“D.C. Court of Appeals’ First Impression Ruling Holds Important Lessons About Government Overreach”
Law.com 11/06/20 By: Luke Cass
In a matter of first impression, the District of Columbia Court of Appeals held, “for the first time, that a belated correction to a defendant’s sentence, even an illegal one, may violate the Due Process Clause,” “in extreme circumstances.” In Jordan v. United States, 235 A.3d 808 (D.C. 2020), the D.C. Court of Appeals vacated a lower court’s decision to extend Jordan’s sentence to a longer, statutorily mandated sentence and held that the “belated increase in defendant’s sentence 17 years after it was revised downward at defendant’s request, in order to correct alleged error in the earlier revision to which the government had not objected at the time, violated substantive due process rights.”
Jordan presents an extreme example of a substantive due process violation in the context of sentence finality with important lessons about government overreach.
Article 1, Section 9 of the U.S. Constitution expressly forbids ex post facto laws. The clause prohibits statutes that “punish as a crime an act previously committed, which was innocent when done; which make more burdensome the punishment for a crime, after its commission, or which deprive one charged with crime of any defense available according to law at the time when the act was committed.”
A jury convicted Jordan of two counts of first-degree felony murder along with other related crimes in 1995. The murder charge carried a thirty-year mandatory minimum sentence. The trial court sentenced Jordan to thirty-years to life imprisonment, to run concurrently with other sentences imposed. The appellate court affirmed the convictions, but remanded the case with instructions to consider whether the imposition of the thirty-year sentence constituted an ex post facto violation because the statute extending the mandatory minimum from twenty-years to thirty years (the “permanent bill”) had passed, but was not effective, at the time of Jordan’s offense. The District of Columbia also passed a temporary, emergency bill (the “emergency bill”) that extended the mandatory minimum immediately until the permanent bill became effective.
Jordan made an ex post facto claim based on the appellate court’s order. The trial court agreed, and resentenced Jordan to twenty years to life imprisonment for the murder charges. Notably, the government did not oppose the motion, move for reconsideration, or seek further appeal from the decision. Ultimately, the court imposed a sentence of twenty-six years and eight months to life imprisonment, making Jordan eligible for parole on February 11, 2020.
Nearly 16 years later, the government moved to correct Jordan’s sentence based on the emergency bill. The government had reason to be aware of the emergency bill as early as 2004, but did not act until July of 2015. A year later, despite a seventeen-year delay, the trial court resentenced Jordan to thirty years of imprisonment and acknowledged the problem of increasing Jordan’s sentence long after its original imposition.
The Court of Appeals Opinion
The substantive due process right in Jordan concerned “a defendant’s right to finality in the post-sentencing phase [that] aligns with his or her fundamental guarantee of fairness in the criminal justice system.” The court recognized that “while a defendant’s due process right to liberty may further diminish post-sentencing, that right is not eliminated and retains some protections under the constitutional due process right to fairness.” The court wrote that “in certain circumstances, the Due Process Clause imposes an outer temporal limit on the power of a court to revise upward a final sentence, even an illegal sentence.” For the court, the existence of this right turns on whether the defendant’s expectation in the finality of the sentence has “crystalized.”
To make this determination, the court focused on four factors from a U.S. Court of Appeals for the First Circuit case called DeWitt v. Ventetoulo, 6 F.3d 32 (1st Cir. 1993) including: (1) the amount of time that has elapsed between the imposed and corrected sentences; (2) the reasonableness of the defendant’s expectation of finality in the sentence; (3) the government’s diligence in seeking the upward increase; and (4) any prejudice resulting from the change. The court acknowledged that these factors are “non-exclusive” and that “no one factor is dispositive.”
Analyzing these factors, the court held that the decision to increase the sentence violated Jordan’s substantive due process rights. First, the court held that the sheer amount of time between the imposition of the twenty-year sentence, and the government’s motion to extend it, distinguished Jordan’s case “from almost every other case in which courts stopped short of finding a due process violation. ”However, the court also cautioned that “[w]hether a defendant’s expectation of finality has crystalized . . . is not merely determined by the specific number of years that have elapsed.”
Second, the court found that Jordan’s “expectation that his 1999 sentence was final and would remain unchanged was reasonable. ”Specifically, the fact that the government did not oppose Jordan’s ex post facto argument, did not seek reconsideration, and did not appeal the downward adjustment solidified his expectation of finality.
Third, the court could not find that the government exercised diligence in seeking the increased sentence. The court highlighted the fact that: (1) the government was seemingly aware of the emergency bill as early as 2004, and yet (2) took no action regarding the emergency bill until nearly a year after a 2015 decision related to it. Finally, the court found that Jordan was prejudiced by the increase.
In finding a substantive due process violation, the Court of Appeals made two things clear about its holding. First, a defendant is not “entitled to a particular release date or to parole eligibility on a date certain since there is ‘no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence.’” However, due process rights do “not mature only when an individual is released from prison, i.e., it is not linked only to a defendant’s liberty interest upon release from incarceration.” In the end, the court remanded the case, ordering the trial court to reinstate the original 1999 twenty-year sentence.
Judge Easterly concurred in judgment, but believed that Jordan was also entitled to relief under the Double Jeopardy Clause of the Fifth Amendment. Judge Easterly noted that the “Double Jeopardy Clause has long been understood to protect against both successive prosecutions and successive sentences.”
Jordan is a significant decision for several reasons. First, it reigned in government overreach to seek an increased sentence seventeen years after its imposition. The government’s attempt was of constitutionally significant proportions and impinged on substantive due process concerns.
Second, Jordan developed a significant framework for similarly-situated defendants, which will undoubtedly inform courts and the bar about how to assess whether the government’s efforts to expand an illegal sentence violate due process.
Third, Jordan provides important lessons about the effects of dilatory government action. The government’s lack of action was a key determinative factor in deciding whether Jordan’s expectation of finality had “crystalized.” The court repeatedly emphasized the government’s lack of diligence in its opinion, even noting that the government missed several opportunities over sixteen years to correct the sentence.
The defendant was convicted of reprehensible crimes that surely merit stiff punishment, but Jordan is more about government action and constitutional sentence finality.
Public prosecution carries with it many diffcult burdens. However, efforts to increase sentences based on changes in the law are antithetical to traditional notions of justice and fairness. In Berger v. United States, 295 U.S. 78 (1935), Justice Sutherland, writing for a unanimous Court, stated that it is the prosecutor’s duty to prosecute a case with “earnestness and vigor,” and “while [the prosecutor] may strike hard blows, he is not at liberty to strike foul ones.” Id. at 88. Jordan did not involve foul play, but it should serve as an important lesson for the government that attempts at multiple bites of the apple may found to be unconstitutionally excessive and counter-productive to its search for justice.