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March 7, 2005

Summarizing Shepard (and seeking state insights)

The Supreme Court's opaque work today in Shepard v. US (basics here) is hard to fully comprehend (consider this comment).  Consequently, let me spotlight again the basic summary of the case here from the SCOTUSblog and summarize below my recent Shepard posts:

I am making such a big deal over Shepard and the possible demise of the Almendarez-Torres "prior conviction exception" in part because many states — including many without guideline structures — have sentencing laws (such as three-strikes laws) that rely on judges finding prior conviction facts.  In the wake of Booker and its "advisory dodge," the Almendarez-Torres "prior conviction exception" may seem like a very minor issue for the federal system.  But because every state, I believe, has some sort of mandatory recidivist or three-strikes law, the overall impact of the demise of the Almendarez-Torres could be, dare I say, perhaps even greater than Blakely.

Of course, if the Harris mandatory minimum exception to the Jones-Apprendi-Blakely rule remains standing (a big IF), some judicial fact-finding at sentencing will still be permissible even if (when?) the Almendarez-Torres "prior conviction exception" is eliminated.  But my own sense of state sentence laws is that the demise of the Almendarez-Torres could be hugely important.  But I may lack any real perspective, and thus I would be grateful if those folks most familiar with state sentencing systems might use the comments to explain the possible impact if the Almendarez-Torres "prior conviction exception" was formally eliminated.

UPDATE: Jonathan Soglin at Criminal Appeal here contributes a number of important insights about Shepard and also details its likely immediate impact on People v. McGee, no. S123474, a California Supreme Court case concerning the applications of California's Three Strikes Law.

March 7, 2005 at 01:46 PM | Permalink


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» so much going on today - SCOTUS from Three Generations
First, SCOTUS issued an opinion in Shepard v. United States, the basics of which Professor Berman explains here. He then goes on to explain in depth the "prior conviction exception" and it's battered future. [Read More]

Tracked on Mar 7, 2005 2:35:53 PM


Shepard has HUGE implications for State v. Franklin (which will be argued in the New Jersey Supreme Court on 3/14). The NJ "Graves Act" allows imposition of an Apprendi-like extended-term sentence only where (1) the current offense involved a firearm; and (2) defendant has a prior conviction for an offense during which he possessed a firearm. In many cases, the judgment of conviction won't make it clear that the prior conviction qualified as a Graves Act offense. For instance, a robbery conviction won't necessarily show that defendant used a firearm to commit the offense because firearms possession is not an essential element robbery. And so Shepard appears to define the limit of the sentencing judge's inquiry. He/She may look at the indictment-plus-jury instructions-plus verdict, or at the plea colloquy, to determine whether the jury necessarily found, or the defendant in pleading guilty actually admitted, the sentence-enhancing fact of possessing a fireaarm while committing the prior offense. The judge may NOT review the transcript of the prior trial to determine, as a matter of fact, that the defendant possessed a firearm, nor may the judge review the evidence of the prior trial to determine what the jury would have found had it been properly instructed.

Shepard also directly impacts on State v. Abdullah (which also will be argued in the N.J. Supreme Court on 3/14). The trial judge there relied on statutory aggravators 3, 6 & 9 under NJSA 2C:44-1a to enhance the defendant's sentence. The Appellate Division said that, even if Blakely applies to NJ, the findings under 3, 6 & 9 fall under the prior conviction exception to Apprendi's/Blakely's Sixth Amendmemnt holding. Shepard proves that this is flatly wrong, since those statutory aggravators require normative judgments beyond the simple fact of prior conviction (such as a finding of "future dangerousness").

Posted by: Steve | Mar 7, 2005 3:29:12 PM

The United States Supreme Court just vacated the decision from the Eighth Circuit addressing Shepard type concerns in United States v. Menteer. In Menteer the defendant was charged with Missouri's first degree burglary but then pled guilty to a reduced charge of second degree burglary which did not meet the requirements for generic burglary under Taylor v. United States. The Supreme Court had been holding on to this case for over a year while they were deciding Shepard.

Posted by: Benicia Livorsi | Mar 21, 2005 1:01:30 PM

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Posted by: | Oct 14, 2008 8:25:20 AM

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