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May 19, 2007

New cert petition on prior conviction exception to Apprendi

As detailed in posts here and here and here, I have long thought it would be only a matter of time before the Supreme Court would have to take up a case addressing head-on the continued validity and precise scope of the Apprendi-Blakely "prior conviction exception."  And, though the Court has long avoided a long-established split concerning this exception and juvenile adjudications, a new cert petition filed by SCOTUS gurus Jeff Fisher and Tom Goldstein would seem to present the Court with a great opportunity to return to these important issues.

The new cert petition comes in Sasouvong v. Washington and can be downloaded below. Here is the sole questions presented and the first paragraph of the statement:

QP: Whether a criminal defendant's right to a jury trial under the Sixth and Fourteenth Amendments is violated when a prior juvenile adjudication – not itself decided by a jury – is used by a judge to impose a longer sentence than otherwise would be permissible.

Statement: This case presents a pressing issue concerning the administration of criminal justice, over which the federal and state courts across the country are openly and deeply split.  The question is whether a court may use a prior nonjury juvenile adjudication to impose a longer sentence than otherwise would be permissible.  Acknowledging the deep divergence of authority on the issue, a divided Washington Supreme Court has held that a court may do so....

Download sasouvong_petition.pdf

May 19, 2007 at 12:52 PM | Permalink


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Well this is obviously a cert grant, right? Can anyone think of why this wouldn't go up? The Washington Supreme Court is clearly wrong on this question. If "reliability" were the necessary and sufficient condition for using the fact as an enhancement, then neither Apprendi nor Blakely make any sense at all. After all, one could argue that the sentencing factor in Blakely was found with the requisite degree of procedural and substantive "reliability." So, the Court will likely have two Blakely cases next Term: Faulks v. United States, and then Sousovong. It will also probably take one of these crack Guidelines cases, which is more of a Booker case (I think it's critically important to not treat Blakely and Booker the same). It should make for an interesting Term.

Posted by: Aaron | May 19, 2007 2:04:44 PM

It will (and should) go up because of 1) the authors; and 2) the vast split.

Posted by: Anon | May 19, 2007 4:14:08 PM

The only issue that the cert petition appears to wash over a bit is the state law question of whether criminal points are added based on the fact that an adjuciation *took place* or the fact that the adjudication resulted in the juvinel judge reaching a finding of *guilt.* The Washington statute providing that the word "adjudication" shall be interchangeable with "conviction" does not remotely answer that question. That seems to be the one sticking point with the petition. If criminal points are added simply because an *adjudication took place* -- regardless the *outcome* of that adjudication -- then this case would clearly be one of Recuenco harmless error.

I don't think that should, or will, be enough to deny a cert grant here. But I would expect the Court to ultimately remand the case to the Washington Supreme Court to resolve whether the *adjudication* only results in criminal points if it resulted in the juvenile judge finding the juvenile defendant *guilty* of some act.

Posted by: Aaron | May 19, 2007 7:17:27 PM

Shouldn't it be called the Almendarez-Torres exception? And wouldn't it be an almost certainty that it would be overturned?

The original dissenters in that case--Scalia, Stevens, Ginsburg, Souter--will be joined most definitely by Thomas (see Apprendi dissent) who was oddly in the majority there. Kennedy and Breyer will necessarily affirm, as will Alito, based on his Cunningham dissent.

The only uncertainty would seem to be with Roberts, whose vote will simply determine whether it will be a 6-3 or 5-4 reversal.

Posted by: neil | May 20, 2007 8:23:59 PM


Posted by: Garri Sergeev | Sep 22, 2007 2:35:08 PM

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