Prior Conviction Exception: Possibly Short-Lived

The exception for "the fact of a prior conviction," best known from Apprendi and repeated in Blakely, has been widely discussed for some time as a likely casualty in a future case. Doug Berman at Sentencing Law & Policy put up an article in this post yesterday by Professor Rory K. Little of the Hastings College of Law in San Francisco. The article appeared in Monday's Daily Journal. (I have not looked to see what the Daily Journal is.) I don't think I'm violating any copyrights by quoting the paragraphs about the exception and its likely future:

Indeed, it seems likely that if Blakely is applied in Booker/Fanfan as most expect, two other precedents also may soon be overruled. Harris v. United States, 536 US 545 (2002), upheld statutory "mandatory minimums" after Apprendi, even though judge-found facts are often used to trigger them.

And in Almendarez-Torres v. United States, 523 US 224 (1998), the court ruled that the fact of a prior conviction need not be proved to a jury beyond reasonable doubt, even if it increases a statutory maximum.

That's the 5-4 decision in which Justice Thomas initially voted oppositely to Justice Scalia; but in Apprendi Justice Thomas switched and noted the "error" of his Almendarez-Torres vote. Unless Booker/Fanfan produces a surprising limitation on Blakely, watch for Harris and Almendarez-Torres also to go down. Defendants should be sure to preserve these issues.

(Emphasis added).