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January 27, 2011

Re-lists has experts pondering possible SCOTUS reconsideration of Almendarez-Torres

Anyone who has missed deep discussions of the Sixth Amendment and Apprendi jurisprudence in recent sentencing discussions — and you know who you are, fellow sentencing geeks — will likely get real excited upon reading this terrific new post by John Elwood at SCOTUSblog, which is titled "Re-list watch: Will the Court reconsider Almendarez-Torres?".  The post merits a close read in full by all Apprendi aficionados, as this partial excerpt from the start and end of the post highlight:

In the landmark decision Apprendi v. New Jersey (2000), the Supreme Court held that a judge may increase a sentence only if the enhancement was based upon facts found by a jury beyond a reasonable doubt.  The rule recognized only a single exception (and that grudgingly): the fact of a prior conviction, which the Court had narrowly upheld in Almendarez-Torres v. United States (1998), over the dissent of Justices Scalia, Stevens, Souter, and Ginsburg.

Almendarez-Torres has been subject to substantial criticism from the moment Apprendi was decided. The Apprendi majority itself acknowledged that “it is arguable that Almendarez-Torres was incorrectly decided.”  And in a concurrence, Justice Thomas, who had been in the majority in Almendarez-Torres, said that he had “succumbed” to “error” in providing the fifth vote for that decision....

As noted here, the Court called for a response with respect to two petitions that ask the Court to reconsider Almendarez-Torres: Ayala-Segoviano v. United States, 10-5296, and Vazquez v. United States, 10-6117.   Since the government filed briefs in opposition, the Court has relisted those cases three times, at the January 7, 14, and (apparently) 21 Conferences.

It is impossible to know with any certainty what the repeated relists mean.  The relatively lengthy delay of three relistings suggests to me that someone has drafted an opinion dissenting from the denial of cert. — if the past is any indication, Justice Thomas, who has the zeal of the converted on this issue.  I’ve discussed these cases with Tom, who thinks that Justice Kagan may be deciding whether to vote to grant.  While on the Second Circuit, then-Judge Sotomayor noted the “tension between the spirit of [United States v.] Booker [(2005)] — that all facts that fix mandatorily a defendant’s sentence should be found by a jury or admitted by the defendant — and the Supreme Court’s decision in Almendarez-Torres,” but of course she was “bound by the Supreme Court’s ruling[]” in that case.  United States v. Estrada (2d Cir. 2005).

Ayala-Segoviano and Vazquez will give us our first indication of what Justices Sotomayor and Kagan think about the validity of Almendarez-Torres — and about whether stare decisis warrants maintaining one of the most-criticized criminal law precedents still on the books.  The change in the Court’s personnel (particularly the replacement of Justice Stevens with Justice Kagan) may mean there is finally a fourth vote to grant.

January 27, 2011 at 05:35 PM | Permalink


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I am a pretty strong defender of Apprendi, but with respect to prior adjudications of guilt, the criminal has either (a) had the jury trial right already for previous convictions or (b) had juvenile adjudications which are a constitutional substitute. So where's the issue?

Posted by: federalist | Jan 27, 2011 7:57:48 PM

Federalist, you have a common misunderstanding of what AT stands for. AT says that the fact of a prior conviction -- i.e., the fact that you were actually convicted of a crime, rather than someone else -- need not be proven by the government beyond reasonable doubt. The issue isn't whether the defendant can re-litigate the facts of what occurred during the prior conviction.

Here's a simple example. Defendant is indicted for illegal re-entry. The statutory maximum penalty increases from two years to fifteen years if the defendant was previously convicted of a felony. The government claims the defendant was convicted of burglary (a felony) five years ago. With AT, the government need not plead in the indictment that the defendant was previously convicted of a felony. Rather, it can prove at sentencing that the defendant was convicted of a felony and needs not prove that fact beyond a reasonable doubt. This would matter if the defendant claims that the government is confusing him for someone else.

So, it is true that the facts that led to the prior conviction were previously found beyond a reasonable doubt (i.e., someone was convicted of breaking into a home). But the issue of whether there was, in fact, a prior conviction has never been proven beyond a reasonable doubt and it will never be submitted to a jury.

Posted by: misc | Jan 27, 2011 8:24:12 PM

Misc, maybe I am missing your point, but it seems to me that the defendant could certainly raise such an issue at sentencing and would be able to introduce evidence on the point. I don't see how this situation makes AT such bad law.

Posted by: federalist | Jan 27, 2011 8:33:12 PM

The defendant could raise the issue for sure. But that's not what apprendi is about. Apprendi normally requires facts that raise the statutory maximum sentence the defendant is subject to be proven to a jury beyond a reasonable doubt. With the issue of the existence of the prior conviction, the defendant cannot have a jury decide whether he was in fact previously convicted of a crime, even though in illegal re-entry cases that fact can raise his sentencing exposure ten-fold, from two up to twenty years.

Posted by: misc | Jan 27, 2011 8:48:27 PM

Put another way, your objection is really just an objection to Apprendi itself, which elevated the importance of the jury over a sentencing judge when it came to facts that increased the defendant's sentencing exposure. After all, you could have dismissed the concern in Apprendi itself by telling the defendant he shouldn't worry, since he would have the chance to challenge the hate crime sentencing enhancement at sentencing before the judge.

The question is why the fact of a prior conviction should be treated differently than other facts. I don't know any sensible reason why they should be treated differently. Indeed, I'm not sure anyone on the court thinks they actually should be treated differently. You have some who think Apprendi was wrongly decided (and therefore who think AT is rightly decided) and you have some who think Apprendi was rightly decided (and therefore AT was wrongly decided). It's hard to take middle position on any sort of principled basis.

Posted by: misc | Jan 27, 2011 9:00:35 PM

I think AT can be reconciled with Apprendi. The jury trial right (putting aside the juvie issue) was vindicated beforehand, so no need for a second go-round. The identity issue is exceedingly minor, and, in my view, no reason to have the jury relook at the conviction.

Posted by: federalist | Jan 27, 2011 9:08:41 PM

"The relatively lengthy delay of three relistings suggests to me that someone has drafted an opinion dissenting from the denial of cert."


It could be a repeat of last term and the court is preparing a per curium decision

Posted by: k | Jan 27, 2011 9:51:01 PM

I'm with federalist on this one. I think Apprendi and AT can coexist because, in my view, a prior conviction may not, consistent with the double jeopardy clause, ever be used as an element of a new offense.

Federalist, in answer to your question of "where is the issue?", the answer is it is an issue when the existence of a prior conviction is used to elevate a crime rather than elevating a sentence. Let me give you an example. In NC we have something called "Habitual DWI, " where the defendant commits DWI after having three prior convictions of DWI. DWI is a misdemeanor and Habitual DWI is a felony.

I have no problem with a prior conviction increasing the sentence for the misdemeanor of DWI. I have a big problem with a prior DWI increasing the misdemeanor of DWI to the felony of habitual DWI, which can then be used to trigger another recidivist sentence enhancer, the habitual felon act.

In other words, in my book, the second time you commit a misdemeanor shouldn't mean you've committed a felony. Why is the double jeopardy clause implicated here? Because it is clearly established law that a greater offense and a lesser offense are the same offense for double jeopardy purposes. Brown v Ohio. By definition, the proof of a greater offense proves a lesser offense. If a prior conviction is used as an element of crime, the proof of the crime automatically proves the prior conviction. In the Fourth Circuit case of US v Cheek, the court lists four more reasons why prior convictions can't be used as elements of crime, most prominently the reason federalist cites, which is the def has already had his day in court on the charge.

It is also fundamental that a prior conviction cannot be collaterally attacked on post conviction. But if a prior conviction is used as an element, due process requires that the def be able to challenge it in the current case, which is a collateral attack.

Doug graciously allowed me to write an article for the Federal Sentencing Reporter on this issue of the use of prior convictions as elements of crime, which I'll be glad to send to anyone interested.


Posted by: bruce cunningham | Jan 27, 2011 11:26:25 PM

I'd bet on another Thomas dissent from denial.

Posted by: Chris | Jan 28, 2011 12:29:03 AM

Federalist, you wouldn't have the jury "re-look" at the issue. The fact of a prior conviction has never been adjudicated before. Moreover, you can grant an "exceedingly minor" exception (in your view, not to the defendant who has been wrongfully identified) to the Apprendi rule, but it's not a principled one. I also wonder what other facts would be swept under your "minor" exception and what standard you would use to determine what facts fall under your exception.

Posted by: misc | Jan 28, 2011 6:23:15 AM

misc, I'm not following you when you say the "fact" of a prior conviction has never been adjudicated before. It is clearly established law that a conviction, being an official court judgment, is presumed to be proper. Do you agree with me that the propriety of a prior conviction has to be litigated in the file of the original conviction? It would be chaos for the validity of a new york conviction to be litigated in north carolina. Not to mention unconstitutional under the full faith and credit clause

I think federalist has this one right.


Posted by: bruce cunningham | Jan 28, 2011 8:37:18 AM

misc, have you ever tried arguing a recidivist "offense" to a jury? It can't be done without improperly arguing jury nullification, because the existence of the prior conviction is presumed regular as a matter of law.

Posted by: bruce cunningham | Jan 28, 2011 8:47:27 AM

I'm not sure why people are having such a hard time understanding misc's point. Let me give you an example from an actual case I worked on: my client John Smith (not his real name, but he had a name pretty common in the Latino community) has been convicted of crime X. Prosecutor claims he was previously convicted of crime Y and should be subject to a punishment beyond the otherwise-applicable maximum. She produces a judgment of conviction for John Smith with a particular inmate identification number. My client claims the judgment of conviction was for a different John Smith, and that some court official accidentally wrote his inmate ID number on the judgment of conviction. So the issue is whether THIS John Smith, the one before the court, is the SAME John Smith mentioned in the judgment of conviction. That is an issue of fact -- it either is or is not the same John Smith -- in the same way that the identity of the murderer, or the robber, or the drug dealer in any mine-run criminal case is an issue of fact. And, yes, at the first trial, a jury had to decide (or the defendant had to admit) that THAT defendant was the guy who committed the crime. But the issue here is whether THIS defendant is THE SAME GUY. It is an issue of fact that raises the sentence above the otherwise-applicable maximum. And it is an issue of fact that has never, ever, ever been litigated before. So the distinction between AT and Apprendi is what? That the folks who complete judgments of conviction are the cream of the crop of our society who never make mistakes?

Posted by: Michael J.Z. Mannheimer | Jan 31, 2011 9:38:46 PM

I think the last comment wins the argument. Apprendi and Almendarez-Torres are extremely hard to reconcile.

Posted by: jsmith | Feb 23, 2011 12:39:20 PM

Apprendi normally requires facts that raise the statutory maximum sentence the defendant is subject to be proven to a jury beyond a reasonable doubt.

Posted by: DIY Superannuation | Dec 21, 2011 12:49:21 AM

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