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March 8, 2005

Pondering some post-Shepard questions

I continue to ruminate over the Supreme Court's opaque work in Shepard and its tantalizing hints that the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule may be eliminated in some future case (the Shepard basics are summarized in this post).  Here are just a few questions jumping to mind:

1.  A number of state supreme courts considering Blakely cases received or asked for supplemental briefs in the wake of Booker.  Will there now also be Shepard-focused supplemental briefs?  (Consider this comment about the impact of Shepard on New Jersey's Blakely litigation.)

2.  Might state and federal prosecutors, fearing the eventual demise of the Almendarez-Torres "prior conviction exception," start regularly including prior conviction facts in at least some indictments?  Put another way, might some indictments now get "Shepard-ized"?  (True law geeks like me should enjoy that pun.)

3.  How long will it take for the Supreme Court to grant cert. (and then decided) what Justice Thomas calls "Almendarez-Torres' continuing viability"?   Since Blakely, as I explained here, this issue has been of critical importance, but I now fear we may have to wait another year or longer before we get a resolution. 

4.  Will Justice Thomas' statement that "a majority of the Court now recognizes that Almendarez-Torres was wrongly decided" and his lament that "[i]nnumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres" have any traction in lower courts?  Might a state Supreme Court consider using state constitutional law to eliminate the exception rather than await the work of a fickle US Supreme Court.

March 8, 2005 at 07:12 AM | Permalink

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» http://www.crimblawg.com/2005/03/thoughts_about_.html from Criminal Appeal
Thoughts About Shepard. Yesterday's SCOTUS decision in Shepard v. U.S., no. [Read More]

Tracked on Mar 8, 2005 10:38:38 AM

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Yesterday, the Supreme Court issued a ruling in a state sentencing case that could put a dent in states' three-strikes laws. The aspect of yesterday's decision that had legal bloggers buzzing was language in Souter's opinion that seemed to soften... [Read More]

Tracked on Mar 8, 2005 3:45:53 PM

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