Re-list watch: Will the Court reconsider Almendarez-Torres?

By John Elwood
on Jan 27, 2011 at 3:37 pm

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.  In Ring v. Arizona (2002), in which the Court extended Apprendi to the finding of aggravating factors for imposing the death penalty, Justice O’Connor wrote in dissent that Apprendi “directly contradicts” Almendarez-Torres (although she viewed that statement as a criticism of Apprendi).  In Shepard v. United States (2005), amicus NACDL made a serious case for overruling Almendarez-Torres in light of subsequent developments in the caselaw,  but perhaps because the petitioner did not join that request (mercifully for me, because I represented the government), the Court did not take the argument up.  Justice Thomas, however, concurred in part and in the judgment, to state that “Almendarez-Torres . . . has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a majority of the Court”—the four Almendarez-Torres dissenters plus himself—“now recognizes that Almendarez-Torres was wrongly decided.”

The year after Shepard, Justice Thomas dissented from denial of cert in Reyes v. United States (2006), stating that “[i]t is time for this Court to do its part” and “reconsider Almendarez-Torres.”  Justice Stevens wrote an opinion respecting the denial of certiorari, writing that:

While I continue to believe that Almendarez-Torres was wrongly decided, that is not a sufficient reason for revisiting the issue. The denial of a jury trial on the narrow issues of fact concerning a defendant’s prior conviction history, unlike the denial of a jury trial on other issues of fact that give rise to mandatory minimum sentences, see Harris v. United States, 536 U.S. 545 (2002), will seldom create any significant risk of prejudice to the accused. Accordingly, there is no special justification for overruling Almendarez-Torres. Moreover, countless judges in countless cases have relied on Almendarez-Torres in making sentencing determinations. The doctrine of stare decisis provides a sufficient basis for the denial of certiorari in these cases.

Since Reyes, Justices Stevens and Souter—both Almendarez-Torres dissenters—have left the Court and been replaced by Justices Kagan and Sotomayor, respectively.

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.