Steven HOLIDAY, Appellant, v. UNITED STATES, Appellee. Jae Hoa PARK, Appellant, v. UNITED STATES, Appellee. UNITED STATES, Petitioner, v. The Honorable Mildred EDWARDS, Respondent, James H. Palmer, Real Party in Interest. UNITED STATES, Petitioner, v. The Honorable Mildred EDWARDS, Respondent, Frederick Burgess, Real Party in Interest.
Nos. 95-CF-1054, 95-CF-1390, 95-SP-1457 and 95-SP-1467.
District of Columbia Court of Appeals.
Argued March 26, 1996. Decided July 30, 1996.
683 A.2d 61
John R. Fisher, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and Robert T. Swanson and Leslie A. Blackmon, Assistant United States Attorneys, were on the brief, for appellee in No. 95-CF-105.
Robert E. Morin, Washington, DC, with whom Gerald I. Fisher was on the brief, for appellant Park in No. 95-CF-1390.
John R. Fisher, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, and G. Bradley Weinsheimer and Elizabeth H. Danello, Assistant United States Attorneys, were on the brief, for appellee in No. 95-CF-1390.
Christopher Warnock, Washington, DC, with whom Eleanor Frucci, Silver Springs, MD, was on the brief, for James H. Palmer, the real party in interest, in No. 95-SP-1457.
Adgie O‘Bryant, Jr., filed an appearance on behalf of Frederick Burgess, the real party in interest, in No. 95-SP-1467.
John R. Fisher, Assistant United States Attorney, with whom Eric H. Holder, Jr., United States Attorney, was on the brief, for petitioner in Nos. 95-SP-1457 and 95-SP-1467.
Before FERREN, STEADMAN, and SCHWELB, Associate Judges.
FERREN, Associate Judge:
These consolidated cases present a common issue requiring interpretation of the 1995 statute that repealed mandatory-minimum sentences for certain nonviolent drug offenses. We must determine whether the mandatory-minimum sentencing provisions apply when the offense was committed before—but the defendant was sentenced after—the effective date of the repealing legislation. In addition, appellants Holiday and Park argue that a variety of errors during their respective trials—including issues of severance, other crimes evidence, and the constitutionality of the particular punishment for possession with intent to distribute under 50 grams of powdered cocaine—require reversal of their convictions and thus new trials.
After addressing—and deflecting—the threshold question whether the government‘s petitions for writ of mandamus (alternatively styled as government appeals) are properly before us, we reach the common issue and conclude that mandatory-minimum sentences must be imposed in all four cases under the circumstances presented here. The reason is straightforward. Because the Council of the District of Columbia did not say whether the repealer should, or should not, apply to pending cases, we are compelled by controlling case law to apply two nearly identical statutes enacted to cover such omissions: the so-called federal and local “savings statutes.” Congress and the Council, respectively, have deemed each of these statutes—both applicable in the District of Columbia—to be, without exception, a provision of every statute that repeals another statute imposing a penalty, forfeiture, or liability. Both say that unless the repealer “expressly provides” for the repealer itself to apply to pending cases—which unquestionably is not the case here—the old law, i.e., the newly repealed law, shall still apply. We therefore see no choice in the matter but to hold that mandatory-minimum sentencing is still required here.
Finally, after resolving the principal issue, we consider and reject the other contentions made in individual cases.
I.
Holiday was convicted of a March 23, 1994, distribution of cocaine,
Park was convicted of a June 24, 1993 possession with intent to distribute cocaine,
Palmer pled guilty to a September 15, 1994, distribution of dilaudid,
Burgess pled guilty to a November 23, 1993, distribution of cocaine,
In short, each of these defendants was convicted of committing non-violent drug offenses in 1993 or 1994, but none was sentenced until after the Council had repealed (as of May 25, 1995) the mandatory-minimum sentencing provisions of
II.
There is, however, a preliminary procedural question: whether this court should entertain the government‘s petitions for writ of mandamus in the two Edwards cases (involving Burgess and Palmer). As we have recognized in previous cases, “the writ of mandamus is an extraordinary writ that should be issued only in exceptional circumstances.” Turner v. Bayly, 673 A.2d 596, 602 (D.C.1996) (quoting Yeager v. Greene, 502 A.2d 980, 983 (D.C.1985)). Counsel for Palmer contends that the government has not met its burden of showing that its right to issuance of the writ of mandamus is “clear and indisputable.” Foster v. Canan, 661 A.2d 636, 636 (D.C.1995) (per curiam) (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp. 485 U.S. 271, 289, 108 S.Ct. 1133, 1143, 99 L.Ed.2d 296 (1988)). The government notes conflicting authority in this jurisdiction as to its right to appeal, or to petition for a writ of mandamus, to correct an illegal sentencing order. Compare United States v. Stokes, 365 A.2d 615, 617 (D.C.1976), with United States v. Shorter, 343 A.2d 569, 571 (D.C.1975).
We find it unnecessary to resolve this possible conflict, at least at this time, since we can resolve the merits of the mandatory-minimum sentencing issue on direct appeal in Holiday and Park. Because Super.Ct.Crim.R. 35(a) (1996) permits the trial court to “correct an illegal sentence at any time,” we are confident that steps will be taken to assure that the sentences imposed on Burgess and Palmer will be revisited in light of our rulings in Holiday and Park.
III.
Before we discuss the particular repealing legislation at issue here, we believe it is useful to explain the evolution of general savings statutes that inevitably become part of the analysis when a repealer does not
A.
Although nonpenal statutes traditionally operate prospectively, unless there is evidence of legislative intent to the contrary,1 an opposite presumption applies to repeals of criminal statutes. At common law, such repealing legislation applied retroactively, abating every prosecution which had not yet resulted in final conviction (including appeal to
When repeal legislation, imposing more lenient punishment, contained a special savings clause, or was to be read in connection with a general savings statute, the court faced the question of statutory interpretation presented in the cases now before us: whether (1) the savings provision preserved the repealed sentencing scheme for a pending prosecution, despite a harsher result than the new legislation called for, or instead (2) the repealing statute, when read together with the savings provision, manifested a legislative intent to apply the lesser punishment from the new statute to pending prosecutions commenced under the repealed statute.
B.
We begin with the body of authority that appellants emphasize: decisions by state supreme courts. For a variety of reasons, many of these courts have ruled that general savings statutes in their jurisdictions do not preclude retroactive application of ameliorative sentencing provisions.8 In dissent, Judge SCHWELB relies exclusively on these state cases. None of them, however, can be used to interpret the federal and District of Columbia general savings statutes, which are distinguishable either by reference to their terms or by virtue of federal court—including Supreme Court—interpretations that dictate a different result. We lead with the state court jurisprudence, however, to present up front the best possible case for the defendants’ position and to provide background for the particular savings statutes, and the controlling federal case law, that—taken together—eclipse the state court approach and, necessarily, control the analysis here.
We begin with New York where the Court of Appeals considered the following general savings language:
Section 93 declares, “The repeal of a statute or part thereof shall not affect or impair any act done, offense committed * * * penalty, forfeiture or punishment incurred prior to the time such appeal takes effect,” and section 94 provides that all proceedings commenced and pending at the time a statute is repealed “may be prosecuted * * * to final effect in the same manner as they might if such provisions were not so repealed.” (Ellipses in original.)
People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 372, 134 N.E.2d 197, 201 (1956) (quoting
The court inferred such legislative intent not from anything the legislature said but from objective scrutiny of the purposes underlying sentencing statutes. The court concluded that, once the legislature had seen the folly of harsher penalties than those newly enacted, any further enforcement of the re-
The Supreme Court of Rhode Island, construing a similar, comprehensive general savings statute,10 readily followed Oliver. In State v. Macarelli, 118 R.I. 693, 375 A.2d 944, 947 (1977), the court adopted Oliver‘s “sound judicial philosophy” and said that “[t]o hold otherwise . . . would amount to nothing more than arbitrary retribution in contravention of the obvious legislative purpose behind the mitigation of the penalty.”
Other state courts have reached the same result with somewhat different emphases. In In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 177, 408 P.2d 948, 953 (1966), the California Supreme Court, overruling recent precedent,11 essentially adopted the New York court‘s analysis in Oliver but stressed that the California general savings statute12 could not control because its language “positively expressed [the legislature‘s] intent that an offender of a law that has been repealed or amended should be punished,” but was ambiguous as to whether the defendant in a pending case “should be punished under the old law or the new one.”13
In People v. Schultz, 435 Mich. 517, 460 N.W.2d 505 (1990), the Michigan Supreme Court ignored an explicit general savings statute14 for still another reason. Focusing
The Supreme Court of Hawaii saw yet a different basis for rejecting a general savings provision and remanding to resentence under a new, “lesser mandatory minimum” sentencing scheme. In State v. Von Geldern, 64 Haw. 210, 638 P.2d 319 (1981), the court concluded that the general savings statute15 did not apply to prosecutions pending when this particular sentencing revision was adopted (without its own savings clause), because the legislature‘s intent for immediate retroactive implementation was clear from its previous use of retroactivity language in other criminal statutes. These earlier statutes, said the court, had established “a pattern of conduct evidencing an inclination” to permit “more enlightening sentencing provisions” as soon as possible. Id. 638 P.2d at 323.
The Supreme Court of Utah found reason to ignore a general savings statute by focusing on the statutory language. In State v. Tapp, 26 Utah 2d 392, 490 P.2d 334 (1971), the court considered whether the following general savings statute precluded the trial judge from imposing a lesser sentence attributable to a statutory amendment adopted between the time the defendant was charged with possessing marijuana and the date of sentencing:
The repeal of a statute does not * * * affect any right which has accrued, any duty imposed, any penalty incurred, or any action or proceeding commenced under or by virtue of the statute repealed. (Emphasis added [by Utah Supreme Court].)
Id. 490 P.2d at 336 (quoting
Finally, the Supreme Court of North Dakota ordered application of a new sentencing statute to a pending prosecution for driving without a license when the offense occurred before the new sentencing statute had been adopted but sentencing had taken place thereafter. In State v. Cummings, 386 N.W.2d 468 (N.D.1986), after finding a general savings statute inapplicable to the particular statutory title at issue, the court rejected a statutory canon of construction: “No part of this code is retroactive unless it is expressly declared to be so.” Id. at 471 (quoting
Other state courts have come out differently, holding that the general savings statute requires the trial judge to proceed with the prosecution under the repealed statute.18 But it is readily apparent that most of the state courts which have considered the issue have been disinclined to apply general savings statutes in this context—and have declined to do so even in cases, such as Oliver, Macarelli, and Schultz, where plain language, apparently intended to preserve punishments under the repealed statute, could be seen as air tight.
C.
Unlike the state courts, the federal courts, applying the federal savings statute, have been disposed to take the statutory language literally. Since 1871, Congress has kept in force a general savings statute, apparently modeled on earlier state statutes,19 and now codified at
The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
We have held that this statute, pursuant to
Another case should be mentioned. In Jones v. United States, 117 U.S.App.D.C. 169, 327 F.2d 867 (1963), the D.C. Circuit confronted a case in which the defendant, found guilty of first-degree murder, had pending a petition for writ of certiorari in the Supreme Court when Congress repealed the mandatory death penalty. The court recognized that a specific savings clause in the repealing legislation preserved the defendant‘s sentence under the prior statute, but the court added that, “[q]uite apart from the language of the [repealer],” the general savings statute,
Other cases from this jurisdiction add nothing of relevance, either because the decision turned solely on a special savings clause in the repeal legislation preserving the repealed penalty for pending prosecutions,24 or because the amending legislation was adopted after the defendant‘s sentence had been finally adjudicated,25 or because the reviewing court did not address the savings clause issue.26
More recently, in United States v. Ross, 464 F.2d 376 (2d Cir.1972), the United States Court of Appeals for the Second Circuit considered whether the defendant should have the benefit of the Comprehensive Drug Abuse Prevention and Control Act of 1970,27 which repealed sundry federal narcotics laws (including mandatory-minimum sentencing provisions). The question arose because “his sentence was imposed after the effective date of the new Act.” Id. at 378. The court held that a specific savings clause in the 1970 Act preserved for pending prosecutions the sentences imposed under the prior act, but the court “buttressed” its decision by applying the general savings statute,
The Ross court rejected arguments which, as we have seen, satisfied various state courts. For example, Ross gave short shrift to the proposition that the general savings statute applied only to “technical abatement” of an entire prosecution, not to mere sentencing issues.28 Id. at 380. Ross also rejected the contention that, because § 109 literally applied only to save a “penalty, forfeiture or liability incurred” under the repealed statute, the savings statute must apply only to collateral attacks on sentences already imposed.29 Id. at 379 (emphasis added). Rather, the court in Ross emphasized the plain language of § 109 that “[t]he repeal of any statute shall not ... extinguish any penalty, forfeiture, or liability incurred under such statute,” and concluded that, because “sentencing is an integral part of the prosecution,” id. at 379, it was “incurred” (meaning it had accrued) as of a time when the criminal act was committed, before the new sentencing provisions became effective.
Within a year the Supreme Court gave powerful support, albeit indirectly, for the Second Circuit‘s application of § 109 in Ross. In Bradley v. United States, 410 U.S. 605, 93 S.Ct. 1151, 35 L.Ed.2d 528 (1973), the Court addressed the specific savings clause in the Comprehensive Drug Abuse Prevention and Control Act of 1970 and sustained the ruling of the First Circuit which, like the Second Circuit in Ross, had held the more lenient sentencing provisions of the 1970 Act unavailable. In construing the savings clause—“‘Prosecutions for any violation of law occurring prior to the effective date of [the Act] shall not be affected by the repeals or amendments made by [it] ... or abated by reason thereof’”—the Court confirmed in Bradley that sentencing is part of the prosecution; the sentence is not part of a subsequent, severable proceeding. Bradley, 410 U.S. at 608, 93 S.Ct. at 1154 (quoting § 1103(a) of the Comprehensive Drug Abuse Prevention and Control Act of 1970,
The Court extended its special savings clause analysis in Bradley to the general federal savings statute in Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974). There, the Court held that § 109 saved the no-parole provisions repealed by the Comprehensive Drug Abuse Prevention and Control Act of 1970, keeping them in place for prose-
Before the general savings statute,
The weight and reasoning of these federal cases leave no room for this court to adopt the reasoning of the state supreme courts that have held a general savings statute inapplicable because it is ambiguous (Estrada), or expressly is limited to preserving sentences already imposed (Tapp), or is an optional canon of statutory construction (Oliver), or must be construed by reference to legislative intent in other criminal statutes (Von Geldern), or is relevant only to “technical abatements” of an entire criminal offense (Schultz).
On the other hand, none of the Supreme Court and other federal cases cited deals with the second half of the required analysis under § 109: the repealing statute shall not extinguish any penalty incurred (i.e., accruing) under the repealed statute “unless the repealing Act shall so expressly provide.”
D.
(1)
On December 6, 1994, the Council of the District of Columbia enacted legislation repealing the mandatory-minimum sentences for distribution and possession with intent to distribute controlled substances, namely, the District of Columbia Nonviolent Offenses Mandatory-Minimum Sentences Amendment Act of 1994, D.C.Law 10-258, 42 D.C.Reg. 238 (effective May 25, 1995). This statute included the following provisions prescribing the repeal and its effective date:
Sec. 3. Section 401(c) of the District of Columbia Uniform Controlled Substances Act of 1981, effective August 5, 1981 (
D.C.Law. 4-29 ;D.C.Code § 33-541(c) ) is repealed.Sec. 4. This act shall take effect after a 60-day period of Congressional review following approval by the Mayor (or in the event of veto by the Mayor, action by the Council of the District of Columbia to override the veto) as provided in section 602(c)(2) of the District of Columbia Self-Government and Governmental Reorganization Act, approved December 24, 1973 (87 Stat. 813;
D.C.Code § 1-233(c)(2) ), and publication in either the District of Columbia Register, the District of ColumbiaStatutes-at-Large, or the District of Columbia Municipal Regulations.
Aside from whatever can be inferred from Sec. 4 spelling out the effective date, this repealing legislation itself contains no language concerning what effect the repeal of mandatory-minimum sentences was to have on pending prosecutions.
All four defendants in the cases on appeal committed offenses before May 25, 1995 but were sentenced several months after that date.33 The common issue on appeal, therefore, is whether the law required the trial courts to impose mandatory-minimum sentences under
(2)
At this point we should explain that
The repeal of any act of the Council shall not release or extinguish any penalty, forfeiture, or liability incurred pursuant to the act, and the act shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of any penalty, forfeiture, or liability, unless the repealing act expressly provides for the release or extinguishment of any penalty, forfeiture or liability.
The “DISTRICT OF COLUMBIA STATUTORY SAVINGS PROVISION ACT OF 1990,”
We therefore focus our attention on the identical mandates of both general savings statutes: they preserve repealed sentencing provisions for all prosecutions pending at the time the repealing legislation becomes effective, “unless the repealing act expressly provides” for immediate extinguishment of the repealed provisions.
(3)
In § 4 of the mandatory-minimum repealer quoted earlier, the Council expressly provid-
In announcing this effective date, however, the Council did not address in the statute an obvious question: when the act became effective, did it apply (1) only to offenses committed after the effective date, or (2) to offenses charged after the effective date even though some may have been committed before that date, or (3) perhaps to all pending prosecutions where the trial court had not yet imposed sentence, or (4) possibly to all prosecutions where sentence had been imposed but the judgments of conviction were not yet final on appeal, or (5) even to final convictions where offenders were serving their sentences?39
The legislative history—as the parties agree—is inconclusive. On March 31, 1994, Councilmembers Lightfoot and Thomas introduced Bill 10-617 which, among other things, would repeal
The Council, however, did not accept the compromise the Committee proffered. Councilmember Lightfoot immediately moved adoption of an amendment that would reinstate the repeal of mandatory-minimums that he and Councilmember Thomas originally had proposed. Transcript, Council of Dis-
When this legislative history was called to the trial court‘s attention, first in Holiday and later in Park, the defense counsel and the prosecutor both found the language ambiguous, and neither party argued it was conclusive. In its written pleadings and at argument on the sentencing motion, the government took the position that the words “offenders charged after the effective date” basically were forward looking, rather than allowing for retroactive application, and should be construed to mean “offenses committed after the effective date,” (emphasis added), in order to avoid “potential ex post facto problems.”41 The government also emphasized that the absence of express language applying the repealer to offenses committed before the effective date required the court to apply the substantive provisions of the general savings statute, preserving sentencing for those offenses under the repealed law.
Counsel for appellants Holiday and Park (incorporating by reference the pleadings in Holiday) picked up on a theme suggested by Judge Canan: that the language in the MANDATORY-MINIMUM REPORT “offenders charged after the effective date“—may have applied only to the substitute Committee bill that merely reduced, rather than repealed, the mandatory-minimums. For that reason, according to counsel, this language had no bearing on the repealer finally adopted. Counsel added that offenses “charged” after the effective date inevitably would cover at least some offenses committed before that date; that the government‘s pure prospectivity argument accordingly fell short; and that, in any event, nothing in the Committee‘s language said the repealer was “limited to persons subsequently charged.”
In short, the government, while arguing that the Committee language should be construed to preclude application of the repealer to all offenses committed before its effective date, primarily advocated the savings statute as the way around an ambiguous, incomplete legislative history. The defense, on the other hand—while arguing that if the Committee language applied, it should be understood to reach back to embrace at least some offenses committed before the repealer‘s effective date—primarily urged that the MANDATORY-MINIMUM REPORT did not apply to the particular repealer adopted. The defense then pressed the line of state cases, discussed earlier, that rejected general savings statutes. The judge, finding no helpful legislative history, agreed that case law construing the savings statute would control—and then sided with the government. No one at trial or on appeal for that matter—has argued that the legislative history is conclusive.
We are satisfied that the language of the MANDATORY-MINIMUM REPORT cannot be rejected simply on the ground that, because the Council adopted the original Lightfoot-
On the other hand, the single Committee reference, without elaboration, to “offenders charged after the effective date” cannot be held conclusive. There was no record of any discussion in committee—or at the Council—about the reach of the repealer; for all we can tell this was committee staffer language generally referring to the concept, but not to the definitive detail, of an effective date drawn from the large number of possible alternatives. Moreover, the date criminal charges are filed is a far less rational line to draw than others—the date of the offense, sentencing, or final adjudication—for purposes of defining the class covered.42 Accordingly, something more than a clause in a committee report, without analysis, should be required before a court pays definitive attention.
Furthermore, the federal and local general savings statutes apply, according to their terms, unless the repealing act itself “expressly provides” otherwise.
Finally, as the government noted at trial, to the extent the MANDATORY-MINIMUM REPORT language has any utility here, we note it at least is forward-looking, is consistent with the theory underlying the general savings statutes, and does not help defendants who are charged, as in these cases, before the effective date of the repealer. All things considered, therefore, we are not comfortable determining the applicable reach of the repealing legislation solely by reference to the Committee language.
(4)
The only way to conclude, as appellants would have it, that the Council “expressly” provided for application of the repealer to all pending prosecutions where sentence had not been imposed (or adjudicated to a final conviction) is to say that there is some kind of objectively discernable imperative—inherent in adopting ameliorative sentencing legislation—which unambiguously means that the very reference to an effective date signals effectiveness immediately, including application to proceedings in pending prosecutions commenced at a time when harsher sentences were anticipated.43
This possible rationale is the only one we can think of to make a bare effective date provision, as such, an “express” directive for retroactive application of the repeal of mandatory-minimum sentences. It is akin to the reasoning of the New York Court of Appeals in Oliver: the view that any rational person, viewing the matter objectively, would have to agree that failure to apply the new sentencing rules retroactively would amount to unacceptable “vengeance or retribution.” Id., 151 N.Y.S.2d at 373, 134 N.E.2d at 202. We cannot agree, however, that Oliver expresses the only rational possibility. We cannot say that a legislature could not rationally conclude that the best approach would be a purely prospective one, so that all defendants
If we were dealing with general savings statutes that were ambiguous as to whether the repealed sentencing statute itself was saved (as in Estrada), or were written loosely enough to permit an implied legislative intent to override the general savings statutes, then perhaps we could see at least an opening for the argument that the general savings statutes should not apply here. But both statutes say the repealing legislation must “expressly provide” for extinguishment of the repealed statute, as applied to “any penalty ... incurred pursuant to the [repealed] act.”
In applying the general savings statutes we are not dealing with optional rules of statutory construction; they are substantive provisions deemed a part of every statute that amends or repeals another statute imposing a penalty, forfeiture, or liability, just in case the scope of an effective date or other applicability provision is not sufficiently spelled out. See Hertz v. Woodman, 218 U.S. 205, 30 S.Ct. 621, 54 L.Ed. 1001 (1910); Great Northern Ry. Co. v. United States, 208 U.S. 452, 28 S.Ct. 313, 52 L.Ed. 567 (1908).44
These general statutes, therefore, cannot be flicked aside as though legislative intent can, and must, be divined without reference to them. We see nothing “express” in the effective date provision that would make this case any different from Hurwitz or from later federal cases tracking the Supreme Court‘s analysis in Marrero. In short, the repealing legislation adds nothing “express” (or necessarily implied, see supra note 44) that would preclude the general savings statutes from preserving the mandatory-minimum sentences in these cases.
We recognize the force in Justice Schaefer‘s observation that general savings statutes are not always salutary, let alone remembered by legislatures that fail to specify the reach of new legislation.
The common-law rule operated unsatisfactorily..... The reaction against the common-law rule took the form of generalized statements of legislative intention.... They produce their own anomalous results. When a newer social view decides that certain conduct is no longer to be punished, the general statute steps in and imposes the punishment fixed by an earlier generation.... Such a [savings] statute is at best the statement of a present legislature as to the intention of a future one. It is so easy to show that the statute, when applicable, has often been overlooked by lawyers and judges that it is hard to believe that legislators have always had it in mind. Without looking beyond our own borders, it is clear that here, at least, such a statute has not been an effective substitute for individualized statements of legislative purpose.
People v. Bilderback, 9 Ill.2d 175, 137 N.E.2d 389, 393 (1956) (applying general savings statute to preserve prosecution for felony rather than misdemeanor). But, as Justice Schafer himself recognized, this is not to say a general savings statute should not apply when, by its terms, the law clearly says it is to apply. See id.
If the Council had intended for the repeal of mandatory-minimum sentences to apply as soon as possible, then a 30-day period of Congressional review (or, for even more immediate application, emergency legislation) could have been accomplished. Further, if the Council had intended for the repeal of mandatory-minimum sentences to apply retroactively—to pending prosecutions, either pre-sentence or pre-final judgment—express language to that effect could have been included. See Hertz, 218 U.S. at 221, 30 S.Ct. at 626, supra note 44. None of this happened. The general savings statutes, therefore, including the District‘s own statute passed little more than four years earlier, preserve mandatory-minimum sentences in all cases where the offense was committed before May 25, 1995.
IV.
Appellant Holiday also contends the trial court erred in denying his motion for severance, in failing to instruct the jury about the relationship between the drug offenses and the weapons offenses, in admitting expert testimony on the relationship between weapons and illegal drugs, and in denying his motion for continuance after discovery of the government‘s alleged violation of Super.Ct.Crim.R. 16.
A.
Officer Robert Washington testified at trial that on March 23, 1994, at approximately 7:25 p.m., he saw a man, later identified as Holiday, selling what appeared to be a small quantity of drugs to a woman driving a white car. Washington apparently did not see any weapon during Holiday‘s interaction with the woman. The woman then drove off and, about five minutes later, was stopped four or
When the woman drove away, Holiday entered a nearby apartment building. Officer Washington continued to watch the scene for another 45 to 60 minutes until he saw Holiday leave the building with two other men and enter a nearby car. Washington alerted another arrest team; he then pulled up next to the car where Holiday was seated. At the same time, approximately 8:30 p.m., two squad cars arrived. One pulled in front, and the other in back, of the car containing Holiday. As the squad cars were arriving, Washington saw Holiday leaning back, pulling a gun from his waistband, and setting it on the floor of the car. In a later search of the car, the police discovered a .9 millimeter semi-automatic handgun on the floor. The gun was loaded with black talon bullets; a second magazine containing 13 black talon bullets was found next to the gun. The police did not recover any drugs either from the car or from Holiday or any other person in the car. Holiday was then placed under arrest.
B.
Holiday says the trial court erred in denying his motion for severance under
The government argues that the weapons evidence and the drugs evidence are part of a single transaction or series of transactions and, accordingly, that the evidence of each is admissible to explain the other under the analysis we elaborated in Toliver v. United States, 468 A.2d 958 (D.C. 1983). In Toliver, where the appellant had been charged with possession of heroin, we sustained the trial court‘s admission of evidence of appellant‘s contemporaneous drug sales “to explain the immediate circumstances surrounding the offense charged.” Id. at 960 (citations omitted). We recognized that evidence of other criminal activity under this “circumstances surrounding” rationale was technically “not other crimes evi
We need not decide, however, whether Holiday has presented a misjoinder argument for our review. Even if the offenses were misjoined, the misjoinder would have been harmless error because, as elaborated below, the drugs evidence and the weapons evidence were mutually admissible as inextricably intertwined Toliver evidence; the government‘s case was strong; the weapons and drugs evidence were sufficiently separate and distinct; and the trial court instructed the jury to consider the evidence of each count separately. See Byrd v. United States, 551 A.2d 96, 99-100 (D.C.1988) (despite presumption of prejudice when offenses are improperly joined, misjoinder may be harmless where evidence of each offense would be mutually admissible in separate trials).
While pressing the Toliver rationale to avoid severance of the gun and drug charges, the government argues, in the alternative, that even if the facts here do not reflect inextricable intertwining of the gun and drug evidence, the evidence of each offense would be admissible in a separate trial of the other under the Drew exceptions permitting use of other crimes evidence to show motive and identity. See Drew, 118 U.S.App. D.C. at 16, 331 F.2d at 90. For this reason, too, says the government, a severance was not warranted.46 We are satisfied that the Toliver argument works for the government, and thus we proceed with that analysis without considering Drew.
It is important to make clear, first, that Toliver itself and other cases that have applied it have dealt with the issue of admissibility of uncharged criminal activity in a case of another charged crime. In contrast, we consider here — for purposes of severance analysis — the admissibility of evidence of one charged crime in a trial with another charged crime. Thus, the question of inextricable linkage of the two for Toliver purposes is a question of mutual inextricable linkage — i.e., linkage as seen from the perspective of each offense at the time it occurred — much like mutual admissibility under a Drew analysis. See Settles v. United States, 522 A.2d 348, 355 (D.C.1987) (discussing mutual admissibility in misjoinder context). There is a significant difference, however. Under Drew, the mutual admissibility question focuses on particular exceptions to the rule barring other crimes evidence; under Toliver, the question is whether evidence of each charged crime is part of the “immediate circumstances surrounding” the other, such that the evidence reflects two transactions (or a series of transactions) so “intimately entangled” that, whether looked at from the beginning (drug sale) or the end (weapon offense) each criminal event is not clearly explainable to the jury without evidence of the other.
We begin our Toliver analysis by noting that this court has applied Toliver on occasion to uphold the admissibility of evidence of other criminal activity discovered during an arrest for the charge at issue. See Hawkins v. United States, 482 A.2d 1230, 1233 (D.C. 1984) (per curiam) (evidence of weapons police discovered under defendant‘s bed was admissible “to explain the circumstances surrounding the search and the arrest” when defendant was charged with possession of cocaine also discovered under defendant‘s bed); see also Morrison v. United States, 547 A.2d 996, 998 (D.C.1988) (upholding admission of testimony about items stolen from Jeep in case charging receipt of Jeep itself as stolen property). The police had been waiting for Holiday to emerge from the building in order to arrest him on the drug charge; the weapon he happened to be possessing at the time of that arrest was therefore inextricably a part of his arrest for drugs and thus admissible in evidence under Toliver with respect to the drug charge.
As to admissibility of the drug evidence in the gun case, we note that evidence of earlier criminal activity has been held admissible under Toliver-type analysis to explain the circumstances leading up to an eventual arrest. See Bell v. United States, 677 A.2d 1044 (D.C.1996) (evidence of defendant‘s drug sales fifteen minutes before arrest admissible in trial for possession with intent to distribute cocaine); Toliver, 468 A.2d at 961 (evidence of defendant‘s drug sales admissible in trial for possession, but not sale, of heroin); Green v. United States, 440 A.2d 1005, 1007 (D.C.1982) (police observation of apparent drug sales before appellant‘s arrest admissible in trial for possession, but not sale, of marijuana); Day v. United States, 360 A.2d 483, 485 (D.C.1976) (evidence that officers were arresting defendant for reported robbery admissible to explain events immediately preceding defendant‘s commission of charged assault on arresting officer). Accordingly, from the perspective of the gun charge, Toliver analysis will permit admission of the drug evidence unless its linkage is too attenuated, the concern to which we now turn.
The facts of this case are similar to those of Joyner v. United States, 540 A.2d 457, 459 (D.C.1988), where the court held that a charge of possession with intent to distribute heroin had been properly joined with charges of assault with intent to kill while armed, assault with a dangerous weapon, and carrying a pistol without a license — without prejudice necessitating severance. Joyner had pointed a gun at someone and pulled the trigger three times, although the gun had not fired. Id. at 458. Joyner fled but was stopped in the same vicinity soon thereafter by a police officer and was arrested. The police searched an area near where the altercation had occurred and found a pistol, a small change purse containing ten small packets of heroin, and a pink laundry slip with Joyner‘s name and address on it. Counsel for Joyner sought to sever the drug charge from the assault and weapon offenses. This court held:
The mere fact that Joyner was not arrested until several moments later and a very short distance away from the Watson home under circumstances where the evidence could lead one reasonably to believe that he had just abandoned the two items of contraband and the laundry slip does not seem to us to be a rational basis to hold this joinder [of the drug offense with the others] improper. (Emphasis in original.)
Id. at 459. Although the evidence adduced at trial in Joyner did not establish that the possession of heroin with intent to distribute necessarily was part of a transaction that included the assault, weapon, and ammunition charges, this court held, in effect, that the heroin possession was temporally and geographically connected enough to the other charges to permit joinder under
Applying the kind of analysis spelled out in Toliver, we are satisfied that evidence of Holiday‘s drug offense was admissible to explain the circumstances of his arrest on the weapon charge, see Day, 360 A.2d at 485, just as we are persuaded that evidence of the weapon offense was inextricably a part of Holiday‘s arrest on the drug charge, see Hawkins, 482 A.2d at 1233. We recognize that the time differential between the two offenses — about an hour — distinguishes this case to some extent from Joyner, where the altercation and the discovery of drug evidence were but “moments” apart. Nonetheless, we conclude that the continuity of events here under the eye of a single police
C.
Holiday also argues that the trial court erred by failing to instruct the jury as to the limited purposes for admitting other crimes evidence. See Sweet v. United States, 449 A.2d 315, 319 (D.C.1982) (“we generally have required the trial court, sua sponte if necessary, to instruct the jury as to the limited purpose for which [other crimes] evidence is admitted and for which it is to be considered“). Appellant did not request such an instruction at trial; we therefore review for plain error. See Green, 440 A.2d at 1008 n. 8.
Because we have ruled that the weapons evidence and the drugs evidence were both admissible under Toliver, appellant‘s argument must fail. See Hazel v. United States, 599 A.2d 38, 40 n. 4 (D.C.1991) (“evidence of other criminal activity to explain ‘the circumstances immediately surrounding the charged offense’ may be admitted without any cautionary instruction only when such activity is temporally proximate to the charged crime.“); Parker v. United States, 586 A.2d 720, 724 n. 6 (D.C.1991) (quoting Toliver, 468 A.2d at 961 (“inextricably intertwined” evidence directly admissible without the necessity of cautionary Drew instruction)).
D.
Holiday next argues that the trial court erred in admitting expert testimony about the relationship between weapons and illegal drug sales. At trial, the government elicited expert testimony from Detective Stroud that “a lot of times drug dealers use weapons to protect their enterprise,” and that “the most popular handgun used [by drug dealers] is the .9 millimeter semiautomatic. The weapon has a lot more stopping power. You can crack off more rounds. Sometimes as many as 20 rounds of ammunition can be fired before you have to reload again.” Before Stroud took the stand, defense counsel objected to Stroud‘s testimony linking drugs and weapons.
“The trial court has broad discretion to admit or exclude expert testimony, and its decision either way will not be disturbed on appeal unless it is manifestly erroneous.” Hinnant v. United States, 520 A.2d 292, 293 (D.C.1987) (citing Ibn-Tamas v. United States, 407 A.2d 626, 632 (D.C.1979), and Douglas v. United States, 386 A.2d 289, 295 (D.C.1978)). The court has “frequently upheld the use of expert testimony to aid the jury‘s understanding of drug trafficking in the District.” Blakeney, 653 A.2d at 369 (quoting Griggs v. United States, 611 A.2d 526, 527 (D.C.1992)). Expert testimony is admissible when it assists the jury in “understanding matters beyond the ken of the average lay[person].” Id. (quoting Griggs, 611 A.2d at 528). The trial court ruled that the detective‘s testimony was relevant to prove intent to distribute and that “the relevant aspect of it clearly outweighs any prejudicial impact.” See Hinnant, 520 A.2d at 294 (fact that appellant possessed a gun “when he was arrested also supports a finding of intent to distribute“). The trial court did not abuse its discretion in admitting the detective‘s expert testimony.
E.
Finally, Holiday argues that the trial court erred in refusing to grant his request for a mid-trial continuance after discovering the government had failed to disclose a Metropolitan Police Department report on the results of a fingerprint examination of the gun and the magazine recovered in this case. The fingerprint report indicated that latent fingerprints had been lifted from the barrel of the weapon recovered but that the prints were “not good enough to be compared against another suspect.”
When the trial court finds, as Judge Canan did here, that a discovery violation has occurred, the court has broad discretion to fashion an appropriate sanction. See Lee v. United States, 385 A.2d 159 (D.C. 1978). “[A]mong the factors the trial court must consider and weigh are: (1) the reasons for the nondisclosure, (2) the impact of the nondisclosure on the trial of the particular case, and (3) the impact of the sanction on the proper administration of justice in general.” Id. at 163 (citations omitted); see also Washington v. United States, 600 A.2d 1079, 1081 (D.C.1991) (per curiam). We will reverse an appellant‘s conviction only if the trial court abused its discretion in fashioning a remedy and the appellant‘s rights were substantially prejudiced. See Washington, 600 A.2d at 1081; Lee, 385 A.2d at 163-64.
Defense counsel requested an overnight continuance so that she would have an opportunity to review the fingerprint report and prepare adequate cross-examination of the fingerprint expert. The trial court denied counsel‘s request, allowing counsel instead to speak with the government‘s fingerprint expert over the lunch recess and precluding the government from introducing the fingerprint evidence in its case-in-chief.
Assuming without deciding there was a Rule 16 violation here, we do not find an abuse of discretion. The trial judge, in his own words, sought “a proper balance to both sides, to allow both sides not to be unduly prejudiced by what [it] found in this case not to be a deliberate effort ... to frustrate either side.” Furthermore, even if we believed the trial court abused its discretion — which we do not — we would conclude that Officer Washington‘s eyewitness testimony that he saw Holiday place the gun on the floor of the car, when coupled with the minimal exculpatory value of the fingerprint report, would demonstrate that appellant had failed to demonstrate prejudice to his substantial rights warranting reversal. See Lee, 385 A.2d at 164.
V.
Appellant Park argues that the trial court abused its discretion in admitting hearsay testimony under the coconspirator exception. She also maintains that the mandatory-minimum sentencing regime is not rationally related to legitimate legislative goals, as applied to the facts of her case, and thus that her sentence is unconstitutional.
A.
The government sought to prove at trial that Park and her husband conducted a cocaine distributing operation from their carry-out store, the Fish Market, located near 9th and N Streets, N.W. The government presented evidence at trial that on June 24, 1993, Officer Phillip Burton, working undercover, met an individual later identified as Carl Hatchett near the Fish Market. Burton told Hatchett that he wanted to purchase a
A short time later, the police arrested Hatchett and executed a search warrant at the Fish Market. Police officers recovered (1) a bundle of ten vials of cocaine hydrochloride weighing 481 milligrams from Park‘s pocket, (2) a red plastic bucket bearing Park‘s fingerprints and containing 205 vials (approximately 12 grams) of cocaine, and (3) two stacks of cash, one of which contained a marked $20 bill that Burton had used in purchasing cocaine from Hatchett. Park testified that a customer had left the plastic bucket in the store and that she repeatedly but unsuccessfully had attempted to contact her husband to have him turn the contraband over to the police.
B.
Park argues, first, that the trial court abused its discretion by admitting Burton‘s testimony that Hatchett had told him Burton “had to go get it [the cocaine] in the store.” A coconspirator‘s out-of-court statement is admissible nonhearsay in this jurisdiction49 when the party seeking to introduce the statement establishes that (1) it is more probable than not a conspiracy existed, (2) the defendant had a connection to the con-spiracy, and (3) the conspirator made the statements during the course of, and in furtherance of, the conspiracy. See Bellanger v. United States, 548 A.2d 501, 503 (D.C.1988) (per curiam); Butler v. United States, 481 A.2d 431, 439 (D.C.1984) cert. denied, 470 U.S. 1029, 105 S.Ct. 1398, 84 L.Ed.2d 786 (1985). The trial court‘s decision to admit coconspirator testimony as nonhearsay will be upheld absent an abuse of discretion. See Williams v. United States, 655 A.2d 310, 315 (D.C.1995).
Before Burton took the stand, the trial court ruled that the statement was one of joint activity and was highly probative of the connection between the store and the items found during the search of the store. While acknowledging that the statement was somewhat prejudicial because Hatchett did not mention Park by name, the court concluded that the statement was “clearly admissible and clearly probative.” We see no abuse of discretion in the trial court‘s ruling. See Chavarria v. United States, 505 A.2d 59, 62 (D.C.1986) (upholding admission of statement by nontestifying coconspirator advertising marijuana).
C.
Park next argues that the mandatory-minimum sentencing scheme is unconstitutional as applied to the facts of her case because it is not rationally related to any legitimate penological objective. Park points out that the statutory classification punishes first offenses of possession with intent to distribute (PWID) under 50 grams of powdered cocaine more severely than first offenses of PWID under 50 grams of crack cocaine. She then argues that this disparity is at odds with the rest of the sentencing scheme where the seller of crack cocaine is punished equally or more severely than the seller of powdered cocaine. This particular disparity, she says, reflects an irrationality that violates due process and equal protection of the laws.
Park acknowledges that a statutory classification that does not impinge on fundamental rights or involve a suspect class carries a strong presumption of validity. See Heller v. Doe, 509 U.S. 312, 319, 113 S.Ct. 2637, 2642, 125 L.Ed.2d 257 (1993); Backman v. United States, 516 A.2d 923, 926 (D.C.1986) (per curiam) (rejecting constitutional challenge to distinction between addiction to heroin and addiction to cocaine for purposes of addict exception of
In adopting the “Omnibus Narcotic and Abusive Drug Interdiction Amendment Act of 1990,” the Council created “a tiered system of penalties based on the number of convictions and the amount of drug involved”50 to replace a system, originally adopted by citizen initiative, mandating minimum penalties for drug distribution without such differentiation.51 First, the 1990 Act changed the definition of “narcotic” to include “cocaine, its salts, optical and geometric isomers, and salts of isomers.”52 That change alone “increase[d] the mandatory minimum for cocaine [powder] from 20 months to 4 years.”53 No one here contends that the Council lacked a rational basis for designating cocaine as a narcotic drug.
Next, the Council created a statutory distinction between major and minor drug dealers, with different penalties for each depending on the type of substance involved.54 For most substances — e.g., narcotics (including cocaine powder), phenmetrazine, and a PCP mixture — an individual became a major dealer if 500 or more grams were sold; for selling less, one would be a minor dealer.55 But, for three drugs in particular — cocaine base (crack cocaine), pure PCP, and methamphetamine — one became a major dealer for selling only 50 or more grams; and, if selling under that, the seller was a minor dealer.56
Finally, the Council created a separate classification, carrying an additional year‘s mandatory-minimum penalty, for first and second offense minor powder cocaine distributions.57 Accordingly, the penalty scheme created by the Council for distributions of cocaine base, cocaine powder, and other narcotic drugs58 was:
| COCAINE BASE | COCAINE POWDER | OTHER NARCOTICS | |
|---|---|---|---|
| Major Dealer (50+ grams) | Major Dealer (500+ grams) | Major Dealer (500+ grams) | |
| 1st offense | 5 years | 5 years | 5 years |
| 2nd or subsequent offense | 10 years | 10 years | 10 years |
| Minor Dealer (Under 50 grams) | Minor Dealer (Under 500 grams) | Minor Dealer (Under 500 grams) | |
| 1st offense | 4 years | 5 years | 4 years |
| 2nd offense | 7 years | 8 years | 7 years |
| 3rd or subsequent offense | 10 years | 10 years | 10 years |
Park argues the statute is unconstitutional as applied to cases, such as hers, involving fewer than fifty grams of a controlled substance. Park compiles an impressive array of authorities that sustain imposition of longer sentences for distributing crack cocaine than for distributing an equal amount of powdered cocaine. She also points out that
No one seriously could suggest that the respective mandatory-minimum punishments for selling small amounts of powdered cocaine and crack cocaine — looked at separately — are unconstitutional. Neither is irrational in isolation. For this reason alone we cannot say that the decision to punish more heavily for sales of powdered cocaine in certain amounts than for sales of crack cocaine in those same amounts lacks a rational basis; a legislature is not obliged to justify punishment for one crime by reference to punishment for another. As the federal courts have noted when responding to similar challenges to the federal sentencing guidelines:
Political decisions may be harsh yet within the bounds of power. The Constitution does not compel Congress to adopt a criminal code with all possibility for unjust variation extirpated. Experience with the guidelines suggests the reverse: Every attempt to make the system of sentences ‘more rational’ carries costs and concealed
irrationalities, both loopholes and unanticipated severity. Criminals have neither a moral nor a constitutional claim to equal or entirely proportional treatment.
United States v. Marshall, 908 F.2d 1312, 1325-26 (7th Cir.1990); see also United States v. Holland, 810 F.2d 1215, 1219 (D.C.Cir.1987) (“equal protection of the laws does not require Congress in every instance to order evils hierarchically according to their magnitude and to legislate against the greater before the lesser“). Nor is the Council required to rewrite the criminal code when deciding to impose harsher penalties for what it rationally perceives as a particularly vexing crime.
The Council‘s decision to punish what it deemed minor powder cocaine sales more harshly than any other minor drug sales — including crack cocaine — does not invalidate the statutory scheme. While not perfectly symmetrical, the scheme is rationally related to legitimate penological objectives. The crime of possession with intent to distribute a given amount of powdered cocaine is punished less severely than possession with intent to distribute an equal amount of crack cocaine in some circumstances; and it is punished equally with distribution of the same amount of crack cocaine in other circumstances. The fact that possession with intent to distribute powdered cocaine happens to be punished more severely than possession with intent to distribute crack cocaine in still other circumstances does not make the statute unconstitutional as applied to Park. In addressing practical problems, the legislature may make “rough accommodations.” Metropolis Theater Co. v. Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443, 57 L.Ed. 730 (1913), quoted in Dandridge v. Williams, 397 U.S. 471, 485, 90 S.Ct. 1153, 1162, 25 L.Ed.2d 491 (1970). “Perfection in making the necessary classifications is neither possible nor necessary.” Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 314, 96 S.Ct. 2562, 2567, 49 L.Ed.2d 520 (1976) (per curiam).
In any event, the government proffers a rational basis for the reverse statutory distinction Park complains of here in cases involving less than fifty grams of cocaine:
Given that cocaine base [i.e., crack cocaine] is more addictive than cocaine powder (see Brief for Appellant at 22-23), the Council rationally could have believed that small dealers in cocaine powder are less likely than small dealers in cocaine base to be addicts who sell simply to support their habits. Thus, the Council could conclude, low-level dealers in cocaine base generally do not deserve the more severe punishment due low-level dealers in cocaine powder.
While this justification for more severe statutory punishment for selling under fifty grams of cocaine powder than for selling a like amount of crack cocaine seems strained, this court cannot say it is altogether irrational. Federal cases upholding harsher penalties for crack cocaine reason that crack cocaine is cheap, popular, and addictive. While it is certainly legitimate for a legislature to choose to “combat the devastating effects of crack cocaine on our society,” Lawrence, 951 F.2d at 755, by keeping “minor” crack dealers off the streets for significant periods of time, we do not believe the Constitution requires the Council to adopt a crime-fighting approach identical to that adopted in other jurisdictions. It is not surprising, nor does it violate the Constitution, for legislative bodies to attempt diametrically opposed, but rationally based, solutions to a particular social problem. The Constitution requires only that the statutory distinction be supported by at least one “state of facts either known or which could reasonably be assumed,” Backman, 516 A.2d at 927 (quoting United States v. Thorne, 325 A.2d 764, 766 (D.C.1974) (quoting United States v. Carolene Products Co., 304 U.S. 144, 153-54, 58 S.Ct. 778, 784-85, 82 L.Ed. 1234 (1938))); see also F.C.C. v. Beach Communications, Inc., 508 U.S. 307, 314-16, 113 S.Ct. 2096, 2102, 124 L.Ed.2d 211 (1993). Thus, the distinction need only be hypothetically rational, not necessarily based on a rational judgment actually made by the Council. We conclude that the sentencing scheme of the former
In summary, these consolidated cases result in the following rulings: (1) the petitions for writ of mandamus in the two Edwards cases are dismissed without prejudice to the right of the government to seek correction of illegal sentences pursuant to
So ordered.
POSTSCRIPT IN RESPONSE TO DISSENT
Judge SCHWELB, in dissent, stresses the devastating impact of “lengthy prison sentence[s] which [the defendants do] not deserve” on parents of small children, on racial and ethnic minorities, and on persons dying of AIDS or other medical conditions. Post at 97 n. 11. Criminal conduct often brings tragedy, both for the individuals involved and for the community as a whole. But to achieve the result Judge SCHWELB calls for, this court would have to ignore the law in effect at the time these crimes were committed, excuse the ambiguous language of the statute that repealed mandatory-minimum sentencing, overlook the general savings statutes enacted by Congress and by the Council of the District of Columbia to fill in the gaps caused by such ambiguity, and dismiss the fact that all four of these appellants were convicted — fairly — of contributing to the drug problem that plagues the city. It is the Council‘s role to decide what the laws — including their effective dates — will be, and it is this court‘s role to apply laws as the Council has written them, not as we would have had the Council write them, or have written them ourselves, in hindsight. We can no more decide to apply a law before it becomes effective than we can decide not to apply a law after it becomes effective.
Judge SCHWELB denigrates use of the federal general savings statute as, in effect, an anomaly adopted “a century and a quarter ago.” Post at 104. The fact is, of course, that the Council itself adopted the local savings statute — equally applicable here (Judge SCHWELB agrees) — in 1990, only four-plus years before the Council repealed mandatory-minimum sentencing.59 Seven members — a majority — were on the Council for both legislative decisions.60 Furthermore,
The majority approach accordingly differs from that of our colleague in two key respects. First, Judge SCHWELB argues that the Council, in repealing mandatory-minimum sentencing, did not trigger the general savings statute because the repealer did not “release or extinguish” a penalty. Second, he argues that even if a penalty was released or extinguished, the Council of the District of Columbia — although not “expressly” saying so — intended the repealer to apply retroactively, i.e., to affect all pending cases, rather than having the repealed legislation (preserved by the general savings statutes) apply.
As elaborated earlier, our colleague is wrong in his first conclusion because of Supreme Court (Marrero) and succeeding federal circuit court (Jacobs; Cook) authority to the contrary. He errs in his second, fallback argument both because the Council‘s repealer did not satisfy the requirement of an “express” provision to negate application of the general savings statutes and because, in any event, the Council‘s intent — prospective or retroactive application of mandatory minimum sentencing? — is not clear. Even if we were inclined to do so, this court cannot supply a legislative intent that, to this day, is not discernible but for the general savings statutes enacted by Congress — and by the Council itself in 1990 — to govern the very kind of situation at issue here. It therefore follows, ineluctably, that the federal and local general savings statutes,
SCHWELB, Associate Judge, concurring in part and dissenting in part:
One of the wisest exponents of our judicial craft cautioned more than eighty years ago that “[statutes] should be construed, not as theorems of Euclid, but with some imagination of the purposes which lie behind them.” Lehigh Valley Coal Co. v. Yensavage, 218 F. 547, 553 (2d Cir.1914), cert. denied, 235 U.S. 705, 35 S.Ct. 282, 59 L.Ed. 434 (1915) (Learned Hand, J.) (quoted in Luck v. District of Columbia, 617 A.2d 509, 513 n. 4 (D.C.1992)). Unfortunately, my colleagues in the majority have not heeded Judge Hand‘s precept. Instead, they have treated the principal issue before us rather like a problem in algebra, and they have made no inquiry into the consequences of their decision or into whether the Council which enacted the legislation in question could really have intended these consequences.
The practical result of the majority‘s construction of the Mandatory Minimum Sentences Amendment Act (MMSAA),1 D.C.Law 10-258, 42 D.C.Reg. 238 (effective May 25, 1995), will be that the defendants in these cases, as well as an unknown but substantial number of other persons, will be required to serve harsh mandatory minimum sentences without any consideration of each defendant‘s individual circumstances. The majority so holds in spite of the fact that prior to the imposition of sentence in these cases, the Council of the District of Columbia had concluded, on the basis of a compelling legislative record, that mandatory minimum sentences were excessive for and unjust to some of the non-violent drug offenders who were being subjected to them.
It is our responsibility to ensure that men or women are not sent to prison, or kept
My colleagues discern a constitutionally sufficient “rational” basis for sentencing Ms. Jae Hoa Park to a mandatory minimum term of five years for possessing powdered cocaine with intent to distribute it (PWID), when the mandatory term would have been only four years if the drug in question had been “crack” cocaine — a far more addictive and dangerous drug. I am no apostle of judicial activism, but I do not see how we can justify keeping Ms. Park in prison for an extra year when the harsher punishment for powdered cocaine is patently irrational and was most probably placed in the statute by mistake. Accordingly, I also dissent from Part V C of Judge Ferren‘s opinion for the court. I join the remainder of his opinion.
I.
THE MANDATORY MINIMUM SENTENCING ISSUE
A. The MMSAA
The past is prologue. “[E]very statute must be construed with reference to the original intent and meaning of the makers, which intent and meaning may be collected from the cause or necessity of the enactment, and the objects intended to be accomplished by it.” Ex parte Redmond, 3 App.D.C. 317, 318 (1894).
There is no better key to a difficult problem of statutory construction than the law from which the challenged statute emerged. Remedial laws are to be interpreted in the light of previous experience and prior enactments. United States v. Congress of Indus. Orgs., 335 U.S. 106, 112-13, 68 S.Ct. 1349, 1352-53, 92 L.Ed. 1849 (1948). Because this case turns on the Council‘s intent in enacting the MMSAA, a few words are in order regarding the circumstances which led to the passage of this legislation.
In the autumn of 1982, the citizens of the District of Columbia were “in an angry frame of mind” towards drug dealers and armed criminals. Lemon v. United States, 564 A.2d 1368, 1379 (D.C.1989). On September 14 of that year, by a vote of 72% to 28%, they adopted an initiative providing, inter alia, for mandatory minimum penalties for defendants who distributed controlled substances or who possessed such substances with the intent to distribute them. See D.C.Law 4-166, §§ 9 & 10, 30 D.C.R. 1082 (Mar. 9, 1983), codified in
It soon became apparent, however, that the new statute would not bring about the consistency and severity in sentencing that its proponents may have anticipated. Because a defendant had no incentive to plead guilty if his sentence was pre-ordained, prosecutors routinely “sweetened the pie.” They permitted many drug traffickers to plead guilty to “attempted distribution,” or even to “attempted possession with intent to distribute,” where the evidence showed that the “attempt” was actually a completed act. See, e.g., United States v. Rogers, 115 Daily Wash.L.Rptr. 221 (D.C.Super.Ct. Feb. 4, 1987). The mandatory sentences for which citizens had voted were not applicable to “attempts,” id., and many drug dealers thus continued to escape serving mandatory minimum time.
In March 1994, Councilmembers William P. Lightfoot and Harry L. Thomas introduced Bill No. 10-617, in which they proposed, among other things, to repeal mandatory minimum sentences for unarmed drug offenders. The bill was referred to the Council‘s Committee on the Judiciary, which received testimony and other evidence from a substantial number of witnesses, most of whom focused on the injustices which were said to have characterized the eleven-year regime of mandatory minimum sentencing.
The testimony of Mary Jane DeFrank, a representative of the American Civil Liberties Union, was evidently quite influential with the Council.2 Ms. DeFrank testified that after mandatory minimum sentences became the “weapon of choice” in the “war on drugs,” “justice became a casualty in the process.” She quoted Chief Justice Rehnquist to the effect that federal mandatory minimum sentences “impose unduly harsh punishment for first time offenders — particularly for ‘mules’ who play only a minor role in drug distribution schemes.”3 Ms. DeFrank told of a number of specific cases, in the District and elsewhere, in which disproportionately harsh sentences had caused extreme hardship to individual defendants and their families.
Other witnesses described in detail the effect of mandatory minimum sentences on women and children4 and on racial and ethnic minorities.5 Noting that the District has the highest per capita incarceration rate in the United States, the executive director of the D.C. Prisoners’ Legal Services Project described the serious overcrowding of our prisons which has resulted from the influx of non-violent drug offenders. He especially emphasized the impact of mandatory minimum sentences on prisoners with medical problems.6 Judge Henry F. Greene of the Superior Court testified that many individuals were effectively coerced into pleading guilty because “only those defendants coura-
The members of the Council were also aware that, if the MMSAA was enacted, those drug dealers who merited severe punishment would not escape it. As the Director of the PDS explained, the proposed legislation
does not eliminate stiff mandatory sentences for crimes of violence, or even drug offenses committed while armed with a gun.
[I]t does not prevent District of Columbia Superior Court judges from imposing long sentences for drug offenses in appropriate cases. Judges retain the power to impose sentences which require the defendant to serve as much time as the current mandatory minimum sentences, or even longer. If the proposed legislation were adopted, a judge could still sentence a person convicted of a felony drug offense to a maximum term of as much as thirty years.
The problem, as perceived by a number of the witnesses before the Council, was that under then existing law, defendants whose role in the distribution of drugs was minimal were nevertheless subject to unreasonably harsh (for them) mandatory minimum penalties.
United States Attorney (formerly Superior Court Judge) Eric H. Holder, Jr. testified that although he had “previously expressed some reservations with regard to the wisdom of mandatory minimum sentences in drug cases for low-level street dealers,” he had come to believe that the existence of such sentences “forces defendants to consider seriously the possibility of early treatment as an alternative to trial.” Judge Holder suggested that “[i]f changes are to be made, we believe that only the length of those sentences should be examined.” A representative of the Office of Corporation Counsel also opposed “the wholesale elimination of all mandatory minimum penalties for drug dealing regardless of the seriousness of the offense. ...”
On October 26, 1994, the Judiciary Committee issued its Report on the proposed legislation. Quoting extensively from the testimony of the ACLU representative, the Council stated that
[t]hese [mandatory minimum] sentences take away the discretionary power of judges. Judges are thus forced to impose harsh mandatory sentences on undeserving individuals without the latitude to consider a defendant‘s background, individual culpability, or likelihood of recidivism — facts which could support a lesser sentence. Some judges have resorted to refusing to hear drug cases because they cannot conscionably sentence a first-time offender to a lengthy prison term.
Another problem is the use of mandatory minimum sentences as a threat by prosecutors to get defendants to plead to a lesser offense. A defendant charged with a non-violent drug offense who asserts his or her right to a jury trial does so at the risk of serving [a minimum of] four to ten years in jail if convicted. The discretion in sentencing rests with the prosecutor, not the judge.
Additionally, mandatory-minimum sentences result in a large percentage of the District‘s youth being locked up for long periods of time at great expense to the District.
COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON THE JUDICIARY REPORT ON BILL NO. 10-617 at 1 (Oct. 26, 1994) (emphasis added).
Apparently in response to the views of the United States Attorney and the Corporation Counsel, the Judiciary Committee recommended that mandatory minimum sentences be shortened rather than eliminated. The Council, however, rejected this compromise, and voted instead to abolish such sentences altogether for unarmed drug offenders. As enacted, Section 3 of the MMSAA simply states that
B. The Council‘s Intent
In the context of the history described above, I now turn to the decisive task before us, namely, to ascertain whether the Council intended, in enacting the MMSAA, to require judges to impose on the defendants in these cases the mandatory minimum sentences required by statutory provisions which it had evidently found to be unjust and discriminatory, and which it had therefore repealed. “The paramount rule in construing statutes is to give effect to the intention of the [l]egislature.” Janof v. Newsom, 60 App.D.C. 291, 293, 53 F.2d 149, 151 (1931).
In ascertaining legislative intent, we must first look to the words which the Council used, for “the proposition that plain statutory language generally trumps other considerations is hardly subject to challenge.” Luck, supra, 617 A.2d at 512. “The literal words of [the MMSAA] are to be read in the light of the purpose of the statute taken as a whole, and are to be given a sensible construction and one that would not work an obvious injustice.” Metzler v. Edwards, 53 A.2d 42, 44 (D.C.1947) (footnotes omitted).
Because the MMSAA states that its provisions shall become effective upon publication in the Register (which occurred on May 25, 1995), and because each of these defendants was sentenced after that date, the statutory language, read literally, supports the defense claim that the new sentencing options approved by the Council were available to each trial judge at the time of sentencing.
[W]here an ameliorative statute takes the form of a reduction of punishment for a particular crime, the law is settled that the lesser penalty may be meted out in all cases decided after the effective date of the enactment, even though the underlying act may have been committed before that date.
People v. Oliver, 1 N.Y.2d 152, 151 N.Y.S.2d 367, 373, 134 N.E.2d 197, 201 (1956) (Fuld, J.).
There can be no doubt, in light of the statutory language and history which I have recited, that the MMSAA was ameliorative in character. Although, under the new statute, trial judges retained the authority to impose the harsh sentences previously mandated by law, the MMSAA provided them with alternative sentencing options for those defendants whose individual level of culpability and other circumstances, in the judge‘s view, made less severe punishment appropriate. The Council, in other words, found the indiscriminate imposition of mandatory minimum sentences for every defendant to be unjust, and it replaced mandatory sentencing with a more flexible approach under which the sentencing judge may exercise his or her discretion to impose a lesser penalty where an individual defendant deserves one.
If the basic purpose of the MMSAA was ameliorative — and the majority does not contend otherwise — it strikes me as patently incongruous to suggest that the same Councilmembers who found the mandatory sentences unfair to some defendants nevertheless intended to require — not permit, but require — trial judges to continue to impose such sentences after the effective date of the Act, without permitting any inquiry into whether an individual defendant merited more lenient treatment. My colleagues, armed with what they regard as the dispositive general savings statutes, have barely paused to inquire why humane and fair-minded legislators, who had enacted an ameliorative law in order to do away with what they obviously perceived to be an unjust and discriminatory status quo, would nevertheless insist that potentially unfair sentences must continue to be imposed on persons in the position of these defendants, and also on similarly situated defendants who had AIDS, or whose families were in distress, or who would otherwise suffer undeserved hardship.8
The majority‘s approach effectively rejects the validity of a common-sense proposition which distinguished judges in other jurisdictions have endorsed as obvious. As the Supreme Court of California explained in In re Estrada, 63 Cal.2d 740, 48 Cal.Rptr. 172, 408 P.2d 948 (1965),
[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply.
Id. at 175, 408 P.2d at 951 (emphasis added); accord, State v. Pardon, 272 N.C. 72, 157 S.E.2d 698, 702 (1967) (quoting Estrada). The New York Court of Appeals has likewise found it “safe to assume, as the modern rule does, that it was the legislative design that the lighter penalty should be imposed in all cases that subsequently reach the courts,” regardless of when the underlying offense was committed. Oliver, supra, 151 N.Y.S.2d at 373, 134 N.E.2d at 202 (emphasis added); accord, Pardon, supra, 157 S.E.2d at 702 (quoting Oliver). In the present case, the inference that the Council intended these defendants to enjoy the benefits of the MMSAA is just as “obvious” and “inevitable” as in Estrada and just as “safe” as in Oliver. See also State v. Macarelli, 118 R.I. 693, 375 A.2d 944, 947 (1977) (holding that refusal to apply ameliorative change to defendant whose case has not been reduced to final judgment “would amount to nothing more than arbitrary retribution in contravention of the obvious legislative purpose behind the mitigation of the penalty“). (Emphasis added).
A substantial number of the highest courts of other jurisdictions have adopted the views expressed in Estrada, Oliver, Pardon, and Macarelli, namely, that legislators who have enacted ameliorative changes in sentencing statutes intended these changes to apply, at least, to all defendants sentenced after the effective date of the new provisions. See, e.g., People v. Schultz, 435 Mich. 517, 460 N.W.2d 505, 511 (1990); People v. Behlog, 74 N.Y.2d 237, 544 N.Y.S.2d 804, 806-07, 543 N.E.2d 69, 71 (1989); State v. Cummings, 386 N.W.2d 468, 471-72 (N.D.1986); State v. Tapp, 26 Utah 2d 392, 490 P.2d 334, 335-36 (1971).9 The basis for adopting that reasoning is obvious: the legislature is presumed to have acted rationally, and there is no legitimate reason for continuing to impose penalties which the legislature has rejected as excessive or unfair. As Judge Fuld stated for the court in Oliver,
According to [modern] theories [of criminal justice], the punishment or treatment of criminal offenders is directed toward one or more of three ends: (1) to discourage and act as a deterrent upon future criminal activity, (2) to confine the offender so that he may not harm society and (3) to correct and rehabilitate the offender.... A legislative mitigation of the penalty for a particular crime represents a legislative judgment that the lesser penalty or the different treatment is sufficient to meet the legitimate ends of the criminal law. Nothing is to be gained by imposing the more severe penalty after such a pronouncement; the excess in punishment can, by hypothesis, serve no purpose other than to satisfy a desire for vengeance.10
151 N.Y.S.2d at 373, 134 N.E.2d at 201-02; accord, Macarelli, supra, 375 A.2d at 947 (quoting Oliver); Estrada, supra, 48 Cal.Rptr. at 176, 408 P.2d at 952 (same).11
Requiring trial judges in these cases to impose mandatory minimum sentences does not serve any of the purposes of the criminal law identified in Oliver. These sentences could not discourage or deter, for a wrongdoer who commits such an offense after the effective date of the Act can no longer receive a mandatory minimum term. Confinement to protect society is a valid penological goal, but the Council has rejected the notion that mandatory sentences for nonviolent drug offenders are necessary to achieve that purpose. Incarceration of a defendant for a period longer than the judge believes that the defendant deserves cannot reasonably be viewed as rehabilitative. Assuming, arguendo, that retribution is a legitimate consideration, it makes little sense to punish these defendants with inflexible severity, regardless of their individual circumstances, when the sentence for every offense committed after May 25, 1995 will depend on a judge‘s assessment of the facts of the particular defendant‘s case.
It is noteworthy that Oliver and all of the other cases which I have discussed above involved savings statutes (or provisions similar to savings statutes), and that in each case, notwithstanding the existence of such a statute, the court applied an ameliorative sentencing provision to an offense committed prior to the effective date of the new enactment. The precise content of the particular statute varied from jurisdiction to jurisdiction, but the decisions of the highest state courts did not turn on these variations. Indeed, the Supreme Court of Michigan held that, in that jurisdiction, defendants were entitled to be sentenced under an ameliorative statute which was enacted subsequent to the dates of their offenses, but which became effective prior to sentencing, notwithstanding the existence of a Michigan general savings statute substantially identical, word for word, to the federal provision on which the government relies in the appeals now before the court. Schultz, supra, 460 N.W.2d at 509-12.
My colleagues, however, reject these cases as erroneously decided. They insist instead that the federal and local general savings statutes control the proper disposition of these appeals, and that they trump all other considerations. I disagree.
C. The Savings Statutes
(1) Historical origins.
“At common law, the repeal of a criminal statute abated all prosecutions which had not reached final disposition in the highest court authorized to review them.” Bradley v. United States, 410 U.S. 605, 607, 93 S.Ct. 1151, 1154, 35 L.Ed.2d 528 (1973) (citations omitted). As Chief Justice Marshall explained many years ago in Yeaton v. United States, 9 U.S. (5 Cranch) 281, 3 L.Ed. 101 (1809),
it has long been settled, on general principles, that after the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force, unless some special provision be made for that purpose by statute.
Id. at 283; accord, United States v. Chambers, 291 U.S. 217, 223, 54 S.Ct. 434, 435, 78 L.Ed. 763 (1934). This rule of abatement applied even where a statute was repealed and re-enacted with different penalties. Bradley, supra, 410 U.S. at 607-08, 93 S.Ct. at 1154.
Under the common law rule, courts were often faced with an anomalous result. Where a statute was amended to impose a different punishment, a defendant could not be prosecuted under the earlier version, because it had been repealed, or under the later one, because such a prosecution would have been barred by the Constitution‘s Ex Post Facto Clause. See Schultz, supra, 460 N.W.2d at 510. A defendant could thus escape punishment even though his conduct was proscribed both by the original statute and by its amended version. Id.
There were various means available to avoid the incongruous and unjust consequences which sometimes resulted from the common law rule. The legislature could, for example, include in each repealing enactment a specific clause stating that prosecutions of offenses under the repealed statute were not to be abated. See Bradley, supra, 410 U.S. at 608, 93 S.Ct. at 1154 (citation omitted). In order to obviate the need to insert such a clause in every repealing statute, however, Congress and many state legislatures enacted general savings statutes such as those on which the government relies in this case. See Note, Today‘s Law and Yesterday‘s Crime: Retroactive Application of Ameliorative Criminal Legislation, 121 U.PA.L.REV. 120, 121-30 (1972). The MMSAA contains no individual provision concerning abatement, and the present appeals turn on the effect of the federal and District of Columbia general savings statutes.
The federal provision, now codified in
[r]epeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.
The repeal of any act of the Council shall not release or extinguish any penalty, forfeiture, or liability incurred pursuant to the act, and the act shall be treated as remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of any penalty, forfeiture, or liability, unless the repealing act expressly provides for the release or extinguishment of any penalty, forfeiture, or liability.
(2) Principles of construction.
The general savings statutes on which the government relies are in derogation of the common law. “It is an established rule of statutory construction that statutes changing the common law are to be strictly construed.” Jones v. Jones, 63 App.D.C. 373, 374, 72 F.2d 829, 830 (1934). Indeed, “no statute is to be construed as altering the rules of the common law, farther than its words plainly import.” McCarthy v. McCarthy, 20 App.D.C. 195, 202 (1902) (error dismissed, 189 U.S. 515, 23 S.Ct. 850, 47 L.Ed. 925 (1903)) (citing Shaw v. Railroad Co., 101 U.S. 557, 565, 25 L.Ed. 892 (1879)); see also Monroe v. Foreman, 540 A.2d 736, 739 (D.C.1988) (quoting Shaw). “It being an exception to the common law, and this being a criminal case, [the federal savings] statute must be strictly construed.” United States v. Auerbach, 68 F.Supp. 776, 778 (S.D.Cal.1946). Accordingly, the mandatory minimum sentences in these cases can be sustained only if that result is plainly compelled by the statutory language.
Moreover, if there is any significant ambiguity in the general savings statutes with respect to their effect upon mandatory minimum penalties, then the rule of lenity applies. Bifulco, supra, 447 U.S. at 387, 100 S.Ct. at 2252; see also authorities cited at note 8, supra. Especially in a case like this, in which these defendants and many others face lengthy and potentially unmerited incarceration, we may not construe the savings statutes as compelling the imposition of mandatory minimum sentences unless the Council has clearly stated that this result was intended. Bass, supra, 404 U.S. at 348, 92 S.Ct. at 522-23; see also Koon v. United States, 518 U.S. 81, 116 S.Ct. 2035, 2044, 135 L.Ed.2d 392 (1996) (recognizing “the wisdom, even the necessity, of sentencing procedures that take into account individual circumstances“).
With due respect to my colleagues in the majority, I find altogether implausible the notion that the general savings statutes “plainly” mean that mandatory minimum sentences must be imposed on defendants sentenced after the effective date of the MMSAA. Indeed, the language of these statutes has to be stretched well beyond its ordinary meaning to accommodate my colleagues’ reading of them. In addition, the notion that savings statutes trump all other indicia of legislative intent appears to me to be at odds with common sense. If the legislators in fact intended that non-violent drug dealers should not be subject to mandatory minimum sentences, that intent ought not to be “flicked aside,” cf. maj. op. at 47, solely because they failed to dot their i‘s or cross their t‘s.
(3) “Release or extinguish.”
The government‘s reliance in these appeals on the federal and local general savings statutes rests entirely on its theory that the MMSAA “released” or “extinguished” the penalties which applied under prior law. If there has been no release or extinguishment, then neither of these statutes has any application,12 and the sentencing judge must apply the law in effect at the time of sentencing. See United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 110, 2 L.Ed. 49 (1801); Oliver, supra, 151 N.Y.S.2d at 372-73, 134 N.E.2d at 201. The majority does not contest this proposition.
Two of the defendants in these cases — Steven Holiday and Frederick R. Burgess — were convicted of distribution of crack cocaine. A third defendant, James H. Palmer was convicted of distribution of dilaudid. It is undisputed that prior to the effective date of the MMSAA, the mandatory minimum sentence for the offenses committed by each of these men was four years. See
Jae Hoa Park was convicted of possession of powdered cocaine with intent to distribute it (PWID). As a result of the statutory quirk discussed in Part II of this opinion, Ms. Park was subject to, and received, a mandatory minimum sentence of five years. See
Contrary to the assumption on which the government‘s argument rests, the MMSAA was not designed to “release” or “extinguish” the penalties to which these defendants were subject. After the effective date of the Act, the maximum penalty for all four defendants was imprisonment for thirty years. See
means that, under the District‘s felony sentencing practice, each defendant could be sentenced to serve a minimum of ten and a maximum of thirty years. See
In my view, the sentencing court‘s retention of the authority to impose sentences far more severe than the previous mandatory minimum terms conclusively refutes the notion that the prior penalties have been “extinguished” or “released.”13 A penalty cannot reasonably be said to have been extinguished if the sentencing judge can continue to impose it, and if he or she may even order a defendant‘s incarceration for twice as long or longer than the former mandatory minimum period.14 A sentence of from four to twelve years is no longer called a “mandatory minimum” sentence, but a judge can still make a defendant serve it. The word “release” is concededly more ambiguous than “extinguish,” but the savings statutes assuredly do not plainly require the preservation of mandatory minimum sentencing authority. Cf. Bass, supra, 404 U.S. at 348, 92 S.Ct. at 522-23; McCarthy, supra, 20 App.D.C. at 202.15
As a practical matter, the MMSAA effectively preserved, and did not release or extinguish, penalties previously in effect. Indeed, in urging its enactment, the proponents of the statute pointed out to the Councilmembers that the MMSAA would not prevent the imposition of long sentences in appropriate cases. See page 94, supra. The essence of the MMSAA was to provide judges with additional discretionary sentencing options, which would allow the punishment to fit the crime and the offender, and would thus avoid injustice in individual cases. To me, it is simply incongruous to suggest that these savings statutes, which were designed primarily to prevent technical abatements and the absurd consequences that could sometimes flow from the common law rule, should now be construed as “saving” judges from their right to exercise sentencing options which the legislature has effectively found to be essential in order to avoid injustice.16
Even if the MMSAA could reasonably be construed as “releasing” or “extinguishing” penalties applicable under prior law—and I do not believe that it can—I still could not agree with the majority‘s disposition. My colleagues accord more or less conclusive weight to the general savings statutes, even where, as here, all other indicia of legislative intent point in the opposite direction. The courts have generally declined to attach controlling significance to the literal terms of savings statutes and similar enactments where to do so would defeat the discernable will of the legislature.17
I begin with a dose of reality. As Justice Schaefer explained for the Supreme Court of Illinois in People v. Bilderback, 9 Ill.2d 175, 137 N.E.2d 389 (1956), a general savings statute
is at best the statement of a present legislature as to the intention of a future one. It is so easy to show that the statute, when applicable, has often been overlooked by lawyers and judges that it is hard to believe that legislators have always had it in mind. Without looking beyond our own borders, it is clear that here, at least, such a statute has not been an effective substitute for individualized statements of legislative purpose.
Id., 137 N.E.2d at 393. If only for the very reason “that it is hard to believe that legislators have always had [the general savings statute] in mind,”18 id., the existence of such
In general, the courts—including the Supreme Court, see Hertz v. Woodman, 218 U.S. 205 (1910)—have treated general savings statutes not as announcing an inflexible rule of law, but rather as providing “a rule of construction ...,” which is to be “read and construed as a part of all subsequent repealing statutes, in order to effect the will and intent of Congress.” Id. at 217, 30 S.Ct. at 623 (emphasis added; citations omitted). In Great Northern Ry. Co. v. United States, 208 U.S. 452 (1908), on which my colleagues claim to rely, maj. op. at 79-80 n. 44, the Supreme Court expressly stated that the provisions of what is now
A general savings statute, like a legislative presumption against retroactivity,
is not an end in itself. Like any rule of construction, [it] is subservient to the goal of statutory interpretation: to ascertain and effectuate legislative intent.
Cummings, supra, 386 N.W.2d at 471 (citations omitted). The Supreme Court of California made the point effectively in Estrada, supra:
That rule of construction, however, is not a strait-jacket. Where the legislature has not set forth in so many words what it intended, the rule of construction should not be followed blindly in complete disregard of factors that may give a clue to the legislative intent. It is to be applied only after, considering all pertinent factors, it is determined that it is impossible to ascertain the legislative intent.
48 Cal.Rptr. at 176, 408 P.2d at 952 (emphasis added).19
In Behlog, supra, Judge Hancock, writing for the unanimous New York Court of Appeals, noted that savings clauses were enacted principally to avoid the incongruous results of a common law rule which allowed offenders to go unpunished when a criminal statute was repealed or when the punishment was increased. 544 N.Y.S.2d at 806-07, 543 N.E.2d at 71. He explained that where the legislature has enacted an ameliorative statute,
[t]he anomaly which prompted the enactment of the savings clauses does not exist. Absent some valid reason to require the stricter penalty, the “savings clauses” should not be used to mete out the harsher sentence.
Id., 544 N.Y.S.2d at 807, 543 N.E.2d at 71-72 (citations omitted).
In my opinion, it is our obligation in this case to avoid the potential analytical “strait-jacket,” Estrada, supra, 48 Cal.Rptr. at 176, 408 P.2d at 952, into which the government‘s argument seeks to force us. In attempting to ascertain the Council‘s intent in enacting the MMSAA, we must certainly include in our calculus the provisions of the two general savings statutes, as well as the failure of the Council to include any express provision applying the new sentencing scheme to cases pending at the time the Act became effective. We would do well, however, to be just a bit “earthy” about the problem, and to bear in mind Justice Schaefer‘s wise observations in Bilderback regarding legislative realities.
I add one further thought. Our decisions have consequences. There is more at stake in this case than in most. If the government ultimately prevails, then the result for the defendants, for their families, and for others similarly situated will be truly tragic. Holiday and the other defendants will be incarcerated for a very long time. This will happen even though each of the three sentencing judges has indicated that he or she would not impose the mandatory minimum term if a less severe sentence were legally authorized. Ill defendants may die in prison, more children of minor drug dealers will suffer unnecessarily, and racial and ethnic minorities will continue to bear disproportionately the brunt of a policy which the Council has rejected.
If the Council intended these results, then judicial inquiry is at an end. Courts may not substitute their own views for those of the legislature. But in assessing the Council‘s intent, it is significant that, so far as I can discern, this protracted mandatory incarceration will serve no useful penological purpose. There will be no deterrence, no relevant incapacitation, no rehabilitation, and only the most selective retribution. Severe punishment will be be imposed primarily because, a century and a quarter ago, Congress passed a general savings statute20 which, in the majority‘s opinion, tells us in advance what the 1994 Council intended.
No judge knows everything. I certainly do not. Perhaps the Council intended the result which the majority now ordains. Because of what is at stake, however, I venture to ask of those who reject my interpretation whether they are sure. I suggest that if there is any real doubt—if the statutes can fairly be read either way—then this case must be decided in favor of allowing the judge to sentence each defendant on the merits of that defendant‘s own circumstances.
II. MS. PARK‘S EXTRA YEAR
The majority also upholds against constitutional challenge the five-year mandatory minimum sentence which Jae Hoa Park received for possession of 13 grams of powdered cocaine with intent to distribute it (PWID). If the contraband in question had been crack cocaine (cocaine base), a far more addictive and dangerous substance, then Ms. Park‘s minimum sentence would have been only four years. In my opinion, the imposition of the fifth year of Ms. Park‘s mandatory minimum sentence deprives her of liberty without due process of law. I can find no rational basis whatever for requiring her to serve a mandatory additional year in prison.
An examination of the Omnibus Narcotic and Abusive Drug Interdiction Amendment Act of 1990 (ONADIAA),21 and of its legislative history,22 persuades me that, in all probability, the five-year mandatory minimum for minor dealers in powdered cocaine was included in the statute unintentionally, perhaps as a result of administrative error. If the extra year was intended, it is unconstitutional.
A. Powdered Cocaine and Crack Cocaine.
The government cannot and does not dispute the proposition that crack cocaine is a great deal more dangerous than the powdered form of the drug. “Crack is far more addictive than cocaine. It is far more accessible due to its relatively low cost. And it has experienced an explosion of popularity.”
Members of Congress considered cocaine base to be more dangerous to society than cocaine because of crack‘s potency, its highly addictive nature, its affordability, and its increasing prevalence. Senator D‘Amato addressed specifically the reasoning underlying the “100 to 1 ratio“:
“Because crack is so potent, drug dealers need to carry much smaller quantities of crack than of cocaine power. By treating 1,000 grams of freebase cocaine no more seriously than 1,000 grams of cocaine powder, which is far less powerful than freebase, current law provides a loophole that actually encourages drug dealers to sell the more deadly and addictive substance, and lets them sell thousands of doses without facing the maximum penalty possible.”
132 Cong.Rec. S8092 (daily ed. June 20, 1986).
United States v. Buckner, 894 F.2d 975, 978-79 (8th Cir. 1990) (footnote omitted); see also id. n. 9; accord, Lawrence, supra, 951 F.2d at 754.
In enacting the ONADIAA, the Council of the District of Columbia likewise recognized that crack is more dangerous than powdered cocaine. Under that legislation, a defendant who distributes 50 or more grams of crack is a “major dealer.” By contrast, a trafficker who sells less than 500 grams of powdered cocaine is treated as a “minor dealer.” See
B. The ONADIAA and “Tiered” Sentencing.
The ONADIAA was enacted in substantial part in order to provide penalties for major drug traffickers which are more severe than those imposed upon minor dealers. In addressing the “background and need” for the proposed legislation, the Judiciary Committee stated:
One problem with the original mandatory minimum initiative (D.C.Law 4-166) was that it treated all drug traffickers the same, regardless of the amount of drugs involved.
ONADIAA REPORT at 2. The bill therefore “establishe[d] a new tiered structure by distinguishing between a major and a minor dealer for drug distribution convictions.” Id. at 3.
C. The Incongruity of Ms. Park‘s Extra Year.
In order to explain the logical and constitutional problems presented by Ms. Park‘s sentence, I now reproduce the table which Judge Ferren has helpfully included in the opinion of the court. See maj. op. at 88.
| CRACK COCAINE | COCAINE POWDER | OTHER NARCOTICS | |
|---|---|---|---|
| Major Dealer (50+ grams) | Major Dealer (500+ grams) | Major Dealer (500+ grams) | |
| 1st offense | 5 years | 5 years | 5 years |
| 2nd or subsequent offense | 10 years | 10 years | 10 years |
| CRACK COCAINE | COCAINE POWDER | OTHER NARCOTICS | |
|---|---|---|---|
| Minor Dealer (Less than 50 grams) | Minor Dealer (Less than 500 grams) | Minor Dealer (Less than 500 grams) | |
| 1st offense | 4 years | 5 years | 4 years |
| 2nd offense | 7 years | 8 years | 7 years |
| 3rd or subsequent offense | 10 years | 10 years | 10 years |
The careful reader will discern that the penalties reflected in this table are, for the most part, logical and consistent with one another. Major dealers are punished more severely than minor dealers, and a recidivist will receive more time for repeating his nefarious misdeeds. The one glaring exception is the penalty for distribution of cocaine powder. For a first offense, a major dealer in cocaine powder receives a mandatory minimum sentence of five years. Remarkably, however, a first-time minor dealer receives exactly the same minimum sentence.
Compare this treatment with the provisions for major and minor dealers in other drugs. A major dealer in crack cocaine, or in other narcotics, receives a five year mandatory minimum. His or her “minor dealer” counterpart, however, receives only four years.
With respect to crack cocaine and other narcotics, Judge Ferren‘s table confirms the sentencing scheme as described by the Judiciary Committee. Major dealers receive an extra year in prison. With respect to powdered cocaine, on the other hand, the distinction between major and minor dealers—the raison d‘etre of the ONADIAA—has been abandoned or ignored. Everyone who distributes powdered cocaine receives the same mandatory minimum, regardless of the amount distributed. With respect to this single drug, the conditions that caused the Council to enact the ONADIAA continue unabated—identical sentences remain for major and minor dealers, contrary to the stated legislative design.
The second incongruity of the sentencing scheme for cocaine powder is that the minor dealer in that particular drug receives a more severe mandatory minimum sentence than his counterpart who sells far more addictive and far more dangerous crack cocaine. The Judiciary Committee Report contains no explanation for this unexpected result, which translates into an odd proposition: “the more dangerous the contraband, the lighter the penalty.” I know of no rational explanation for such a rule.
Human beings are finite creatures. They make mistakes. I believe that this is what happened here.23 I consider it highly improbable that the Councilmembers intentionally ignored the difference between major and minor dealers in powdered cocaine. I likewise do not believe that they really meant to impose a more severe mandatory minimum sentence on the seller of a less dangerous drug than on the distribution of a more dangerous one. Rather, I suspect that the wrong number may have been written into the statute as a result of somebody‘s error.24
D. Ms. Park‘s Constitutional Challenge.
In this jurisdiction, as in others, legislative enactments are protected by a presumption of constitutionality. Hornstein, supra, 560 A.2d at 533. The question is whether Ms. Park has overcome that presumption by showing, beyond a reasonable doubt, id., that her sentence violates the Fifth Amendment. Ms. Park‘s burden is a formidable one, but I am satisfied that she has met it.
Ms. Park contends in essence that the sentence imposed upon her has deprived her of liberty without due process of law, in violation of the
“[O]ur determination of the existence of a rational basis for the distinction contained in the statute is limited to whether any state of facts either known or which could reasonably be assumed affords support for it.” Gibson, supra, 602 A.2d at 120 (citations and internal quotation marks omitted). The legislature is not required to articulate its reasons for enacting the challenged provision; if the reasons for the legislative action are plausible, judicial inquiry is at an end. United States R.R. Retirement Bd. v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461-62, 66 L.Ed.2d 368 (1980); Backman v. United States, 516 A.2d 923, 928 (D.C. 1986) (per curiam) (Ferren, J., concurring in the result). Conversely, if the reasons for the Council‘s actions are not plausible—if the legislation lacks a rational basis—then it does not pass constitutional muster.
E. The Government‘s Justification.
The ONADIAA contains no explanation of the extra year for powdered cocaine. In its brief, however, the government hypothesizes that
the Council rationally could have believed that small dealers in cocaine powder are less likely than small dealers in cocaine base to be addicts who sell simply to support their habits. Thus, the Council could conclude, low-level dealers in cocaine base generally do not deserve the more severe punishment due low-level dealers in cocaine powder.
Converting understatement into an art form, my colleagues in the majority say that the government‘s argument seems “strained.” Maj. op. at 89. I would have used a more emphatic adjective.
The government‘s position is based on the notion that the Council decided, in the ONADIAA, to treat the distribution of small quantities of a less addictive substance more severely than the distribution of more dangerous ones. Such a legislative design would represent a dramatic departure from this jurisdiction‘s controlled substances laws, which have always been predicated on the theory that the more dangerous the drug, the more severe the penalty. In the District, the distribution of marijuana—probably the least addictive and harmful of the drugs which have been in vogue in recent years—is a misdemeanor, punishable by a maximum of a year in prison. See
Moreover, as I have noted, both Congress and the Council were aware that crack is more addictive and more dangerous than powdered cocaine. If the Council had really intended to punish the sale of powdered cocaine more severely, then some mention of such a radical change of direction would surely have found its way into the Judiciary Committee Report. See NOW v. Mutual of Omaha Ins. Co., 531 A.2d 274, 276 (D.C. 1987). It did not.26
The government theorizes that the Council may have believed that sellers of crack cocaine are more likely than distributors of powdered cocaine, and that they should therefore be punished less severely. The “addict exception,” however, was already a part of the law of the District of Columbia before the ONADIAA was enacted. See
In my opinion, there is nothing even approaching rationality in the government‘s imaginative hypothesized “rational basis” for the incongruous treatment of crack and powdered cocaine. If, as I suspect, the Council made an administrative error, then such an error surely cannot provide the rational basis which the Constitution requires before a defendant can be arbitrarily compelled to serve an additional year in prison. If the Council did it on purpose—and I simply cannot believe that this is what occurred—then the “extra year” must fall anyway, for the only proffered explanation of it is contrary to reason.
We are dealing here with a year of Ms. Park‘s life. Before she can be lawfully incarcerated for so much additional time for dealing in a less dangerous drug, some plausible reason must exist for such treatment. Plausibility cannot be manufactured by resort to imaginative hypotheses. The government‘s argument fails.
F. The Remedy.
Counsel for Ms. Park asks us, in the event of a determination of unconstitutionality, to strike down in its entirety the mandatory minimum sentence for small dealers in powdered cocaine. The government persuasively argues that such a remedy is unnecessarily drastic, and that the proper remedy, in the event we find a constitutional violation, is to reduce Ms. Park‘s mandatory minimum sentence to four years.27 On this limited issue, I
III. CONCLUSION
In Lowman v. United States, 632 A.2d 88 (D.C. 1993), an undercover officer approached a young woman named Katrina Lowman in the street and asked where he could purchase cocaine. Ms. Lowman led him to a dealer who sold the officer drugs. Ms. Lowman was subsequently arrested. Although there was no evidence of any coordination between Ms. Lowman and the dealer, Ms. Lowman was charged with and convicted of aiding and abetting the distribution of cocaine. This court affirmed her conviction. A majority of the court rejected Ms. Lowman‘s contention that her conduct aided the officer‘s possession of the drugs, a misdemeanor, rather than abetting felony distribution by someone with whom she had no connection. In light of this holding, Ms. Lowman was subject to a mandatory minimum sentence for her comparatively minor role in this transaction.28
Ms. Lowman, a mother of two young children, had tested positive for the AIDS virus. Her case was cited by the PDS Director in testimony before the Council, although the witness was apparently unaware of Ms. Lowman‘s affliction. I think it fair to say that Ms. Lowman‘s case presented the kind of situation which led the Council to repeal mandatory minimum sentences.
The majority‘s position in this case presumes that if Ms. Lowman had committed
fully operative as a law.‘” Buckley v. Valeo, 424 U.S. 1, 108 (1976) (per curiam) (quoting Champlin Refining Co. v. Corporation Comm‘n of Oklahoma, 286 U.S. 210, 234 (1932)); accord, Brock, supra, 480 U.S. at 684; Gary v. United States, 499 A.2d 815, 821 (D.C. 1985), cert. denied, 475 U.S. 1086 (1986).
Here, the... Council imposed a mandatory-minimum sentence for first-time dealers in “narcotic” drugs—defined to include cocaine. Even if the higher mandatory sentence for cocaine-powder offenses is invalidated, there is no basis to reject the entire mandatory-minimum scheme as it relates to cocaine. Thus, appellant‘s sentence would be cut from five years to four years, but she should not escape a mandatory-minimum sentence altogether. Cf. United States v. Pearson, 202 A.2d 392, 393 (D.C. 1964) (suggesting that judges could avoid potential unreasonable result simply by imposing sentence for attempted petit larceny that is no higher than maximum penalty for completed offense of petit larceny).
her offense on the day before the effective date of the MMSAA, and if she had not been eligible for the addict exception, then the Council clearly intended that she must serve a mandatory minimum of four years, her illness and the plight of her children notwithstanding. My colleagues do not provide a plausible reason why a Council plainly bent on leaving the appropriate sentence to the judge‘s discretion would insist on withholding that discretion after the effective date of the Act, even if the judge viewed the mandatory minimum sentence as excessive for the particular defendant before the court. The majority‘s only explanation—that if someone else who committed an offense on the same day that Ms. Lowman did received an unmerited sentence, then Ms. Lowman should receive one too—unreasonably and unjustly ascribes to our legislature the canard that two (or more) wrongs make a right. My colleagues do not really argue that their decision vindicates the Council‘s actual intent. Rather, they perceive “the law” to be a kind of sinister force which compels a defendant to receive an undeserved sentence, notwithstanding the legislature‘s ameliorative intent, because our Councilmembers neglected to use the magic words contemplated by the savings statutes.
Judge Ferren has skillfully assembled an array of federal cases in support of their position. Although none of these decisions is controlling, some of them tilt the government‘s way. The state court cases, on the other hand, have the best of the argument from a common sense perspective, and the defendants plainly prevail if we follow these
IV. COUNTER-POSTSCRIPT
I invite the unusually patient reader who has stayed with us this far to determine for himself or herself whether various contentions which Judge Ferren has attributed to me in his “postscript” correspond to the positions which I have actually taken in this dissenting opinion. I note only that it is the majority, and not yours truly, that has “decide[d] not to apply a law after it became effective“; that a Supreme Court decision involving a defendant who was sentenced before an ameliorative statute was enacted cannot (at least under any legal principles with which I am familiar) control cases in which a defendant is sentenced after the effective date of such a statute; and that if the legislative intent behind ameliorative statutes is obvious to the highest courts of New York and California (among many others), it ought to be apparent to my colleagues as well.
I agree with the majority that “[c]riminal conduct often brings tragedy.” In the run-of-the-mill case, this goes with the territory, and the legislature can be presumed to have intended sad consequences because they could not be avoided. In this case, however, my colleagues ascribe to the Council the intention to inflict tragedy, after the effective date of the Act, even where the sentencing judge is satisfied that the defendant does not deserve the punishment that generates the misfortune. The MMSAA, as construed by the majority, thus brings a great deal of demonstrably unnecessary tragedy to the affected families and to the community at large.
Statutes are not to be construed as ordaining gratuitous suffering if such a construction can reasonably be avoided.
General terms should be so limited in their application as not to lead to injustice, oppression, or an absurd consequence. It will always, therefore, be presumed that the legislature intended exceptions to its language, which would avoid results of this character.
United States v. Kirby, 74 U.S. (7 Wall) 482, 486-87, 19 L.Ed. 278 (1868) (emphasis added). Justice Chase‘s language for the Court in Noonan v. Bradley, 76 U.S. (9 Wall.) 394, 19 L.Ed. 757 (1869), a case involving the interpretation of a contract, is equally applicable to statutes:
[W]hen an instrument is susceptible of two constructions—the one working injustice and the other consistent with the right of the case—that one should be favored which standeth with the right.
Id. at 407; accord, Lowman, supra, 632 A.2d at 97-98 (concurring and dissenting opinion).
I agree with the majority that “it is this court‘s role to apply laws as the Council has written them, not as we would have written them ourselves.” To do otherwise is to usurp a core legislative prerogative. In construing the Council‘s words, however, our lodestar must be actual legislative intent. Because in my view, the Council did not intend to compel judges to sentence Holiday, Burgess and Palmer to a mandatory minimum term of four years or, a fortiori, Ms. Park to a mandatory minimum term of five years, I dissent from those portions of the majority‘s decision that hold the contrary.
Notes
The imposition of mandatory minimums on female drug offenders has a devastating, long-lasting impact on the stability of families in the District of Columbia, and places a tremendous strain on our already overburdened child welfare system. ... Currently, countless children are left permanently scarred when they are separated from their mothers for long periods of time, and are shuffled about an overburdened and often insensitive child welfare system. Repealing mandatory minimum laws for drug offenses will minimize these scars, and help keep families together.
[u]nder the current law, prisoners who are dying of AIDS or other conditions while serving a mandatory minimum sentence for a non-violent offense, must die in prison. Dozens of prisoners who pose no threat to the community have been denied release under the medical parole program solely because they are serving a mandatory minimum sentence. This is both enormously costly to the District and cruel to these prisoners and their families.
As a way of preventing abatements of criminal prosecutions and other liabilities when legislatures failed to provide special savings clauses in the repealing legislation, state legislatures began in the last century to adopt general savings statutes applicable thereafter to all repeals, amendments, and reenactments of criminal and civil liabilities.6 For criminal prosecutions, therefore, these statutes shifted “the legislative presumption law under which a defendant was convicted is amended pending appeal so as to mitigate the punishment, it is logical to assume that the legislature intended the new punishment, which it now feels fits the crime, to apply whenever possible.“).
Moreover, in case of doubt as to the meaning of the MMSAA, we should apply the rule of lenity, which “applies not only to interpretations of theState v. Macarelli, 118 R.I. 693, 375 A.2d 944, 946 (1977) (quotingNo suit, prosecution or indictment, pending at the time of the repeal of any statute for any offense committed * * * shall in any case be affected by such repeal, but such suit, prosecution or indictment, may be proceeded with, and such act shall be deemed to be in force for the purpose of prosecuting the same to final judgment and execution or sentence, as the case may be. (Ellipses in original.)
It may be well to note that the construction that we are here according to the amendment cannot be applied in favor of an offender tried and sentenced to imprisonment before its enactment. This inevitably follows from the settled rule that, once final judgment has been pronounced, a change in the law does not arrest or interfere with execution of the sentence.... Whenever the Legislature alters existing law, a certain measure of inequality is bound to ensue. Where the change is ameliorative and reflects a judgment that the earlier law was unduly harsh or unjust, a court should not withhold the benefits of the new statute to one tried after its passage, merely because it is powerless to extend them to those already convicted.
151 N.Y.S.2d at 375-76, 134 N.E.2d at 203 (emphasis added).
The emphasized language, in my view, refutes the purported rationale propounded by the majority for imposing mandatory minimum sentences on these defendants. See maj. op. at 79. Surely my colleagues do not seriously ascribe to the Council the view that a defendant should receive a lengthy prison sentence which he does not deserve simply because another defendant has already received such a sentence. The fact that our elected representatives were unable to correct what they viewed as an injustice to persons previously sentenced could hardly have motivated them to insist that a like injustice be inflicted on additional defendants. I therefore believe that Judge Fuld had it exactly right.
Estrada, 48 Cal.Rptr. at 176 n. 2, 408 P.2d at 952 n. 2 (quotingThe termination of suspension (by whatsoever means effected) of any law creating a criminal offense does not constitute a bar to the * * * punishment of an act already committed in violation of the law so terminated or suspended, unless the intention to bar such * * * punishment is expressly declared by an applicable provision of law.
The majority‘s reliance on Ex Post Facto Clause jurisprudence, e.g., Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937) is founded on the same non-sequitur. A sentence of four years without parole is obviously harsher than a sentence of four years from which the defendant can be paroled. Under the MMSAA, however, a defendant can be sentenced to serve more than four years before being paroled, and there has thus been no extinguishment or release.
Schultz, 460 N.W.2d at 509-510 (quotingThe repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty, forfeiture, or liability incurred under such statute or any part thereof, unless the repealing act shall so expressly provide and such statute and part thereof shall be treated as still remaining in force for the purpose of instituting or sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.”
Von Geldern, 638 P.2d at 322 n. 3 (quotingNo suit or prosecution pending at the time of the repeal of any law, for any offense committed or for the recovery of any penalty or forfeiture incurred under the law so repealed, shall be affected by such repeal.
Moreover, the opinion in Marrero does not directly address the precise contention, central to this dissent, that a penalty is not released or extinguished if the judge can still impose it. This is likewise true of United States v. Jacobs, 919 F.2d 10, 12 (3d Cir.1990) and United States v. Cook, 890 F.2d 672, 675-76 (4th Cir.1989). “Questions that merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” Webster v. Fall, 266 U.S. 507, 511, 45 S.Ct. 148, 149, 69 L.Ed. 411 (1925); Murphy v. McCloud, 650 A.2d 202, 205 (D.C.1994) (quoting Webster).
Johnson is readily distinguishable. In Johnson, the defendant had been sentenced before the effective date of the ameliorative statute. In the cases now before us, the sentences were imposed after the MMSAA came into effect. Compare Duvall v. United States, 676 A.2d 448, 451-52 (D.C. 1996) with Alpizar v. United States, 595 A.2d 991 (D.C. 1991). The court‘s brief comments in Johnson regarding the language of
The government‘s reliance on Marrero, supra, is also misplaced. See note 15, supra. In Marrero, as in Johnson, the defendant had been sentenced prior to the enactment of the ameliorative statute. 417 U.S. at 655, 94 S.Ct. at 2534. In contending that he was belatedly entitled to be considered for parole on a mandatory minimum sentence, the defendant was effectively asking the Court to treat the new statute as a legislative pardon. Nothing like that is presented here.
Marrero appears on its own facts, to have been an overwhelming case for the government. The court in Oliver would plainly have decided it as did the Supreme Court. See note 11, supra (quoting Oliver, 151 N.Y.S.2d at 375-76, 134 N.E.2d at 203); People v. Walker, 81 N.Y.2d 661, 603 N.Y.S.2d 280, 283-84, 623 N.E.2d 1, 4-5 (1993) (where defendant sought reduction of 1984 sentence on basis of 1986 amendment, Oliver‘s amelioration doctrine does not apply). Even so, three justices dissented in Marrero.
The present case is a much closer one. The Oliver approach plainly favors these defendants; indeed, the majority finds it necessary to reject Oliver and similar decisions in order to rule for the government. I do not believe that the Marrero Court would have been ready to reject that impressive line of well-reasoned cases. The Court‘s statement in Marrero that “the saving clause has been held to bar application of ameliorative criminal sentencing laws repealing harsher ones in force at the time of the commission of an offense,” id. at 661, 94 S.Ct. at 2537, must be understood in the context of the facts before the Court, and not the entirely different situation presented by these appeals. See Armour & Co. v.
State v. Flagg, 160 Vt. 141, 624 A.2d 864 (1993) (quotingIf the penalty or punishment for any offense is reduced by the amendment of an act or statutory provision, the same shall be imposed in accordance with the act or provision as amended unless imposed prior to the date of the amendment.
The general savings clause of West Virginia expressly provides for retroactive application of mitigating statutes enacted before the sentence is pronounced but not for retroactive application thereafter. See State ex rel. Miller v. Bordenkircher, 166 W.Va. 169, 272 S.E.2d 676, 677 (1980) (per curiam) (ameliorative sentencing provisions of new law not applicable to case where judgment was final before repeal of old law became effective). The law provides:
Id. (quotingThe repeal of a law, or its expiration by virtue of any provision contained therein, shall not affect any offense committed, or penalty or punishment incurred, before the repeal took effect, or the law expired, save only that the proceedings thereafter had shall conform as far as practicable to the laws in force at the time such proceedings take place, unless otherwise specially provided; and that if any penalty or punishment be mitigated by the new law, such new law may, with the consent of the party affected thereby, be applied to any judgment pronounced after it has taken effect.
See also People v. Thomas, 185 Colo. 395, 525 P.2d 1136, 1137 (1974) (en banc) (interpreting statute providing for post-conviction review when “there has been a significant change in the law, applied to appellant‘s conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard” as permitting application of changed legal standards “wherever constitutionally permissible“).
Wantock, 323 U.S. 126, 132-33, 65 S.Ct. 165, 168, 89 L.Ed. 118 (1944) (the “words of our opinions are to be read in light of the facts of the order under discussion.... General expressions transposed to other facts are often misleading.“)I do not believe that there is any binding precedent in this jurisdiction, either way, on the issue under discussion. Jones v. United States, 117 U.S.App.D.C. 169, 327 F.2d 867 (1963), has no bearing on this case. There Congress repealed the mandatory death penalty two years after the defendant was sentenced to death, and the court held that the amendment did not apply to the defendant.
The government relies on Hurwitz, supra, but that case differs from ours in that, as we have seen, the amendment did “extinguish” prior maximum penalties. Moreover, the opinion is cryptic and conclusory. The court did not state whether there was any evidence that the statute was intended to apply to pending cases, nor did it address the question whether the savings statute would trump such evidence if it existed. Finally, my examination of the briefs in Hurwitz, written two-thirds of a century ago, reveals that the defendant did not present to the court the kind of issue decided in Oliver, Estrada, Schultz and similar cases. “The judicial mind [was not] applied to and [did not] pass upon the precise question” with which we are now presented, Murphy, supra, 650 A.2d at 205, a fact which further dilutes the precedential force of Hurwitz.
The defendants rely on Melson v. United States, 505 A.2d 455 (D.C. 1986) (per curiam). In that case, this court held that the defendant, who had committed his offense prior to the repeal of the Federal Youth Corrections Act (FYCA), could not lawfully be sentenced pursuant to the FYCA after the effective date of the repeal. See maj. op. at 71 n. 26. The repealing legislation contained no language saving pending prosecutions. The general savings statute was brought to the attention of the court, but it was not cited in the court‘s opinion. Although Melson could plausibly be read as implicitly holding that the general savings statute will not permit the sentencing of a defendant under a repealed sentencing scheme, I am reluctant to consider the decision as authority for a proposition which the court never explicitly addressed. See, e.g., District of Columbia v. Sierra Club, 670 A.2d 354, 360 (D.C. 1996).
There is likewise no binding federal precedent. I have previously explained that in Marrero, the only Supreme Court decision raising issues even arguably comparable to those here, the defendant‘s sentencing preceded the repeal. See note 16, supra. In United States v. Ross, 464 F.2d 376 (2d Cir. 1972), cert. denied, 410 U.S. 990 (1973), on which the government relies heavily, the repealing legislation provided that “prosecution for any violation of the law occurring prior to [the effective date of the new statute] shall not be affected by the repeal [of the old statute] or abated by reason thereof.” Id. at 379. The discussion in Ross of the general savings statute was therefore pure dictum. Even if Ross were in point, which it is not, this court would not be required to follow it, for “only a decision of the Supreme Court of the United States is binding on us.” Hornstein v. Barry, 560 A.2d 530, 536 n. 15 (D.C. 1989) (en banc).
The Council, of course, enacted a similar statute in 1990.The common law, all British statutes in force in Maryland on February 27, 1801, the principles of equity and admiralty, all general acts of Congress not locally inapplicable in the District of Columbia, and all acts of Congress by their terms applicable to the District of Columbia and to other places under the jurisdiction of the United States, in force in the District of Columbia on March 3, 1901, shall remain in force except insofar as the same are inconsistent with, or are replaced by, some provision of the 1901 Code. (Omitting citations.)
However, if the Court accepts appellant‘s constitutional claim, the remedy would not be to ignore the mandatory-minimum provisions of § 541(c), as appellant suggests.... The “‘cardinal principle of statutory construction is to save and not to destroy.‘” Tilton v. Richardson, 403 U.S. 672, 684 (1971) (plurality opinion) (quoting NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30 (1937)); accord McClough v. United States, 520 A.2d 285, 289 (D.C. 1987). Thus, “‘[a] court should refrain from invalidating more of the statute than is necessary.‘” Alaska Airlines, Inc. v. Brock, 480 U.S. 678, 684 (1987) (quoting Regan v. Time, Inc., 468 U.S. 641, 652 (1984) (plurality opinion)). When a particular piece of a statute is found unconstitutional, it is the court‘s duty to maintain those portions of the statute that are valid. Brock, supra, 480 U.S. at 684; Regan, supra, 468 U.S. at 652. “‘Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is
Pursuant to Section 412 of the District of Columbia Self-Government and Governmental Reorganization Act, P.L. 93-198 “the Act“, the Council of the District of Columbia adopted Bill No. 10-617 on first and second readings, November 1, 1994 and December 6, 1994, respectively. The legislation was deemed approved without the signature of the Mayor on December 30, 1994, pursuant to Section 404(e) of “the Act“, and was assigned Act No. 10-392, and published in the January 13, 1995, edition of the D.C. Register (Vol.42 page 238) and transmitted to Congress on February 7, 1995 for a 60-day review, in accordance with Section 602(c)(2) of the Act.
The Council of the District of Columbia hereby gives notice that the 60-day Congressional Review Period has expired, and therefore, cites this enactment as
D.C.Law 10-258 , effective May 25, 1995.
This provision [the statutory predecessor of the general savings statute,
1 U.S.C. § 109 ] but embodies § 4 of the act approved February 25, 1871, c. 71, 16 Stat. 431, which was entitled “An Act prescribing the Form of the enacting and resolving Clauses of Acts and Resolutions of Congress, and rules for the construction thereof.” As the [general savings statute] in question has only the force of a statute, its provision cannot justify a disregard of the will of Congress as manifested either expressly or by necessary implication in a subsequent enactment. But while this is true the provisions of [the savings statute later recodified as1 U.S.C. § 109 ] are to be treated as if incorporated in and as a part of subsequent enactments, and therefore under the general principles of construction requiring, if possible, that effect be given to all the parts of a law the section must be enforced unless either by express declaration or necessary implication, arising from the terms of the law, as a whole, it results that the legislative mind will be set at naught by giving effect to the provisions of [1 U.S.C. § 109]. (Emphasis added.)
The Supreme Court‘s decision in Hertz sounds the same theme. In Hertz, the Court considered whether the general savings clause preserved the United States’ authority to impose an inheritance tax when the testator died before the effective date of the repealing act (removing authority to collect the tax). 218 U.S. at 215, 30 S.Ct. at 623. The Court quoted the savings statute and then said: “This provision has been upheld by this court as a rule of construction applicable, when not otherwise provided, as a general saving clause to be read and construed as a part of all subsequent repealing statutes, in order to give effect to the will and intent of Congress.” Id. at 217, 30 S.Ct. at 624 (citations omitted). The Court next quoted the above language from Great Northern Ry. Co., explained that the statute was applicable to “liabilities,” including taxes, and then concluded: “Therefore we must take that general saving clause into consideration as a part of the legislation involved in the determination of whether a ‘liability’ had been incurred by the imposition of a tax prior to the act that destroyed the law under which it had been imposed.” Id. at 218, 30 S.Ct. at 624-25 (emphasis added).
The Court in Hertz had responded earlier to its own rhetorical question whether Congress could have intended the result required by the Court‘s interpretation of the general savings statute—a response that serves to answer as well Judge SCHWELB‘S rhetorical question whether “the Council‘s perhaps accidental failure to include in the MMSAA an ‘express provision’ of the kind contemplated by the general savings statutes automatically dooms these defendants ... to [man-
Now, did Congress intend to make such an unjust distinction as would result from such an interpretation of the saving clause in question as shall make the time limit for payment the test as to whether one tax shall be preserved and the other remitted in a situation otherwise identical?
Hertz, 218 U.S. at 221, 30 S.Ct. at 626 (emphasis added). The saving clause does not in terms limit the right saved to a tax or duty which should be due and payable at the date of the repeal. It is perhaps an obvious suggestion that if that had been the purpose of Congress, it would have been easy to make that purpose clear. Id.
But see Parks v. United States, 656 A.2d 1137, 1139 (D.C.1995) (joint trial of charges improper under “separate and distinct” theory where it is unlikely jurors could keep evidence of each charge separate in their deliberations, despite limiting instruction).[E]ach charge is a separate count and you must return a separate verdict for each count, a separate offenses is charged in each one of the counts. Each offense and the evidence which applies to it should be considered separately and you should return separate verdicts as to each count.
The fact that you may find the defendant guilty or not guilty on any one count of the indictment should not control or influence your verdict with respect to any other count.
The Council took action on the D.C. savings statute — in its emergency, temporary, and final forms — throughout the first half of 1990. See 37 D.C.Reg. 4827, 4828 (July 27, 1990) (emergency act became effective on January 26, 1990; temporary act was adopted on first and second readings on January 16, 1990 and January 30, 1990, respectively, signed by the Mayor on February 18, 1990, it was assigned Act No. 8-156 and transmitted to both Houses of Congress for its review; “District of Columbia Statutory Savings Provision Act of 1990” was-adopted on first and second readings on June 12, 1990, and June 26, 1990, respectively, signed by the Mayor on July 12, 1990, and became effective September 26, 1990).