An attempt to extend Apprendi
on Apr 5, 2005 at 7:17 pm
Peter Fleury, an assistant federal public defender in Fort Worth, Texas, is taking Justice Clarence Thomas at his word. It is time, according to Thomas, for the Supreme Court to reconsider the one remaining exception to the enhanced jury role in imposing criminal sentences. So, Fleury has asked the Court to reopen the 1998 decision that is the source of that exception: Almendarez-Torres v. United States (decided March 24, 1998, under docket 96-6839). It may be a long shot, but Fleury deemed it worth a try. The Court may consider the petition later this month.
Here is the background: In Almendarez-Torres, the Court by a 5-4 vote ruled that Congress could provide an enhanced prison sentence for a federal crime based upon the fact of a prior conviction. This was only a sentencing factor, the majority found, so prosecutors were not required to charge in the indictment the fact of an earlier conviction, and the judge could make a finding that a prior conviction existed.
When the Supreme Court decided Apprendi v. New Jersey in 2000, however, it ruled that a judge may enhance a sentence only if the enhancement was based upon facts found by a jury beyond a reasonable doubt – with one exception: the fact of a prior conviction. That exception has survived in the two post-Apprendi rulings by the Court, Blakely v. Washington last June, and United States v. Booker on January 12.
A majority of the Court, it appears, may no longer support that exception. Justice Thomas, in fact, argues that the majority has, in fact, abandoned that notion. He relies upon the four dissents in Almendarez-Torres, plus his own vote: he was in the majority in that 1998 decision, but has since said that he “succumbed†to an error in joining that ruling. In Thomas’ separate opinion on March 7 in the case of Shepard v. U.S., he wrote: “The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres’ continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres…â€
Two days later, on March 9, public defender Fleury filed a petition for rehearing in the case of Hugo Roman Almendarez-Torres.
The Texas public defender, citing Thomas’ most recent comments, argued: “There could be no more appropriate case to reconsider the holding in Almendarez-Torres, than Almendarez-Torres itself.†His client, he added, is still serving his 85-month prison sentence upheld by the Court in 1998, and is not expected to be released for another year.
Fleury needs the Court’s permission to file the petition formally, since it is almost seven years too late under the Court’s Rule 44, governing rehearings. If allowed to file it, Fleury still would not be guaranteed that rehearing would be ordered. The Rule specifies that a rehearing plea must be “limited to intervening circumstances of a substantial or controlling effect.†And it specifies that rehearing will not be granted “except by a majority of the Court, at the instance of a Justice who concurred in the judgment or decision.†Fleury thus is seeking to have Justice Thomas press his case for rehearing within the Court, with the argument that Apprendi and its aftermath were the kinds of change in cirumcstances contemplated by Rule 44..
The public defender filed an initial petition for rehearing out-of-time in August 2000, three months after the Apprendi decision; that was denied in September 2000. Thomas was already on record at that time as arguing that Almendarez-Torres had been wrongly decided, so a failure to grant rehearing at that time, though unexplained, may have been due to the fact that Apprendi was so recently decided that there was no impetus to take it further. Fleury is gambling that the Court may now be ready to do so.
