« The Shepard scramble of the "prior conviction" exception | Main | Summarizing Shepard (and seeking state insights) »

March 7, 2005

O'Connor's Apprendi laments in her Shepard dissent

In trying to make sense of today's Shepard ruling (basics here) for our post-Blakely world, I have covered Justice Thomas's concurrence in this post and Justice Souter opinion for the Court in this post.  Now let me complete the series with the work of Justice O'Connor in dissent.  Here are her points (with citation mostly omitted) about the now lively debate over the future of the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi rule:

I strongly suspect that the driving force behind today's decision is not Taylor itself, but rather "[d]evelopments in the law since Taylor." Ante, at 9.  A majority of the Court defends its rule as necessary to avoid a result that might otherwise be unconstitutional under Apprendi v. New Jersey, 530 U. S. 466 (2000), and related cases. I have criticized that line of cases from the beginning, and I need not repeat my reasoning here. It is a battle I have lost.

But it is one thing for the majority to apply its Apprendi rule within that rule's own bounds, and quite another to extend the rule into new territory that Apprendi and succeeding cases had expressly and consistently disclaimed.  Yet today's decision reads Apprendi to cast a shadow possibly implicating recidivism determinations, which until now had been safe from such formalism.

Even in a post-Apprendi world, I cannot understand how today's case raises any reasonable constitutional concern.  To the contrary, this case presents especially good reasons for respecting Congress' long "tradition of treating recidivism as a sentencing factor" determined by the judge, Almendarez-Torres v. United States, 523 U. S. 224, 243 (1998), rather than as a substantive offense element determined by the jury....

In short, whatever the merits of the Apprendi doctrine, that doctrine does not currently bear on, and should not be extended to bear on, determinations of a defendant's past crimes, like the ACCA predicates at issue in Shepard's case. The plurality's concern about constitutional doubt, ante, at 10–12, and JUSTICE THOMAS' concern about constitutional error, ante, at 2–3, are therefore misplaced.

March 7, 2005 at 12:43 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference O'Connor's Apprendi laments in her Shepard dissent:


Talk about getting religion! Justice Thomas is so eager to make amends for his vote in Almendarez-Torres that he wants to overrule it now, when even the Almendarez-Torres dissenters do not think that move is required by this case. That’s repentance!

Maybe the really incredible thing about Shepard is that you’ve got the four Justices who thought Almendarez-Torres was wrong at the time, and they have the fifth vote ready to overrule it, yet they decline! (for now).

My first thought was that this means Almendarez-Torres is terminally ill. It is hard to see why any of the Almendarez-Torres dissenters would not vote to overrule that case when the time comes, particularly given the intervening development of the Apprendi line.

But then, I ask myself, why wasn’t this the time? Even an incrementalist like me questions the wisdom of leaving the states with a rule that sentences may be enhanced on the basis of prior convictions but suggesting the rule is constitutionally doubtful. If Almendarez-Torres is to fall, surely better now than two years from now, when there will be, presumably, two more years of mess to clean up.

So if there was no good reason to wait, why did they? Could one of their number (Justice Ginsburg, perhaps?) be getting cold feet? Or do they simply not want to be accused of “overreaching” to decide the case? My guess is the latter and that Almendarez-Torres will fall, but the conference at which the Justices decided Shepard is one I will look forward to reading the notes of when one of the Justices includes them among their papers around the year 2020.

Posted by: Alan C. Michaels | Mar 7, 2005 4:01:00 PM

I find O'Connor's dissent strange, given that both she and Kennedy joined the majority opinion in Taylor (the only quibble from any of the 9 was Scalia's obligatory gripe about use of legislative history), and that Shepard is a logical extension/application of Taylor. It seems that she has let her antagonism towards Apprendi infect her approach even to the non-Apprendi aspects of the case.

Posted by: anon | Mar 8, 2005 12:28:31 AM

I am counsel for the defendant in the California supreme court case People v. McGee, in which the Cal supremes are deciding whether Apprendi grants a defendant a jury trial right when there is factual dispute about the conduct underlying a prior conviction being used for enhancement.
I am writing a supplemental brief on Shepard. I am not experienced in federal procedure and I have a question about it, as follows.
What I need to know is the federal procedural law that clearly explains why in Shepard a federal judge and not a jury made the determination about whether the defendant's priors involved "generic burglary" or not. The Shepard opinion makes no reference to any law on that point. And the amicus brief in Shepard that argued the Apprendi issue likewise merely asserts, without citation, that under the ACCA a judge and not a jury makes the determination about the character of a prior.
This may seem obvious -- like asking what is the citation for why robes are black -- but here in state court it would be helpful and would make me look smart.

Thank you one and all.

Posted by: John Halley | Apr 5, 2005 1:27:21 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB