The comments of Judge Lynn Leibovitz, Presiding Judge of the Criminal Division
and Judge Tony Lee, Deputy Presiding Judge of the Criminal Division are set forth
below:
As Presiding Judges, we cannot comment on individual cases or the actions of
particular judges in a particular case.
Sentencing is an individualized decision by a judge who weighs many things,
including the facts of the case, the impact on the victim and the community, the
positions of the parties at sentencing, the record and characteristics, including age, of
the person being sentenced, whether the person may be able to be rehabilitated, and
lawful sentencing options such as the Youth Rehabilitation Act, which is available only
to persons who are not yet 22 years old at sentencing. In considering whether to
sentence a young person under the Youth Act, generally judges are aware that a felony
conviction can create lifelong obstacles to becoming a good and productive citizen.
A Youth Act sentence gives a young offender the opportunity to perform well
under supervision and to obtain a set aside of the conviction. It is important to note that
a sentence under the Youth Act gives the defendant this opportunity, not a guarantee, to
get the benefit of a set aside of the conviction – it is still up to the defendant to perform
during his or her sentence and to apply to the court or the Parole Commission to receive
the benefit of the Youth Act. If the offender does not perform well, the conviction
remains on his or her record.
The following are more specific responses to questions posed to the court by the
reporters:
1. We have found at least 200 felons who have been sentenced multiple times (separate
cases) under the Youth Act for crimes of violence or gun offenses committed in the past
decade. Some offenders have received Youth Act sentences four or five times. How do
judges weigh the risks or consider the benefits of giving a Youth Act sentence to a repeat
violent offender?
Answer: An offender does not receive the primary benefit of the Youth Rehabilitation
Act unless the person completes all conditions of the sentence successfully and a set
aside of the conviction is granted by the judge or the United States Parole
Commission. Of the cases you cite, we do not know how many of the persons who have
been sentenced "under the Youth Act" have ultimately gotten the benefit of such
sentencing. If a person has received the benefit of the Youth Act it means that the court
or the Parole Commission has determined that the person has performed well while
under the sentence, and concluded that the person is deserving of the benefit.
2. We have read differing opinions from judges about when a Youth Act sentence is
appropriate or not appropriate. Generally speaking, is there a type of offender (age, or
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criminal history score, nature of crimes, etc.) that the court views as someone most able
to be rehabilitated under the Youth Act?
Answer: Again, we cannot comment on any individual sentence by any judge. Whether
an offender is appropriate for a Youth Act sentence is a decision made by the sentencing
judge based on the factors we describe above. The statute requires that the sentencing
judge make a determination whether an offender, who is not yet age 22, would benefit
from a sentence under the Youth Act and, if not, to find, expressly or implicitly, that the
offender would not benefit. Whether someone is able to be rehabilitated and therefore
should be given the opportunity to receive the benefits of the Youth Act is an
individualized decision based on the facts of the case and the offender.
3. We have interviewed offenders sentenced under the Youth Act, including several who
have gone on to commit murder. Two of the murderers, William Smallwood and Tavon
Pinkney, told the Post that they got Youth Act sentences but were never ordered to
undergo a Youth Act study. I have verified their claims by checking court files and
sentencing transcripts. The law says that a judge can order a Youth Act study, but judges
also have the authority to give Youth Act sentences without ordering any study at all. Do
you have any guidelines about when judges should order a study vs. deciding to give the
benefit of the Youth Act without seeing a study at all? Do you have any sense as to how
often judges give Youth Act sentences without the studies?
Answer:
We cannot comment on any particular decision by a judge to obtain or not obtain a
Youth Act study. Generally, the Youth Act does not require that a Youth Act Study be
obtained before sentencing under the Youth Act. In felony cases, the court typically
orders a Presentence Report which contains substantial information about the offender,
including prior record, the family circumstances, level of education, drug use, mental
health history and other important information. If additional information to that
contained in the Presentence Report is needed, the parties or the court can obtain
additional information, including a Youth Act study.
4. In 2013, Judge Greene sentenced Kurtis Faison (convicted of murder II, while armed)
under the Youth Act. The Youth Act expressly prohibits the inclusion of murderers. How
was this a legal sentence under D.C. law?
Answer:
We cannot comment on any individual sentence by any judge.
5. One of the questions we raised in our previous discussion concerned PFCOV and
armed robbery convictions, and how often Youth Act sentences go under the five-year
mandatory minimum. One of the recent cases we mention in the story involves Jerlyu
Wood, who shot a juvenile in Southeast DC and was ordered to serve 36 months in
prison PFCOV. If Wood had not been sentenced under the Youth Act, he would have
served a mandatory five years for this conviction. Are there any guidelines for when a
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judge deems it appropriate to go below the mandatory minimum for Youth Act
offenders for PFCOV?
Answer:
We may not comment on any individual sentence by any judge. In general, sometimes
mandatory minimum sentences do not apply if the court determines that a Youth Act
Sentence is appropriate. If the judge finds that a defendant would benefit from a
sentence under the Youth Act, the judge may, but is not required to, impose a sentence
less than a mandatory sentence. Whether to impose a mandatory minimum sentence
that would be imposed on an adult offender or something less is an option under the
Youth Act for a young offender for many, but not all, offenses and is an individual
decision by a judge who weighs many things, including the facts of the case, the impact
on the victim and the community, the record and characteristics, including age, of the
person being sentenced, whether the person may be able to be rehabilitated.
6. For the armed robbery Youth Act convictions, we have reviewed as many of the
weapon details that are publicly available/clearly labeled in sentencing sheets or plea
deals. I have been able to identify the defendants in about 65 armed robbery convictions
under the Youth Act since 2010. The vast majority are imitation guns or guns (with
many of the initiation weapon cases actually involving real guns, as evident in factual
proffers. We go into this in detail in the Joshua Mayo case). The breakdown is: about 20
cases with real guns, about 37 cases with imitation guns. Additionally there were six
armed robberies with knives, 1 with a boxcutter and 1 with a broomstick. We are aware
that armed robbery convictions with imitation guns, knives, broomsticks, etc. would not
be subject to the five year mandatory minimum. I mentioned this during our meeting
with Judge Leibovitz, but how does a judge proceed when accepting a plea that directly
contradicts the weapon described in the factual proffer?
Answer:
The court cannot comment on any particular decision by a judge in any case. However,
Superior Court Rules and cases by the D.C. Court of Appeals generally forbid judges
from participating in plea negotiations or taking a position on the terms of a plea
bargain. The one exception to this general rule is a plea under Rule 11c1C, which
permits the parties to negotiate an agreed-upon sentence, which the court may reject if
it chooses.
7. We are writing in detail about Shareem Hall and Andre Townsend, and their
sentencing under the Youth Act for an armed home invasion (with guns). Hall was put
on probation for conspiracy to commit a crime of violence, while armed. According to
the Sentencing Commission, that charge carries a five-year mandatory minimum. Do
you agree or disagree with the opinion that the five-year mandatory minimum would be
required for that charge, except in Youth Act cases?
Answer: The court may not comment on any individual sentence by any judge.
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8. Judge Yvonne Williams said during her sentencing of the Lucas twins (for a hate
crime) that the Youth Act “must” allow her to depart from the guidelines, since it allows
her to go under mandatory minimums. “I mean, if you just extrapolate further, it must
allow you to go outside the guidelines if you're getting the Youth Act. It just doesn't
make sense that it wouldn't,” she said. Do you agree with her interpretation of using the
Youth Act as a reason for departure from the guidelines?
Answer: The court may not comment on any individual sentencing decision by any
judge.
9. Leah asked for data concerning the scope of Youth Act sentences. All of this data was
provided by the D.C. Sentencing Commission.
- Since 2010, 3,188 sentences for felony crimes have been handed down under the Youth
Act, with 73 percent of them in cases involving crimes of violence or weapons offenses.
(We defined a crime of violence using the definition according to D.C. code). The
remaining 27 percent is mostly comprised of UUV, Bail Reform Act and drug charges.
Youth Act sentences account for roughly 15 percent of all felony sentences in D.C.
Superior Court.
- The roughly 2,300 young offenders sentenced under the Youth Act for weapons
offenses or crimes of violence since 2010 have received, on average, about 60 percent of
the prison time of non-Youth Act offenders who had comparable criminal histories and
had committed similar crimes.
Answer:
The court generally does not comment on data based on percentages, since sentencing is
an individualized event based on many considerations described previously. However,
the court has received data each year from the Sentencing Commission showing that
judges’ sentences generally are compliant with the voluntary Sentencing Guidelines.
10. Judge Leibovitz has said the court does not track Youth Act sentences or the
outcomes of such sentences. Did the Court have any previous knowledge of these
statistics? Do you find any of them surprising or troubling? If so, why or why not?
Answer:
The Court is aware that the Sentencing Commission tracks data on the imposition
of sentences under the Youth Act as well as other sentencing data including compliance
with the voluntary Sentencing Guidelines.
With respect to outcomes, if an offender is sentenced to a period of probation
under the Youth Act, upon completion of the probation, and upon application by the
person or a Probation Officer, the sentencing judge will decide whether the offender
should receive the benefit of the Youth Act set aside. In those circumstances the
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sentencing judge is given notice of whether an offender has successfully performed in an
individual case.
If the offender is sentenced to a period of incarceration followed by supervised
release, the Parole Commission decides whether the offender is deserving of the benefits
of the Youth Act set aside – the court has no role in that decision.
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