Monday, June 12, 2006

But I'm such a Justice Stevens fan!

If you have followed my blog, you know that we have repeatedly (and unsuccessfully) filed SCOTUS cert petitions on the Almendarez-Torres issue. (See previous entry here). Douglas Berman at Sentencing Law and Policy has this entry on today's back and forth between Justice Thomas and Justice Stevens regarding several cert denials on that this issue. The SCOTUS denied two other Ivory cert petitions filed by the ADO.

I think Justice Stevens is wrong regarding the impact of Almendarez-Torres. Although not very many people actually contest criminal history findings, I bet even .01% of all the cases in state courts across the U.S. would add up to more than all of the people currently on death row, a subject on which the SCOTUS grants cert in multiple cases every year. For the people on the margin for whom these criminal history decisions are critical, they should have every right to demand the same Sixth Amendment and Fourteenth Amendment procedural protections as people who are contesting "traditional" guilt facts.

Justice Stevens argues that stare decisis is a sufficient basis for denial of cert in these cases. But, stare decisis didn't stop the SCOTUS from reaching and deciding Apprendi , Ring, and Blakely. If you are going to make a watershed change in the law like Apprendi correcting precedent to conform to that watershed change really doesn't implicate stare decisis concerns.

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