Veney v. United States

FERREN, Associate Judge,

dissenting:

Respectfully, I dissent for the reasons set forth in my separate opinion in Veney v. United States, 658 A.2d 625, 631 (D.C.1995) (Ferren, J., dissenting), in particular Part II., id. at 638-650. I conclude that, before denying treatment of an eligible youth offender under the District of Columbia Youth Rehabilitation Act (YRA), D.C.Code § 24-801 (1989 Repl.), the trial judge must make an explicit1 “no benefit” finding, as was re*440quired under the former Federal Youth Corrections Act (FYCA) interpreted in Dorszynski v. United States, 418 U.S. 424, 94 S.Ct. 3042, 41 L.Ed.2d 855 (1974). See 18 U.S.C. § 5010 (repealed). I further conclude that in this case the trial judge’s ruling did not meet that test. I therefore would remand for resentencing.

At this time, I would add only two observations for emphasis. First, by stressing that the sentencing judge, in evaluating “benefit,” must “focus exclusively on the rehabilitation that can be expected under the YRA,” Veney, 658 A.2d at 643 (Ferren, J., dissenting), I have noted that rehabilitation and community safety are two sides of the same coin. The judge is authorized to find “no benefit” if the youth’s prospects for rehabilitation, through YRA treatment, are unlikely to assure community safety upon his release. See id. at 642-44.

Second, because the YRA’s focus is exclusively on the youth’s potential for rehabilitation (including protection of the public from antisocial behavior), I emphatically disagree with the majority’s view that the sentencing judge may reject YRA sentencing for a youth who concededly would benefit from YRA treatment. See Cole v. United States, 384 A.2d 651, 652 (D.C.1978) (applying FYCA). I do not believe the YRA permits the judge in such a ease to impose an adult sentence instead, sending the youth to prison solely to mete out “punishment” or to accomplish “general deterrence.” Ante at 434. Those additional sentencing motives are wholly outside the YRA’s purview.

The majority finds authority for its punishment/deterrence rationale from D.C.Code § 24-803(0, which says that the YRA’s sentencing provisions, subsections (a) through (e), “provide sentencing alternatives in addition to the options already available to the court.” In light of the required “benefit” or “no benefit” finding under D.C.Code §§ 24-803(c) & (d), I do not believe § 24-803(f) can be read to mean that an adult sentencing option, based on deterrence and punishment rationales, is available for youths who con-cededly would benefit from YRA treatment. Given the history and purpose of the YRA, the only sound reading of § 24 — 803(f) is simply to confirm that the YRA, with its benefit/no benefit requirement, has been added to — -and perforce qualifies — the sentencing “options already available.”

. Unlike Judge REID, ante at 438, I see no difference between the adjectives "explicit” and "express,” and I intended none in my Veney dissent at division applying the Supreme Court’s decision in Dorszynski v. United States, 418 U.S. 424, 425, 94 S.Ct. 3042, 3044, 41 L.Ed.2d 855 (1974). I have used the words interchangeably as in other YRA decisions of this court. See Veney 658 A.2d at 634-36 & n. 12 (quoting (James) Smith v. United States, 597 A.2d 377, 381-83 (D.C.1991), and (Curtis) Smith v. United States, 330 A.2d 519, 522 (D.C.1974)) (Ferren, J., dissenting). Indeed, the Supreme Court itself in Dorszynski used the two words as synonyms. The Court said certio-rari was granted to resolve a conflict in the Circuits as to whether the FYCA "requires a federal district court first to make an explicit finding, supported by reasons in the record, that the offender would not benefit from [FYCA] treatment.” Dorszynski, 418 U.S. at 425, 94 S.Ct. at 3044 (emphasis added). And later, the Court supplied the clincher by saying on the last two pages of the opinion:

The question whether the finding of "no benefit” must be explicit or whether it may be implicit in the record of a particular case is answered by the manifest desire of Congress to assure that treatment under the Act be considered by the court as one option whenever the youth offender is eligible for it.
* * * * * *
An explicit finding that petitioner would not have benefited from treatment under the Act would have removed all doubt concerning whether the enlarged discretion Congress provided to sentencing courts was indeed exercised.

*440Id. at 443, 444, 94 S.Ct. at 3052-53 (emphasis added). To the Court, therefore, “express" means "explicit.” Webster confirms the nondis-tinction. It says “explicit" and “express” are synonyms, the former connoting "plain distinct expression that leaves no need for the reader or hearer to infer,” the latter stressing "the idea that whatever is under consideration has been express and not left to tacit understanding.” Webster's Third New International Dictionary (Unabridged) 801 (1986). In any event, I understand Judge REID not so .much to disagree that "explicit” and “express" are synonyms as to pick on the word difference as a rhetorical device for saying that the Supreme Court’s requirement of an "express finding of no benefit,” Dorszynski, 418 U.S. at 425, 94 S.Ct. at 3044, has a somewhat different substantive meaning from the interpretation this court and I have previously given it. ■ On that meaning we simply disagree, although marginally I would say.