The law and policy of criminal history

As Blakely followers know, Blakely did not disrupt Almendarez-Torres' "prior conviction" exception to the Apprendi jury trial rule.  And, because Booker and Fanfan do not directly address the exception, it seems likely, as previously discussed here and here, that the validity, scope and application of the "prior conviction" exception to the Apprendi/Blakely rule will remain uncertain even after a ruling in Booker and Fanfan. 

In my forthcoming FSR article, "Conceptualizing Blakely," I suggest a rationale for the "prior conviction" exception (which resonates somewhat with the Court's discussion in Almendarez-Torres, but perhaps not fully with its discussion in Apprendi). Of course, establishing a rationale for the exception is key for determining its scope and application — e.g., as previously detailed in this post, there is a fascinating legal debate over whether juvenile adjudications come within the "prior conviction" exception, which turns on the exception's perceived rationale.  (On this topic, I was recently sent an interesting Wisconsin brief, which can be downloaded here, that argues in detail why a juvenile adjudication should not come with the "prior conviction" exception: Download wisconsin_brief_on_use_of_juvenile_convictions.doc.)

Of course, beyond the Blakely issues, there are a host of other legal and policy issues that surround the use of criminal history at sentencing.  The pitched political battle this fall over amending California's Three Strikes Law (partially detailed here and here and here) is just one of many hot topics relating to the import and impact of criminal history at sentencing. 

And, as we gear up for the full USSC 15-year report coming soon, we should not overlook the important reports the Commission has already released this year on criminal history, available here and here.  Helpfully, some of the highlights from these reports, as well as additional insights, are usefully developed in a recent Fordham Law Review article by Commissioner Michael Edmund O'Neill and USSC researchers, Past as Prologue: Reconciling Recidivism and Culpability, 73 Fordham L. Rev. 245 (Oct. 2004). In this article, the authors conclude that

the criminal history categories used in the Federal Sentencing Guidelines have served as a reasonably reliable indicator in determining both culpability and the likelihood the offender will commit future criminal acts ... [but] the criminal history categories need to be refined to improve recidivism measures.

My FSR co-editor Nora Demleitner is currently developing an issue of Federal Sentencing Reporter focused on these criminal history matters.  No matter what the Supreme Court does in Booker and Fanfan, these issues of criminal history law and policy will surely remain of great importance.