Wednesday, September 21, 2005
Major 9th Circuit ruling on prior conviction exception
In a detailed opinion with lots of important analysis, the Ninth Circuit today spoke at length about the scope of the Almendarez-Torres "prior conviction exception" in US v. Kortgaard, No. 03-10421 (9th Cir. Sept. 21, 2005) (available here).
In short form, Kortgaard holds "that upward departures under § 4A1.3 of the United States Sentencing Guidelines involve factual findings beyond the fact of a prior conviction." In long form, Kortgaard has a lot to say about the reach of Blakely and about the distinction between factual and legal findings concerning prior convictions. Most fundamentally, the Ninth Circuit reiterates its view that the prior conviction exception should be given a narrow reading:
We are also guided by our decision in United States v. Tighe, wherein we stated that the prior conviction exception "should remain a 'narrow exception' to Apprendi." 266 F.3d 1187, 1194 (9th Cir. 2001) (quoting Apprendi, 530 U.S. at 490). As we noted in Tighe, the Apprendi Court derived the prior conviction exception from Almendarez-Torres; however, the Court also questioned the continuing validity of Almendarez-Torres regarding the consideration of recidivism in sentencing, construed it as "represent[ing] at best an exceptional departure from the historic practice that we have described," and therefore decided "to treat the case as a narrow exception to the general rule." Apprendi, 530 U.S. at 487, 489-90. We treated it accordingly in Tighe and declined "to extend Apprendi's 'prior conviction' exception to include prior nonjury juvenile adjudications on the basis of Almendarez-Torres' logic." Tighe, 266 F.3d at 1194.
We are faced here with another request to extend or broadly construe Apprendi's exception in order to include within it issues that have not been submitted to a jury. We once again decline to do so and continue to treat the exception as a narrow exception to the general rule.....
Apprendi stated the exception as covering "the fact of a prior conviction," not facts that are derived or inferred therefrom. 530 U.S. at 490 (emphasis added); see also id. at 488 ("any 'fact' of prior conviction"). While the Court repeated the "prior conviction" exception in both Blakely and Booker, in neither case did the Court have the occasion to redefine or expand its scope..... Even if the prior conviction exception legitimately includes facts that follow necessarily or as a matter of law from the fact of a prior conviction, we have already concluded that the findings required to support an upward departure under § 4A1.3 are not of that nature because they require the judgment of a factfinder.
This strong reaffirmation of Tighe, which is in tension with subsequent rulings of some other circuits, is quite significant. And, critically, Kortgaard is not just important for undertsanding how Blakely and Booker and prior conviction exception are to be applied in federal cases in the Ninth Circuit: the reiteration in Kortgaard of Blakely's reach and the narrowness of the prior conviction exception could have a profound impact on state cases coming to the Ninth Circuit on habeas appeals from Alaska and Arizona and California and Hawaii and Oregon and Washington and perhaps other states.
The importance of this ruling for federal sentencing is somewhat muted by the Booker remedy, but I am sure this decision will still garner the federal government's focused attention. I am less sure, however, whether the government might seek rehearing en banc or might seek cert., especially because the case involves a number of potentially intricate issues.
Tuesday, September 20, 2005
Will stare decisis save the A-T prior conviction exception?
As detailed in my SCOTUS head-count on Apprendi-Blakely issues, the departure of Justices Rehnquist and O'Connor from the Supreme Court means that currently there are now five Justices on record opposing the Almendarez-Torres "prior conviction exception" (Justices Stevens, Scalia, Thomas, Breyer and Ginsburg) and only two Justices supporting the Almendarez-Torres exception (Justices Kennedy and Breyer). Though I have previously pondered whether a Justice Roberts would be in the Scalia-Thomas mold on these issues, lately I have been thinking a lot about how a Chief Justice Roberts, with his reported respect for stare decisis, might lead the Court when it (inevitably) takes a case to reconsider the Almendarez-Torres "prior conviction exception."
Larry Solum over at Legal Theory has this post which culls two choice quotes on stare decisis from Roberts' comments at his confirmation hearings. (The quotes come from a long list in this interesting document from Senator Jon Kyl's office.) In one quote, Roberts suggests that key considerations before reversing a prior precedent include "settled expectations, ... the legitimacy of the Court, ... whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments"; in the other quote, he emphasizes "you always have to take into account the settled expectations that have grown up around the prior precedent [because it] is a jolt to the legal system to overrule a precedent."
In my view, reversing the Almendarez-Torres "prior conviction exception" would be a significant jolt to the legal system (although we might debate whether expectations have even been truly settled in the wake of Apprendi where Justice Thomas disavowed his vote in Almendarez-Torres). Whenever the Supreme Court has occasion to look at the prior conviction exception again, it will be especially interesting to watch how all this stare decisis talk (which, of course, is now focused on Roe) comes into play.
September 20, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Tuesday, September 06, 2005
A big circuit day for criminal history
Perhaps unsurprisingly, the federal circuit courts have returned from a long weekend by handing down lots of new opinions. And, of course, sentencing and Booker issues are in the mix. Though the 8th Circuit continues its daily coverage of a broad range of interesting sentencing issues (as evidenced on this official opinion page), criminal history issues are front-and-center in a number of circuit rulings today. Lacking time to consume all the action, I will just note and link:
- From the Fourth Circuit, check out US v. Thompson, No. 04-4678 (4th Cir. Sept. 6, 2005) (available here) and US v. Amaya-Prtillo, No. 04-4672 (4th Cir. Sept. 6, 2005) (available here).
- From the Eighth Circuit, check out US v. Smith, No. 04-3747 (8th Cir. Sept. 6, 2005) (available here).
- From the Ninth Circuit, check out US v. Kelly, No. 04-30074 (9th Cir. Sept. 6, 2005) (available here).
Among this group, Thompson may be the most interesting read because of the lengthy dissent by Fourth Circuit Chief Judge Wilkins. Readers are highlight encouraged to note any important needles in today's criminal history haystack.
Tuesday, August 23, 2005
Still more on state approaches to juvenile adjudications
Responding to posts about recent rulings from Oregon and from Ohio concerning whether juvenile adjudications come within the "prior conviction" exception to the Apprendi/Blakely rule, a helpful North Carolina reader provided this helpful report on how these issues are playing out in the Tar Heel State:
In North Carolina, we have an aggravating factor in felony sentencing for defendants with any prior adjudication as a juvenile for an offense that, if committed by an adult, would be a Class A through Class E felony. Finding of an aggravating factor permits the court to impose a sentence from the aggravated range in the sentencing grid cell where the offender's class of offense and prior record level place him.
In our "Blakely fix" legislation from this session of our General Assembly, North Carolina left determination of that aggravating factor in the hands of the judge, assuming it would fit the prior conviction exception. Other statutory aggravating factors now must be found by a jury or admitted by the defendant before they can be weighed against any mitigating factors in determining whether or not to impose a non-presumptive sentence.
On August 2nd, the N.C. Court of Appeals (our intermediate appellate division) in State v. Yarell, No. COA03-1454 (N.C. App. Aug. 2, 2005) (available here), went in the same direction as Oregon's Supreme Court, and held that prior juvenile adjudications do not fit the prior conviction exception. The decision (relevant part in only the last four paragraphs) turns solely on the term "conviction" and its application in our juvenile statutes. N.C. Gen. Stat. 7B-2412 states that "[a]n adjudication that a juvenile is delinquent or commitment of a juvenile to the Department for placement in a youth development center shall neither be considered conviction of any criminal offense nor cause the juvenile to forfeit any citizenship rights."
Saturday, August 20, 2005
More state views on juvenile adjudications and the prior conviction exception
Responding to this post about the recent Harris ruling from Oregon, which concluded that juvenile adjudications do not come within the "prior conviction" exception to the Apprendi/Blakely rule, a helpful Ohio reader informed me of a recent intermediate court ruling from Ohio on this issue. The ruling in Ohio v. Deters, No. C-010645 (Ohio 1st App. Aug. 5, 2005)(available here), ultimately holds that juvenile adjudications do come within the "prior conviction" exception. Along the way, the court provides this understated account of the state of the law on this issue:
In the wake of Blakely, several other Ohio appellate districts have allowed juvenile adjudications to be considered as a factor when enhancing a sentence. And several other jurisdictions outside of Ohio have also allowed juvenile adjudications as a sentencing factor under Apprendi or Blakely. Still others have rejected similar arguments. This split will one day have to be reconciled.
Thursday, August 18, 2005
Oregon Supreme Court rules juvenile adjudications do not come within "prior conviction" exception
Today, in Oregon v. Harris, No. S51600 (Or. Aug. 18, 2005) (available here), the Oregon Supreme Court issued a thoughtful opinion addressing "the use of prior juvenile delinquency adjudications to increase sentences for adult felony convictions under the Oregon Felony Sentencing Guidelines (guidelines)." An opening paragraph provides highlights of the arguments and the holding:
[D]efendant first argues generally that, because juvenile adjudications in Oregon are accomplished without jury trials, any subsequent reliance upon those adjudications to increase a defendant's criminal sentence violates the jury trial guarantee of the Sixth Amendment to the United States Constitution. Alternatively, defendant argues that, in any event, the trial court unconstitutionally used the fact of his past juvenile record to impose an increased criminal sentence in his particular case. Defendant's first argument is not well-taken. As to his second argument, however, we hold that, under Apprendi v. New Jersey, 530 US 466 (2000), the manner in which the trial court used defendant's juvenile adjudication to increase his sentence amounted to an error that violated the Sixth Amendment. As a result, we vacate defendant's sentence and remand this case for resentencing.
This major ruling deepens the split in lower state and federal courts on whether juvenile adjudications fall within the "prior conviction" exception to the Apprendi/Blakely rule (see also this post from INCourts about Ryle, a pending Indiana case on point). Consequently, this Harris ruling reinforces my belief that the validity and scope of the "prior conviction" exception is the most pressing and important post-Blakely issue needing immediate Supreme Court attention.
Tuesday, July 19, 2005
Fourth Circuit provides spirited defense of the prior conviction exception
Today in US v. Cheek, No. 04-4445 (6th Cir. July 19, 2005) (available here), the Fourth Circuit provided a spirited defense of the Almendarez-Torres "prior conviction exception" to the Apprendi-Blakely rule. In Cheek, the Fourth Circuit, after thoroughly reviewing the full Blakely line of cases, asserts:
It is thus clear that the Supreme Court continues to hold that the Sixth Amendment (as well as due process) does not demand that the mere fact of a prior conviction used as a basis for a sentencing enhancement be pleaded in an indictment and submitted to a jury for proof beyond a reasonable doubt.
Then, perhaps recognizing that the vitality of Almendarez-Torres may still be subject to question, the Check court goes on to explain that "several sound reasons may explain why the Almendarez-Torres recidivism exception has not been overruled:"
First, recidivism involves the status of a defendant as a repeat offender based on past convictions and not the offense being tried before the court.... [Editor's Note: This is an echo of the offense/offender distinction developed in my Conceptualizing Blakely article.]...
Second, and related to the first point, a prior conviction has already been determined in accordance with the safeguards of due process and the Sixth Amendment and need not be subjected to a jury for a second time....
Third, if prior convictions were generally made elements of criminal offenses, the introduction of a prior conviction at trial could unfairly prejudice the defendant....
And fourth, it has been the longstanding custom for over 200 years to treat recidivism as a sentencing factor, and not as an element of the instant offense.
Criminal history and Shepard's impact
In my coverage of the Supreme Court's opaque sentencing work in its Shepard ruling in March (basics summarized here, commentary here and here and here), I particularly stressed what the decision might portend for the Almendarez-Torres prior conviction exception. However, a ruling today from the Sixth Circuit serve as a reminder that Shepard's rules for the consideration of a defendant's criminal history are consequential no matter what happens to the Almendarez-Torres prior conviction exception.
In US v. Hargrove, No. 04-3338 (6th Cir. July 19, 2005) (available here), the Sixth Circuit applies Shepard and related precedents to conclude that it was improper for the district court to find a particular prior felony was violent within the meaning of the Armed Career Criminal Act (a finding which served to trigger a minimum sentence of fifteen years in prison after the defendant's jury conviction of being a felon in possession of a firearm ). In addition to the intricate sentencing discussion at the end of the opinion, Hargrove is also interesting reading because of its consideration (and rejection) of the defendant's claim that he was entitled to a jury instruction on the defense of necessity during his trial for being a felon in possession of a firearm.
Wednesday, July 06, 2005
Second Circuit on scope of prior conviction exception
Thanks to Yuanchung Lee and this post over at the Second Circuit Blog, I see that the Second Circuit yesterday issued this amended opinion in US v. Weisser, No. 01-1588 (2d Cir. June 20, 2005), amended (July 5, 2005), which clarifies and expands upon its earlier discussion of the limits of the Almendarez-Torres prior conviction exception. Yaanchung Lee's post covers Weisser in full multi-color detail, explaining that the amended opinion "now explicitly states that certain facts relating to criminal history are indeed too far removed from 'the conclusive significance of a prior judicial record to fall within that exception.'"
The key discussion of the prior conviction exception appears in footnote 10 on page 27 of the slip opinion in Weisser. Here's the full text of that footnote:
Specifically, the district court relied on (1) Weisser's repeated parole violations after his release from prison on a child molestation conviction; (2) his repeated failure to register as a sex offender, as required by law; and (3) his 'prior attempts to arrange sexual liaisons with other minors and his prior relationship with a teenage boy.' Although certain facts of prior conviction are not subject to the Sixth Amendment's protections under the exception established in Almendarez-Torres v. United States, 523 U.S. 224 (1998), the scope of that exception is unclear, see Shepard v. United States, 125 S. Ct. 1254, 1262 (2005); United States v. Fagans, 406 F.3d 138, 141-42 (2d Cir. 2005). Whether or not Weisser's previous parole violations fall within the Almendarez-Torres exception is open to debate, but we think that the other facts upon which the district court relied are 'too far removed from the conclusive significance of a prior judicial record' to fall within the exception. Shepard, 125 S. Ct. at 1262; cf. United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005) (relying on Shepard and concluding that district court relied on facts that fell outside of the Almendarez-Torres exception, thus violating the Sixth Amendment); United States v. Washington, 404 F.3d 834, 841-42 (4th Cir. 2005) (same).
July 6, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits | Permalink | Comments (1) | TrackBack
Friday, July 01, 2005
Justice O'Connor retiring; what will her replacement think of Harris and Almendarez-Torres?
I am sure sentencing issues will not be the main focus of discussion as the media and blogsphere discusses the news of Justice O'Connor's announced retirement and her potential replacement. Nevertheless, as I detailed in this post, Justice O'Connor served as a key fifth vote in the 5-4 decisions that produced the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule. If (when?) President Bush were to nominate replacement Justices in the "Scalia-Thomas" mold, the future of Almendarez-Torres and Harris would seem to be even shakier.
Of course, the Supreme Court Nomination Blog, SCOTUSblog and How Appealing are the places to go to get the scoop and surely lots of links on the big news concerning Justice O'Connor's announced retirement. Already SCOTUSblog has this post noting that confirmation hearings are usually 6-8 weeks after an announced retirement.
Tuesday, June 21, 2005
A great prior conviction test case
I am very glad to see Michael Ausbrook, who does a great job covering state Blakely stories, back in action at INCourts. And, in addition to this strong post on the California Supreme Court decision in Black, Michael highlights in this recent post a big Blakely case to be argued in the Indiana Supreme Court on Tuesday, Ryle v. State, which concerns the scope of the prior conviction exception.
I have spotlighted Ryle before in posts here and here because it seems like an especially good test case for the scope of the "prior conviction" exception. Ryle raises two issues which have divided lower courts: whether (1) juvenile adjudications and (2) being on probation at the time a crime is committed fit within the prior conviction exception. Michael's post provides considerable background on the juvenile adjudications issue, and also provides links to the parties' supplemental briefs. In addition, thanks to Michael, I can provide this link as the place to find on-line a webcast of the Ryle oral argument taking place on Tuesday morning in the Indiana Supreme Court.
Thursday, June 09, 2005
Three observations on Rivera
After having a chance to read closely the majority opinion of the New York Court of Appeals in Rivera, which upholds the constitutionality of the state's persistent felony offender statutes (basics here), three big thoughts rush to mind:
1. The decision seems cert. proof: Because the Rivera court based its ruling on a particular (though debatable) interpretation of the state's statutes, I think it would be unlikely that the Supreme Court would have much interest in giving the decision a second look.
2. What about state constitutional law?: The New York State Constitution in Article I, sec. 2 says: "Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever." Perhaps the defendant in Rivera did not also bring a state constitutional law claim (or perhaps such a claim has been resolved in earlier decision). Nevertheless, as I suggested in this post a few month ago, I think state constitutional law claims can and should play a larger role in the post-Blakely universe.
3. The continuing importance of the "prior conviction" exception: A critical component of the Rivera decision is the continued vitality of the Almendarez-Torres "prior conviction" exception. If Justice Thomas gets his way and the exception gets undone by the Supreme Court, New York will certainly have to alter the operation of its persistent felony offender statutes. Rivera is thus a good reminder that many states without significant Blakely problems may still end up with a significant Sixth Amendment mess if (when?) the Almendarez-Torres "prior conviction" exception is overruled.
Thursday, May 19, 2005
The diktats of criminal history and Booker's potential virtue
The Seventh Circuit's decision today in US v. Rosas, No. 04-2929 (7th Cir. May 19, 2005) (available here) does not break any new Booker ground, but it does provide a stark reminder of the significance of the federal guidelines' criminal history diktats. It also highlights why the post-Booker world, if properly constructed and kept free from too much Congressional interference, could be a much better federal sentencing world than what came before.
The facts of Rosas are hardly unique: the case involved a defendant with a criminal past who pled guilty to various drug and firearm charges. The legal issue is whether the defendant's prior conviction for fleeing a police officer qualifies as a "crime of violence," which would in turn requiring sentencing as a career offender under USSG § 4B1.1. Rosas caught my eye because this seemingly small (and substantively irrelevant?) legal dispute over whether fleeing a police officer is a "crime of violence" had enormous impact on the defendant's fate: the defendant's guideline range was to be 77 to 96 months, but it jumped to 262 to 327 months if his fleeing prior was classified as a "crime of violence."
The Rosas court's legal analysis of this issue under pre-Booker law seems sound (circuit precedent apparently compels treating fleeing a police officer as a "crime of violence"). But, tellingly, the court's analysis never includes any consideration or judgment about the factual specifics of the defendant's priors or, more importantly, whether it makes sense for 15 years of a man's life to hinge on a legal debate over whether fleeing qualifies as a "crime of violence."
Thankfully, Booker provides a remedy that could allow these case to be treated in a much sounder way. No longer do criminal history diktats define an unalterable sentencing range; though a district judge must consider the diktats, she must also now consider the broad mandates of 3553(a) to explore whether a sentence for Rosas in the range of 262 to 327 months is "sufficient, but not greater than necessary" to achieve the purposes of punishment and the other goals set forth in 3553(a). Though a judge post-Booker might still opt to follow the guidelines' diktats, that decision will now necessarily flow from a broader exercise of judgment, and a form of judgement that after Booker must be attentive to many factors that seem, at least to me, a lot more significant than whether fleeing a police officer qualifies as a "crime of violence."
Tuesday, May 17, 2005
Another FSR issue heading to press
I am pleased to report that a new Federal Sentencing Reporter issue is headed to press. This FSR issue, Volume 17, Number 3, is principally concerned with criminal history matters and was in the works before Blakely and Booker came along (although those cases find mention in the final product.)
My co-editor Nora V. Demleitner was in charge of this issue, and her introductory essay is entitled "Constitutional Challenges, Risk-based Analysis, and Criminal History Databases: More Demands on the U.S. Sentencing Commission." That essay, along with the Table of Contents for the full issue, are available for download below.
Relatedly, details about FSR's three recent Blakely issues are here and here and here, and the journal can be ordered here and accessed electronically here. In the coming months, the Federal Sentencing Reporter will be providing lots more Booker and Blakely coverage, so stay tuned.
Wednesday, May 11, 2005
Might Indiana's Supreme Court be a wise leader on the prior conviction exception?
Michael Ausbrook at INCourt has this notable post which details that the Indiana Supreme Court has ordered supplemental briefing in Ryle v. State focused on two questions concerning the scope of the "prior conviction" exception to the Apprendi-Blakely rule.
Ryle seems like an especially good test case for the scope of the "prior conviction" exception for a few reasons: (1) as detailed by Michael and in this post last year, Ryle directly addresses two key issues and uncertainties surrounding the prior conviction exception; (2) because Indiana's legislature has now passed a Blakely fix which makes Indiana's guidelines advisory, the state Supreme Court can consider the legal issues without pragmatic worries that all future sentencings hang in the balance, and (3) the Indiana Supreme Court's work in its big Blakely case, Smylie (basics here, commentary here and here and here) gave me the impression that this court really understands these issues.
Michael reports that oral argument in Ryle is not until next month, and I am not sure about the briefing schedule. But I will be eager to see what the parties have to say concerning one of the biggest and most important doctrinal issues still lurking in the post-Blakely world.
Friday, May 06, 2005
Judge Easterbrook spotlights fact/law distinction in prior conviction exception
Today in US v Carpenter, No. 04-2270 (7th Cir. May 6, 2005) (available here), Judge Easterbrook, speaking for the Seventh Circuit, provides an astute account of why the "prior conviction" exception might extend to matters beyond the "bare fact of a prior conviction" (which is how the exception has been limited in Oregon):
Criminal history is all about prior convictions; its ascertainment therefore is an issue of law excluded by Booker's own formulation and governed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). Neither judges nor juries pass on the wisdom of legal rules case by case, and Booker (like its predecessor Apprendi v. New Jersey, 530 U.S. 466 (2000)), is about who finds facts rather than what legal consequences those facts may have. See McReynolds v. United States, 397 F.3d 479, 480-81 (7th Cir. 2005). That is why we held in United States v. Rosas, No. 04-2929 (7th Cir. Mar. 24, 2005), slip op. 6-7, that Booker does not affect the process of deciding whether a prior offense is a crime of violence.
As the Court explained in Shepard v. United States, 125 S. Ct. 1254, 1262-63 (2005), a sentencing court is entitled to classify and take into account the nature of a defendant's prior convictions, provided that the judge does not engage in factfinding about what the accused did (as opposed to what crime he has been convicted of). Carpenter does not contend that the judge went behind the existence of his priors to engage in a factual rather than a legal analysis of his former criminal behavior. (Part III of Shepard, which we have cited here, was joined by only four Justices, but another three Justices concluded that recidivist enhancements never create problems under the sixth amendment, so Part III speaks for the Court as a practical matter.)
I view Judge Easterbrook's discussion as astute because, as I explained in the latter part of my Conceptualizing Blakely article, "the Blakely ruling's emphasis on 'fact' finding — and [because] questions of fact are traditionally considered the province of a jury, while questions of law are traditionally for judicial determination — one might [identify] a fact/law distinction at heart of the Blakely principle." As explained in that article, "historically there has been precious little development or even consideration of the distinction between questions of fact and questions of law at sentencing," but I think such a distinction can and should become much more significant and much more fully developed in the wake of Blakely.
Two Oregon cases spotlight key Blakely issues
This morning I noticed on-line two Oregon state intermediate appellate court cases which spotlight some of the big Blakely questions that will need to be resolved by the Supreme Court sooner rather than later.
In State v. McMillan, 2005 Ore. App. LEXIS 538 (Ore App. Ct. May 4, 2005), the defendant raised Blakely to contest the sentencing judge's fact-finding which set the amount of a restitution order. The McMillan court rejected this claim, asserting simply:
The statutory maximum is...the amount of pecuniary damages as determined by the court, and no more. Therefore, even assuming that Apprendi and Blakely apply to restitution, see State v. Gutierrez, 197 Or.App. 496, 505, 106 P3d 670 (2005) (Apprendi and Blakely "arguably do not apply" to restitution), the principles announced in those cases were not violated.
In State v. Giles, 2005 Ore. App. LEXIS 542 (Ore App. Ct. May 4, 2005), the defendant contested on Blakely grounds a sentence enhancement based on the trial court's finding of "persistent involvement in similar offenses." Here the defendant prevailed, because:
In State v. Perez, 196 Or.App. 364, 371-73, 102 P3d 705 (2004), rev den (Apr 28, 2005), we held that, under Apprendi and Blakely, any fact other than the "bare fact of a prior conviction" that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.
May 6, 2005 in Almendarez-Torres and the prior conviction exception, Blakely in the States | Permalink | Comments (0) | TrackBack
Wednesday, May 04, 2005
The waiting is the hardest part...
Over at SCOTUSblog, Tom Goldstein has this fascinating post previewing the Supreme Court's next term; he reports that for the 2005 Term, based on cert. grants this year, the "October sitting (8 arguments) and November sitting (12 arguments) are both full." This would seem to mean that, unless expedited briefing is scheduled, the earliest that the Supreme Court could hear a Blakely or Booker case is December 2005, and thus we should not expect any clarifying Blakely or Booker decisions until probably at least March 2006.
I have railed in prior posts here and here about the Supreme Court's expenditure of much time and energy on death penalty cases when there are so many post-Blakely and post-Booker questions that are more pressing and of much greater national import. But rather than continue to curse the SCOTUS darkness, let me try to light a certiorari candle by developing an annotated list, roughly in order of importance, of the Blakely/Booker issues that I think most urgently merit the Supreme Court's attention:
1. The validity and scope of the "prior conviction" exception. I spotlighted this issue soon after Blakely (consider this post last August), and the High Court's work in Shepard has only muddied these issues more.
2. The retroactive application of Apprendi, Blakely and Booker. Though nearly all lower courts have ruled against retroactivity (with the exception of the Colorado decision which found Blakely retroactive to Apprendi), retroactivity issues will be litigated over and over and over again in the lower courts until the Supreme Court definitively rules.
3. Booker pipelines issues such as plain error. Unlike retroactivity issues, Booker pipelines issues are producing remarkable circuit splits. But, also unlike retroactivity issues, Booker pipeline issues will eventually fade away even without a definitive Supreme Court ruling. This is why I wonder, as I discussed here and here, if the High Court will consider these issues cert. worthy.
4. Blakely's applicability to restitution and other non-prison sentences. Taken to its logical extreme, Blakely's statement that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" could impact a lot more than sentencing within guideline systems. Most lower courts are limiting Blakely's reach, but these are the same courts that sought (incorrectly) to limit Apprendi before Blakely came along.
I could go on, but I am already exhausted and I have not even mentioned the reconsideration of the Harris rule for mandatory minimums (which many believe cannot stand in the wake of Blakely). Also, whether on direct appeal or through habeas actions, at some point SCOTUS will likely need to consider whether and how Blakely applies to some unique state guidelines systems. And, not to be overlooked, if Congress were to pass a constitutionally questionable Booker fix (such as the proposed HR 1528), a whole new set of constitutional questions in need of urgent resolution could emerge.
May 4, 2005 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, May 02, 2005
11th Circuit says juvenile offenses come within prior conviction exception
Just yesterday I had a chance in this post to spotlight a thoughtful state case which concluded, following the Ninth Circuit's decision in United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001), that a "juvenile adjudication does not constitute a prior conviction under the Apprendi exception." Coincidently, the Eleventh Circuit had occasion to speak to this issue for the very first time today in US v. Burge, No. 04-13468 (11th Cir. May 2, 2005) (available here). And fans of circuit court sentencing action will not be surprised to learn that the 11th Circuit in Burge was not convinced by the 9th Circuit's approach to juvenile offenses and the prior conviction exception.
Burge cover a lot of interesting sentencing ground, including Booker and Shepard issues. But its extended analysis of the place of juvenile convictions within the Apprendi story is the most noteworthy aspect of the decision. Here's a taste:
"[T]rial by jury in the juvenile court's adjudicative stage is not a constitutional requirement." McKeiver, 403 U.S. at 545. Further, although the Court's Jones and Apprendi decisions discuss the right to a jury trial as a procedural safeguard, neither case addresses juvenile adjudications and neither case explicitly states that a juvenile adjudication can only count as a prior conviction under the ACCA if the juvenile was afforded the right to a jury trial. At a minimum, however, Apprendi's prior conviction exception is based on the procedural safeguards that attach to a prior conviction or juvenile adjudication.
Prior to Almendarez-Torres, we recognized that the fact of a prior conviction under section 924(e) "merely links the severity of the defendant's punishment for a violation of the predicate offense § 922(g) to the number of previous felony convictions" and need not be submitted for jury consideration because "the defendant has received the totality of constitutional protections due in the prior proceeding on the predicate offense." United States v. McGatha, 891 F.2d 1520, 1526 (11th Cir. 1990). We explained that "[i]t was unnecessary for the jury to consider the defendant's prior convictions, for these convictions were not an element of the offense for which he was indicted and to which he entered his plea of guilty." Id. at 1525. And we concluded that "[w]hile the Due Process Clause indeed requires proof beyond a reasonable doubt of every fact necessary to constitute the crime, in sentencing those already constitutionally convicted the courts have traditionally operated without constitutionally imposed burdens of proof." Id. at 1526-27. Although we did not consider the use of a prior juvenile adjudication in McGatha, its rationale is consistent with [other circuit decisions rejecting Tighe], and can be applied in this case. Accordingly, "[a] prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes." Jones, 332 F.3d at 696. Here, we are persuaded that Burge received the totality of constitutional protections due in his prior juvenile proceeding.
Sunday, May 01, 2005
The tension between the prior conviction exception and juvenile offenses
Many months ago I did this extended post spotlighting the legal debate over whether juvenile adjudications fall within the "prior conviction" exception to the Apprendi/Blakely rule. As noted before, there is a split on this important issue that encompasses not just federal circuits, compare US v. Smalley, 294 F.3d 1030 (8th Cir. 2002), with US v. Tighe, 266 F.3d 1187 (9th Cir. 2001), but also major state court rulings. See State v. Brown, 2004 WL 1490192 (La. July 06, 2004).
Over the weekend I was sent a thoughtful opinion from Washington state on this issue, Washington v. Tagaloa, No. 04-1-03162-8 SEA (Wash. Sup. Ct. Apr. 15, 2005) (available here). Here is the opinion's concluding paragraphs:
This Court does not question that it could make the factual determination of the existence of a prior juvenile adjudication. However, what is called into question is the legal determination regarding that adjudication. Unlike the prior conviction at issue in Apprendi, the instant adjudication may have received fair notice and a reasonable doubt standard, but did not receive "jury trial guarantees." Absent this fundamental protection, the instant adjudication does not qualify under the Apprendi exception. The process adopted for juvenile adjudications may provide sufficient due process protection for the purpose for which it is employed, i.e., rehabilitation, but the procedure falls short of the full panoply of rights required for purposes of sentencing enhancement as an adult.
If we wish to continue with the notion that the juvenile system is indeed separate and apart from the adult system –- with different goals and different protections, indeed different terminology, then it is unjust and unfair to allow juvenile adjudications to be treated as convictions for purposes of sentencing enhancements without the full panoply of rights afforded to adult defendants.
For the foregoing reasons, this court rules that that Mr. Tagaloa's juvenile adjudication may not be counted as part of his adult offender score under the SRA because it violates the due process protections of the Sixth Amendment. A juvenile adjudication does not constitute a prior conviction under the Apprendi exception. The fact of a juvenile adjudication can not be used to increase the penalty for a crime beyond the prescribed statutory maximum because juveniles are not afforded trial by jury to make the determination which is later used to increase an offender score.
May 1, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (4) | TrackBack