A Jury Question?
by: C nelson • January 26, 2011 • no comments
The simple answer to the above question is: no. SCOTUS decided against the defendant in a 5-4 decision known as Almendarez-Torres. Ironically, one of the members of the majority - Justice Thomas - later changed his mind and has since been urging his fellow justices to revisit and reverse A-T. However, a member of the minority, Justice Stevens, while agreeing that A-T was wrongly decided, refused to be the fourth vote to grant cert. (I'm not certain why there still wouldn't be four to grant cert, even without Stevens, but it is what it is.)
Is there a reason - in light of Justice Stevens' retirement - to think that there is now a sufficient number of judges who would grant cert and finally reverse A-T?
Well, there's been a mildly hopeful development, although the odds still favor denial of cert. For a full discussion of what that development is, see this post from SCOTUSblog.
If you were the only one on the planet who knew for certain, right this moment, that A-T would be reversed in the next year, what would you do differently? Easy. If your client is subject to prison because his criminal history (1) moves him along the sentencing grid or (2) makes him subject to a REPO sentence, you'd simply object to the use of those prior convictions in consideration of his sentence given that the existence of those prior convictions was neither admitted to nor found by a jury.
Of course, there's no harm in making that objection now. If cert is granted in a month or two, you'll look like a genius.
