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UNITED STATES v. LOWERY

December 10, 1971

UNITED STATES of America
v.
Jesse D. LOWERY, Jr.


Richey, District Judge.


The opinion of the court was delivered by: RICHEY

RICHEY, District Judge.

 This case came before the Court on December 7, 1971, for the purpose of sentencing in the above numbered cases, after the defendant entered pleas of guilty to the offense of carnal knowledge in Criminal No. 1958-70 and the offense of robbery in Criminal No. 637-71. The Court permitted defense counsel to allocute in behalf of his client at which time the Court was urged to sentence the defendant under the provisions of the Federal Youth Corrections Act, 18 U.S.C. § 5005 et seq. (1970). This Court indicated that the probation department had recommended that the defendant be sentenced according to the provisions of Section 5010(b) of the YCA with the further recommendation that sentence be served at Ashland, Kentucky or Petersburg, Virginia. However, this Court stated its express concern regarding its authority to follow the recommendation of the probation office in light of the Order and Findings of Fact and Conclusions of Law in the ancillary proceeding conducted by Judge Gerhard A. Gesell in United States v. Alsbrook, 336 F. Supp. 973 (D.D.C. 1971), which was subsequently ratified by a majority of the other judges sitting on this Court. It is to be noted that this member of the District Court dissented at the time the matter was discussed before a special meeting of the Executive Session of the District Court for the reasons hereinafter set forth in this opinion.

 This Court is particularly troubled by that portion of the Alsbrook opinion which states as follows:

 
"(1) No defendant shall be so committed under the Youth Corrections Act with a 5010(e) study.
 
"(2) In the event the study indicates that the correction authorities consider the defendant amenable to final commitment under the Youth Corrections Act, the Court shall require as part of the 5010(e) report a precise statement by the correction authorities of the plan of treatment and the approximate period of time it is contemplated the defendant will be in custody before release to a half-way house, including goals that will be set for him prior to release.
 
"(3) No defendant shall be committed under the Youth Corrections Act unless the Attorney General certifies in advance as to each defendant that a facility is available to provide the type of program and adequate period of treatment contemplated in the particular 5010(e) report.
 
"(4) Under appropriate circumstances, the Court shall commit all offenders under U.S. Code offenses for 5010(e) studies and ultimate incarceration at other Youth Centers around the country." Opinion at 979.

 Furthermore, Judge Gesell's Order states as follows:

 
"A. The Attorney General, the Director of the Federal Bureau of Prisons and the Mayor-Commissioner of the District of Columbia shall jointly submit in writing by December 15, 1971, (1) a plan for immediately creating additional facilities to house at least 300 male defendants committed by this Court under the Youth Corrections Act, together with a schedule for putting such plan promptly into effect; and (2) a plan for conducting all 5010(e) studies ordered by this Court at an appropriate facility and not at the D.C. Jail commencing January 1, 1972.
 
"B. A hearing is scheduled for 9:30 a.m., on December 23, 1971, at which the Attorney General, the Director of the Federal Bureau of Prisons and the Mayor-Commissioner of the District of Columbia shall show cause why the plans submitted, or variations and modifications thereof, shall not be ordered into effect on dates to be set following said hearing."

 This member of the District Court is the first to admit the existence of numerous deficiencies in the correctional facilities in the District of Columbia and elsewhere. The Court also recognizes that the quality of the treatment suffers as a result of overcrowding and inadequate facilities. This Court applauds Judge Gesell in his efforts to make the community aware of these problems which need immediate attention. However, this Court disagrees now, just as it dissented when the Alsbrook case was placed before the entire Court for approval, with the suggested remedies and the manner in which the plan is to be effectuated.

 Initially, it cannot be gainsaid that in matters relating to sentencing the trial court has virtually absolute, if not unfettered discretion. See Blockburger v. United States, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932); Wilson v. United States, 118 U.S. App. D.C. 319, 335 F.2d 982 (1963). With respect to the ...


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