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May 17, 2012

Juve priors, sentencing enhancements and Almendarez-Torres makes SCOTUS relist watch

Hard-core Apprendi/Blakely fans (and perhaps only hard-core fans) should be excited to discover this paragraph that lurks deep within this latest installment of John Elwood's always amusing reviews at SCOTUSblog of relisted and held cases on the Supreme Court docket:

Staunton v. California, 11-8851, involves whether the trial court’s use of a defendant’s prior juvenile adjudication, in which he was not afforded a jury trial, to trigger a sentencing enhancement that doubled his state prison sentence violated his right to due process and a jury trial under the Sixth and Fourteenth Amendments.  The Court’s decision in Almendarez-Torres v. United States (holding that the fact of a prior conviction, used for a sentence enhancement, could be found by a judge rather than submitted to a jury) has lived sort of a shadow existence since the Court in Apprendi v. New Jersey said it was “arguabl[y] . . . wrongly decided” -– and since Justice Thomas, who provided the fifth vote for the rule in Almendarez-Torres, announced in an Apprendi concurrence that he had “succumbed” to error in that case.  (In a later concurrence in part and in the judgment in Shepard v. United States, Justice Thomas observed that “a majority of the Court” -– the four Almendarez-Torres dissenters plus himself -– “now recognizes that Almendarez-Torres was wrongly decided.”)  I have been amazed that even as Apprendi grew to engulf so much of sentencing, the Court has not revisited Almendarez-Torres –- despite relisting a couple of cases presenting the continuing validity of the case in January 2011, as discussed here.  As Apprendi noted, Almendarez-Torres rested in part on the idea that the defendant enjoyed procedural protections at the time of the original conviction, and so the Constitution did not require that the fact of a prior conviction be tried to a jury when it was later used as a sentence enhancement.  But Staunton did not receive that protection.  Staunton is the third case this Term in which the Court has relisted notwithstanding that the respondent waived, and the Court has not requested, a response.  The relist in those two cases was because of procedural wrinkles that needed to be ironed out; here, there is more of an indication that one or more Justices are taking a closer look — the Court here requested the record.

May 17, 2012 at 08:12 PM | Permalink


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How many cert. petitions do you think the Court gets asking it to overrule Almendarez-Torres? Even I've filed one and I've only done a couple of cert. petitions. It amazes me that the Court has not acted on one. On the other hand, a former Thomas clerk once told me, rather cryptically, that he did not think A-T would ever be overruled.

Posted by: Michael J.Z. Mannheimer | May 17, 2012 9:34:59 PM

Keep in mind that in California there is a statutory right to a jury trial on the existence of the prior conviction (PC 1025), which Almendarez-Torres says is not required under the Constitution. The issue here is whether a jury trial is required for the underlying facts that form the basis of the conviction that enhances the sentence. These issues are not entirely the same. If Staunton is taken up and finds that a prior conviction to be used as an enhancement of sentence must afford a jury trial, this could upset all kinds of other laws that trigger additional criminal sanction based upon a status. What comes to mind are gun possession statutes that are triggered by service of ex parte restraining orders or gun possession based upon an involuntary mental health commitment. I am sure there are others that do not involve guns.

Even though the defendant has a right to a jury trial in the new charge, just like a California defendant has the statutory right to a jury trial on the existence of the prior conviction, there is no jury trial in the proceedings that form the basis of the status of mental health commitment, the restraining order or in the case of juveniles, the underlying felony conduct.

I wonder how much help the record will be in Staunton. He pled guilty and admitted the prior conviction, thus waiving his jury trial right to the existence of the prior. He objected that the strike allegation “was improperly alleged and imposed violating his Sixth and Fourteenth Amendment rights because he had sustained the true finding in a juvenile matter without the benefit of a jury.” In other words, even if Almendarez-Torres had come out the other way, it would not have addressed where Staunton's ojbection lies.

Posted by: David | May 17, 2012 10:58:36 PM

I think we are up the wrong tree here. I think AT should not be overruled because it makes no sense to say a def should have the right to have a jury determine whether a prior conviction exists. As I've said many times, I do not believe a prior conviction can be an element of a crime because the fact of the conviction is a court judgment, presumed to be valid.

I'm running,, but tonight if I have time, I'll lay out an alternative viewpoint of the prior conviction issue, arrived at after studying over one hundred years of supreme court cases.


Posted by: bruce cunningham | May 18, 2012 7:41:38 AM

oh i don't know bruce considering the massive number of convictions every day that happen becasue the wrong person is in the right place. At the very least there should be a HEARING to make sure the RIGHT convictions are being applied to the RIGHT PERSON....as evidenced by the rescent strip search case that went to the USSC becasue the state was too fucking retarded to update its damn system so kept arresting the guy for a CRIME THAT NO LONGER EXISTED!

Posted by: rodsmith | May 18, 2012 12:25:12 PM

rodsmith, yes, a defendant should be able to contest the validity of a prior conviction and there are multiple ways to do that. A post-conviction motion or a motion to suppress, or a hearing challenging the accuracy of the prior record level worksheet. Or the state can provide for a jury determination as a matter of state statutory law. The question is whether there is a sixth amendment right to a jury determination and, in my opinion, since the existence of a prior conviction is not a criminal prosecution, the answer is no.


Posted by: bruce cunningham | May 18, 2012 2:48:51 PM

ahh but bruce let's not forget that here we are taling about juvinile court. sorry NO BRD standard there! therefore they CANNOT be counted! in a normal criminal court which requires a BRD standard for ANYTHING that effects a sentence!

as for the excuse THEY CAN FIX IT AFTERWARD....SORRY in my book in ANY interaction between the state and a CITIZEN the burdon is on the STATE!

Posted by: rodsmith | May 18, 2012 8:50:12 PM

Reviews of verdicts should be done by experienced and excellent investigators. Review by know nothing appellate judges, mostly political hacks who lost an election and need a make work, do nothing government job, now that violates Fifth Amendment due process.

Is there any question that the procedures resulted in a false verdict. If there is not, the due process claims are pretextual, seeking to fool the court. All costs should be assessed to the personal assets of the defense lawyers. And summary motion should be granted.

The count of violent offense episodes should begin at 14, in 123D. No career violent offender should reach 18, the beginning of the peak of the violent criminal career for most. After 3 violent episodes, it does no really matter if someone is innocent, having proven himself to be a bad guy, requiring exit from our world for public safety.

Posted by: Supremacy Claus | May 18, 2012 11:07:20 PM

Bruce Cunningham,

Is it your contention that, for purposes of the Sixth and Fourteenth Amendements, the existence of a prior felony is not an element of the crime of being a felon in possession of a firearm?

Posted by: Michael J.Z. Mannheimer | May 19, 2012 4:25:31 PM

Cert. was denied today. http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/11-8851.htm

Oh well.

Posted by: Michael Ausbrook | May 21, 2012 8:44:39 PM

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