Sunday, February 02, 2014
"Sentencing and Prior Convictions: The Past, the Future, and the End of the Prior Conviction Exception to Apprendi"
The title of this post is the title of this interesting and potent new paper now available via SSRN and authored by the always interesting and potent Nancy King. Here is the abstract:
This article traces the fascinating history of early efforts to identify defendants and their prior convictions as well as the evolving use of prior convictions in aggravating punishment; examines how contemporary repeat offender penalties fall short of punishment goals and contribute to the racially lopsided profile of punishment today; and critiques potential justifications for the prior conviction exception to the rule in Apprendi v. New Jersey, arguing that the exception should be abandoned.
The article summarizes empirical research testing the relationship between prior convictions and examining the efficacy of repeat offender sentences in reducing recidivism; collects commentary on the use of risk prediction in sentencing; surveys state-by-state eighteenth century authority that belies the claim that denying element status to prior convictions that raise the range of punishment is a longstanding tradition; evaluates the weaknesses of the case law underlying the Court's decision in Almendarez-Torres; argues that defendants need not be prejudiced when prior convictions are treated as elements; and observes that the original reason that a very small number of states in the nineteenth century stopped requiring prior convictions to be treated as elements — namely, that an offender’s criminal history was often unknown unless or until a warden recognized him — no longer exists.
An earlier version of the article was delivered as the Barrock Lecture on Criminal Law at the Marquette University Law School.
February 2, 2014 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack
Monday, June 17, 2013
First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris
I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely. But I have three quick reactions about the ruling and its potential impact I wanted to share right away. I will give this trio of reactions these labels: big, not-so-big, could-be-huge.
The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system. That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris. And Harris is now a goner.
The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne. For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court. Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.
The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities. If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term. (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)
Prior related post on Alleyne ruling:
- Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums
June 17, 2013 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack
Monday, January 07, 2013
SCOTUS cert grant and argument in cases (only?) hard-core sentencing fans should loveAfter its usual lengthy holiday recess, the US Supreme Court is back in action this week with a full slate of oral arguments and with plans to issue opinions in cases argued earlier this Term on both Tuesday and Wednesday. And, as well covered here at SCOTUSblog, the Justices got all the new year action off to a running start with a trio of cert grants which included a plea practices case:
The Supreme Court agreed on Friday to rule on the rights of non-Indian couples to adopt an Indian child over the objection of a parent who is a tribal member. That was one of three newly granted cases. The others deal with the remedy if a federal judge has some role in plea bargaining discussions, and a dispute among states over sharing the waters of a river that flows between them....
The Justices agreed to hear an appeal by the federal government in United States v. Davila (12-167), testing what the remedy is to be in a plea-bargained criminal case when a federal judge had some role leading up to agreement on the plea deal. The Eleventh Circuit Court ruled that, if the judge (in this case, a magistrate judge) has any role whatsoever in the plea talks, the guilty plea that resulted must be thrown out. The government petition argued that the guilty plea should be overturned only if the judge’s participation had resulted in prejudice to the accused.
If the issue that the Justices have now taken up in Davila is not intricate enough to scratch the procedural itch of hard-core sentencing fans, today's first scheduled SCOTUS oral argument should provide the perfect balm. Dan Richman provides at SCOTUSblog a great preview of the case in this post with the metaphysical title "When is a burglary a 'burglary'?". Here is how the post starts:
Because its application brings some of the federal system’s harshest mandatory penalties, and requires federal courts to categorize a diverse range of prior state convictions (most of which arose out of guilty pleas on undeveloped records), the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), has provided the Court with considerable business (and a fair amount of exasperation). Descamps v. United States, 11-9540, set for argument on Monday, January 7, presents the Court with yet another categorization exercise that highlights the tension between such exercises and the Court’s developing constitutional doctrine about when judges can find facts in criminal proceedings.
These paragraphs from Dan's terrific preview spotlights why anyone who enjoys (or hates) visiting Apprendi-land should keep an eye on Descamps:
While the issue is pitched as one of statutory interpretation, substantial constitutional concerns lurk just beneath the surface. As the Court explained in Cunningham v. California, under the Apprendi line of cases, the Sixth Amendment right to jury trial prohibits “a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” The doctrine’s focus on statutory maximums (which are rarely imposed), but not mandatory minimums (which always are) is an artifact of a line of cases that, on January 14, 2013, will, once again, be up for reconsideration when the Court hears argument in Alleyne v. United States. But the rule’s carve-out reflects the continued vitality of Almendarez-Torres v. United States, which held that fact-finding as to the existence of prior convictions can be done by judges, not juries, even when such findings can increase a defendant’s statutory maximum. Because this carve-out is a glaring exception from the constitutional rule, the Court has patrolled it carefully, in cases like Shepard v. United States, which limited the universe of materials a sentencing court can consult to determine what the jury in the prior case was actually required to find, or what the defendant necessarily admitted....
Although the Court specifically refused to grant that part of Descamps’s petition asking for Almendarez-Torres to be overruled, it will be interesting to see whether hostility to that case drives oral argument. By Justice Thomas’s tally in Shepard v. United States, “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.” So look for the Justices to limit the Almendarez-Torres carve-out by making inquiries into the nature of prior offenses as mechanistic as possible. Given the warnings by lower courts of the practical and constitutional difficulties raised by the Ninth Circuit’s outlier approach, we should expect the government to face an uphill battle. And, for all its technical aspects, it is one worth watching, as the heaviness with which the federal hand comes down on a lot of defendants depends on how their prior criminal convictions get categorized.
UPDATE: The oral argument trascript in Descamps is now available at this link. I will blog about anything interesting I find within it if/when I have time this evening (in other words, if the National Championship game gets boring).
January 7, 2013 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
Tuesday, November 27, 2012
NYCDL amicus brief in Alleyne with an offense/offender kicker
As long time readers know, in first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule." I first developed this idea in my Conceptualizing Blakely article, advanced it in a Stanford Law Review article, and unpacked it further (with Stephanos Bibas) in Making Sentencing Sensible. As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.
Consequently, when the Supreme Court decided it would take another trip to Apprendi-land by granting cert in Alleyne to consider the continued validity of the Harris mandatory minimum limit on the the Apprendi rule (basics here and here), I was interested in pitching the Justices yet again on the idea of incorporating an offense/offender distinction into some part of this jurisprudence. Wonderfully, a terrific group of New York lawyers reached out to me about helping the New York Council of Defense Lawyers on an Alleyne amicus brief, and they were willing to add an offense/offender "kicker" to NYCDL's arguments for overruling Harris. The NYCDL brief in which I lended a hand was filed yesterday and can be downloaded below. Here are two key paragraphs from the summary of argument:
As this Court has applied Apprendi’s holding over the last decade, several Justices have expressed con-cerns about the rule’s potential impact on trials and sentencing. As NYCDL’s experience in New York federal and state courts shows, any such effects will be minimal. New York’s federal courts, for example, have operated for seven years under a paradigm for drug offenses that substantially parallels the structure all courts would face should this Court overturn Harris. Practitioners there have been able to apply Apprendi’s rule to drug offenses with relative ease: from the indictment to the jury instructions or to the plea allocution, New York prosecutors and defense lawyers are able to address any facts that expose defendants not just to increased maximums, but also to increased minimums. Similarly, criminal defense attorneys in New York state courts regularly confront situations where a jury is required to find facts that trigger a mandatory minimum sentence, without apparent difficulty or inefficiency. These experiences buttress Petitioner’s argument that “there are no practical impediments to overruling Harris.” Pet. Br. 42.
Moreover, any of the enduring practical concerns identified by certain Justices can be addressed by adopting an approach to overruling Harris that distinguishes between facts that are specific to the offense and facts that are specific to the offender. The Constitution’s text requires that all facts relating to the alleged “crimes” at issue must be stated in the indictment and presented to the jury, which the Due Process clause requires to be proven beyond a reasonable doubt. To avoid a requirement that aggravating facts concerning an offender’s past be presented to the jury if such offender-specific characteristics implicate a mandatory minimum, the Court should draw a line for Constitutional purposes that allows judicial determinations of offender-specific facts that are relevant to sentencing, so long as such facts do not alter the range of applicable sentences. Such a rule comports with the particular competencies of the jury and judge: The jury’s traditional role is to answer questions about the criminal conduct alleged in an indictment, while the judge has historically been expected to assess broader offender-based considerations such as an offender’s criminal history, amenability to rehabilitation, and correctional treatment. Where, as here, a sentencing judge acts as “the reverser of juries” in finding offense-related facts only by a preponderance of the evidence, the sentence is unconstitutional. The decision below should be reversed.
November 27, 2012 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
Friday, September 21, 2012
AEDPA, Apprendi, Almendarez-Torres (oh my!) debated in full Third Circuit opinionJust in time for the weekend, the Third Circuit has today issued a lengthy en banc opinion in Garrus v. Sec’y PA Dept. of Corrections, No. 09-3586 (3d Cir. Sept. 21, 2012) (available here), which is sure to warm the hearts (and printers) of all truly hard-core habeas geeks and sentencing fans. Here is how the lengthy opinion for the majority gets started:
William Garrus (“Garrus”), a Pennsylvania state prisoner, seeks federal habeas relief under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Garrus was found guilty in state court of voluntary manslaughter in 2001. At sentencing, the judge increased his sentence beyond the statutory maximum based on 42 Pa. Cons. Stat. § 9714, Pennsylvania‟s “three strikes” law. In order to do so, the judge made a judicial finding that Garrus had previously been convicted of burglarizing an occupied building, when, in fact, he had only pled guilty to, and been convicted of, second degree burglary (which, under Pennsylvania law, necessarily requires that the burglarized building was unoccupied). In the habeas petition now before us, Garrus argues that this judicial factfinding violated the rule of Apprendi v. New Jersey, requiring that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). The District Court denied the petition on the basis that the highest state court determination upholding Garrus's sentence was not contrary to or an unreasonable application of clearly established Federal law.
Key to our determination is a single question: whether, pursuant to AEDPA, the state court unreasonably applied Apprendi by allowing Garrus to be sentenced beyond the statutory maximum based on a judicial finding that Garrus burglarized an occupied building, despite his plea to the contrary. For the reasons set forth below, we hold that the state court determination upholding Garrus‟s sentence was objectively unreasonable, and that Garrus is entitled to habeas relief. Accordingly, we will reverse the order of the District Court.
Here is how the lead dissent (per Judge Greenaway) gets going:
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress vested the Supreme Court — and only the Supreme Court — with the authority to determine clearly established law for purposes of analyzing an inmate‟s federal challenge to a state court judgment. Today, the majority feigns fidelity to this enduring tenet of AEDPA jurisprudence. In the process, the majority assumes the role of legislator, rewriting AEDPA to add this Court, along with the Supreme Court, as the two judicial bodies capable of delineating clearly established law. Armed with this newly created authority, the majority wades through murky Supreme Court precedent and emerges with what it purports to be an unassailable legal principle: that the prior-conviction exception enshrined in Apprendi v. New Jersey, 530 U.S. 466 (2000), forbids a sentencing court from finding facts inconsistent with a prior conviction when applying a state recidivism statute.
Unlike the majority, I cannot discern any principle in Apprendi or other authoritative Supreme Court precedent that would render this interpretation of the prior-conviction exception objectively unreasonable, the deferential standard by which we must judge the state court's determination. Indeed, the majority identifies not one Supreme Court case expounding on the contours of the amorphous prior-conviction exception. This lack of clarity coupled with the inherent tension between Apprendi and Almendarez-Torres v. United States, 523 U.S. 224 (1998) — a controlling case the majority brushes aside as having limited relevance — belies the majority's triumphant conclusion that the state court‟s determination was objectively unreasonable.
I do not disagree that the majority's interpretation of the prior-conviction exception is a reasonable and even favorable one, preventing an otherwise seemingly inequitable result. Of course, our task is not to simply choose the preferred reading of an ambiguous legal phrase. Absent guidance from the Supreme Court, we are left to determine whether the state court's interpretation was objectively unreasonable. Given that this area of law is, at best, in a state of flux, AEDPA “demands that [the] state-court decision be given the benefit of the doubt.” Renico v. Lett, --- U.S. ---, ---, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks and citation omitted). For this reason, I am compelled to respectfully dissent.
Thursday, May 17, 2012
Juve priors, sentencing enhancements and Almendarez-Torres makes SCOTUS relist watch
Hard-core Apprendi/Blakely fans (and perhaps only hard-core fans) should be excited to discover this paragraph that lurks deep within this latest installment of John Elwood's always amusing reviews at SCOTUSblog of relisted and held cases on the Supreme Court docket:
Staunton v. California, 11-8851, involves whether the trial court’s use of a defendant’s prior juvenile adjudication, in which he was not afforded a jury trial, to trigger a sentencing enhancement that doubled his state prison sentence violated his right to due process and a jury trial under the Sixth and Fourteenth Amendments. The Court’s decision in Almendarez-Torres v. United States (holding that the fact of a prior conviction, used for a sentence enhancement, could be found by a judge rather than submitted to a jury) has lived sort of a shadow existence since the Court in Apprendi v. New Jersey said it was “arguabl[y] . . . wrongly decided” -– and since Justice Thomas, who provided the fifth vote for the rule in Almendarez-Torres, announced in an Apprendi concurrence that he had “succumbed” to error in that case. (In a later concurrence in part and in the judgment in Shepard v. United States, Justice Thomas observed that “a majority of the Court” -– the four Almendarez-Torres dissenters plus himself -– “now recognizes that Almendarez-Torres was wrongly decided.”) I have been amazed that even as Apprendi grew to engulf so much of sentencing, the Court has not revisited Almendarez-Torres –- despite relisting a couple of cases presenting the continuing validity of the case in January 2011, as discussed here. As Apprendi noted, Almendarez-Torres rested in part on the idea that the defendant enjoyed procedural protections at the time of the original conviction, and so the Constitution did not require that the fact of a prior conviction be tried to a jury when it was later used as a sentence enhancement. But Staunton did not receive that protection. Staunton is the third case this Term in which the Court has relisted notwithstanding that the respondent waived, and the Court has not requested, a response. The relist in those two cases was because of procedural wrinkles that needed to be ironed out; here, there is more of an indication that one or more Justices are taking a closer look — the Court here requested the record.
Tuesday, February 22, 2011
SCOTUS apparently still not interested in reconsidering Almendarez-Torres
A helpful reader highlighted to me that among the cases in which the Supreme Court denied cert this morning were Ayala-Segoviano v. United States, 10-5296, and Vazquez v. United States, 10-6117. Those case are notable for Sixth Amendment fans because, as noted in this prior post, (1) the Justices had called for a response from the government with respect to these two petitions, which urged reconsideration of the Almendarez-Torres prior conviction exception to Apprendi, and (2) the Court had thrice relisted these cases from its January cert conferences.
Based on the relists, the folks at SCOTUSblog were speculating that a cert grant was possible or that there might be at least a dissent from the denial of cert in the works. But now it appears that the relists were just a lot of sound and fury, signifying nothing: both cases resulted in one-line cert denieds today and nothing more. And so it goes.
Tuesday, February 08, 2011
Split Ninth Circuit ruling on reach of Apprendi's prior conviction exception in habeas appeal
A split Ninth Circuit panel has a notable little decision about Apprendi's reach today in Wilson v. Knowles, No. 07-17318 (9th Cir. Feb. 8, 2011) (available here). The majority opinion explains the issue and its holding this way:
The Supreme Court held in Apprendithat, except for the fact of a prior conviction, any facts that increase a defendant’s sentence beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. See Apprendi, 530 U.S. at 490. The trial judge in this case found three additional facts about the 1993 accident that increased Wilson’s sentence to 25 years to life: First, that Wilson personally inflicted bodily injury on Horvat; second, that the injury was great; and third, that the victim was not an accomplice. These facts weren’t necessary to Wilson’s conviction, and there was no purpose in challenging them at the time. The issue is whether these findings fell within the prior conviction exception.
Courts may reasonably disagree about the precise boundaries of the exception. See Kessee v. Mendoza-Powers, 574 F.3d 675, 676 (9th Cir. 2009). For example, it isn’t clearly established whether a judge may find the fact that a defendant was on probation at the time of an earlier conviction. Id. at 678. But it would be unreasonable to read Apprendi as allowing a sentencing judge to find the kinds of disputed facts at issue here — such as the extent of the victim’s injuries and how the accident occurred. Those are not historical, judicially noticeable facts; they require a jury’s evaluation of witnesses and other evidence. See United States v. Brown, 417 F.3d 1077, 1079-80 (9th Cir. 2005) (per curiam). Nor did Wilson have any reason to contest them when he was convicted in 1993. See Apprendi, 530 U.S. at 488 (emphasizing importance of procedural safeguards during earlier proceeding). The judge’s factfinding years later extended beyond any reasonable interpretation of the prior conviction exception.
In dissent, Judge Kozinski makes these points:
[U]nder AEDPA, Wilson must point to a Supreme Court holding clearly establishing that a judge may not find facts about the offense underlying his prior conviction. See Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Read literally, Apprendi itself seems to limit judges to finding the mere fact of the prior conviction . But courts have sometimes read the exception more expansively. See, e.g., United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (Sotomayor, J.) (“In short, we read Apprendi as leaving to the judge . . . the task of finding not only the mere fact of previous convictions but other related issues as well. Judges frequently must make factual determinations for sentencing, so it is hardly anomalous to require that they also determine the ‘who, what, when, and where’ of a prior conviction.”). The Supreme Court hasn’t straightened all this out. The best we’ve been able to say is that the Court’s uncertain precedent “strongly suggests that the . . . exception does not extend to any and all facts related to a prior conviction.” Butler v. Curry, 528 F.3d 624, 644 (9th Cir. 2008) (emphasis added) (citing Shepard, 544 U.S. at 25-26 (plurality opinion)). This means that, as of 2008, we concluded that there was no clearly established Supreme Court authority as to whether the exception applies to anything other than the fact of conviction. The law certainly wasn’t clearly established when Wilson’s sentence became final five years earlier. Nor was the state court’s rejection of Wilson’s claim on these facts an objectively unreasonable application of the ambiguous language in Apprendi itself.
AEDPA deference can be a bitter pill to swallow.... In some habeas cases, we must reject what appear to us to be valid constitutional claims because the defendant’s rights have not yet been clearly established by the Supreme Court. This is such a case.
Thursday, January 27, 2011
Re-lists has experts pondering possible SCOTUS reconsideration of Almendarez-Torres
Anyone who has missed deep discussions of the Sixth Amendment and Apprendi jurisprudence in recent sentencing discussions — and you know who you are, fellow sentencing geeks — will likely get real excited upon reading this terrific new post by John Elwood at SCOTUSblog, which is titled "Re-list watch: Will the Court reconsider Almendarez-Torres?". The post merits a close read in full by all Apprendi aficionados, as this partial excerpt from the start and end of the post highlight:
In the landmark decision Apprendi v. New Jersey (2000), the Supreme Court held that a judge may increase a sentence only if the enhancement was based upon facts found by a jury beyond a reasonable doubt. The rule recognized only a single exception (and that grudgingly): the fact of a prior conviction, which the Court had narrowly upheld in Almendarez-Torres v. United States (1998), over the dissent of Justices Scalia, Stevens, Souter, and Ginsburg.
Almendarez-Torres has been subject to substantial criticism from the moment Apprendi was decided. The Apprendi majority itself acknowledged that “it is arguable that Almendarez-Torres was incorrectly decided.” And in a concurrence, Justice Thomas, who had been in the majority in Almendarez-Torres, said that he had “succumbed” to “error” in providing the fifth vote for that decision....
As noted here, the Court called for a response with respect to two petitions that ask the Court to reconsider Almendarez-Torres: Ayala-Segoviano v. United States, 10-5296, and Vazquez v. United States, 10-6117. Since the government filed briefs in opposition, the Court has relisted those cases three times, at the January 7, 14, and (apparently) 21 Conferences.
It is impossible to know with any certainty what the repeated relists mean. The relatively lengthy delay of three relistings suggests to me that someone has drafted an opinion dissenting from the denial of cert. — if the past is any indication, Justice Thomas, who has the zeal of the converted on this issue. I’ve discussed these cases with Tom, who thinks that Justice Kagan may be deciding whether to vote to grant. While on the Second Circuit, then-Judge Sotomayor noted the “tension between the spirit of [United States v.] Booker [(2005)] — that all facts that fix mandatorily a defendant’s sentence should be found by a jury or admitted by the defendant — and the Supreme Court’s decision in Almendarez-Torres,” but of course she was “bound by the Supreme Court’s ruling” in that case. United States v. Estrada (2d Cir. 2005).
Ayala-Segoviano and Vazquez will give us our first indication of what Justices Sotomayor and Kagan think about the validity of Almendarez-Torres — and about whether stare decisis warrants maintaining one of the most-criticized criminal law precedents still on the books. The change in the Court’s personnel (particularly the replacement of Justice Stevens with Justice Kagan) may mean there is finally a fourth vote to grant.
Monday, October 18, 2010
En banc Second Circuit rejects Apprendi challenge to NY persistent felony statute
It has been quite some time since Sixth Amendment fans have had a big, split Apprendi/Blakely opinion to chew on. Today the Second Circuit has filled the void with a big, split en banc ruling in Portalatin v. Graham, 07-1599 (2d Cir. Oct. 18, 2010) (available here). Here is how the majority opinion (per Judge Wesley) gets started:
Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York’s persistent felony offender statute, N.Y. Penal Law § 70.10. Each petitioned for a writ of habeas corpus on the ground that the New York courts engaged in an unreasonable application of clearly established federal law in affirming their sentences. Specifically, they argue that the Sixth Amendment guarantee of the right to an impartial jury, as construed by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, proscribes the long-used sentencing procedure in New York that results in judicially enhanced sentences for certain recidivist offenders.
In the case of petitioner Portalatin, the United States District Court for the Eastern District of New York agreed, issuing a writ of habeas corpus from which the State now appeals. See Portalatin v. Graham, 478 F. Supp. 2d 385, 386 (E.D.N.Y. 2007) (Gleeson, J.). In the cases of petitioners Phillips and Morris, the United States District Court for the Southern District of New York separately declined to issue such writs. See Phillips v. Artus, No. 05 Civ. 7974, 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, J.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, J.). Petitioners appealed.
In a consolidated appeal, a panel of this Court concluded that New York’s persistent felony offender sentencing scheme violates the Sixth Amendment, and that the New York courts unreasonably applied clearly established Supreme Court precedent in holding otherwise, but remanded the matters to the district court for consideration of whether those errors were harmless. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010).
A majority of judges in active service then called for this rehearing en banc. The Court now holds that the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions. Accordingly, the grant of the writ to Portalatin is reversed, and the denials of the writ to Phillips and Morris are affirmed.
Here is a key passage from the start of Judge Winter's dissent:
My colleagues rely heavily upon AEDPA deference but identify only one constitutional argument dispositive of the claims of all petitioners -- regarding the applicable maximum sentences for Apprendi purposes -- and that one has been specifically rejected by the Supreme Court in Cunningham v. California, 549 U.S. 270 (2009) and Blakely v. Washington, 542 U.S. 296 (2004). Except for that discussion, my colleagues’ opinion never responds directly to petitioners’ claims and proffers no other identifiable constitutional theory to which AEDPA deference can be given.
We can all be virtually certain that one or more of the losing NY defendants in this case will appeal to the US Supreme Court. Less clear is whether the current Justices are interested in another round of Apprendi/Blakely squabbling. I would not be suprised if new Justices Alito and Sotomayor have an interest in sharing their perspectives on the reach of Apprendi/Blakely, but I also would not be surprised if most of the other Justices are content to take a pass.
October 18, 2010 in Almendarez-Torres and the prior conviction exception, Blakely in the States, Blakely in the Supreme Court, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack
Monday, June 14, 2010
SCOTUS confirmation that the prior conviction excpetion to Apprendi is here to stay
Sentencing and clemency guru Margaret Colgate Love wrote me today to suggest that the biggest sentencing news coming from all today's SCOTUS action (basics here) is to be found in the immigraion case Carachuri-Rosendo v. Holder (available here). In Carachuri-Rosendo, the Justices ruled that "that second or subsequent simple possession offenses are not aggravated felonies [requiring deportation] under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction." And here is what Margaret Colgate Love had to say about why this is a notable ruling for sentencing fans:
Biggest news this morning on sentencing front is in Carachuri-Rosendo [because the] Court unanimously backs away from constitutionalizing recidivist sentencing. It reaffirms Almendarez-Torres, both on 5th and 6th A grounds and nobody says a word in defense of overruling it. Thomas concurred apparently just to let us know rather gracefully, by not mentioning A-T, that he has given up hope of Court overruling it. (It seems that all the hype in circuits about A-T being on life support was just that.)
The Court also said that notice of intention to charge priors under 851 was not constitutionally compelled. Stevens was all business, no prose more purple than "counterintuitive and unorthodox." Though 851 has no constitutional underpinning, it is a way to limit recidivist enhancements in drug cases. As to other types of enhancements, I thought his note 12 was very significant for ACCA and other gun recidivist enhancements, in requiring that prior must appear as part of the judgment or formal charging document (a fairly substantial expansion/clarification of Shepard).
Monday, May 24, 2010
Notable statutory interpretation embrace of a basic offense/offender distinction for elements and sentencing factorsAs long-time readers or hard-core sentencing fans may know, when I was first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule." I first developed this idea in my Conceptualizing Blakely article, advanced it in a StanfordLaw Review article, and further unpacked it (with Stephanos Bibas) in Making Sentencing Sensible article in the Ohio State Journal of Criminal Law. As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.
As detailed in this post right after the Supreme Court's 2007 Sixth Amendment ruling in Cunningham v. California, Justice Kennedy's dissenting opinion in Cunningham praised an offense/offender distinction as providing a "principled rationale" for the application of the Apprendi rule: "The Court could distinguish between sentencing enhancements based on the nature of the offense, where the Apprendi principle would apply, and sentencing enhancements based on the nature of the offender, where it would not." But Justice Kennedy was writing in dissent and footnote 14 of Justice Ginsburg's majority opinion in Cunningham asserts that "Apprendi itself ... leaves no room for the bifurcated approach Justice Kennedy proposes."
Against this backdrop, I found especially interesting and notable this passage from the Court's opinion today in O'Brien (which just happens to be authored by Justice Kennedy):
Sentencing factors traditionally involve characteristics of the offender — such as recidivism, cooperation with law enforcement, or acceptance of responsibility. [Castillo, 530 U.S.] at 126. Characteristics of the offense itself are traditionally treated as elements, and the use of a machinegun under §924(c) lies “closest to the heart of the crime at issue.” Id., at 127.
As the cites reveal, the Supreme Court made a somewhat similar set of statements a decade ago in its Castillo ruling. But this O'Brien articulation of an offense/offender distinction for statutory interpretation purposes seems especially crisp and clean here. Perhaps in the future Justice Kennedy might be able to get a few of the new Justices to give this distinction constitutional significance in some future elaborations of the Apprendi/Blakely line of decisions.
Wednesday, May 05, 2010
Fourth Circuit uses Booker to support rejection of effort to extend ShepardThe Fourth Circuit has an interesting discussion of Booker and its progeny today in US v. Dean, No. 08-4439 (4th Cir. May 5, 2010) (available here), in the course of rejecting a defendant's complaint about judicial fact-finding in the course of applying a career offender enhancement. Here is how the opinion begins:
Antonio Bernard Dean challenges the imposition of a "career offender" sentence enhancement under the U.S. Sentencing Guidelines following his conviction on a drug possession charge. Dean was eligible for that enhancement only if the two predicate offenses upon which it was based were "separated by an intervening arrest." See U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (2007). Dean argues that in determining that an intervening arrest had occurred, the district court erred by relying on materials prohibited by the Supreme Court’s decision in Shepard v. United States, 544 U.S. 13 (2005).
In United States v. Booker, 543 U.S. 220 (2005), and its progeny, the Supreme Court intended two things. First, it sought to eliminate conflict between the Sixth Amendment jury trial right and the Sentencing Guidelines scheme, a task it accomplished by rendering the once-mandatory Guidelines advisory. Second, it endeavored to accord a greater, though not a complete, measure of latitude to district courts at sentencing, both in their ability to find facts and to determine the most appropriate sentence. Dean’s contention runs afoul of both these principles and would require us to backtrack significantly on the teachings of Booker and its progeny.
Tuesday, May 04, 2010
Lengthy split Seventh Circuit panel ruling on ACCA and juve predicatesA split Seventh Circuit panel has an interesting (and quite lengthy) discussion of proper application of the Armed Career Criminal Act and of use of juvenile prior to trigger ACCA's increased sentenced. The majority opinion in Welch v. US, No. 08-3108 (7th Cir. May 4, 2010) (available here), gets started this way:
In 2005, Devin Welch pleaded guilty to unlawful possession of a firearm by a felon. He then brought a motion under 28 U.S.C. § 2255 to vacate his sentence. The district court denied the § 2255 motion in pertinent part. We granted a certificate of appealability to address two of Mr. Welch’s contentions. First, he submits that his prior conviction for the Illinois crime of aggravated fleeing or attempting to elude a police officer cannot qualify as a “violent felony” within the meaning of the Armed Career Criminal Act (“ACCA”). Second, he submits that his prior juvenile adjudication cannot be used to enhance his sentence beyond the statutory maximum because it was not obtained by a jury trial. For the reasons set forth in this opinion, we affirm the judgment of the district court.
A forceful dissent authored by Judge Posner assails the majority's conclusions on both grounds, and it includes an especially interesting discussion of Apprendi prior conviction issues. Here is how that discussion concludes:
Of particular relevance to Apprendi, the literature finds that judges are more likely to convict in juvenile cases than juries are. They are exposed to inadmissible evidence; they hear the same stories from defendants over and over again, leading them to treat defendants’ testimony with skepticism; they become chummy with the police and apply a lower standard of scrutiny to the testimony of officers whom they have come to trust; and they make their decisions alone rather than as a group and so their decisions lack the benefits of group deliberation. It would be hasty to conclude that juvenile court judges are more prone to convict the innocent than juries are. But if it is true that juvenile defendants fare worse before judges than they would before juries — if there is reason to think that trial by jury would alter the outcomes in a nontrivial proportion of juvenile cases — one cannot fob off the Apprendi argument with the observation that a jury makes no difference.
Only the Supreme Court can decide authoritatively what its decisions mean. But the government’s inability to give a reasoned basis for that position is telling, and the better view, I believe, is that a juvenile court “conviction” is not usable for enhancing a federal sentence.
Tuesday, April 20, 2010
Noting SCOTUS disinterest in juve priors as basis for enhanced adult sentenceThe fact that the Supreme Court could soon announce new constitutional principles for sentencing juvenile offenders in in the pending Graham and Sullivan cases makes extra interesting the Justices' decision to deny cert in a case concerning juve priors and an Apprendi challenge from California. This piece from the San Francisco Chronicle, which is headlined "'Three strikes' can count juvenile convictions," provides the details:
The U.S. Supreme Court on Monday upheld California judges' authority to count adult felons' convictions in juvenile court in determining whether to sentence them to life in prison under the state's "three strikes" law.
The court denied a San Jose man's appeal of his 2005 sentence for possessing a gun as a convicted felon. Vince Nguyen's sentence was doubled, to 32 months, based on his assault conviction in a 1999 juvenile court proceeding, when he was 16. Under the three strikes law, he could have been sentenced to 25 years to life in prison if his record had included a second such conviction as a juvenile.
The 1994 three strikes law, the nation's toughest sentencing measure for repeat offenders, requires a sentence of 25 to life for anyone convicted of a felony at age 18 or older who has committed at least two serious or violent felonies in the past. With one such previous conviction, the normal sentence for the new crime is doubled.
Unlike most states with repeat-felon laws, California classifies convictions for serious or violent crimes in juvenile court, at age 16 or 17, as strikes.
Nguyen claimed that increasing a sentence based on a juvenile conviction violated a U.S. Supreme Court ruling in 2000 entitling defendants to a jury trial on any facts used to lengthen their sentences beyond the usual maximum term. The California Supreme Court ruled against Nguyen in July 2009, saying the use of his juvenile conviction to increase his sentence as an adult did not violate his right to a jury trial.
Wednesday, March 31, 2010
Second Circuit rules NY Persistent Felony Offender law now clearly violates BlakelyVia a lengthy ruling today in Besser v. Walsh, No. 05-4375 (2d Cir. Mar. 31, 2010) (available here), a panel of the Second Circuit has declared unconstitution New York state's Persistent Felony Offender sentencing law. Here is a key paragraph from the start of Judge Winter's opinion for the panel:
We hold that the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s PFO statute. We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296 (2004). Because Besser’s conviction became final before Blakely issued, the state court decisions upholding his conviction were neither contrary to nor an unreasonable application of clearly established federal law. We therefore affirm the denial of the writ as to Besser. However, because the relevant state court decisions upholding enhanced sentences for Phillips, Morris, Portalatin, and Washington were issued after Blakely, those decisions were not reasonable applications of clearly established law. Nevertheless, we remand these cases to the district court for a determination of whether the error was harmless.
It will be very interesting to see if New York considers appealing this ruling to the full Second Circuit or to the US Supreme Court. Any predictions, dear readers?
Wednesday, February 03, 2010
The low-hanging fruit and long sentencing options of § 922(g)The Fourth Circuit has an interesting sentencing decison today in US v. Wright, No. 08-4679 (4th Cir. Feb. 3, 2010) (available here). First, consider the panel's description of the defendant's crime:
Jeremy Wright sprayed twenty-two rounds from an AK-47 assault rifle into a crowded night club parking lot, killing a man sleeping in a car with a single bullet to the head. Wright fired his rifle until he ran out of ammunition even though there were some two or three hundred people at the club, many of whom were pouring outdoors as the result of a fight that Wright had just instigated with rival gang members. In addition to the man he killed, Wright also wounded a club patron in the course of his rampage.
Now, guess Wright's crime of conviction in federal court (hint: it is not murder, but it did lead to a sentence of life imprisonment). Astute readers will know the answer from the title of this post or from this account of the sentencing issues raised an rejected in Wright:
On appeal, Wright raises three challenges to his sentence. He first argues that the use of his juvenile adjudications as predicate crimes under the ACCA violates the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because South Carolina family courts do not employ juries. Second, Wright claims that the burglaries he committed as a juvenile do not qualify as violent felonies under the ACCA because he did not "carry" firearms merely by stealing them. Finally, Wright asserts that the district court improperly referenced the sentencing guideline for first degree murder when it sentenced him. We consider each of these arguments in turn.
Tuesday, August 25, 2009
Ohio Supreme Court rules on the scope of Apprendi's "prior conviction" exception
In a unanimous ruling in Ohio v. Hunter, No. 2009-Ohio-4147 (Ohio Aug. 25, 2009) (available here), the Supreme Court of Ohio ruled today that the Sixth Amendment does not preclude a judge from basing a sentencing enhancement on relevant information about the offender’s prior convictions that is part of the judicial record. This official press release provides background on the Hunter ruling, and here are sections of the discussion on the reach of Apprendi and the Sixth Amendment (with some cited omitted):
Relying on the decisions in Apprendi, Blakely, Shepard, and Taylor, several of our sister states have also held that sentencing courts may look beyond the mere existence of a prior conviction without violating the Sixth Amendment. For example, in Ryle v. State (Ind.2005), 842 N.E.2d 320, the Supreme Court of Indiana affirmed an enhanced sentence based on a judicial finding from information about a prior offense contained in a presentence investigation report. The court stated that “[t]he presentence investigation report relies on ‘judicial record[s]’ that guarantee the conclusive significance that is the focus of Apprendi.” Id. at 325, quoting Shepard, 544 U.S. at 26...
Thus, pursuant to Shepard, 544 U.S. 13, we hold that when designating an offender as a “repeat violent offender” pursuant to former R.C. 2929.01(DD), a trial court does not violate the Sixth Amendment by considering relevant information about the offender’s prior conviction that is part of the judicial record.
In this case, in order to declare Hunter a repeat violent offender, the court had to determine whether he had a prior conviction and had served a prison term for a felony of the first or second degree that resulted in physical harm to the victim. These facts may be readily determined from the indictment and sentencing entry for his 1990 conviction for felonious assault with a specification of physical harm and his resulting sentence of eight to 15 years’ incarceration. The trial court did not violate Hunter’s constitutional rights by considering these documents, which are “judicial record evidence” created in connection with his prior conviction. Shepard, 544 U.S. at 20. Moreover, the findings required by former R.C. 2929.01(DD) pertain directly to the issue of recidivism, which has traditionally been within the purview of the sentencing court, not the jury, Almendarez-Torres, 523 U.S. at 244, and Hunter has not suggested that the trial court’s findings in this case are erroneous.
August 25, 2009 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (2) | TrackBack
Thursday, July 02, 2009
California Supreme Court rejects Apprendi challenge to using juve convictions as strikes
Apprendi fans have a lot worth reading today. In addition to my new little discussion of Apprendi-land in the Columbia Law Review's sidebar (discussed here), today the California Supreme Court has lots of Apprendi talk in People v. Nguyen, No. S154847 (July 2, 2009) (available here). Here is how the majority opinion starts:
California‘s Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d))1 increases the maximum sentence for an adult felony offense upon proof that the defendant has suffered one or more qualifying "prior felony convictions" — a term that specifically includes certain prior criminal adjudications sustained by the defendant, while a minor, under the juvenile court law. Does the United States Constitution allow such use of a prior juvenile adjudication even though there was no right to a jury trial in the juvenile proceeding? Like the majority of recent decisions to address the issue, we conclude the answer is yes.
Here is how Judge Kennard's solo dissent gets started:
In California, a minor accused of a crime in a juvenile court proceeding — unlike a person accused in an adult criminal proceeding — has no right to a jury trial. The lack of that right becomes an issue when, as here, a juvenile court adjudication is based on one of certain statutorily specified felonies and later the juvenile, by then an adult, commits another felony. At that point, California's "Three Strikes" law comes into play. Because of the prior juvenile court adjudication, the sentence for the new felony conviction is doubled, as happened here; with two such priors, the prison term is a minimum of 25 years to life.
Central here is the United States Supreme Court‘s decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), which holds that the federal Constitution requires a jury trial on "any fact" that increases the maximum penalty for a charged offense. Is that right violated when, as here, the additional punishment is imposed because of prior juvenile criminal conduct for which there was no right to a jury trial? The majority perceives no problem. I do.
July 2, 2009 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (3) | TrackBack
Tuesday, June 23, 2009
Intriguing Ninth Circuit ruling on scope of Apprendi's prior conviction exception
The Ninth Circuit handed down an interesting little habeas ruling today in Kessee v. Mendoza-Powers, No. 07-56153 (9th Cir. June 23, 2009) (available here). As this start to the short Kessee opinion highlights, one probably needs to be a hard-core Apprendi and/or habeas fan to really appreciate the panel's work here:
What is the scope of the “prior conviction” exception to the general rule that a sentencing judge may not make factual findings that increase the statutory maximum criminal penalty? The Supreme Court has not yet answered that question. Accordingly, the answer depends on what level of scrutiny we apply to the sentencing decision. When we review de novo, we make an independent determination of the scope of the prior conviction exception, using our normal interpretative methods. When our review is constrained by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), though, we cannot grant habeas relief unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Thus, under AEDPA, even if this court has reached a particular conclusion about the scope of the prior conviction exception, our view may not be the only reasonable one; if the state court’s interpretation is also reasonable, we must deny habeas relief.
June 23, 2009 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (2) | TrackBack