Tycho VENEY, Appellant, v. UNITED STATES, Appellee.
No. 93-CF-456.
District of Columbia Court of Appeals.
Argued Oct. 6, 1994. Decided April 20, 1995.
657 A.2d 625
Laura A. Cordero, Asst. U.S. Atty., with whom Eric H. Holder, Jr., U.S. Atty., and John R. Fisher, Elizabeth Trosman, and Karen E. Rhew, Asst. U.S. Attys., were on brief, for appellee.
Before FERREN, TERRY, and SCHWELB, Associate Judges.
PER CURIAM:
Following his guilty plea to manslaughter while armed,
On appeal, Veney contends that the judge failed to make an explicit finding that Veney would not benefit from a DCYRA sentence. This court has recently held, however, that a “no-benefit” finding is not required by the DCYRA. Peterson v. United States, 657 A.2d 756, 763 (D.C.1995) (opinion of KING, J., joined by TERRY, J.) Accordingly, the judgment appealed from is hereby
Affirmed.
SCHWELB, Associate Judge, concurring.
I.
WHETHER A “NO BENEFIT” FINDING WAS REQUIRED
Because this court has now effectively, albeit somewhat cryptically, held that a “no benefit” finding is not required under the District of Columbia Youth Rehabilitation Act,
On a clean slate, I would be most reluctant to decide an issue which has neither been briefed nor argued. However compelling a theory may seem, I do not think the court should reach out to adopt it when it has not been presented to us in the normal course or subjected to the rigors of the adversarial process. We ought to resist the blandishments of the activist credo, which has been characterized as “Have Opinion, Need Case.” See In re Estate of Chuong, 623 A.2d 1154, 1161 n. 1 (D.C.1993) (en banc) (concurring opinion) (quoting BERNARD E. WITKINS, MANUAL ON APPELLATE COURT OPINIONS § 85, at 155 (1977)). I would be more comfortable with Peterson as authority if the issue there
At the same time, I cannot agree with Judge FERREN, see dissenting opinion, post at 631, that the question which he and Judge KING have been debating is settled by [James] Smith v. United States, 597 A.2d 377 (D.C.1991). In that case, the defendant had been placed on probation pursuant to the DCYRA, and had violated the conditions of his probation. To the extent that the question of the need for a “no benefit” finding can be found in that case at all,1 it was in the context of a defendant who had already been found amenable to DCYRA treatment. If the Smith opinion, as its author now suggests, is construed as having decided that a “no benefit” finding is required where the defendant has not previously been sentenced under the DCYRA, id. at 382-83 n. 11, then the court undertook to address and decide an issue not before it. I therefore agree with Judge KING that the language in Smith purporting to require a “no benefit” finding in all DCYRA cases is not binding (but, on the contrary, is advisory only) when sought to be applied in Peterson and Veney to defendants who had never been found amenable to DCYRA sentencing. If there was “reaching out” in Peterson to decide the question one way, there was likewise “reaching out” in Smith to decide it the other way.
Under these circumstances, I believe that it may be appropriate for this court, upon a timely request, to consider, en banc, the “no benefit” issue as to which judges of this court disagree but which, so far, the parties have not debated at all. This would enable us to resolve conclusively the binding character, or lack thereof, of Smith and Peterson, and to provide definitive guidance to trial judges who may now be confused as to which of these cases they should follow.
In Veney, as I have mentioned, both sides assumed that a “no benefit” finding is required under the DCYRA. The only issue argued to us was whether the judge had
II.
WHETHER A “NO BENEFIT” FINDING WAS MADE
A. The heart of the matter.
The trial judge explicitly stated in open court that he had considered the option—for that is what it is—of sentencing appellant Tycho Barnardo Veney pursuant to the provisions of the DCYRA. Even under the regime of the former Federal Youth Corrections Act (FYCA),
B. The death of Marc Locust.
The principal question posed by this case is one of law, but legal issues do not arise in a vacuum, and a few words are in order about the events which precipitated this appeal. Because the materials in the file are focused primarily on the mental and emotional problems of the defendant, we do not know very much about his victim. It appears from the government‘s sentencing memorandum,
Locust, who was unarmed, fell from the bicycle and tried to run away. Veney gave chase and fired again; a second bullet grazed Locust‘s forehead. Minutes later, Locust was found by his brother in a gutter, bleeding and gasping for breath. Marc Locust then died. He was twenty-one years old.
Veney was arrested and gave a videotaped statement to the police. He stated that he and Marc Locust had argued several summers earlier over a girl. He claimed that Locust had shot at him a few weeks before the killing, but he could not remember exactly where this occurred.2 Veney admitted that he shot Locust, and that he ran home and hid the revolver. He later threw the weapon into the river.
Veney was charged with first degree murder while armed and with associated weapons offenses. In spite of the considerable evidence of premeditation, he was permitted to plead guilty to voluntary manslaughter while armed. Murder charges were dismissed as part of the plea agreement.
In advance of sentencing, Veney‘s counsel presented to the court evaluations of her client by two psychologists and one psychiatrist. It is apparent from these evaluations that Veney is at least moderately retarded3 and that he suffers from various mental and emotional disorders. He was abused by both parents, and he was apparently present when his mother shot his father. Like his mother, Veney has on occasion attempted suicide.
The materials submitted by the defense also reveal, however, that Veney is an extremely dangerous individual. Since his teens, he has been engaged in numerous unlawful activities, including setting fires, cruelty to animals, stealing cars, destruction of property, fighting, and carrying a knife. He was committed to Saint Elizabeth Hospital and to the Receiving Home, and he spent two years at The Pines Treatment Center in Portsmouth, Virginia. He was released in June 1991. Then, according to the defense psychiatrist, Neil Blumberg, M.D., Veney returned to the District of Columbia and began associating with a delinquent crowd. He did not wоrk, began drinking and abusing drugs, and eventually became involved in selling drugs, which became his primary means of support.
Veney‘s chosen lifestyle is especially dangerous, both for him and for others because, in the words of defense psychologist Lanning E. Moldauer, Ph.D.,
Mr. Veney is particularly poorly equipped for the role of drug dealer or street “hustler” where the action is likely to turn violent and the demands for making quick, accurate distinctions in life-and-death situations are all too great.
Veney, according to Dr. Moldauer, is “abnormally hypervigilant and unrealistically fearful.” This is a trait which may well have led to the death of Marc Locust.
The prosecutor and defense counsel prepared separate thoughtful submissions to the sentencing judge. At the sentencing hearing, the prosecutor remarked, inter alia, that
[t]here has been a lot of discussion about what would help Mr. Veney. I think the time has come to put the needs of the community ahead of those of Mr. Veney.4
C. The DCYRA, the FYCA, and Dorszynski revisited.
The DCYRA provides that if the court shall find the defendant eligible by age and offense5 for sentencing as a youth offender, it “may sentence [him] for treatment and supervision” pursuant to the Act.
[i]f the court shall find that the youth offender will not derive benefit from treatment under subsection (b) of this section, then the court may sentence the youth offender under any other applicable penalty provision.
At first blush, there appears to be some tension between the various sub-sections of
Veney‘s argument proceeds from the assumption that if an age-and offense-eligible defendant‘s prospects of rehabilitation would be enhanced by DCYRA sentencing, then the judge must sentence the offender pursuant to that statute and may not impose an adult sentence, regardless of the potential competing interest of the community. Agreeing with Veney, Judge FERREN characterizes “amenability to treatment leading to rehabilitation” as the “controlling factor.”
Even if we were writing on a clean slate, this interpretation would be difficult to reconcile with the language of the statute as a whole, and especially with
[t]he authority to sentence a youth offender under “any other applicable penalty provision” is expressly reserved to federal trial courts by [18 U.S.C.] § 5010(d), and thus is within the permissible range of sentences which may be imposed under the Act. The “no benefit” finding required by the Act is not to be read as a substantive standard which must be satisfied to support a sentence outside the Act, for such a reading would subject the sentence to appellate review even though the sentence was permitted by the Act‘s terms, thereby limiting the sentencing court‘s discretion. We will not assume Congress to have intended such a departure from well-established doctrine without a clear expression to disavow it. As our review has shown, the exclusive sentencing power of district judges was acknowledged, and Congress’ intention to affirm that power was clearly indicated.
418 U.S. at 441, 94 S.Ct. at 3051 (emphasis added). Indeed, “the [FYCA] was intended to increase the sentencing options of federal trial judges, rather than to limit the exercise of their discretion whether to employ the newly created options.” Id. at 440, 94 S.Ct. at 3051 (emphasis added); see also Tribble, supra note 7, 447 A.2d at 774. Accordingly, “[o]nce it is made clear that the sentencing judge has considered the option of treatment under the Act and rejected it, however, no appellate review is warranted.” Dorszynski, 418 U.S. at 443, 94 S.Ct. at 3052; Tribble, 447 A.2d at 774. It is undisputed that, in this case, the trial judge considered—and rejected—the option of sentencing Veney pursuant to the DCYRA.
Later in the Dorszynski opinion, the Court stated that
[l]iteral compliance with the Act can be satisfied by any expression that makes clear the sentencing judge considered the alternative of sentencing under the Act and decided that the youth offender would not derive benefit from treatment under the Act.
418 U.S. at 444, 94 S.Ct. at 3053 (emphasis added). Given Chief Justice Burger‘s repeated allusions to the optional character of
Moreover, in the present case, the judge made an explicit defendant-oriented finding. At the sentencing hearing, the prosecutor stated that she had explored the availability of psychiatric counselling at Lorton and at the Youth Center, and that “I have not seen anything that would indicate that he will receive better treatment at the Youth Center ... than at Lorton.” Veney‘s attorney took the position that
[t]he Youth Center is not ideal. It does not have everything that will help and treat Mr. Veney, but it‘s certainly better and it certainly has more than what regular Lorton, adult Lorton, has.
The judge expressly addressed the issue whether the Youth Center would provide Veney with rehabilitative treatment superior to that at Lorton:
A Youth Act sentence is inappropriate. I‘m satisfied that your treatment as an adult will be just as good as it would be as a youth.
Given the context of the lawyers’ arguments, the judge‘s reference to “your treatment” plainly referred to rehabilitative opportunities. If adult facilities were “just as good” as those at the Youth Center, then Veney failed to show that DCYRA sentencing would provide him with any benefit from a rehabilitational perspective.
The judge was also obviously of the opinion that the safety of the community, as well as the nature of Veney‘s crime, called for severe punishment. He noted that if he sentenced Veney pursuant to the DCYRA, he
D. Response to the dissent.
According to Judge FERREN, the DCYRA authorizes consideration of harm to the community only to the extent that, if an offender is rehabilitated, the community will benefit because, presumably, the offender will be unlikely or less likely to break the law again. Judge FERREN insists that, under the DCYRA, “the sentencing judge [may not] engage in a discretionary weighing of potential benefits to the offender from YRA treatment against the potential harm to the community from such treatment.” (Emphasis added).8 Any consideration of the community‘s interest, or any weighing of that interest against the defendant‘s prospects for rehabilitation, is said to be forbidden by the statutory language, and thus taboo.
It may be useful to consider this question from the perspective of a legislator in the District of Columbia or, for that matter, anywhere else in this country. Can one imagine an elected official who would say, publicly, that a sentencing decision in any criminal case, but especially in an armed homicide case, must be made with only one goal in mind—the potential rehabilitation of the defendant—and that considerations of public safety, incapacitation, deterrence and punishment are irrelevant? I suggest that a politician who made such a statement would
As Judge FERREN acknowledges, the purpose of the DCYRA, as stated in the Judiciary Committee Report, was
to provide rehabilitation opportunities for deserving youth adult offenders between the ages of 18 and 22 while incarcerated, and at the same time [to] fully protect the public safety by enabling the court to impose a maximum penalty where warranted.
COUNCIL OF THE DISTRICT OF COLUMBIA COMMITTEE ON THE JUDICIARY, REPORT ON BILL 6-47, YOUTH REHABILITATION ACT OF 1985 (COMMITTEE REPORT) 2 (1985) (emphasis added). The emphasized language belies any notion that the legislature was concerned solely with rehabilitative opportunities for young criminals. On the contrary, the imposition of maximum penalties, where necessary, was an option upon which the Council focused in enacting this very legislation. The use of the word “deserving” is also significant, for if the court views the defendant as “undeserving” (e.g., because the crime was too severe), then, according to the Report, DCYRA sentencing is not called for.
Moreover, it is not subject to dispute that incapacitation of the offender and the prevention, deterrence, and punishment of crime have traditionally been appropriate considerations in the sentencing calculus. In Dorsz-
In any event, Judge FERREN‘s assertion that, under the DCYRA, the sentencing judge may not weigh harm to the community against rehabilitational benefit to the defendant is strikingly at odds with his own opinion for the court in [James] Smith. In that case, Smith had complained that the sentencing judge had abused her discretion in revoking his DCYRA probation, and that she had failed to find a proper balance between the community‘s interest and his own. In rejecting that contention, Judge FERREN wrote, citing prior cases, that
the trial court need not expressly state on the record how it balances the competing interests of the community with the rehabilitative goals of probation.
597 A.2d at 383 (emphasis added; citations omitted). The clear import of the italicized words is that the judge is supposed to balance the community‘s interest in public safety against the interest of the offender in rehabilitation, but need not explain how he did so. The probation at issue in Smith was
To be sure, this particular issue was not contested in Smith. The defendant in that case took the position that, even in a DCYRA probation case, the safety of the community must be considered. As we recently pointed out in Murphy v. McCloud, 650 A.2d 202 (D.C.1994), “[a] point of law merely assumed in an opinion, not discussed, is not authoritative.” Id. at 205 (quoting In re Stegall, 865 F.2d 140, 142 (7th Cir.1989)). Nevertheless, it is fair to say that if a proscription against considering public safety lurks somewhere in the bosom of the DCYRA, the court in Smith failed to discern its existence. If the statute contained such an extraordinary feature, surely somebody would have noticed it before this appeal.
I am unable to reconcile with reality or with just plain common sense the notion that in 1985—a time of referendum-approved mandatory minimum sentences and a staggering homicide rate in our capital10—a group of legislators enacted a law requiring the judge, even in an armed homicide case, to consider only the defendant‘s long-term prospects for rehabilitation and to ignore the community‘s immediate interest in public safety. Accordingly, I must respectfully but emphatically disagree with Judge FERREN‘S most recent reading of the DCYRA. I would vote to affirm the judgment even if Peterson had not been decided.11
Tycho VENEY, Appellant, v. UNITED STATES, Appellee.
No. 93-CF-456.
District of Columbia Court of Appeals.
Argued Oct. 6, 1994. Decided April 20, 1995.
This decision and the one issued several days before it, Peterson v. United States, 657 A.2d 756 (D.C.1995), reflect a remarkable result. Two divisions of this court decide the same issue—holding that a sentencing judge can lawfully deny Youth Rehabilitation Act (YRA) treatment to an eligible youth offender without need for an explicit finding that the youth “will not derive benefit” from such treatment—even though that issue has not been raised or briefed or orally argued on appeal by any party in either case. (Indeed, the court put Peterson on the summary calendar without oral argument.)
Appellants in both cases have contended, rather, that in imposing adult sentences on youth offenders the trial court did not make a required “no benefit” finding. The government in both cases has replied—without contesting appellants’ premise of a required explicit finding—that the court, in fact, had found “no benefit.” In short, all parties, including the government, implicitly have agreed for purposes of Peterson and Veney—or at least have not disagreed—that before denying a YRA sentence requested by an eligible offender, the trial judge must make an explicit finding that а YRA sentence will not benefit the defendant. See (James) Smith v. United States, 597 A.2d 377, 383 (D.C.1991) (“because appellant was a youth offender,
More specifically, according to the parties, only one legal issue and one factual issue are presented: What exactly is an “explicit” finding of “no benefit” within the meaning of
I therefore believe that both the Veney and the Peterson divisions are bound to follow (James) Smith‘s conclusion that an explicit “no benefit” finding is required, see supra note 3, unless and until that broad holding is overruled by the en banc court. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971).4 Having failed to persuade my colleagues of that fundamental limitation here, I shall discuss, first, why—as (James) Smith holds—the YRA requires an explicit “no benefit” finding every time a trial judge denies an eligible youth offender‘s request for YRA treatment. I will then explain why appellant Veney is entitled to resentencing based on the trial judge‘s failure to make the required “no benefit” finding in this case.
I.
In order to show why both the Veney and Peterson divisions are bound by our decision
A.
I begin by quoting in full the relevant provisions of the YRA,
(a) [provisions concerning probation]
(b) If the court shall find that a convicted person is a youth offender, and the offense is punishable by imprisonment under applicable provisions of law other than this subsection, the court may sentence the youth offender for treatment and supervision pursuant to this chapter up to the maximum penalty of imprisonment otherwise provided by law. The youth offender shall serve the sentence of the court unless sooner released as provided in
§ 24-804 .(c) Where the court finds that a person is a youth offender and determines that the youth offender will derive benefit from the provisions of this chapter, the court shall make a statement on the record of the reasons for its determination. The youth offender shall be entitled to present to the court facts that would affect the decision of the court to sentence the youth offender pursuant to the provisions of this chapter.
(d) If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) of this section, then the court may sentence the youth offender under any other applicable penalty provision.
(e) If the court desires additional information as to whether a youth offender will derive benefit from treatment under subsection (b) of this section, the court may order that the youth offender be committed for observation and study at an appropriate classification center or agency. Within 60 days from the date of the order or an additional period that the court may grant, the court shall receive the report.
(f) Subsections (a) through (e) of this section provide sentencing alternatives in addition to the options already available to the court.
(Emphasis added.)
Without doubt, under both subsection (c) (“will derive benefit“) and subsection (d) (“will not derive benefit“) the trial court makes a finding. It is clear, moreover, that under subsection (c) that finding must be explicit and detailed; the court has to “make a statement on the record of the reasons for its determination.”
Even though the words “explicit finding” or “express finding” do not appear in the statute, and even though subsection (d)—unlike subsection (c)—does not require a “statement on the record of the reasons for its determination,” the “no benefit” issue arises because the Supreme Court concluded that an explicit finding of “no benefit” was required under the YRA‘s federal statutory predecessor, the Federal Youth Corrections Act (FYCA), even though no statutory language called for an explicit finding. See Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). As we pointed out in (James) Smith:
Under the now-repealed Federal Youth Corrections Act (FYCA),
18 U.S.C. § 5010(d) (1982), ... we held, following the Supreme Court, that “an express finding of no benefit must be made on the record.”(Curtis) Smith v. United States, 330 A.2d 519, 522 (D.C.1974) (emphasis in original) (quoting Dorszynski v. United States, 418 U.S. 424, 425, 94 S.Ct. 3042, 3044, 41 L.Ed.2d 855 (1974)).
597 A.2d at 381-82 (footnotes omitted). We then added:
The Supreme Court has reasoned that an explicit, not implicit, finding of no benefit “insure[s] that the sentencing judge exercised his [or her] discretion in сhoosing not to commit a youth offender to treatment under the Act.” Dorszynski, 418 U.S. at 443, 94 S.Ct. at 3052-53. “To hold that a ‘no benefit’ finding is implicit each time a sentence under the Act is not chosen would render [18 U.S.C.] § 5010(d) nugatory....” Id. at 444, 94 S.Ct. at 3053.
597 A.2d at 382. We next noted in language applicable to appellant Veney (as well as to appellant Peterson):
The language of
D.C.Code § 24-803(d) at issue here is virtually identical to18 U.S.C. § 5010(d) at issue in Dorszynski,5 and none of the legislative history of the YRA (or of§ 24-803(d) in particular) indicates a desire to depart from the well-established interpretation Dorszynski put on that language. We therefore see no reason why we should not apply to YRA§ 24-803(d) our FYCA reasoning, see (Curtis) Smith, 330 A.2d at 522, derived from the Supreme Court‘s Dorszynski ruling and thus require the trial court to make an explicit “no benefit” finding, although the court need not supply supporting reasons.
Id. (footnote omitted).
In the footnote to the immediately preceding quotation from (James) Smith, we cited legislative history, noting that “some of the persons who testified before the Council mentioned the Dorszynski case,” id. n. 11, and that the report of the Council Committee on the Judiciary itself indicated the need for a “no benefit” finding if the judge decided to impose an adult sentence. According to the Committee Report:
The judge can sentence youth offenders differently from adult offenders (over 21 years old) if the judge finds that they would benefit from Youth Act treatment, in which case the judge must state on the record the reasons for his or her determination. In this instance, the prosecutor may argue against such treatment. The judge may also impose an adult sentence if he or she finds that there will be no benefit. The judge makes a decision on the basis of detailed information concerning the youth offender provided by disinterested third parties.
COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON THE JUDICIARY, REPORT ON BILL 6-47, YOUTH REHABILITATION ACT OF 1985 (Committee Report) 3 (1985) (emphasis added), quoted in (James) Smith, 597 A.2d at 382 n. 11. In sum, the Council recognized that the trial judge must “find” a “benefit” or “no benefit” from YRA sentencing in each case; and, as we said in (James) Smith, under a time-honored rule of statutory construction that finding, either way, must be explicit since the Council, in adopting the YRA, must be said to have incorporated Dorszynski‘s interpretative gloss.
“Ordinarily, Congress mаy be presumed to know the construction which has been given to prior statutory provisions, and to know their history, when it incorporates them into later legislation.” Office of People‘s Counsel v. Public Service Comm‘n, 477 A.2d 1079, 1091 (D.C.1984). The same reasoning applies to the Council of the District of Columbia.
(James) Smith, 597 A.2d at 382 n. 11. See Hughes v. District of Columbia Dep‘t. of Employment Servs., 498 A.2d 567, 571 n. 8 (D.C.1985) (“When a local provision is bor-
As all judges and lawyers know, some judicial decisions reflect broad holdings; other holdings are narrower. In (James) Smith, we concluded on the basis of case law, legislative history, and rules of statutory construction that an explicit “no benefit” finding is required whenever a sentencing judge denies YRA treatment to a youth offender; there was no discernible statutory basis for saying that an explicit finding was required in some contexts but not in others. We applied that construction to a case concerning YRA probation revocation. Because we did not present an analysis limited to a revocation situation, it cannot reasonably be said that the scope of our holding—the announced rule of the case—was so limited. I believe my colleagues in Peterson seriously err in refusing to follow (James) Smith as a decision that binds the court in the Peterson and Veney cases. See M.A.P. v. Ryan, 285 A.2d at 312.
B.
The division majority in Peterson, essentially ignoring (James) Smith, apparently inferred that, in adopting the YRA, the Council rejected Dorszynski‘s requirement of an explicit “no benefit” finding because the Council added to the YRA a requirement not found in the FYCA: if the judge decides to grant YRA treatment, the judgе must expressly state why. See
Second, a required “statement on the record of the reasons” for granting YRA treatment under
Finally, many witnesses at the hearings before the Council‘s Committee on the Judiciary referred to positive experiences under the repealed FYCA as reasons for adopting a local YRA to take its place. See Appendix. The Council obviously agreed by enacting the YRA. As indicated earlier, however, the YRA departs from the FYCA in requiring a sentencing judge who elects to grant YRA treatment to state on the record the reasons for doing so. See
In sum, there is no reason to believe that the Council, in adopting the YRA, decided to scuttle an established interpretation of the same language supplied by Dorszynski and later cases. To the contrary, there is every reason to infer that the Council intended to continue the Dorszynski policy, applied under the FYCA, so that a sentencing judge, when applying YRA language virtually identical to that in the FYCA, see supra note 5, cannot deny YRA treatment for an eligible youth offender without explicitly finding that the offender will not derive benefit from YRA treatment. See (James) Smith, 597 A.2d at 382 n. 11.
II.
Having presented (James) Smith‘s binding analysis and outlined the reasons why the division majority in Peterson had no sound basis for summarily rejecting, on the ground of “unambiguous” statutory language, a rеquired “no benefit” finding under
A.
On February 28, 1992, appellant Veney—then nineteen years old—shot and killed Marc Locust. On January 22, 1993, Veney entered a guilty plea to manslaughter while armed. In exchange, the government dismissed all other charges.7
Veney asked to be sentenced under the YRA.8 Before sentencing, he submitted three psychological and psychiatric reports that showed he was mentally retarded and emotionally disturbed, and that he had suffered from a history of childhood abuse and neglect. These reports noted that Veney needed counselling and vocational training; they recommended placement in a facility capable of dealing with the mentally retarded. Defense counsel accordingly proposed a sentence requiring incarceration at the Youth Center. Counsel stressed that Veney would “be very vulnerable in the prison system,”9 that he needed psychological and vocational training, and that because “intensive treatment ... is available at the Lorton Youth Center,” the court‘s “greatest assurance for rehabilitating Mr. Veney [would be] to sentence him under the Youth Rehabilitation Act.”
The trial court concluded that a YRA sentence would be “inappropriate“:
The plea you entered subjects you to a mandatory minimum sentence of five years if you‘re sentenced as an adult....
With that I compare the Youth Act treatment where I have absolutely no control over the ultimate decision those folks would make when to release you. And although I don‘t think it would be a very wise decision for them to release you earlier than you would be released as an adult[, u]ltimately, the Court does not have any control over it.
This is a situation where you will receive the benefit of your bargain, but that is about it. A Youth Act sentence is inappropriate. I‘m satisfied that your treatment as an adult will be just as good as it
would be as a youth. Therefore, your request for sentencing under the Youth Rehabilitation Act is denied. (Emphasis added.)
Veney consequently received an adult sentence to prison for a term of not less than fifteen years, nor more than life, with five years as the mandatory minimum.
B.
Veney contends on appeal that the trial judge did not explicitly make the “no benefit” finding required for denial of YRA treatment under
In order to decide whether the trial judge made an explicit “no benefit” finding under the YRA it is important for us to understand FYCA § 5010(d)—the virtually identical statutory predecessor of YRA
In considering the purposes and effects of the FYCA, the Supreme Court stressed in Dorszynski that there had been:
two principal motivating factors behind the enactment of the [Federal Youth Corrections] Act: first, the period of life between 16 and 22 years of age was found to be the time when special factors operated to produce habitual criminals. Second, then-existing methods of treating criminally inclined youths were found inadequate to avoid recidivism.... The Act was thus designed to provide a better method for treating young offenders convicted in federal courts in that vulnerable age bracket, to rehabilitate them and restore normal behavior patterns.
Id., 418 U.S. at 432-33, 94 S.Ct. at 3047. Later in the Court‘s opinion, Chief Justice Burger summarized: the FYCA provided “a new sentencing alternative designed to prevent youthful offenders from continuing their involvement in criminal conduct after the expiration of their sentence.” Id. at 442, 94 S.Ct. at 3052. In short, the FYCA anticipated the possibility that treatment under the Act would “rehabilitate” youth, “restore normal behavior patterns,” and thus cause discontinuance of “involvement in criminal conduct after the expiration of [the FYCA] sentence.” Id. at 442, 94 S.Ct. at 3052. Under this approach, therefore, when the youth offender predictably would benefit from a FYCA sentence, in the sense of achieving complete rehabilitation, the community necessarily would benefit, for presumably there would be one less recidivist. On the other hand, if a youth offender was not likely to benefit, then presumably there would be some risk to the community from a FYCA sentence, since rehabilitation could not be expected.
The Supreme Court acknowledged there could be some risk to the community from FYCA sentencing in that a Youth Act sentence was intended “to fit the person, not the crime for which he [or she] was convicted.” Id. at 434, 94 S.Ct. at 3048; see Ralston v. Robinson, 454 U.S. 201, 220, 102 S.Ct. 233, 245, 70 L.Ed.2d 345 (1981) (same). Thus, a FYCA sentence would not reflect some of the objectives that govern adult sentencing, such as “serious punishment,” Dorszynski, 418 U.S. at 438, 94 S.Ct. at 3050, directly aimed at deterring crime by keeping offenders locked up for a long time. The Supreme Court therefore emphasized that, according to the legislative history, district judges were not required to impose FYCA sentences unless they were as sure as they needed to be that offenders would definitely benefit from the FYCA regime. Congress had intended the FYCA “to enlarge, not restrict, the sentencing options of federal trial courts.” Id. at 436, 94 S.Ct. at 3049. The FYCA “preserved the power of trial judges to sentence youth offenders under ‘any other applicable pеnalty provision,’ ” id. at 436, 94 S.Ct. at 3049; indeed, the Act “was intended to preserve the unfettered sentencing discretion of
According to the Court, the question then became: how to determine “when a judge may sentence a youth offender outside the Act,” id. at 436, 94 S.Ct. at 3049—i.e., retaining the judge‘s “unfettered sentencing discretion,” id. at 437, 94 S.Ct. at 3049, while at the same time making sure that the sentencing judge did not ignore, and thus negate, the offender‘s statutory right to a discretionary judgment about whether he or she would “derive benefit” from FYCA treatment.
The Dorszynski majority resolved the tension created by these two sentencing goals by emphasizing, first, that the FYCA did not create a judicially reviewable substantive standard; it left the sentencing court‘s discretion entirely intact:
The ‘no benefit’ finding required by the Act is not to be read as a substantive standard which must be satisfied to support a sentence outside the Act, for such a reading would subject the sentence to appellate review even though the sentence was permitted by the Act‘s terms, thereby limiting the sentencing court‘s discretion.
Id., 418 U.S. at 441, 94 S.Ct. at 3051 (emphasis added). For that reason, said the Court,
a sentence outside the Act need not be accompanied by a statement of reasons why the court chose such a sentence. The only purpose of such a requirement would be to facilitate appellate supervision of, and thus to limit, the trial court‘s sentencing discretion.
Id. at 441-42, 94 S.Ct. at 3051-52 (emphasis added).
On the other hand, the Court stressed that every eligible youth offender was entitled to the sentencing court‘s exercise of discretion, i.e., a direct coming-to-grips, “yes” or “no,” with the question whether the offender would derive benefit from FYCA treatment. The court could not say “no” without focusing explicitly on the “benefit” issue.
The language of FYCA § 5010(d) made that statutory right to a particular kind of discretion clear. It provided:
(d) If the court shall find that the youth offender will not derive benefit under subsection (b) or (c) [providing for FYCA treatment], then the court may sentencе the youth offender under any other applicable penalty provision [i.e., as an adult].
(Emphasis added.) The Court accordingly held that (1) although the trial court ultimately had unfettered sentencing discretion, the eligible youth offender at least had a statutory right to the court‘s discretionary consideration of the FYCA alternative, and that (2) the only way to be sure the sentencing court exercised that discretion—without the appellate court‘s having to peruse the record to review the exercise of sentencing discretion on a case-by-case basis—was to require the sentencing court, in rejecting FYCA treatment, to make “[a]n explicit finding that [the offender] would not have benefited from treatment under the Act.” Id. at 444, 94 S.Ct. at 3053 (emphasis added). Or, as the Court put it a paragraph earlier, “[l]iteral compliance with the Act [could] be satisfied by any expression that [made] clear the sentencing judge considered the alternative of sentencing under the Act and decided that the youth offender would not derive benefit from treatment under the Act” (emphasis added). Id. But the Court was unequivocal: the “no benefit” finding had to be “clear.”10
Without doubt, therefore, the Supreme Court concluded that an explicit “no benefit” finding was required under FYCA language virtually identical to YRA
The most critical flaw in the Peterson majority‘s reasoning, therefore, is the notion that the very requirement of stated reasons for a finding of probable benefit from YRA treatment, see
I had thought this court made clear enough in (James) Smith that an explicit “no benefit” finding was required in every case under the YRA, not just when probation was revoked. The foregoing analysis drawn from Dorszynski, as understood and applied in the federal circuit courts of appeals, see supra note 10, makes even clearer why such an explicit finding is necessary tо assure the very functioning of a Youth Rehabilitation Act that purports to couple the judge‘s unfettered sentencing discretion with an eligible youth offender‘s right to discretionary consideration of YRA treatment. I would so hold.
C.
The next question—indeed, the only legal question under YRA presented in Veney and in Peterson—is what is meant exactly by a “no benefit” finding under
The Supreme Court, of course, supplied the required interpretation for the FYCA in Dorszynski, as indicated at the outset of this discussion: the focus was on rehabilitation, leading to restoration of sound behavior patterns, and thus to discontinuance of criminal conduct upon expiration of the FYCA sentence, see id. at 433, 94 S.Ct. at 3047—in short, a benefit personal to the offender that happened to serve, equally, as a benefit to the community from the offender‘s complete rehabilitation.
This is not to say that the sentencing judge, in imposing a FYCA sentence, had to be 100 percent, or even 50 percent, sure that the offender‘s FYCA rehabilitation would achieve the goal of removing the offender forever from the criminal milieu; the sentencing judge had discretion to take risks of failure from Youth Act sentencing. At the same time, however, a sentencing judge had the discretion to find “no benefit,” within the meaning of the FYCA, if the judge could not be satisfied that there was considerable—indeed, virtually conclusive—reason to believe that the youth would achieve rehabilitation to the point of no longer being a criminal threat to society.
It is important to be clear at the outset that under the YRA, as under the FYCA, the “benefit” at issue is benefit, personally, to the youth offender. The statute authorizes a YRA sentence “[w]here the court finds that ... the youth offender will derive benefit,”
to provide rehabilitation opportunities for deserving young adult offenders between
the ages of 18 and 22 while incarcerated, and at the same time fully protect the public safety by enabling the court to impose a maximum penalty where warranted.
Id. (emphasis added).
In short, as under the FYCA, the YRA‘s required “no benefit” finding means that, before a trial judge may impose an adult sentence on an eligible youth offender, the judge must make an explicit determination that the offender will not be amenable to treatment, leading to rehabilitation, under the YRA. See United States v. Hopkins, 174 U.S.App.D.C. 244, 247, 531 F.2d 576, 579 (1976) (requirement of express finding of no benefit ensures not only that sentencing court is aware of FYCA “but also that it focused on amenability to treatment“). The purpose of this requirement is, very simply, to assure the appellate court that the trial court has considered the controlling factor—amenability to treatment leading to rehabilitation—in declining to impose a YRA sentence. See id. Consequently, when the appellate court cannot determine from the record that the trial court considered and rejected that particular kind of benefit to the offender, the court must remand for resentencing.11
As indicated in the Committee Report, the Council, in adopting the YRA, was concerned “at the same time” about “fully protect[ing] the public safety by enabling the court to impose a maximum penalty where warranted.” COMMITTEE REPORT at 2. This reference to “public safety,” however, does not suggest that the sentencing court engage in a discretionary weighing of potential benefits to the offender from YRA treatment against the potential harm to the community from such treatment; reflecting the FYCA, the statutory language of the YRA—limiting the court‘s finding to benefit or no benefit to the “youth offender” alone—permits no such exercise.12 See supra note 10. The court, rather, is to focus exclusively on the rehabilitation that can be expected under the YRA, the assumptions being that—as under the FYCA, as interpreted by Dorszynski—(1) if rehabilitation can be anticipated, the public will benefit from a decision to impose a YRA sentence (presumably resulting in adequate protection against the possibility of recidivism), but that (2) if YRA treatment is not likely to produce rehabilitation, the public will benefit instead from rejection of a YRA sentence (presumably resulting in protection by reason of the offender‘s incarceration in an adult facility).
It bears emphasis, as elaborated in the discussion of Dorszynski, that in considering benefit to the youth offender, the sentencing court, in its discretion, may, but need not,
D.
I turn, finally, to the sentence at issue here. The government contends that when a finding of “no benefit” is clear from the record, it is not necessary for the court in any way “to parrot the statutory words” in denying application of the YRA. Taylor v. United States, 324 A.2d 683, 685 (D.C.1974). Rather, says the government, the record itself can constitute the court‘s explicit “no benefit” finding. The government then asserts that, under this approach, the trial court effectively found “no benefit” when it concluded that a YRA sentence would be “inappropriate,” because the record shows the court based its conclusion on consideration of the violent nature of the offense, the inherently longer (here, mandatory minimum) sentence as an adult, and a recognition of the availability of comparable treatment in an adult facility. According to the government, these considerations, taken together, amounted to an explicit finding that the appellant would not benefit from a YRA sentence.
Appellant Veney, on the other hand, points out that even though a judge does not have to use the magic words “no benefit,” or “will not derive benefit,” this court has held that “there nonetheless must be an explicit expression” to the effect that the offender would not benefit from treatment under the Act. (Curtis) Smith v. United States, 330 A.2d 519, 522 (D.C.1974) (citing Dorszynski). Veney then stresses that none of the trial court‘s considerations—seriousness of offense, length of incarceration, and comparable treatment at adult prisons—addressed the critical question whether Veney would, or would not, benefit from a YRA sentence.
I agree with the government to this extent: we have upheld denial of YRA sentences in the absence of “no benefit” language when the record has unmistakably shown that the trial court found the defendant would not benefit from YRA sentencing. See Bettis v. United States, 325 A.2d 190, 198 (D.C.1974) (trial judge deemed to have incorporated into denial of Youth Act sentence experts’ reports recommending defendant not be sentenced under Youth Act14); Taylor, 324 A.2d at 684-685 (trial judge‘s reading of defendant‘s records showing extensive involvement with police, courts, and correctional system—including prior sentences under Youth Act—constituted explicit finding of “no benefit“). Each case, however, turns on its own facts.
As both parties agree, the trial court, in denying Veney a YRA sentence, considered the seriousness of his offense, the greater length of incarceration at adult prisons, and the comparability of treatment at adult facilities—factors leading the court to conclude that a YRA sentence would be “inappropriate.” It is easily apparent that none of these considerations reflects a finding that Veney would not benefit from YRA treatment, nor
In the first place, although the seriousness of Veney‘s offense, manslaughter while armed, reflects a degree of criminality that presumably makes rehabilitation more difficult than the treatment required for lesser offenders, that obvious concern does not necessarily preclude rehabilitation, and thus benefit, from YRA sentencing. Absent an explicit “no benefit” finding, the court‘s reliance on a seriousness-of-offense factor to impose an adult sentence reflects deterrence and punishment rationales which, in themselves, do not indicate that the court focused on rehabilitation.
Again, the court‘s second category of concerns—that the court favored at least a five-year mandatory minimum sentence that would be imposed on Veney as an adult, and that the sentencing judge would have no control over the release date under a YRA sentence—does not reflect a “no benefit” finding. This case is similar to (Curtis) Smith, where we concluded that the sentencing judge did not make an explicit “no benefit” finding when he stated that he would not consider a Youth Act sentence “[u]ntil such time as something is done with the Youth Center, which puts [defendants] out inside of eleven months.” Id., 330 A.2d at 522. As in (Curtis) Smith, the trial court here did not focus on treatment and rehabilitation in expressing concern about the length of time Veney would serve; deterrence and punishment, once again, appear to have motivated the court.
Finally, the court did mention treatment when opining that it was satisfied Veney‘s “treatment as an adult will be as good as it would be as a youth.” In one important sense, however, that statement is inherently
The present case differs from those cited by the government, such as Bettis and Taylor, in which we have concluded that the trial court made an explicit “no benefit” finding, despite the failure to use words to that effect. There is no indication on this record that the trial court considered whether appellant Veney would, in some way, benefit—in the sense of anticipated rehabilitation—from YRA treatment. In contrast with Bettis, 325 A.2d at 198, I cannot say the trial judge incorporated an expert report or finding that showed Veney would not gain from YRA sentencing; to the contrary, the only expert reports submitted to the court appeared to favor YRA sentencing. Similarly, unlike the defendant in Taylor, 324 A.2d at 683, who had not been rehabilitated by previous FYCA treatment (implying that he would not benefit from another Youth Act sentence), appellant Veney came before the court on a first offense.16
The foregoing lengthy analysis is responsive to Dorszynski‘s and (James) Smith‘s admonition that absence of the so-called magic words, “no benefit” or “will not derive benefit,” will not be fatal to a court‘s rejection of YRA treatment for eligible offenders as long as the court uses words that can only be construed to mean “no benefit.” The court‘s failure to use such words in this case, however, did turn out to be fatal, in my judgment, because a “no benefit” analysis, as understood from Dorszynski, was not attempted. If the statutory words are used, of course, then lengthy opinions sorting out what was intended would not be necessary. Cf. Ralston, 454 U.S. at 219, 102 S.Ct. at 244 (referring to FYCA probation revocation: “In the future, we expect that judges will eliminate interpretive difficulties by making an explicit ‘no benefit’ finding with respect to the remainder of the YCA sentence.“).
Respectfully, therefore, I dissent. I would vacate Veney‘s sentence and remand for resentencing.
APPENDIX
Of the 29 appearances before, and letters to, the Committee on the Judiciary relating to the May 8, 1985 hearing on Bill 6-47, which was later codified as the District of Columbia Youth Rehabilitation Act,
1. Cheryl M. Long, Director, Public Defender Service for the District of Columbia
The need for a strong and effective Youth Rehabilitation Act is obvious: ... Some mechanism must be provided for separating, evaluating and sentencing young people who, in the view of the trial court, have the potential for rehabilitation and who would not return to the community and continue to commit criminal acts if that special treatment is successful. [Emphasis added.]
2. Charles J. Ogletree, Deputy Director, Public Defender Service for the District of Columbia
Judges and attorneys know that the Federal Youth Corrections Act ... clearly had a positive impact not only on individual youth-
ful offenders but also on the community at large.... These beneficial results flowed from the Youth Act‘s emphasis on rehabilitation.... For the community, rehabilitation is the only long term solution to crime. [Emphasis added.]
3. Dr. Calvin W. Rolark, President, United Black Fund
One of the greatest needs I can think of is to give a deserving youth a chance to reform his or her life.... Our agencies [that] serve such young adults find that these lives can be turned around with rehabilitation, job and academic counseling and concern administered in an insulated setting. [Emphasis added.]
4. Rev. Jerry A. Moore, Jr.
[Bill 6-47] offers an opportunity for reconstruction of lives of young men and women who, otherwise, might be consigned to the scraphill of life. These people are valuable resources and must be reclaimed for useful purposes in our society. [Emphasis added.]
5. Ronald Hampton, National Chairman, National Black Police Association
I have been a Community Relations Officer for the past seven years ... and have seen the positive effects that time and corrective guidance can have to eliminate the anti-social tendencies that are embedded in some of our youth. [Emphasis added].
6. Willie T. Hamlin, M.D., Institute for Child and Family Psychiatry, Inc.
The Institute ... fully supports “The Youth Rehabilitation Act of 1985,” with its stated purposes being to regulate the rehabilitation and punishment of our youthful offenders.... To offer our youth and community anything less than a comprehensive model program for rehabilitation would be a continued form of abuse, neglect and abandonment of both parties. [Emphasis added]
7. M. Shanara Gilbert, Chairperson, National Conference of Black Lawyers
The Federal Youth Corrections Act was intended historically to replace retribution and punishment with nurturing and training.... We appreciate the Council‘s approach of turning anger and frustration with youth crime into reason and a constructive approach to the prevention of future criminality and therefore we urge the passage of the bill.... [Emphasis added.]
8. Stephen G. Milliken, Attorney-at-Law
This legislation recognizes a fundamental precept in the potential for rehabilitation in young people.... [Emphasis added.]
9. J. Wesley Watkins, Executive Director of the American Civil Liberties Union of the National Capital Area
We think the Youth Rehabilitation Act will reinstitute a humane and necessary sentencing option for judges in the District.
10. Baker E. Morten, Unfoldment, Inc.
Bill 6-47 would restore certain provisions of the former Federal Youth Corrections Act
and provide rehabilitation opportunities for deserving youthful offenders.... [Emphasis added.]
11. Carrolena Key, Vice Chairperson, D.C. Commission for Women
The D.C. Commission for Women support the concept of Bill 6-47 to regulate the rehabilitation and punishment of youth offenders ... and agree that early passage of legislation to provide a system of treatment and rehabilitation for young offenders is extremely urgent. [Emphasis added.]
12. Ralph Reynaud, D.C. Youth Parole Officer
[T]he necessity of an appropriate law to take the place of the FYCA ... is fulfilled in the proposed YRA-85 which would regulate the rehabilitation and the punishment of D.C. Youth Offenders through the treatment process. [Emphasis added.]
13. Rudolph H. Yates, Efforts From Ex-Convicts
A Youth Facility is needed to work with those offender[s] who can be saved. [Emphasis added.]
14. Daniel McKinney, Youth Ex-Offender
Bill 6-47 ... gives the youth the opportunity to see the mistake and use the time to rehabilitate himself.... [Emphasis added.]
15. Matthew Curtis, Youth Ex-Offender
I believe everyone deserves a second chance.... The benefits of a youth act can be seen through its school, trades, and programs. [Emphasis added.]
16. Arnold Bellinger, Youth Ex-Offender
Without [the Youth Act, youth offenders] would have been warehoused in prison making no сontribution to society. Because of the Youth Act, I was able to return to my job and continue as a free and productive member of the community. [Emphasis added.]
17. Donald F. Sullivan, Executive Director, National Capitol Area Region, The National Conference of Christians and Jews
I strongly support The Youth Rehabilitation Act ... because it would provide a better method for treating young offenders with a goal towards rehabilitation and making them productive members of society. [Emphasis added.]
18. Reginald G. Addison, Past Vice-President, Board of Governors of the Superior Court Trial Lawyers Association
The harsh reality is that we must try to rehabilitate youths convicted of crimes.... Rehabilitation is as beneficial to the community as it is to those who receive it. [Emphasis added.]
19. Bernard M. Nedab, Group Homes
[I]t is societ[y‘s] responsibility to at least be certain each individual receives the opportunity to become a self-respecting, productive part of his community. [Emphasis added.]
[T]his legislation, in effect, would inform the Federal government that we will not turn our backs on the District‘s troubled youth [emphasis in original]. Rather, we will provide a constructive rehabilitation program.... [Emphasis added.]
21. Michael Zeldin and Susan Schneider, Co-chairpersons, Division V (Criminal Law and Individual Rights) of the District of Columbia Bar, Committee on Criminal Rules and Legislation
The Youth Act ... provided for the special treatment of some young offenders ... [who] were segregated from the adult prison population ... to prevent the exposure of youth offenders to a more hardened ... criminal element.... These youth offenders also received more intensive guidance, counselling and educational training. [Emphasis added.]
22. Lillian M. Queen, Staff, Crime and Criminal Justice Task Force, Office of Social Development, Archdiocese of Washington
[The FYCA] provided rehabilitation for young offenders.... We ask that you act with haste ... to get the adoption of the repealed act ... [to] fill the void left in the City‘s criminal laws. [Emphasis added.]
23. Retna M. Pullings, Attorney-at-Law
Emphasis should be [on] the educating and training of youthful offenders.... [Emphasis added.]
24. William F. Dow, III, Former Staff Attorney, Public Defender Service of the District of Columbia
[A] viable alternative must be available to those young people ... who have been convicted of criminal offenses and who dеserve special treatment because of their youth. [Emphasis added.]
25. Dr. Kelsey A. Jones, Professor and Chairman, The Department of Criminal Justice, The University of the District of Columbia
We react to “crime” while remaining ambivalent toward the criminal. The criminal, like each of us, is an individual.
26. Rev. Samuel McPherson, Juvenile Counselor at the Southeast House and the P.I.N.S. Center
The approach to dealing with the regulating of “the rehabilitation and the punishment of youth offenders”, ... [in] Bill 6-47, places much onus on the Courts to make psychological and sociological determinations as they relate to the youth offender, without identifying within the court‘s purview, definitive programs or projects. [Emphasis added.]
27. Rimsky Atkinson and John Gibson, Co-chairs, Citizen‘s Advisory Committee to the District of Columbia Bar
Legislation must protect all members of society from unreasonable risks of criminal victimization, while at the same time providing treatment and rehabilitative interventions for youthful offenders.... The right to rehabilitative services as an alternative to regular sentencing should be afforded to an individual only once. [Emphasis added.]
The Bill corresponds with the executive‘s determination in that: the sentencing goal is rehabilitation.... That overall goal, however, ha[s] to be addressed within a context of public safety and prison management concerns. [Emphasis added.]
29. Carl M. Rogers, Ph.D., Associate Director, Division of Child Protection, Children‘s Hospital National Medical Center
We recognize the intent of these provisions in terms of promotion of rehabilitative efforts and our collective desire not to unduly stigmatize the rehabilitated youthful offender.... We are concerned that the Act ... neither acknowledges, nor makes provision for consideration of, the impact of the offenders’ criminal behavior on the victim. [Emphasis added.]
Notes
In sum, this Court should affirm the sentencing court‘s sentence because the record demonstrates that the trial court explicitly considered the options available under the YRA and concluded that appellant Peterson would not derive a benefit by being sentenced thereunder.This court clearly understood and acknowledged that this was the government‘s only position, i.e., that the government did not attack the underlying premise that a “no benefit” finding was required before denying YRA treatment to eligible youth offenders. See Peterson, 657 A.2d. at 763. Similarly, in Veney, the government acknowledged in its brief (pages 8 and 9):
[T]his court held in Smith that the trial court was required to make an explicit “no benefit” finding before imposing an adult sentence in order to insure that the trial court had in fact exercised its discretion in rejecting a Youth Act sentence. Id. at 382.... In the instant case, it is simply indisputable that the trial court exercised its discretion in refusing to impose a Youth Act sentence when it explicitly stated that a Youth Act sentence would be “inappropriate” in this case.
(d) If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provisions.
(d) If the court finds that the youth offender will not derive benefit from treatment under subsection (b) of this section, then the court may sentence the youth offender under any other applicable penalty provision.According to (James) Smith, 597 A.2d at 382 n. 10, “[t]he only difference between the two subsections is that the federal act mentions subsections (b) and (c), whereas our local act mentions only subsection (b). That difference is not relevant to our discussion here.”
It is true that the YRA worked a major change in sections (b) and (c) of the sentencing alternatives provisions of the FYCA. Under the FYCA, a sentencing judge could grant FYCA treatment without providing an explanation but could reject FYCA treatment only after indicating on the record that he or she had “considered the option of treatment under the Act and rejected it.” Dorszynski, 418 U.S. at 443, 94 S.Ct. at 3053. The judge could reject FYCA treatment only by explicitly making a finding of “no benefit,” although no accompanying reasons were required. Id. at 442-44, 94 S.Ct. at 3052-53. In practical effect, therefore, FYCA treatment was presumptively required for eligible offenders, subject to change through a finding of “no benefit.” In contrast, YRA treatment is not available unless the judge makes “a statement on the record of the reasons” why “the youth offender will derive benefit.”597 A.2d at 382-83 n. 11.D.C.Code § 24-803(d) . The Council wanted, in effect, to place a burden on the offender to show he or she would derive benefit, not a burden on the government to convince the court there would be no benefit. See COUNCIL OF THE DISTRICT OF COLUMBIA, FIRST READING ON PROPOSED BILL NO. 6-47, YOUTH REHABILITATION ACT OF 1985, at 46-49 (June 25, 1985) (remarks of Council members Rolark, Clarke, and Ray). But this new trial court responsibility to express reasons for a finding of YRA benefit does not, on its face, obviate the need for the court expressly to find “no benefit,” without supporting reasons, when denying YRA treatment. Given the Council‘s choice of statutory language inD.C.Code § 24-803(d) and the known Dorszynski gloss on that lan- guage, we must conclude the Council intended the trial court to make an express “no benefit” finding when denying YRA treatment to a youth offender.