Speight v. United States

SCHWELB, Associate Judge,

with whom Associate Judge FERREN joins, concurring:

A person who has been arrested but not convicted is presumptively innocent. To say that a defendant may be subjected to greater punishment merely because he has been arrested for a prior offense which he is presumed not to have committed, without at the same time requiring a showing of breach of faith with the court, raises due process problems which I, at least, find troubling. It appears to me arguably incompatible with basic principles of fairness, which the due process clause was designed to protect, to permit an individual who has been wrongfully arrested, handcuffed, and detained for some period of time for a crime which he did not commit to be subjected to enhanced punishment for a new offense solely on account of his prior arrest and release. The very wrong which was done to him in connection with the offense which he did not commit becomes a vehicle for imposing a harsher penalty for the only crime of which he stands convicted.

As Judge Steadman points out for the plurality, however, Speight was ordered, as a condition of release in the earlier case, not to commit a criminal offense. He disobeyed that order by distributing cocaine and, as Judge Steadman points out, he betrayed the court’s trust. A defendant’s culpability may reasonably be viewed as more serious when his offense was committed not only in violation of a substantive criminal statute but also in contravention of a court order. There is no doubt that the court acted within its jurisdiction when it set the conditions of Speight’s release, and Speight was obliged to comply with the court’s order regardless of whether he committed the underlying release offense. See Bolden v. Bolden, 376 A.2d 430, 432 (D.C.1977); cf. United States v. United Mine Workers of America, 330 U.S. 258 , 67 S.Ct. 677 , 91 L.Ed. 884 (1947). Speight’s enhanced penalty was therefore constitutional as applied to him. Defendants in this jurisdiction are routinely ordered to obey the law as a condition of pretrial release, and I find it unnecessary to reach the relatively rare situation in which one who commits a crime while on release status has not also flouted a court order, or broken a promise to the court, 1 or both.

*131 I agree with Chief Judge Rogers that “disdain for the law” is not a crime. That does not mean, however, that a breach of faith with the court is not a proper predicate for imposing more severe punishment. A sentencing judge has wide discretion in the types of evidence which he or she may use in determining a defendant’s sentence. See, e.g., United States v. Grayson, 438 U.S. 41, 49-51 , 98 S.Ct. 2610, 2615-16 , 57 L.Ed.2d 582 (1978); Williams v. New York, 337 U.S. 241, 244-50 , 69 S.Ct. 1079, 1081-85 , 93 L.Ed. 1337 (1949). Specifically, the judge may consider criminal conduct of which the defendant has not been convicted, as well as his attitude towards society and prospects for rehabilitation. Id. Under the circumstances, Congress may, without transgressing constitutional proscriptions, provide for additional punishment in situations where a crime has been committed not only in violation of a criminal statute but also in contravention of a court order or a promise to the judge. To require one who has betrayed a judge’s trust to pay a greater penalty does not deny him liberty without due process of law.

Accordingly, I concur in the judgment of the court, but on substantially narrower grounds.

. Some judges orally explain the conditions of release and require the defendant, before being released, to accept the conditions and to promise to obey them.