The Prior Conviction Exception to Apprendi

This wikilog article is a draft, it was not published yet.

by: Ryan • June 20, 2013 • no comments

In today's ACCA decision, Justice Thomas issues a concurring opinion, and he says:

The only reason Descamps’ ACCA enhancement is before us is “because this Court has not yet reconsidered Almendarez-Torres v. United States , 523 U. S. 224 (1998), which draws an exception to the Apprendi line of cases for judicial factfinding that concerns a defendant’s prior convictions.” Shepard v. United States , 544 U. S. 13, 27 (2005) (THOMAS, J., concurring in part and concurring in judgment). Regardless of the framework adopted, judicial factfinding increases the statutory maximum in violation of the Sixth Amendment. However, because today’s opinion at least limits the situations in which courts make factual determinations about pr ior convictions, I concur in the judgment.

You have to like that "yet." Is he confidently predicting the future or is he delusional? He was successful in getting Harris reversed. But SCOTUS has passed up a number of opportunities to do the same with Almendarez-Torres. The only thing that's changed, I think, is that Breyer -- who hates Apprendi -- has come to accept it, hence his about-face in Alleyne. Now that he's crossed that rubicon, is overruling Almendarez-Torres next?

UPDATE: If this topic interests you, check out this post from SCOTUSblog, offhandedly raising the possibility A-T could be overruled.