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March 21, 2006

Opposition to cert petition urging offense-offender Blakely distinction

As detailed in this post, in seeking cert on a state Blakely case, the Minnesota Attorney General is arguing to the Supreme Court in Minnesota v. Allen that Blakely should be "limited to facts related to the offense itself."  I have an affinity for this argument because, as I have explained in recent articles, I think the Sixth Amendment should be interpreted to distinguish between offense conduct and offender characteristics.  But, because this offense-offender distinction has never been embraced by SCOTUS, I recognize that this approach to Blakely would mark something of a shift in the Court's approach to these issues (although it would conceptually justify the otherwise questionable "prior conviction" exception).

The defendant's brief in opposition to cert in Allen (which can be downloaded below) makes a strong argument that an offense-offender approach to the Sixth Amendment would mark a significant change in the Court's jurisprudence.  Here is the opening of the effective brief in opposition in Allen:

The petition should be denied for at least three reasons: first, there is no split of lower-court authority for the Court to resolve on the issue on which petitioner seeks certiorari; second, the rule proposed by petitioner would run afoul of years of Supreme Court precedent; and third, this case is not the proper vehicle for addressing petitioner's concerns.

Download minnesota_v. allen BIO.pdf

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March 21, 2006 at 11:39 AM | Permalink


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doug, I think another way to conceptually deal with the prior conviction exception is to say that -because of the double jeopardy clause and the prohibition against presumptions of guilt- prior convictions simply cannot be used to increase the potential sentence a defendant faces above the level allowed by the verdict or plea alone. That way prior convictions could only be used to increase sentences within the level allowed by the verdict, never above the level allowed by the verdict. The double jeopardy and presumption of guilt concerns are divorced from Sixth Amendment concerns anyway and such an approach would divorce prior convictions from any Apprendi concerns.

The double jeopardy problem is that defendants have already been punished for the prior offense and they therefore should not be punished again for a later offense which involves the use of the prior conviction to prove the offense.

The Winship/Mullaney/Patterson/Sandstrom issue is that prior convictions are presumed to be regular and not subject to collateral attack. Therefore, the use of priors to convict the defendant of an offense , of which the prior is a legally essential fact to support the potential punishment, would create an irreconcilable tension between the presumption of innocence and the presumption of regularity of previous court judgments.

As I have said before, I just don't see how Possession of Firearm by a Convicted Felon can be a crime, since it could not exist without the presence of a prior conviction, for which the defendant has already been punished.

My prediction is that the Almendarez Torres prior conviction exception will fall next term, which will then undermine the justification underlying all "recidivist offenses" that they are statuses, not crimes. Which will then mean a double jeopardy attack will come in and wipe out recidivist "offenses."

Which would leave the only legitimate use of prior convictions to be increasing or decreasing punishment within the otherwise allowable range. Which would then put us exactly back to where we were when I started practicing law over thirty years ago.


Posted by: bruce cunningham | Mar 21, 2006 6:26:39 PM

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