Will a new case undermine Almendarez-Torres?
by: Ryan • January 7, 2013 • no comments
Very quick post since I don't have a lot of time. As y'all know, there's a pretty big exception to the Blakely rule. The Blakely rule holds that a fact that increases the potential sentence beyond the maximum is a jury question. An exception is made for prior criminal convictions, which enhance a sentence beyond the maximum (say, by moving the defendant along the grid from an I up to an A). Prior convictions do not have to be proven to a jury. (But prior juvenile adjudications do have to be proven to a jury.)
The exception comes from a case called Almendarez-Torres. For a while, there was a majority on SCOTUS who thought Almendarez-Torres was wrongly decided, but not a majority who were prepared to overrule it. (Long story.)
Anyway, SCOTUS just granted cert to a case that, while it doesn't take on Almendarez-Torres directly, has a chance at undermining it. Or carving out an exception to the exception. The rest of this post is from Sentencing Law and Policy blog, which quotes heavily from SCOTUSblog.
- Descamps v. United States, 11-9540, set for :argument on Monday, January 7, presents the Court with yet another categorization exercise that highlights the tension between such exercises and the Court’s developing constitutional doctrine about when judges can find facts in criminal proceedings.
These paragraphs from Dan's terrific preview spotlights why anyone who enjoys (or hates) visiting Apprendi-land should keep an eye on Descamps:
- While the issue is pitched as one of statutory :interpretation, substantial constitutional concerns lurk just beneath the surface. As the Court explained in Cunningham v. California, under the Apprendi line of cases, the Sixth Amendment right to jury trial prohibits “a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” The doctrine’s focus on statutory maximums (which are rarely imposed), but not mandatory minimums (which always are) is an artifact of a line of cases that, on January 14, 2013, will, once again, be up for reconsideration when the Court hears argument in Alleyne v. United States. But the rule’s carve-out reflects the continued vitality of Almendarez-Torres v. United States, which held that fact-finding as to the existence of prior convictions can be done by judges, not juries, even when such findings can increase a defendant’s statutory maximum. Because this carve-out is a glaring exception from the constitutional rule, the Court has patrolled it carefully, in cases like Shepard v. United States, which limited the universe of materials a sentencing court can consult to determine what the jury in the prior case was actually required to find, or what the defendant necessarily admitted....
Although the Court specifically refused to grant that part of Descamps’s petition asking for Almendarez-Torres to be overruled, it will be interesting to see whether hostility to that case drives oral argument. By Justice Thomas’s tally in Shepard v. United States, “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.” So look for the Justices to limit the Almendarez-Torres carve-out by making inquiries into the nature of prior offenses as mechanistic as possible. Given the warnings by lower courts of the practical and constitutional difficulties raised by the Ninth Circuit’s outlier approach, we should expect the government to face an uphill battle. And, for all its technical aspects, it is one worth watching, as the heaviness with which the federal hand comes down on a lot of defendants depends on how their prior criminal convictions get categorized.
