Summarizing Shepard (and seeking state insights)

The Supreme Court’s opaque work today in Shepard v. US (basics here) is hard to fully comprehend (consider this comment).  Consequently, let me spotlight again the basic summary of the case here from the SCOTUSblog and summarize below my recent Shepard posts:

• The Shepard scramble discusses the Court’s opinion and seeks to explain its significance concerning the Almendarez-Torres “prior conviction exception” to the Jones-Apprendi-Blakely rule.
• Just when you thought it was safe discusses Justice Thomas’ concurrence in Shepard which calls for the elimination of the Almendarez-Torres “prior conviction exception” to the Jones-Apprendi-Blakely rule.
• O’Connor’s Apprendi laments discusses Justice O’Connor’s dissent in in Shepard which complains about the prospect of extending the Apprendi rule “into new territory that Apprendi and succeeding cases had expressly and consistently disclaimed.”

I am making such a big deal over Shepard and the possible demise of the Almendarez-Torres “prior conviction exception” in part because many states — including many without guideline structures — have sentencing laws (such as three-strikes laws) that rely on judges finding prior conviction facts.  In the wake of Booker and its “advisory dodge,” the Almendarez-Torres “prior conviction exception” may seem like a very minor issue for the federal system.  But because every state, I believe, has some sort of mandatory recidivist or three-strikes law, the overall impact of the demise of the Almendarez-Torres could be, dare I say, perhaps even greater than Blakely.

Of course, if the Harris mandatory minimum exception to the Jones-Apprendi-Blakely rule remains standing (a big IF), some judicial fact-finding at sentencing will still be permissible even if (when?) the Almendarez-Torres “prior conviction exception” is eliminated.  But my own sense of state sentence laws is that the demise of the Almendarez-Torres could be hugely important.  But I may lack any real perspective, and thus I would be grateful if those folks most familiar with state sentencing systems might use the comments to explain the possible impact if the Almendarez-Torres “prior conviction exception” was formally eliminated.

UPDATE: Jonathan Soglin at Criminal Appeal here contributes a number of important insights about Shepard and also details its likely immediate impact on People v. McGee, no. S123474, a California Supreme Court case concerning the applications of California’s Three Strikes Law.