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March 7, 2005

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.

March 7, 2005 at 12:11 PM | Permalink


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» The Apprendi Avalanche from Law Dork
The Supreme Court today took another opportunity to move its Apprendi jury-right jurisprudence further along, with Justice Thomas all but declaring the prior-conviction exception to Apprendi to be dead. Shepard v. United States features the Blakely lin... [Read More]

Tracked on Mar 7, 2005 1:35:03 PM

» 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 2:36:51 PM


Okay, now I'm totally confused. What am I supposed to tell the judge for whom I work when I go into his office to explain this ruling?
"Okay, judge, well, under the ACCA, you can't look to police reports or other non-judicially presented data to determine whether an offense qualifies under the statute. But, based on Justice Thomas's concurrence, you may no longer be able to find any facts regarding a defendant's prior convictions for purposes of sentencing outside the ACCA, except of course, you have discretion to follow the Guidelines or not, so long as your sentence is reasonable, or absent a waiver."
I mean, if I'd give that answer on a final exam in law school, I don't think I would have passed. And I see how in the states this could cause MANY more problems than in the feds (where we seem to have this overriding idea of "reasonable discretion").

Because of the confusion, and this overriding discretion available in the federal system, will this case just be read very narrowly-- i.e. it's ultimate holding (can't use police reports to determine whether crime qualifies under ACCA)? To me, this case systems LESS of a big deal because of its limited application.

Assuming that A-T goes down, how can/does that affect the "discretionary" Guidelines calculation judges must do? (Or, is my assumption flawed because it would depend upon a new fifth vote replacing the Chief and rethinking the proper remedy for Booker problems)

Will Judge Cassell be the first to write an opinion applying Shepard beyond its ultimate holding?

Why doesn't SCOTUS try to talk among itself, use persuasive techniques and, upon a feeling of duty to say what the law is, pressure itself to write honest-to-God majorities?

Posted by: district clerk battling booker | Mar 7, 2005 12:57:24 PM

It doesn't seem that unclear to me. Any fact that wasn't resolved by a prior jury finding or admission of the Defendant may not be used to increase the Defendant's sentence, unless submitted to a jury and proven beyond a reasonable doubt. If there is a significant factual dispute about the nature of the prior jury findings or Defendant admission is unclear, this dispute must be resolved by a jury. The holding of Taylor is necessary to avoid constitutional doubt.

Posted by: R/W | Mar 7, 2005 2:09:02 PM

The big mystery is why the Court hasn't already revisited Almendarez-Torres. Defendants, especially those convicted of illegal reentry (the offense at issue in Almendarez-Torres), have been filing cert petitions on that issue since Apprendi, so it's not as if the Court hasn't had an opportunity. There's been 5 votes to overrule A-T since Thomas "switched sides" in Apprendi, so what's the hold-up?

Posted by: anon | Mar 8, 2005 12:37:18 AM

The scales are tipped in favor of district clerk's confusion and against R/W's matter-of-fact clarity. I read district clerk's "questions" as premised on the absence of a majority opinion on the constitutional issue. As a clerk, I would feel uneasy telling my judge that it appears the rationale for the rule in A-T has not only been eroded, but in fact it is unconstituional for the court to enhance beyond the maximum under these circumstances. Formally, I'd say a district court is safe simply "not reading the police report" and following the procedures laid out here. But, judicial decision-making is far from formal, and the easiest cases don't usually make it to SCOTUS decision. (Consider the analysis of what is a "well-settled" law in 1983 litigation.) This Shepard case reminds me of Sosa v. Alvarez-Machain and others, where the Court first takes on this minute issue (whether an extradition treaty was violated in Sosa), and then later takes the case again to decide the matter finally.

I strongly agree that the Court should be attempting to form majorities in these cases, and it is nice to see, at least, that one formed in the recent cases narrowing the class of death-eligible offenders. But there are also those pesky "passive virtues," which suggest the Court should tread lightly. Yet I think Justice Thomas has the better realization that defendants are being sentenced unconstitutionally and this result should not continue. Because the Court does not adopt that, I am wondering with others whether some Justice in the A-T dissent (Ginsburg was mentioned) has gotten cold feet.

Is it just me, or does Justice Souter have a taste for obiter dicta?

Posted by: Erik Newton | Mar 8, 2005 2:42:06 AM

It doesn't seem that unclear to me. Any fact that wasn't resolved by a prior jury finding or admission of the Defendant may not be used to increase the Defendant's sentence, unless submitted to a jury and proven beyond a reasonable doubt. If there is a significant factual dispute about the nature of the prior jury findings or Defendant admission is unclear, this dispute must be resolved by a jury. The holding of Taylor is necessary to avoid constitutional doubt.



Posted by: molukos | May 13, 2005 7:44:12 AM

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