Speight v. U.S.

• Decision Date: 28 November 1989
• Docket Number: No. 85-385.,85-385.
• Citation: 569 A.2d 124
• Parties: Freeman SPEIGHT, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

569 A.2d 124

Freeman SPEIGHT, Jr., Appellant, v. UNITED STATES, Appellee.

No. 85-385.

District of Columbia Court of Appeals.

Argued En Banc October 7, 1988.

Decided November 28, 1989.

Robert L. Liebross, appointed by this court, for appellant.

Elizabeth Trosman, Asst. U.S. Atty. with whom Joseph E. diGenova, U.S. Atty. at the time the brief was filed, and Michael W. Farrell, Asst. U.S. Atty., Washington, D.C., at the time the brief was filed, were on the brief, for appellee.

Before ROGERS, Chief Judge,^* and NEWMAN, FERREN, BELSON, TERRY, STEADMAN and SCHWELB, Associate Judges, and PRYOR,^** Senior Judge, and MACK,^*** Associate Judge, Retired.

STEADMAN, Associate Judge:

Under District of Columbia law dealing with pretrial release and detention, a person convicted of committing a crime while on pretrial release is subject to an enhanced sentence. D.C.Code § 23-1328 (1989 Repl.). The issue before this en banc court is whether the due process clause forbids applying this provision in a case where the government shows simply the fact of the defendant's pretrial release status. We hold that the due process clause requires no more.

I.

Appellant Freeman Speight, Jr., was arrested on January 16, 1984, for the felony offense of carrying a dangerous weapon (the "first" offense). He was presented on that charge and granted pretrial release by the court on January 17, 1984.¹ On October 18, 1984, a grand jury dismissed the government's allegations and Speight has not been subsequently indicted on that charge.

In the meantime, however, on July 19, 1984, Speight, who was then still on pretrial release in the dangerous weapon case, was arrested on a "second" offense, for distributing cocaine on that day. He was convicted of the cocaine distribution charge on January 23, 1985, and the sentencing hearing was held on March 12, 1985.

The government filed "release papers" alleging that Speight had sold the cocaine while on pretrial release for the felony offense of carrying a dangerous weapon, and that he was therefore subject, pursuant to D.C.Code § 23-1328 (1989 Repl.), to an additional term of imprisonment of from one to five years.² At the time of sentencing, Speight admitted that he had been on pretrial release for the dangerous weapon charge at the time the cocaine offense allegedly occurred, but also stated that the dangerous weapon charge had later been dismissed by a grand jury. The trial court made no inquiry regarding this allegation, and subsequently sentenced Speight to three to fifteen years in prison, a term we shall assume to be allowable only by virtue of applying the enhancement provision of section 23-1328.³

In his appeal to a panel of this court, Speight presented three arguments. Two of them, that the release offender statute by its terms requires an indictment on the original charge by a grand jury, and that the fifth amendment grand jury clause also requires an indictment, were rejected outright by the panel.⁴ In his third argument, Speight contended that the due process clause prohibits additional punishment in a case such as his, where only an arrest took place. The panel found this argument to be persuasive, reasoning that Speight had received a lengthened prison sentence, in excess of the maximum penalty for the offense of which he has been convicted, for a status that the government had not shown to be related to culpable conduct. However, deeming itself bound by prior holdings of this court to the contrary, M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), it affirmed. Speight v. United States, No. 85-385 (December 9, 1987). The en banc court vacated the panel decision, and heard argument on the due process issue. We affirm.

II.

The Code section before us, D.C.Code § 23-1328, is straightforward in its terms. In pertinent part, it provides:

(a) Any person convicted of an offense committed while [on pretrial release] shall be subject to the following penalties in addition to any other applicable penalties:

(1) A term of imprisonment of not less than one year and not more than five years if convicted of committing a felony while so released; and

(2) A term of imprisonment of not less than ninety days and not more than one year if convicted of committing a misdemeanor while so released.

No qualification is imposed that the person be guilty of the first offense or that the procedures leading to the pretrial release be free of constitutional imperfection. It is the fact of pretrial release that triggers the enhancement provision. On the other hand, the provision imposes no sanction until and unless it is proven beyond a reasonable doubt that the person committed the second offense while on pretrial release. Thus, the enhanced penalty is imposed not for the release status as such, but rather for committing the second offense while on release. It is the commission of the second crime that is being punished.

The issue before us is whether Congress can enact a statute operating in such a manner consistent with the due process clause of the Constitution.⁵ Historically courts have examined sentencing statutes under a rational basis test, although sentencing by definition impinges on the liberty interest. See Marshall v. United States, 414 U.S. 417, 422, 94 S.Ct. 700, 702, 38 L.Ed.2d 618 (1974) (statutory distinctions made in sentencing schemes will be upheld if they have "some relevance to the purpose for which the classification is made") (citations omitted); McGinnis v. Royster, 410 U.S. 263, 93 S.Ct. 1055, 35 L.Ed.2d 282 (1973); Daniel v. United States, 408 A.2d 1231 (D.C. 1979) (per curiam). A statute will withstand constitutional attack under rational basis analysis if there is "any state of facts either known or which could reasonably be assumed [that] affords support for it." Backman v. United States, 516 A.2d 923, 927 (D.C. 1986) (quoting United States v. Carolene Products Co., 304 U.S. 144, 153-54, 58 S.Ct. 778, 784, 82 L.Ed. 1234 (1938)). We undertake that examination.

A.

Section 1328 was enacted as part of the District of Columbia Court Reform and Criminal Procedure Act⁶ which not only reorganized the District's courts, but also contained provisions reforming the criminal sections of the D.C.Code, including the law regarding pretrial release and detention. In enacting the 1970 Act's pretrial release provisions, Congress made clear that it was responding to the "very sharp upturn" in serious crime which followed enactment of the Bail Reform Act of 1966, Pub.L. 89-465, 80 Stat. 214, and the local implementing Act, the District of Columbia Bail Agency Act, Pub.L. 89-519, 80 Stat. 327 (1966). See H.R.REP. No. 907, 91st Cong., 2d Sess. 80 (1970); see also id. at 87 (provisions to "reform . . . local bail procedures after . . . devastating experience under the Bail Reform Act"); id. ("rise of [street] crime in the District since enactment of the Bail Reform Act . . . appalling"); id. at 89 (citing statistics showing "significant effect" of pretrial release on crime rates).

The infirmity perceived in the Bail Reform Act was that, in changing the historic money bail system, it made likelihood of flight the sole criterion in release determinations. In response, the 1970 Act's provisions on pretrial release and detention, as part of a comprehensive scheme "to help deter crime committed while on release pending trial or appeal," id. at 93, authorized courts to consider "danger to the community" in deciding whether to grant release. Id. at 87. Section 1328, providing increased penalties for offenses committed while on release, was thus intended as but one provision in a comprehensive legislative scheme designed to deter crime perpetrated by individuals on release.⁷ The legislative history is explicit on this point:

Your committee has also taken certain long overdue steps to help deter crime committed while on release pending trial or appeal. These include modifying existing proof problems in bail jumping prosecutions, providing for adequate sanctions for violation of release conditions including revocation of release where appropriate, and stiff added penalties for crimes committed while released. To heighten the deterrent effect we have proposed that the added penalties and the bail jumping punishments should be mandatory minimum prison sentences imposed consecutively to any other sentences.

It is extremely important to remember when considering these provisions related to pretrial detention that they should not be considered in isolation, but rather as one of the many facets of this bill that seeks to provide some relief to the crime problems besetting the District of Columbia. While we provide more judges and reorganize the courts to expedite trials, we fully realize that the problem of the criminal defendant currently being released under the Bail Reform Act of 1966 poses a threat to the safety of persons and the community that should and must be met.

H.R. REP. No. 907, 91st Cong., 2d Sess. 93 (1970).

In discussing possible factors giving rise to the "indisputable fact that many defendants are committing . . . crimes during the period of . . . pretrial release," Congress noted the "last fling" phenomenon, explaining that "many [released] defendants can be expected to accelerate their misconduct, becoming more reckless and more dangerous because their time for planning action has been reduced." H.R. REP. No. 907, 91st Cong., 2d Sess. 83 (1970).⁸ Increased penalties for crimes committed on release would provide deterrence to those who otherwise would not be "particularly motivated to obey the law during the period of pretrial release." Id.

Another reality to be considered is that in practice, "any release ordered by the courts include[s] a condition that the defendant not commit another crime while on release." United States v. Rodriguez, 794 F.2d 24, 27 (2d Cir. 1986), reed on other grounds, 480 U.S. 522, 107 S.Ct. 1391, 94 L.Ed.2d 533 (1987). In the instant case, for instance, the...