State v. Livingston

LONG, J.,

concurring in part and dissenting in part.

I am in full agreement with the majority’s conclusion that Derrick Grimsley is not subject to sentencing under the “Three Strikes” law because he was not previously convicted “on two or *228 more prior and separate occasions.” My difference from my colleagues arises out of their conclusion that so long as a defendant’s convictions are separated by a day, the “Three Strikes” law is triggered. Why would the Legislature have enacted such a law? If its intention was merely to imprison for life persons who committed three crimes, it could easily have said so. Instead, it imposed the clear requirement that the predicate convictions occur on “separate occasions.”

My colleagues interpret that language literally' — with the result that the statute makes no sense at all. It is plainly irrational that one defendant could be sentenced to life in prison because his previous convictions were entered on consecutive days and yet another, who committed the exact same crimes of the exact same magnitude, could escape such a sentence merely because those convictions occurred on the same day, a few hours apart. I would not attribute such irrationality to the Legislature. Things Remembered, Inc. v. Petrarca, 516 U.S. 124, 135 , 116 S.Ct. 494, 500 , 133 L.Ed.2d 461, 470-71 (1995) (Ginsburg, J., concurring) (“It would show little respect for the legislature were courts to suppose that the lawmakers meant to enact an irrational scheme”).

The purpose of “Three Strikes” is to “mak[e] sure that those who pose the greatest risk to society[,] ... a small corps of hardened criminals who commit the bulk of the crimes over and over and over again, ... are put away for good.” Art Weissman, ‘3 Strikes and You’re In’ Becomes Law for Worst Offenders, Asbury Park Press, June 23, 1995, at A8 (quoting Governor Christine Todd Whitman). Requiring a defendant’s previous convictions to occur on consecutive days rather than on the same day does not help to distinguish those who are members of that cadre of “hardened criminals” from those who are not.

To fulfill the statute’s purpose of targeting the most incorrigible offenders for life imprisonment, the notion of “separate occasions” must be defined in relation to squandered opportunities for reform. In other words, “separate occasions” means that between each qualifying conviction there should be some chance for reha *229 bilitation. That is referred to as “the intervening convictions” approach. It requires a pattern of crime-conviction-crime-conviction-crime-conviction. Derrick D. Crago, Note, The Problem of Counting to Three Under the Armed Career Criminal Act, 41 Case W. Res. L Rev. 1179 (1991) (arguing that ACCA be interpreted to require that requisite convictions occur between requisite crimes even though ACCA only refers to “three previous convictions” without even explicit requirement that they be on separate occasions). 1 Recidivism after a failed attempt to rehabilitate is the best measure of incorrigibility. By itself, having been convicted on consecutive days instead of a single day has no relevance whatsoever in the incorrigibility analysis.

Other enlightened courts have recognized that and interpreted statutes with language similar to our “Three Strikes” law to require that qualifying convictions occur after failed opportunities for rehabilitation. For example, the Rhode Island Supreme Court, interpreting a statute that requires a defendant to have been “sentenced on two or more such occasions” held that such individuals are those “who have failed to avail themselves of multiple opportunities to reform themselves following conviction of criminal offenses.” State v. Smith, 766 A.2d 913, 924 (R.I.2001) (interpreting R.I. General Laws § 12-19-21 (1956)) (emphasis added). Likewise, the Court of Appeals of Idaho interpreted the rule that “convictions entered the same day ... should count as a single conviction for purposes of establishing habitual offender status,” as allowing “a defendant a chance to rehabilitate himself between convictions.” State v. Harrington, 133 Idaho 563 , 990 P.2d 144, 146 (Idaho Ct.App.1999) (interpreting Idaho Code § 19-2514 (1999)) (emphasis added). Similarly, the Delaware Supreme *230 Court interpreted a statute targeting persons “three times convicted of a felony” as habitual offenders, as requiring not only that the convictions be' successive to each other, but that there be “some chance for rehabilitation after each sentencing, before the extreme penalty of life imprisonment be brought to bear.” Buckingham v. State, 482 A.2d 327, 330-31 (Del.1984) (interpreting DelCode Ann. tit. xi, § 4214(b)(1984)) (emphasis added). The Delaware court reasoned that the legislature “intended to reserve the habitual offender penalties for those individuals who were not rehabilitated after the specified number of separate encounters with the criminal justice system and a corresponding number of chances to reform.” Id. at 330 (emphasis added). We should follow the reasoning of those courts in our interpretation of the Three Strikes Law. Only the intervening convictions approach renders the statutory scheme rational.

For affirming — Justices STEIN, COLEMAN, LONG, LaVECCHIA and ZAZZALI — 5.

Concurring in part and dissenting in part — Justice LONG — 1.

Congress has since adopted the intervening convictions approach in an amendment to the federal sentencing guidelines that provides for mandatory life imprisonment for those convicted of three or more violent felonies. 18 U.S.C.A. § 3559 (c)(1)(B) (mandating life imprisonment if "each serious violent felony or serious drug offense used as a basis for sentencing under this subsection, other than the first, was committed after the defendant’s conviction of the preceding serious violent felony or serious drug offense”).