Barnhart et al. v. Office of the District Attorney for the County of New York (Challenging certain sentencing practices)

This case explores whether a sentencing judge, when determining the terms of punishment, may take into account facts from a prior arrest that resulted in a dismissal. On March 22, 2004, the petitioners were convicted of obstructing governmental administration and disorderly conduct for their part in a March 26, 2003 peaceful street protest involving non-violent civil disobedience. The District Attorney’s office then announced that, at sentencing, it would seek heightened punishment, including jail time, based on the fact that the petitioners had previously been arrested for acts of civil disobedience.

Virtually all of the previous arrests had either been dismissed directly or following a period of adjournment pursuant to a statute permitting Adjournments in Contemplation of Dismissal. Upon the dismissal of the charges in these cases, the records of these arrests were sealed. Consequently, in connection with the sentencing proceeding arising out of the March 2004 convictions, the District Attorney moved to unseal the arrest records for the purpose of using the records at sentencing. The sentencing judge granted the District Attorney’s motion. The petitioners moved to reseal the cases and preclude the information from being used at their sentencing proceedings. That motion was denied. The petitioners then initiated an Article 78 proceeding in the Appellate Division, claiming that the DA’s use of information from dismissed cases is incompatible with the adjudication in those cases. Petitioners also argued that the sealing of the records was part of a bargain struck between them and the District Attorney’s office and that the DA was now abrogating its agreement.

On Sept. 7, 2004, the NYCLU filed an amicus brief in support of the petitioners, arguing that, in addition to the issues identified by the petitioners and other amici, due process requires that a sentencing judge not take into account the facts underlying a case that has been dismissed in order to increase or change the terms of punishment unless the prosecution proves those underlying facts. The Appellate Division summarily dismissed the Article 78 petition, stating that the issues raised in the case could be addressed in an appeal from the sentencing in the criminal case. The decision was appealed to the Court of Appeals, with briefing by the parties to take place in the spring of 2005. Though the plaintiffs did appeal to the New York State Court of Appeals, the NYCLU did not file another amicus brief in support of the petitioners. On July 6, 2005, the Court of Appeals found in favor of the plaintiffs. In reversing the Appellate Division’s decision, the Court ordered that the plaintiffs’ records be resealed. 

Appelate Division, First Department, SCID No. 30073-2004 (amicus)