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

I am a career prosecutor with the U.S. Department of Justice, and I have been instructed to begin by stating that I am submitting this comment in my personal and not my professional capacity. My Department certainly knows the virtue of starting off a piece with a compelling opening line.For more than twenty-five years, I have been a violent crime prosecutor in a city that has suffered more than its share of street tragedy. The caseloads that I once maintained as a line attorney and now supervise as a manager are dauntingly high: the average misdemeanor prosecutor handles as many as 150 cases at a time, the average felony prosecutor as many as 50 to 75, even the average homicide prosecutor in excess of 15 or 20. The motions practice is very high-volume but predominantly centers on defense evidentiary challengers under the Fourth and Fifth Amendments, and the subject matters can be repetitive. I would not say that the practice on a day-to-day basis involves an array of refined legal issues. In fact, it could probably be summed up in two words: boilerplate responses. So I am not necessarily the best qualified person to address the acuity of this Note's analysis or the rigorousness of its research. On that point, I can at least say that, even though it has been many years since I reviewed a piece of legal scholarship, I do know good writing when I see it, and this is not good but excellent writing: cogent, well-phrased, wellargued across the board, and a joy to read. I never thought I would write the last four words of the previous sentence about a law review article.Having said that, if I can make a useful contribution to this publication it is not as a sophisticated legal commentator but rather-channeling here my inner David Foster Wallace-as an emissary from the real world. Mine is a world where the issues that the Note discusses have very real potential consequences for defendants, victims, and the public servants who labor (more than the public we serve has any idea) to achieve justice in every case that comes before us.Let me start by recounting an anecdote about the first time that a significant case of mine was affected by the case, Apprendi v. New Jersey,1 that started the movement discussed in the Note.2 Twenty-one years ago, I took to trial a defendant who had committed a double homicide almost unimaginable in its brutality. Following his conviction, the defendant was sentenced to two terms of life without parole based on the aggravating factor of the unique atrociousness of his crimes. Without exploring the garish details, suffice it to say that the murders were of such a nature that any reasonable person would believe it important in a civilized society for the sentence of that defendant to state unequivocally that he would spend the rest of his days in jail. The atrociousness of the murders was never questioned by the defense at trial, which simply argued before the jury that, however horrific they were, they were committed by someone other than the defendant. On appeal, the defendant's convictions were affirmed, but his sentence was ultimately reduced because the Court of Appeals retroactively found an Apprendi violation in that the grand jury had not been asked to consider and specifically find in its indictment the aggravating factor of atrociousness-notwithstanding that that matter was never debated and was always conceded by the defense at trial. While the defendant still received a lengthy term of incarceration at his post-appeal resentencing, he retains the hope, albeit slight, of one day knowing freedom again. The Note refers several times to "the Apprendi Revolution."3 To carry the metaphor one step further, it might be said in retrospect that, in at least this case, the cause of just and appropriate sentencing was hit by a stray jurisprudential Molotov cocktail in that revolution.Looking at the more narrow issue discussed in the Note, if it is not ultimately resolved in the manner endorsed by the author-with the survival of the prior conviction exception4-the implications for countless criminal prosecutions in every state in the nation would be vast. …