The Shepard scramble of the "prior conviction" exception

I have created a new Almendarez-Torres and the prior conviction exception category archive because I fear that the Supreme Court's Shepard ruling today (basics here, first commentary here) will open up a huge new can of litigation worms. 

I have detailed in a number of pre-Booker posts the significance the "prior conviction exception," especially for states as they deal with the Blakely fall-out (examples here and here and here, collected here), and both the ruling and the dicta in Shepard make this confusing area of the law even more confusing.  Though Shepard is already making my head hurt, I hope to explain the case's importance and why it makes the post-Blakely world, especially for the states, even messier.

First, a great many sentencing determinations depend on judicial findings of prior conviction facts (even in states without guideline systems), and a great many pre-Blakely sentences have been affirmed post-Blakely by relying on the prior conviction exception (see, e.g., the recent Ordaz decision by the Third Circuit).  Thus, a great many past, present and future sentences may hinge on the continued validity of the Almendarez-Torres "prior conviction exception."

Second, in addition to the post-Blakely questions about the validity of the "prior conviction exception," there has also been great uncertainty concerning the scope of the exception.  Indeed, a number of lower courts have split over (a) whether the exception only applies to the fact of a prior conviction or more broadly to surrounding facts (such as whether an offender was on parole), and (b) whether juvenile convictions (which themselves did not include a jury right) fall within the exception.  (See generally this post on an Indiana case dealing with these issues or my recent Conceptualizing Blakely article which talks through some of these issues.)

Third, the Shepard ruling is opaque about both the validity and scope of the Almendarez-Torres "prior conviction exception."  As detailed in this post, Justice Thomas, who in 1998 provided the key fifth vote for allowing judicial fact-finding of prior convictions in Almendarez-Torres, is trying to declare the "prior conviction exception" dead for all purposes.  But four other Justices — the Almendarez-Torres dissenters, no less — seem to be keeping the "prior conviction exception" on life support for now, but its fate and application seem uncertain at best.

Here are the key passages from Justice Souter's opinion for the Court in Shepard, the first of which seems to concern the scope of the prior conviction exception, the second (from a footnote) concerns its future validity:

[T]he sentencing judge considering the ACCA enhancement would (on the Government's view) make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence.  While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute....

The dissent charges that our decision may portend the extension of Apprendi v. New Jersey, 530 U. S. 466 (2000), to proof of prior convictions, a move which (if it should occur) "surely will do no favors for future defendants in Shepard's shoes." Post, at 11.  According to the dissent, the Government, bearing the burden of proving the defendant's prior burglaries to the jury, would then have the right to introduce evidence of those burglaries at trial, and so threaten severe prejudice to the defendant.  It is up to the future to show whether the dissent is good prophesy, but the dissent's apprehensiveness can be resolved right now, for if the dissent turns out to be right that Apprendi will reach further, any defendant who feels that the risk of prejudice is too high can waive the right to have a jury decide questions about his prior convictions.