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O’Connor’s Apprendi laments in her Shepard dissent

By Douglas Berman

In trying to make sense of today’s Shepard ruling (basics here) for our post-Blakely world, I have covered Justice Thomas’s concurrence in this post and Justice Souter opinion for the Court in this post.  Now let me complete the series with the work of Justice O’Connor in dissent.  Here are her points (with citation mostly omitted) about the now lively debate over the future of the Almendarez-Torres “prior conviction exception” to the Jones-Apprendi rule:

I strongly suspect that the driving force behind today’s decision is not Taylor itself, but rather “[d]evelopments in the law since Taylor.” Ante, at 9.  A majority of the Court defends its rule as necessary to avoid a result that might otherwise be unconstitutional under Apprendi v. New Jersey, 530 U. S. 466 (2000), and related cases. I have criticized that line of cases from the beginning, and I need not repeat my reasoning here. It is a battle I have lost.

But it is one thing for the majority to apply its Apprendi rule within that rule’s own bounds, and quite another to extend the rule into new territory that Apprendi and succeeding cases had expressly and consistently disclaimed.  Yet today’s decision reads Apprendi to cast a shadow possibly implicating recidivism determinations, which until now had been safe from such formalism.

Even in a post-Apprendi world, I cannot understand how today’s case raises any reasonable constitutional concern.  To the contrary, this case presents especially good reasons for respecting Congress’ long “tradition of treating recidivism as a sentencing factor” determined by the judge, Almendarez-Torres v. United States, 523 U. S. 224, 243 (1998), rather than as a substantive offense element determined by the jury….

In short, whatever the merits of the Apprendi doctrine, that doctrine does not currently bear on, and should not be extended to bear on, determinations of a defendant’s past crimes, like the ACCA predicates at issue in Shepard’s case. The plurality’s concern about constitutional doubt, ante, at 10–12, and JUSTICE THOMAS’ concern about constitutional error, ante, at 2–3, are therefore misplaced.