutional.

Of the 2,467 persistent felony offenders, just 183 are confirmed to be nonviolent. The remainder of the inmates are in a gray area, with mixed violent and nonviolent records that make it difficult to determine how many could take advantage of the ruling and get out early.

"Some of these guys are persistent violent felony offenders and will not be affected. Some of them may not be violent offenders," said Correction spokesman Erik Kriss. "It's hard to know whether all 2,284 would or wouldn't be [applicable]," he added.

April 2, 2010 at 09:18 AM | Permalink


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The Second Circuit decision was unavoidable. It would be futile for New York to take it up.

Practically speaking, probably the same thing that happened in NC will happen in NY. Most sentences will be upheld on further review under the harmlessness standard of Recuenco v Washington.


Posted by: bruce cunningham | Apr 2, 2010 10:50:07 AM

Nothing like a member of the press to exagerate and get things wrong. The article starts out with sensation. "As many as 2,500 career criminals statewide could challenge their lengthy prison sentences because of a controversial federal court ruling."

Is the holding that controversial? It seems to be nothing but a straight-forward application of Blakely. And nowhere near 2,500 sentences are effected. Only sentences imposed after Blakely was decided (i.e. after late-June 2004) are impacted. Towards that end, the article states the exact opposite of what's accurate when it claims "[o]nly convicts sentenced BEFORE 2004, when the Supreme Court made its own Sixth Amendment ruling on sentencing guidelines, are affected." "Before" should read "after".

Posted by: anon | Apr 2, 2010 4:02:18 PM

The New York Post, as usual, is all wet on this one, Doug, as you should know. The CA2 ruling could only advantage defendants sentenced as persistent violent offenders who (1) preserved an Apprendi challenge to the statute at trial and on appeal in state court, (2) have not already filed and lost a federal habeas petition (the exceedingly narrow rules for successor petitions would not appear to embrace this issue), (3) are less than a year out from the date of their conviction being final -- the statute of limitations for federal habeas actions -- and now file a petition within that year, and (4) convince the federal courts that the error in their case was not harmless (note that the CA2 remanded for that determination as to the petitioners who prevailed).

I would guess that, in the end, a relatively small, perhaps even tiny, fraction of the 2000+ inmates serving time as persistent violent offenders will get relief under this decision.

Posted by: Barry Fisher | Apr 2, 2010 4:11:19 PM

And then, Barry, the ones who prevailed are simply sent back to the trial level court for either a jury trial on one aggravating fact, (because in my opinion there is only one Apprendi fact per case)

I can't think of anyone who got their sentences reduced following Blakely. None of my clients did. Waiver, harmlessness, nonretroactivity got them all.


Posted by: bruce cunningham | Apr 2, 2010 4:24:39 PM

Boys, but Blakely sure generated a lot of lawyer procedure, even if nothing good happened for the client. The reporter should not be expected to understand the sophisticated nature of this lawyer scam. The benefit of this story is to warn, the judges are being watched by journalists, and should not believe they can spring 1000's of violent predators unseen by the public.

Posted by: Supremacy Claus | Apr 3, 2010 8:33:04 AM

I am reading your blog because this may be applicable to my husband who is a 3 time persistent violent offender. In the recent ruling in the Second Cir court of appeals Besser v. Walsh can you challenge P.L. 70.08 CPL 400.16 in light of the rulling? Does it apply to this recent decision?

Posted by: Laurie Goodwine | Apr 30, 2010 5:09:20 PM

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