Consent DVPOs without Findings of Fact Are Void ab Initio

Tag Archives: retroactivity

Consent DVPOs without Findings of Fact Are Void ab Initio

Posted on February 21, 2012 by Jeff Welty

The court of appeals recently decided Kenton v. Kenton, a civil case of major significance for criminal lawyers. In a nutshell, a wife sought a domestic violence protective order (DVPO) against her husband. A district court judge entered a consent DVPO, finding that “[t]he parties agree to entry of this order without express findings of fact regarding the behavior of either party,” and noting that the parties also waived conclusions of law. A year later, the wife sought to renew the DVPO. The husband “moved to dismiss the motion on the ground that the [c]onsent DVPO was facially invalid because the order contained no finding of fact or conclusion of law that defendant committed an act of domestic violence, as required by [G.S.] 50B-3(a).” The trial court denied the defendant’s motion and renewed the DVPO, but the court of appeals reversed. Citing Bryant v. Williams, 161 N.C. App. 444 (2003), it ruled that the DVPO was “void ab initio” because it “lacked any finding that defendant committed an act of domestic violence.”

No further appeal seems likely. The opinion was unanimous, so the wife doesn’t have a right to further review. And although the docket sheet states that she was represented by an attorney, no brief was filed on her behalf in the court of appeals.

So, now we know that consent DVPOs without findings of fact are not proper. I’ve heard that such orders were common practice in some districts and not common in others. To try to get a rough handle on the prevalence of such orders, I’ve put up a poll – please take a moment to note how things worked in your district.

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Clearly, Kenton will affect any pending cases in which a defendant is charged with violating a consent DVPO without findings of fact. Under G.S. 50B-4.1, it is a crime to violate a “valid protective order.” An order that is void ab initio isn’t valid, so violating it can’t be a crime.

The more interesting question is whether Kenton affects past cases in which defendants have been convicted of violating consent DVPOs without findings of fact. Under G.S. 15A-1415(b)(1), a defendant is entitled to relief if “[t]he acts charged . . . did not at the time they were committed constitute a violation of criminal law.” I can imagine an argument that (1) Kenton-style DVPOs are void ab initio, meaning (2) that no such order was ever valid, no matter how common they were, and so (3) a defendant convicted of violating such an order was convicted of something that was not a crime. Or an argument that under the retroactivity principles of Teague, Kenton is an “old rule” and so retroactive at least to Bryant. On the other hand, the state may argue that Kenton is a “new rule” that should not be applied retroactively to afford relief in closed cases. I haven’t thought much about this, and I’d be interested in readers’ analyses of this issue. [Update: my colleague Jessie Smith believes that, because Kenton is grounded in state law, retroactivity should be determined under State v. Rivens, 299 N.C. 385 (1980), not Teague. Her paper here discusses the difference and states that Rivens provides for a presumption of retroactivity.] Note that if defendants are entitled to reopen old cases under Kenton, convictions beyond those for violating a DVPO may be implicated. For example, a defendant convicted of the federal crime of possessing a firearm while subject to a DVPO, 18 U.S.C. § 922(g)(8), might seek relief based on the asserted invalidity of the DVPO.

Kenton raises other issues, too, like how detailed the findings of fact must be to support a DVPO, and whether a defendant who is willing to consent to a DVPO can do so in a way that doesn’t amount to an admission in a related criminal case. Stay tuned.

Category: Procedure, Uncategorized | Tags: DVPOs, findings, kenton, retroactivity, void ab initio

Is Padilla Retroactive?

Posted on October 4, 2011 by Jessica Smith

In a post here [editor’s note: the post shows up with my picture for technical reasons, but it was written by Sejal Zota], a former colleague discussed Padilla v. Kentucky, 130 S. Ct. 1473 (Mar. 31, 2010), a U.S. Supreme Court decision dealing with ineffective assistance of counsel in connection with advice regarding the immigration consequences of a plea. In Padilla, after pleading guilty to a charge of transporting a large amount of marijuana, the defendant, a lawful permanent resident of the United States for more than forty years, faced deportation. He challenged his plea, arguing that his counsel rendered ineffective assistance by failing to inform him that the plea would result in mandatory deportation and by incorrectly informing him that he did not have to worry about his immigration status because he had been in the country for a long time. The Court concluded that when, as in the present case, “the deportation consequence [of a plea] is truly clear,” counsel must correctly inform the defendant of this consequence. However, the Court continued, where deportation consequences of a plea are “unclear or uncertain[] [t]he duty of the private practitioner . . . is more limited.” It continued: “When the law is not succinct and straightforward . . . , a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry a risk of adverse immigration consequences.” The Court declined to rule whether the defendant was prejudiced by his lawyer’s deficient conduct.

Padilla has generated a lot of post-conviction litigation nationally. And in North Carolina it’s no different—numerous motions for appropriate relief have been filed alleging that counsel was ineffective under Padilla by failing to properly advise defendants regarding the immigration consequences of their pleas. For defendants whose convictions became final prior to Padilla, retroactivity is a preliminary issue presented by those motions. As I discuss in more detail in a bulletin available here, under federal law a new rule of criminal procedure does not apply retroactively unless it is a watershed rule of criminal procedure. Put in visual form, retroactivity analysis for Padilla follows this path:

A number of courts in other jurisdictions have addressed the issue of whether Padilla is retroactive and a split of authority is emerging at the appellate level. Compare United States v. Hong, __ F.3d __, 2011 WL 3805763 (10^th Cir. Aug. 30, 2011) (Padilla is a new rule but not a watershed rule and thus is not retroactive), and Chaidez v. United States, __ F.3d __, 2011 WL 3705173 (7^th Cir. Aug. 23, 2011) (as a new rule, Padilla is not retroactive; because the parties agreed that the rule was not a watershed rule of criminal procedure, the court did not address that issue), with United States v. Orocio, 645 F.3d 630 (2d. Cir. 2011) (Padilla is not a new rule and thus applies retroactively), and Commonwealth v. Clarke, 949 N.E.2d 892 (Mass. 2011) (same). The North Carolina appellate courts have not yet dealt with the issue. But given the post-conviction motions before the trial bench, it is only a matter of time before we see a decision. When we do, I’ll post an update.

Category: Procedure, Uncategorized | Tags: immigration, ineffective assistance of counsel, padilla, retroactivity

State v. Johnson and the Retroactivity of Gant

Posted on June 3, 2010 by Jessica Smith

On June 1, 2010, the N.C. Court of Appeals applied Arizona v. Gant in State v. Johnson and held that the defendant’s Fourth Amendment rights were violated when the police searched his vehicle incident to his arrest. There is nothing particularly significant about that holding, as it involved a fairly straightforward application of Gant. However, one aspect of the holding already has generated some traffic on my phone line. Specifically, in its decision, the court stated: “because [Gant] applies retroactively, we conclude that the warrantless search of the defendant’s car following his arrest . . . was unconstitutional.” (emphasis added). My callers have been asking: “Does this mean Gant applies retroactively to cases for which the direct appeal process ended years ago?” The answer to that question is no; Johnson didn’t hold that Gant applies retroactively to cases that became final before Gant was decided.

As I discuss in much more detail in a paper here, retroactivity, as it applies to judge-made rules, is a term referring to a new rule of criminal procedure that applies to cases that became final before the decision adopting the new rule was rendered. Notwithstanding the Johnson court’s use of the term “retroactively,” retroactivity wasn’t at issue in that case. [editor’s note: my summary of Gant is here, and my discussion of Gant and retroactivity is here.]

Consider the procedural history of the case:

July 8, 2008	Trial court denies defendant Johnson’s motion to suppress
Jan. 13, 2009	Defendant pleads guilty, preserving the right to appeal the denial of his suppression motion
Jan. 14, 2009	Defendant files notice of appeal
April 21, 2009	Gant is decided
June 1, 2010	Court of Appeals’ decision on Johnson’s direct appeal is issued

As is readily apparent, Gant was decided while Johnson’s appeal was pending. Gant thus applies to Johnson’s case under clearly established law that new judge-made rules of criminal procedure apply to all cases pending and not yet final on appeal at the time the decision was rendered. In fact the Johnson opinion recognizes this when it states: “Gant applies retroactively to this case, since this case is currently on direct review, and is not yet final.” (Slip op. at 11-12 (citing Griffin v. Kentucky, 479 U.S. 314 (1987)). Although the court’s repeated use of the word “retroactively” initially may create confusion, a careful look at the case’s procedural history makes clear that Johnson was not a case in which Gant was applied to a conviction that was final when Gant was decided. In order for a court to apply Gant in that way, it would have to conclude that the case warrants retroactive application under the Teague retroactivity standard. The United States Supreme Court has not had occasion to apply the Teague test to the Gant rule. Nor did Johnson do so. More information on the Teague retroactivity test is provided in the paper mentioned above.

Category: Procedure, Search and Seizure, Uncategorized | Tags: gant, johnson, retroactivity, teague

Retroactivity of Melendez-Diaz (Again)

Posted on July 27, 2009 by Jessica Smith

In my last post on this topic, I addressed the “new rule” prong of Teague retroactivity analysis as it applies to Melendez-Diaz. I ended that post by noting that another aspect of retroactivity analysis that has been raised regarding Melendez-Diaz is whether the Teague test applies in North Carolina motion for appropriate relief proceedings in light of Danforth v. Minnesota, 128 S. Ct. 1029 (2008). This post addresses that issue.

As noted in my last post, the Teague anti-retroactivity rule provides that new judge-made rules of criminal procedure are not retroactive unless they are determined to be watershed rules. While the Teague rule governs federal habeas proceedings, Danforth held that Teague does not limit the authority of state courts to give broader effect to new federal rules of criminal procedure in their own post-conviction proceedings than is required by that opinion. Relying on Danforth, some defense lawyers have argued that North Carolina judges now are free to disregard Teague and apply a more permissive retroactivity standard to new federal rules of criminal procedure–such as Crawford and Melendez-Diaz-in state court motion for appropriate relief proceedings.

One problem with that argument is State v. Zuniga, 336 N.C. 508 (1994). In that case, the North Carolina Supreme Court expressly adopted the Teague test for determining whether new federal rules apply retroactively in state court motion for appropriate relief proceedings. In so ruling it specifically rejected an argument by amici, the North Carolina Academy of Trial Lawyers, that the state retroactivity rule of State v. Rivens, 299 N.C. 385 (1980) (new state rules are presumed to operate retroactively unless there is a compelling reason to make them prospective only) should apply in motion for appropriate relief proceedings. Instead, persuaded by concerns of finality, the court adopted the Teague rule. Although Zuniga is a pre-Danforth case, it is the law in North Carolina. And although the North Carolina Supreme Court might come to a different conclusion if the issue is raised again, the lower courts are bound by that decision. It might be worth noting that the United States Supreme Court came to a different conclusion than the Zuniga court with regard to application of the Teague test to the new federal rule at issue, see Beard v. Banks, 542 U.S. 406 (2004) (Zuniga held that the McKoy rule applied retroactively under Teague; ten years later in Beard, the United States Supreme Court concluded otherwise). However, even if that aspect of Zuniga is no longer good law, Danforth reaffirms the authority of the Zuniga court to adopt the Teague test for purposes of state post-conviction proceedings.

Category: Evidence, Procedure, Uncategorized | Tags: confrontation clause, melendez-diaz, retroactivity

Retroactivity of Melendez-Diaz

Posted on July 20, 2009 by Jessica Smith

Melendez-Diaz v. Massachusetts, 557 U.S. __, 129 S. Ct. 2527 (2009), decided by the United States Supreme Court last month, already has had significant implications for criminal prosecutions in North Carolina. The original wave of questions posed to me about the case pertained to its application in pending prosecutions. I wrote about Melendez-Diaz generally and addressed a number of those questions in an earlier paper posted here. A significant part of the second wave of questions posed to me has pertained to application of Melendez-Diaz in post-conviction proceedings, including motions for appropriate relief and federal habeas petitions. Specifically, a number of people have asked about whether Melendez-Diaz applies retroactively to cases that became final before it was decided. I will begin to address that question in this post.

I wrote about retroactivity of judge-made rules five years ago in a paper posted here. That paper sets out the general retroactivity rules and I won’t repeat all of them in this post. However, if you need a primer on retroactivity, that is a good place to start. Since that paper was published, the United States Supreme Court has held that Crawford is not retroactive under the rule of Teague v. Lane, 489 U.S. 288 (1989). See Whorton v. Bockting, 549 U.S. 406 (2007) (Crawford was a new procedural rule but not a watershed rule of criminal procedure). The Teague anti-retroactivity rule applies to new rules of federal criminal procedure. One of the arguments being asserted by defense lawyers is that Melendez-Diaz is not a new rule but rather was mandated by Crawford v. Washington, 541 U.S. 36 (2004). If that is correct, Melendez-Diaz would apply retroactively at least back to the date Crawford was decided, March 8, 2004. See Whorton, 549 U.S. at 416 (old rules apply retroactively).

The United States Supreme Court’s retroactivity analysis requires that, in order to determine whether a rule is new, the court must first determine the date on which the case became final. It then must “assay the legal landscape” at the time the conviction became final and ask whether the rule later announced was “dictated by then-existing precedent–whether, that is, the unlawfulness of [defendant’s] conviction was apparent to all reasonable jurists.” Beard v. Banks, 542 U.S. 406, 413 (2004) (quotation omitted); see also Graham v. Collins, 506 U.S. 461, 467 (1993) (new rule not “dictated” by precedent) (quoting Teague, 489 U.S. at 301). It is not enough that earlier cases support the new rule. See Beard, 542 U.S. at 410. The question is “whether reasonable jurists could differ as to whether precedent compels the sought-for rule.” Id. at 416 n.5; see also Graham, 506 U.S. at 467 (“compelled by existing precedent”). Obviously, “precedent” includes decisions of the United States Supreme Court. But it also includes decisions of the lower courts, both state and federal. See Caspari v. Bohlen, 510 U.S. 383, 395 (1994) (“in the Teague analysis, the reasonable views of state courts are entitled to consideration along with those of the federal courts”); O’Dell v. Netherland, 521 U.S. 151, 166 n.3 (1997) (noting that conclusion that rule is new finds support in the decisions of the state and lower federal courts). And finally, when the rule at issue emerged in a prior case, a lack of unanimity of the deciding Justices is relevant. See O’Dell, 521 U.S. at 159-60 (the “array of views expressed in [the opinion] itself suggests that the rule announced there was, in light of the Court’s precedent, susceptible to debate among reasonable minds”) (quotation omitted). But see Beard, 542 U.S. 416 n.5 (noting that because the focus is on reasonable jurists, the “mere existence of a dissent” does not suffice to show that the rule is new).

When a case explicitly overrules an earlier holding, it clearly creates a new rule. See Saffle v. Parks, 494 U.S. 484, 488 (1990); Butler v. McKellar, 494 U.S. 407, 412 (1990); Graham, 506 U.S. at 467. The inquiry is more difficult when the decision extends the reasoning of prior cases. See Saffle, 494 U.S. at 488; Butler, 494 U.S. at 412-13; Graham, 506 U.S. at 467. Beard is a relatively recent example of how the analysis plays out in the latter context. At issue in Beard was whether the rules announced in Mills v. Maryland, 486 U.S. 367 (1988), and McKoy v. North Carolina, 494 U.S. 433 (1990), applied retroactively. Those cases invalidated capital sentencing schemes that required juries to disregard mitigating factors not found unanimously by the jury. The Beard Court noted that Mills and McKoy relied on a line of cases holding that the sentencer in a capital case must be allowed to consider any mitigating evidence. The Beard Court concluded that although this line of cases supported the Court’s rulings in Mills and McKoy, it did not mandate their holdings. The Court found that the earlier cases considered only obstructions to the sentencer’s ability to consider mitigating evidence whereas Mills focused on individual jurors. The Court thought it “clear” that reasonable jurists could have differed as to whether the [earlier cases] “compelled” Mills. In fact, it noted that in Mills itself, four justices dissented, arguing that the rule from the prior case law did not control. Likewise, three Justices dissented in McKoy, asserting that the prior cases did not mandate the holding. In the end, the Court concluded: “Given the brand new attention Mills paid to individual jurors . . . we must conclude that the Mills rule br[o]k[e] new ground.”

The strongest support for the defense argument that Melendez-Diaz is not a new rule is found in the opinion itself. Writing for the majority, Justice Scalia described the case as a “straightforward application of . . . Crawford,” Slip Op. at 6, involving “little more” than an application of the holding of that case. Id. at 23. Thus, the defense could argue, since Melendez-Diaz was mandated by Crawford, it is not a new rule for cases that became final after Crawford was decided and the Teague anti-retroactivity rule does not apply. In making this argument, the defense might focus on the fact that Melendez-Diaz involved application of the general Crawford rule to a specific situation, as opposed to a modification of the Crawford rule. To amplify this position, the defense might assert that both cases involved precisely the same issue: whether the evidence was testimonial; the only difference between the cases was the type of evidence at issue.

A prosecutor might respond by arguing that Scalia did not make these statements in the context of retroactivity analysis. Also, the prosecution might argue that given the state of North Carolina law (and the law around the country) after Crawford and before Melendez-Diaz, it would be difficult to say that the testimonial nature of forensic laboratory reports was apparent to “all reasonable jurists.” After all, both the North Carolina Court of Appeals and the North Carolina Supreme Court had concluded (more than once) that such items were non-testimonial. Additionally, the decision in Melendez-Diaz was a fractured 5-to-4 decision, indicating that reasonable jurists on the Supreme Court disagreed with its very holding. While Crawford overruled prior precedent (Ohio v. Roberts), the same cannot be said of Melendez-Diaz. However, it can be argued that Melendez-Diaz is an extension of Crawford. Crawford dealt with the testimonial nature of statements by a suspect to the police at a station house after Miranda warnings had been given. Melendez-Diaz by contrast dealt with the testimonial nature of forensic laboratory reports. Thus the argument goes: Melendez-Diaz was not dictated by Crawford; rather, it required an extension of the Crawford rule and thus is a new rule.

Ultimately, the appellate courts will resolve this issue. In the meantime, I hope that this post helps to clarify the relevant law and some of the arguments that might be asserted on both sides. And finally, litigation over the retroactivity of Melendez-Diaz has not been confined to the new rule prong of the Teague test. Another issue that has arisen is whether the Teague test applies in North Carolina state courts in light of Danforth v. Minnesota, 128 S. Ct. 1029 (2008) (holding that Teague does not limit the authority of states to give broader effect to new rules of criminal procedure in state post-conviction proceedings than is required by the Teague rule). I will address that issue in a separate post.

Category: Evidence, Uncategorized | Tags: confrontation clause, crawford, melendez-diaz, retroactivity

Gant, “Retroactivity,” and Retroactivity

Posted on April 24, 2009 by Jeff Welty

The fallout from the Supreme Court’s recent decision in Arizona v. Gant, see my initial post here, has been fast and furious. Most questions I’ve received have been about how it applies to existing and past cases, not to future searches. Here are a couple of common questions and answers.

1. Does Gant apply to searches, at issue in pending cases, that were conducted before the decision was handed down? Yes. It applies to all pending cases, whether at the trial or at the appellate level. See Griffith v. Kentucky, 479 U.S. 314 (1987) (holding that new constitutional rules of criminal procedure apply to all cases that are not yet final). This is illustrated by Gant itself — the search in that case was obviously conducted before the Gant decision, yet the rule announced in Gant was applied to the search. Although some people have asked me about this issue in terms of “retroactivity,” it isn’t what courts talk about when they consider the retroactivity of new cases — true retroactivity is discussed in connection with question 3, below.

2. Does that mean that all evidence obtained as a result of vehicle searches incident to arrest must be suppressed? No. In some cases, searches will be permissible under Gant, such as when the arrestee was unsecured and near the vehicle, or when the arresting officer had reason to believe that evidence of the crime for which the arrest was made would be found in the vehicle. As discussed in my earlier post, the scope of the “reason to believe” prong of Gant is unclear and potentially elastic.

Furthermore, in some cases, there will be an independent legal basis that supports the search, as when the officer had probable cause to search the vehicle. The fact that the officer subjectively thought of himself as conducting a search incident to arrest doesn’t preclude the possibility that the search was justified on a different theory.

Even if no theory justified the search, in some cases, the inevitable discovery rule may operate to “save” evidence recovered during the search. For example, if the vehicle was legally impounded and inventoried after the arrest, any evidence found during the search that would likely also have been found during the inventory is probably admissible.

Finally, if none of the above arguments apply to a particular situation — and my sense is that often none will — a prosecutor attempting to “save” evidence might argue that the officer who conducted the search acted in good faith and thus suppression should not be required under Herring v. United States, __ U.S. __ (2009). I posted about Herring here. Such an argument would require an extension of Herring, and perhaps one that courts will reject, but it may be an argument worth making.

3. Does Gant apply to cases that have already been disposed of? This is the retroactivity question — can a defendant whose conviction has become final, i.e., whose direct appeals have been concluded, or whose time for appeal has expired, seek relief based on Gant? The answer to this question isn’t clear, though given courts’ general reluctance to make changes in the law retroactive, my guess is no. (Let me emphasize that this is only a guess — we’ll have cases soon enough, I’m sure.)

Generally, whether criminal law decisions apply retroactively is determined under Teague v. Lane, 489 U.S. 288 (1989). This is a bit of a simplification, especially after Danforth v. Minnesota, __ U.S. __ (2008), but bear with me. Under Teague, a decision is retroactive if (1) it is an “old rule,” i.e., a decision dictated by prior precedent, or (2) it is a new substantive rule that narrows the scope of criminal liability, or (3) it is a new “watershed” procedural rule that is fundamental to the fairness of criminal proceedings. (For a detailed discussion of Teague, see Jessica Smith’s excellent paper, here.)

Gant isn’t a new substantive rule, and given the Supreme Court’s frequently-expressed skepticism that there are any yet-undiscovered “watershed” procedural rules, it isn’t likely to be retroactive on that basis, either. The best argument for retroactivity is that Gant is an “old rule,” dictated by Belton. This argument is plausible because the Gant majority claimed to be interpreting Belton, not overruling it; indeed, the majority stated that there was both “textual and evidentiary support” for its reading of Belton, arguably suggesting that Gant was dictated by Belton. But my guess is that courts will nonetheless view Gant as a new rule, since it upsets the interpretation of Belton that was widely adopted by lower courts. Even the Gant majority admitted that the automatic-search reading has “predominated,” indeed, to such an extent that officers who acted based on that reading are entitled to qualified immunity. I suspect that will lead courts to find Gant to be a new rule and so not retroactive.

I’m sure that others have views on the retroactivity issue. If you think I’ve got it wrong, let me know.

Category: Search and Seizure, Uncategorized | Tags: gant, retroactivity, teague

Relief from (Un?)Fair Sentencing

Posted on April 8, 2009 by Jamie Markham

One of our loyal readers asked for our take on the provision in the motion for appropriate relief (MAR) statute that allows a defendant to seek relief at any time when “[t]here has been a significant change in law, either substantive or procedural, applied in the proceedings leading to the defendant’s conviction or sentence, and retroactive application of the changed legal standard is required.” G.S. 15A-1415(b)(7). In particular, the reader asked us to consider whether that provision allows relief for an inmate who received a much longer sentence under Fair Sentencing than he would have received for the same crime under Structured Sentencing. A discussion of an illustrative case can be found here.

When an appellate court decision creates a new rule of law, the question of whether that rule applies retroactively can be a complicated one. Fortunately for all of us, my colleague Jessica Smith wrote a really helpful paper on how to apply Teague v. Lane or State v. Rivens to determine whether a judge-made rule applies retroactively. When a new rule is created by statute, the retroactivity analysis is at least a little easier—it is essentially a question of statutory interpretation. With respect to Structured Sentencing, G.S. 15A-1340.10 says the law applies to offenses that occur on or after October 1, 1994, and the session law enacting Structured Sentencing, S.L. 1993-538, expressly said that “[p]rosecutions for, or sentences based on, offenses occurring before the effective date of this act are not abated or affected by the repeal or amendment in this act of any statute, and the statutes that would be applicable to those prosecutions or sentences but for the provisions of this act remain applicable to those prosecutions or sentences.”

So, it seems clear enough that retroactive application is not required as a matter of law. But could the final clause of G.S. 15A-1415(b)(7), “retroactive application of the changed legal standard is required,” be interpreted to mean something like “is required” in the interests of justice? It could, but the commentary from the Criminal Code Commission suggests that it should not. The commentary says this ground for an MAR should “be used when other decisions or statutes impose the requirement of retroactivity, it does not create such a requirement” (emphasis added).

The General Assembly has indicated its realization that some Fair Sentencing sentences are harsher than their Structured Sentencing analogues. In the 2005 Appropriations Act the legislature called on the Post-Release Supervision and Parole Commission to report on the total number of parole-eligible Fair Sentencing and Pre–Fair Sentencing inmates and to compare their time serviced to comparable inmates sentenced under Structured Sentencing. S.L. 2005-276, Sec. 17.24. They put it to an even finer point in 2007, requiring the Parole Commission to “reinitiate the parole review process for each offender who has served more time than that person would have under Structured Sentencing.” S.L. 2007-323, Sec. 17.11(c). But even as they highlight the issue, to a certain degree these mandates reinforce the notion that any remedy for long-serving Fair Sentencing inmates rests within the power of the executive branch, not the judiciary.

Category: Sentencing, Uncategorized | Tags: Fair Sentencing, MAR, Parker, retroactivity, Sentencing

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