The Prior Convictions Exception-A Comment

Ms. Sawyer makes a compelling case that prior convictions should continue to be treated differently than other facts that affect the duration of a criminal sentence and therefore must be treated as elements in a criminal prosecution.1 As she correctly notes, many judges and prosecutors have argued in favor of upholding the Almendarez-Torres exception2 because requiring the prosecution to prove past convictions to the jury could create prejudice against a recidivist defendant.3 Some skepticism is merited when the government seeks to lighten its own burden out of supposed concern for the welfare of those defendants whose foolhardy reluctance to waive their constitutional rights might prejudice them. Equally dubious are government protestations that the criminal justice system will grind to a halt if sentencing juries are required to protect the rights of criminal defendants.4Nevertheless, one can support the rule of Almendarez-Torres without suspending disbelief about the benevolent nature of prosecutors or the fragility of a justice system that will crumble under its own weight if the tiny fraction of prosecutions that actually go to trial are bifurcated into merits and sentencing phases.5 The fact remains that prior convictions are fundamentally different than other "sentencing factors" that the Apprendi revolution has recast as elements of greater offenses.6 Unlike other facts, a prior conviction reflects a determination by the criminal justice system that we have arrived at the truth of a matter through adversarial testing. We imbue criminal convictions with finality because we can be confident, absent proof to the contrary, that we arrived at the conclusion that the defendant was guilty of the prior crime despite affording him all of the constitutional safeguards to which he was entitled. In other words, it is unnecessary to require a jury to find a prior conviction beyond a reasonable doubt because either another jury has already done so or the defendant has waived his right to a jury determination of his guilt.7Indeed, it would make little sense to invite subsequent juries to revisit the judicially determined fact of the defendant's guilt. It is not difficult to imagine the problems that might arise if the prosecution was required to reprove the defendant's guilt of crimes of which he had already been convicted whenever it wished to enhance a subsequent sentence.8 What would be the effect of a second jury's determination that the defendant was not guilty for a crime of which he had previously been convicted? Would a second jury's determination of innocence foreclose the government from relying on that same conviction to enhance the penalty in a later prosecution? There is no compelling reason to invite these questions when the prosecution has already been held to its burden of establishing the defendant's guilt beyond a reasonable doubt in an earlier proceeding.9From the defense perspective, the problem with AlmendarezTorres arises because the government is rarely satisfied to do what the prior convictions exception permits it to do. That is, the government is almost never content to prove "the fact of a prior conviction." In cases where recidivism is at issue, what the government actually wants to do is provide the sentencer with prejudicial facts regarding the defendant's alleged conduct in committing the prior crime. But to do so, the government frequently must prove facts beyond the judicially determined fact that the defendant was previously convicted of a particular crime.For example, in Shepard v. United States,10 the government sought to enhance the defendant's sentence under the Armed Career Criminal Act (ACCA),* 11 which mandates a fifteen-year minimum sentence for anyone possessing a firearm after three convictions of violent felonies.12 At issue in Shepard was whether the defendant's previous burglary convictions in Massachusetts, entered upon guilty pleas, constituted violent felonies. …