Recall that the Indiana Supreme Court granted transfer in Ryle, vacated thereby the opinion of the Court of Appeals, and asked for supplemental briefing on two Blakely-related questions which, put in Blakely-speak, are whether juvenile adjudications and being on probation at the time a crime is committed fit within the prior conviction exception. In Indiana-speak, the question is whether these things are "derivative of criminal history."
With respect to juvenile adjudications, Judge Najam's Ryle opinion from last December does a brief survey of what the opinion represents as the published authority on the subject. Contra treating juvenile adjudications as subject to the prior conviction exception, the opinion represents a single case from the Ninth Circuit, U.S. v. Tighe (9th Cir. 9/24/01).
The opinion represents three opinions, on the other hand, as authority for treating juvenile adjudications as prior convictions. They are: State v. Hitt (Kan. 3/15/02); U.S. v. Smalley (8th Cir. 5/14/02); and U.S. v. Jones (3rd Cir. 6/19/03).
Without any independent analysis, the Ryle panel did not have any trouble dismissing the single opinion from that crazy, liberal court in the West and concluding: "We now join those courts which disagree with the holding of the Ninth Circuit in Tighe and conclude that juvenile adjudications are 'prior convictions' under Apprendi."
At the time that Ryle was decided, however, there were two other decisions dealing with juvenile adjudications as subject to the prior conviction exception. One was a 2002 case from the California Court of Appeals: People v. Bowden (Cal. App. Dist. 2 Div. 4) (9/24/02).
There was also, however, one amazing case on delinquency adjudications and the prior conviction exception from the Pelican State: State v. Brown (La. 7/6/04). There is really no substitute for the opinion itself. It is the onlyboth the relevant U.S. Supreme Court precedent and the distinct nature of juvenile law. case to discuss seriously
After surveying the authority on both sides, the Louisiana Supreme Court said: "Thus, as can be seen, following Apprendi there are two reasonable schools of thought on whether juvenile adjudications, in which the juvenile did not have the right to a jury, can properly be characterized as 'prior convictions'" for felony sentence enhancement purposes." Slip op. at 14. But from the following paragraph, it becomes clear that the court does not really mean that it thinks both schools of thought are "reasonable":
If a juvenile adjudication, with its lack of a right to a jury trial which is afforded to adult criminals, can then be counted as a predicate offense the same as a felony conviction for purposes of Louisiana’s Habitual Offender Law, then “the entire claim of parens patriae becomes a hypocritical mockery.” In re C.B., p. 17, 708 So.2d at 400 (quoting Londerholm v. Owens, 197 Kan. 212, 416 P.2d 259, 269 (1966)).
Slip op. at 21. Brown also includes a citation to a Marquette Law Review comment on the subject of Apprendi, juvenile adjudications, and prior convictions: Brian Thill, Comment, Prior “Convictions” Under Apprendi: Why Juvenile Adjudications May Not Be Used to increase an Offender’s Sentence Exposure if They Have Not First Been Proven To a Jury Beyond a Reasonable Doubt, 87 MARQ. L. REV. 573, 575 (2004). Slip op. at 10. The title pretty much explains the position taken.
In addition to Brown, there was a 2002 Harvard Law Review note weighing taking Tighe's side against Smalley McKeiver v. Pennsylvania (1971) and Ballew v. Georgia (1978), as well as on some social science research, that facts found by juries are more reliable than those found by judges. So, the argument concludes, "[T]he TigheSmalley (116 Harv. L. Rev. 705), arguing that there are reasons to believe, based on two U.S. Supreme Court decisions, court's understanding of juvenile adjudications is more constitutionally sound than that espoused by the court."
There is an interesting fact about the Kansas case, Hitt: although cert. was eventually denied in 2003, in an October 2002 order, the Court invited the Solicitor General to express the federal government's views. Hitt was decided within a year of Apprendi, and I think the Court was already trolling for the case that would become Blakely. And I do not think the request for the SG's views in the cert. process is irrelevant to the weight to be given Hitt.
Similarly, but on the other side of the cert. ledger, Louisiana's cert. petition in Brown was denied--post-Blakely. That particular tea leaf, especially when placed beside the invitation to the SG in Hitt, I find particularly interesting. There is, of course, the question of what a court is to do in the absence of clear controlling precedent. Should the court try to anticipate what the U.S. Supreme Court would do, or should it simply call it as it sees it in light of the controlling precedent that does exist? That question could be the subject of several tedious law review articles.
So there is a split in the circuits: the 3rd, 8th, and 11th, against the 9th (and the Harvard and Marquette Law Reviews). There is also a split in the state supreme courts: Kansas against Louisiana. The Washington, Oregon, and Indiana Courts of Appeal have all come down on the side of Hitt. The Indiana Supreme Court's eventual Ryle decision will not resolve the split, but only add weight to one side or the other; and with the split in the circuits and the state supreme courts, it should be apparent that Ryle, whatever the result, will be prime cert. meat.
I want to suggest that beyond my belief that that crazy, liberal Louisiana Supreme Court was "right" in any reasonable sense of the word, there are the following reasons the Indiana Supreme Court should side with Tighe, Brown, and the Harvard and Marquette Law Reviews. First, a delinquency finding is distinctly not a conviction. Formally, under state law, it is not a conviction. And the U.S. Supreme Court explained in part, at least, what it meant by "prior conviction" in Almendarez-Torres (1998) when it said in Jones v. U.S. (1999): "[A] prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." (Emphasis added).
Every court to consider Apprendi--except the Kansas Supreme Court--got it wrong by failing to take seriously what Apprendi quite literally said. Since Almendarez-Torres, the prior conviction exception has always been expressed using the term "prior conviction." A flippant opening for Ryle in the oral argument might be: "What part of 'prior conviction' doesn't the Court of Appeals understand?" Is there any reason to invite Scalia to repeat his now-famous Blakely line: "As our precedents make clear . . . ."?
Second, in light of Jones, Apprendi, and Blakely, even if the Indiana Supreme Court is not certain, it should place the burden of seeking cert. on the State and not on Ryle. It should do so because: 1) what U.S. Supreme Court precedent there is appears to favor Ryle; and 2) the issue is a state problem, and the State has the greatest interest, if any, in seeking clarification from above.
Everyone seems to be reporting that tomorrow we will get to see the California Supreme Court's BlakelyPeople v. Black. I can't wait.
And another final note unrelated to juvenile adjudications: Smylie filed a cert. petition on June 6th. (Case No. 04-10472). Maybe the U.S. Supreme Court will use Smylie to take up the issue of Blakely and consecutive sentences. The only thing detracting from the cleanliness of the way Smylie presents the issue is that the judicial fact-finding required to impose consecutive sentences is not imposed by statute but by case law.