Still more on the prior conviction exception

As noted before here, the scope and application of the (theoretically shaky) Almendarez-Torres "prior conviction" exception to the Apprendi/Blakely rule will need clarification before long. And, as also noted before, the Supreme Court just before Blakely was handed down granted cert in a case, Shepard v. US, 03-9168, that could be a vehicle for revisiting Almendarez-Torres.

Thanks to the folks at the SCOTUS Blog, we can now read the NACDL's amicus brief in Shepard via this link here; sure enough, the brief make a broadside attack on the Almendarez-Torres "prior conviction" exception. Among the interesting brief's key assertions are that Shepard "is an excellent vehicle for deciding whether Almendarez-Torres should be overruled." The brief also says:

The existence of prior convictions is not meaningfully distinguishable from any other factual finding necessary to increase a defendant’s sentence beyond the otherwise applicable maximum. Sentencing enhancements made on that basis must therefore be authorized by a jury verdict or a defendant’s admission. Almendarez-Torres v. United States, 523 U.S. 224 (1997), which reasons otherwise, was wrongly decided, has been undermined by subsequent decisions of this Court, and should now be expressly overruled....

[N]one of the purported justifications for a recidivism exception provide a reasoned basis for that "exceptional departure" from the general rule requiring jury findings for facts used to elevate a sentence beyond the otherwise-available maximum.

In a footnote, the NACDL brief suggests that requiring recidivism to be proven to a jury would have "far more modest effects" than the Blakely ruling. This might technically be true; but the many post-Blakely cases affirming convictions on the basis of the prior conviction exception reveals that the impact of reversing Almendarez-Torres would still be profound.

For some recent cases relying on the prior conviction exception to affirm enhanced sentences, see People v. Winn, 2004 WL 1903428 (Cal. App. Aug. 26, 2004) ("Blakely is an extension of Apprendi. Apprendi specifically excluded recidivist findings from its holding that a jury must determine any facts that aggravate a sentence. Moreover, Apprendi violations are subject to harmless-error analysis. Central to most of the trial court's analysis are the defendant's prior convictions, which are not subject to Apprendi or Blakely. Only a single factor is needed to impose the upper term. Thus, to the extent that the court made findings about the dangerous nature of the offense that are not reflected in the jury's verdict, it was harmless beyond a reasonable doubt."); US v. Losoya-Mancias, 2004 WL 1903390 (D.N.D. Aug. 25, 2004) ("There are a multitude of complex questions raised by the Supreme Court's decision in Blakely v. Washington..... However, despite the fate of criminal justice and federal sentencings in the wake of Blakely, it is well-understood that Blakely did not disrupt the maxim that courts may take into account the fact of a prior conviction without the use of a jury.... An exception has been carved out for prior convictions and that was the express holding in Almendarez-Torres. In this case, the enhancement to Mancias' sentence was because of his prior felony convictions. This Court's finding that Mancias is a career offender under the Sentencing Guidelines was based on his prior convictions, which convictions were appropriately used for purposes of enhancing Mancias' sentence.")