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March 18, 2005

Another case for addressing prior conviction exception

As detailed in this post, one of my many questions in the wake of the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here and here) concerns how long will it take for the Court to grant cert. on a case directly addressing the status of the Almendarez-Torres "prior conviction" exception to the Apprendi/Blakely rule.   (Recall, as noted here, that Justice Thomas in his Shepard concurrence asserted that " in an appropriate case, this Court should consider Almendarez-Torres' continuing viability [because] [i]nnumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres.")

The Supreme Court will likely now be presented with steady stream of cert. petitions requesting it to address the Almendarez-Torres "prior conviction" exception head on.  I was sent one such cert. petition recently and provide it for downloading below.  Here is the opening paragraph:

This Court should grant certiorari to overrule Almendarez- Torres v. United States, 523 U.S. 224 (1998). That decision is fundamentally incompatible with the Sixth Amendment principles expressed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, and has been disapproved by a majority of this Court. Its validity was called into question by five members of this Court just two years after it was decided; it simply has not been formally overruled.  Now that the limits of Apprendi have been tested and its fundamental rationale repeatedly reaffirmed, the time is ripe to revisit the nowanomalous decision in Almendarez-Torres.  Such review is particularly timely, given the recent reconfirmation by a member of the Almendarez-Torres majority that that case was wrongly decided and should be reconsidered. See Shepard v. United States, __ S. Ct. __, 2005 WL 516494, at *9 (Mar. 7, 2005) (Thomas, J., concurring in part and concurring in the judgment).

Download cerna_cert_petition.pdf

March 18, 2005 at 07:50 AM | Permalink

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Comments

Professor,
Considering your article discussing offender characteristics versus offender characteristics, what is your position on the discarding of Almendarez-Torres?

Posted by: doug | Mar 18, 2005 8:54:34 AM

Since you asked, Doug, I will say that I think there are sound bases (both in the Constitution and in policy) for distinguishing prior convictions from other "Blakely facts." However, as Shepard shows, sometimes even prior conviction issues become debates over offense conduct, which I think merits full "element" procedures.

Posted by: Doug B. | Mar 18, 2005 9:28:29 AM

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