Thursday, February 16, 2006

SCOTUS orders response in an Ivory/Hitt case

The SCOTUS has ordered the state to respond to a cert petition we filed in Bowen v. Kansas. The only issues in the cert petition involves the use of juvenile adjudications under the prior conviction exception found in Almendarez-Torres and the continuing validity of the prior conviction exception itself after Apprendi/Blakely. This is an issue screaming out for certiorari review (see Professor Berman's Sentencing Law and Policy blog here) and Mr. Bowen's case is particularly compelling. Based on some juvenile felony assault adjudications, Mr. Bowen's maximum sentence was increased from 34 months to his imposed sentence of 102 months.

We have filed around 15 of this type of cert petition over the last three years or so. And the SCOTUS has ordered response in a few of them, including ordering the US Solicitor General to respond in Hitt. Although the SG indicated that the issue was proper for certiorari review (albiet in another case, not Hitt, see here), the SCOTUS has denied review in each case presenting this issue so far. So, again, simply ordering a response does not mean much. I will keep you up to date if there are any developments in this area. For practitioners, I guess I just keep up my oft-repeated, but little-heeded advice that an standard objection under Apprendi should be entered at any sentencing hearing where criminal history makes any difference.

[Update: The SCOTUS ordered a response in another Ivory/Hitt case, Fleming v. Kansas on March 6, 2006. These cases are a pretty similar issue. It will be interesting to see if the time is ripe for the SCOTUS to reach this issue.]

[Further update: The SCOTUS denied cert in both cases on April 17, 2006. Luckily, I have a couple more petitions that I can hand deliver when I'm in DC next week. Until the SCOTUS resolves this issue, I think we should keep sending cases up there. I suppose the best-case scenario is a case where there is factually disputed criminal history (really factually disputed, not just legally disputed) and where the criminal history makes a big difference. If you have a case like that, be sure to contact me!]

1 comment:

donnalaine said...

I just read where you said, "If you have a case like this, contact me." My son was sentenced on Oct. 2, 2007 in Bourbon County, Ks. to 24 years. An old juvenile adjudication was used in both criminal history and persistant sexual offender. His 1984 juvenile adjudication was done all wrong. He was living with an insane father, was accused of "touching" and his father and brother threatened to murder him if he did not plead guilty. I had joint custody, but was only told it was a misdemeanor and would be expunged, and there would be no record of it. His father was trying to save money by the plea. The girl later recanted, but I contacted Robert Young, Linn county prosecutor, in 1991 to make sure there was no record. He assured me that there was none. Now, it is with the Appellate Office in Topeka. My son is mentally ill, and therefore is unable to defend himself in any way. The letter he got from the Appellate Office said they cannot correspond with ANY THIRD PARTY. I have sent them information, but they cannot reply. Donna Johnson - 1401 Ash St - Pleasanton, Ks. 66075 - phone 913-352-6302