The Prior Convictions Exception: Examining the Continuing Viability of Almendarez-Torres Under Alleyne

Table of ContentsI. Introduction........410II. History of the Federal Sentencing Guidelines 413A. Navigating the Grid: The Mechanics of the Sentencing System.........414B. Conflict Between the Guidelines and the Sixth Amendment......417III. The Saga of Sentencing Case Law.........421A. McMillan v. Pennsylvania-. Introducing "Sentencing Enhancements"........421B. Almendarez-Torres v. United States 424C. Apprendi v. New Jersey and Its Revival of Jury Fact-finding 435D. Blakely and Booker.......441E. Alleyne v. United States: The Final Nail in the Coffin?........446IV. The Continuing Viability of the Almendarez-Torres Exception Under Alleyne 448A. The Constitutional Implications of Almendarez-Torres ........449B. Imagining a Sentencing System Without Almendarez-Torres .......4531. Habitual-Offender Statutes ........4542. Sentencing Juries .......457V. Conclusion .........464I. IntroductionThe Sixth Amendment of the United States Constitution guarantees criminal defendants "the right to a speedy and public trial, by an impartial jury."1 As established in In re Winship,2 this jury guarantee also gives a criminal defendant the right to demand that a jury find him guilty beyond a reasonable doubt of "every fact necessary to constitute the crime with which he is charged."3 In the years following In re Winship, the Court expanded its interpretation of this reasonable-doubt standard by attempting to identify the type of facts necessary to prove a defendant's criminal charge.4 A distinction eventually emerged between facts that constituted elements of the crime and facts that constituted sentencing factors.5 Elements of the crime were charged in the indictment and proved beyond a reasonable doubt to a jury, while sentencing factors were entrusted to the sentencing judge under a lower standard of proof.6 In 1987, Congress documented this distinction in the Federal Sentencing Guidelines (the Guidelines),7 utilizing a complex and formulaic sentencing scheme that allowed judges to find particular sentencing factors by a preponderance of the evidence and enhance the severity of a defendant's punishment in correlation with said factors.8 It is from this foundation that modern sentencing procedure has developed. Following the enactment of the Guidelines, the Court would spend several decades (what this Note refers to as "the Apprendi9 revolution") attempting to square the use of sentencing factors found by judges, rather than juries, with Sixth Amendment jurisprudence.After years of slowly chipping away at judicial fact-finding in the sentencing process, a narrow majority of the Court ended this complex saga of sentencing case law in Alley ne v. United States,10 holding that any fact that increases the mandatory maximum or the mandatory minimum of a sentence is an "element" of the crime that must be submitted to the jury to be found beyond a reasonable doubt.11 Thus, while the Sixth Amendment does not expressly guarantee criminal defendants the right to sentencing by jury, the Alleyne Court ultimately determined, in an expansive interpretation of the Constitution, that the Sixth Amendment encompasses the right to have a jury find, beyond a reasonable doubt, any factor that enhances a criminal sentence.12Despite the finality of the Alleyne decision, however, one exception to the rule remains-prior convictions. During the course of the Apprendi revolution, the Court carved out one narrow exception in the sentencing process for recidivism; under its holding in Almendarez-Torres v. United States,13 the Court concluded that prior convictions are "sentencing factors" which may be determined by a judge by a preponderance of the evidence, and which need not be alleged in the indictment or proven to a jury.14 While the holding in Alleyne seemed to signal an end to judicial fact-finding within the sentencing process, the Court refused to address whether its decision had any impact on Almendarez-Torres, thereby leaving the prior convictions exception undisturbed, albeit on shaky ground. …