• U.S.

Law: Toward More Uniform Sentences

4 minute read
TIME

Despite double jeopardy, prosecutors can appeal light terms

The crime: racketeering. The verdict: guilty. The sentence? There was the rub. The judge imposed ten years in prison, but federal prosecutors in Rochester wanted the mobster put away for a period closer to the 34-year maximum.

So the prosecutors took advantage of an unusual provision in a 1970 law that allows the Government to appeal certain sentences. The Second Circuit Court of Appeals dismissed the appeal on the grounds that a review of the original sentence would violate the Constitution’s prohibition against double jeopardy. But last week the Supreme Court ruled, 5 to 4, that the Constitution does not go that far. It prevents Government appeals of actual verdicts, the Justices ruled, but not of sentences. The decision, written by Justice Harry Blackmun, seemed to some experts to cut two ways. While it may comfort hard-liners by giving prosecutors a second chance to obtain a stiff sentence, its primary effect may be to further a movement toward more uniform sentencing that is backed by many liberals.

The ruling grew out of a series of at least eight upstate New York fires set by an arson ring between 1970 and 1973. One of the men found guilty was Eugene DiFrancesco, who was convicted and sentenced to nine years in a separate trial for his part in the 1970 bombing of a federal building in Rochester. Under the Organized Crime Control Act of 1970, the prosecutor in the racketeering case had asked the judge to find that DiFrancesco was a “dangerous special offender” and therefore subject to additional punishment beyond the 20-year maximum. The judge consented, but he tacked only a year onto the defendant’s existing nine-year term.

In trying for a stiffer sentence, did the Government run afoul of the Fifth Amendment’s guarantee that no one will “be subject for the same offense to be twice put in jeopardy of life or limb”? No, said Blackmun. He maintained that the object of the double-jeopardy clause was to spare a successful defendant the “ordeal” of successive trials. A judge’s imposition of sentence, wrote Blackmun, lacks the “finality” of an acquittal, and thus may be altered.

Leading the dissenters, Justice William Brennan found an “analytic similarity” between the reaching of a verdict and the determination of a sentence. “Imposition of a ten-year sentence where a 25-year sentence is permissible under the statute,” he argued, “constitutes a finding that the facts justify only a ten-year sentence.” Brennan warned that the logical extension of the court’s reasoning might allow Congress to grant prosecutors the power to appeal acquittals too.

Meanwhile, the decision encouraged reformers who are unhappy about wide variations in punishment. They have been pressing legislatures to allow the sometimes capricious decisions of sentencing judges to be re-examined at higher levels. “With appellate review,” says University of Virginia Law Professor John Jeffries, “defendants across the board will be treated more like each other.”

It was just that rationale that prompted the Senate to include a sentence-appeal provision in its version of the proposed mammoth revision of the criminal code, which has been lumbering through Congress for 14 years. As drafted, the provision would permit either side in a federal case to appeal sentences that fall outside a middle range. Under present law the Government may appeal only when the defendant is judged a dangerous special offender (like DiFrancesco) or a “special drug offender.” As for defendants, they can appeal only sentences that are cruel and unusual, discriminatory, or beyond the statutory range.

With the more conservative cast of the new Congress, prospects for passage of the full revised code are bleak. Yet backers of the sentence-appeal provision remain hopeful. Now that the Supreme Court has removed the double-jeopardy objection to the provision, they believe they have enough support to have it removed from the main bill and passed separately.

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