Supreme Court Ruling Could Limit Three Strikes Laws

Yesterday, the Supreme Court issued a ruling in a state sentencing case that could put a dent in states' three-strikes laws.

The aspect of yesterday's decision that had legal bloggers buzzing was language in Souter's opinion that seemed to soften the court's previous holding that, while aggravating factors of a new crime must be proved to a jury, a judge on his own could lengthen a sentence based on the defendant's prior convictions.

But Souter's opinion, most of which was joined by Justices John Paul Stevens, Antonin Scalia, Ruth Bader Ginsburg and Clarence Thomas, said that in some cases even prior convictions might raise issues of fact that are "not that simple."

In a separate opinion, Thomas indicated that he would have the court go further and rule that under its recent sentencing decisions judges should not be allowed to decide whether a defendant's previous convictions qualify as a violent felony under the career-criminal law. Thomas called for his colleagues to overrule a 1998 decision in which the court said a prior conviction was a "sentencing factor," not a "criminal offense."

In her dissent, Justice Sandra Day O'Connor, joined by Justices Anthony Kennedy and Stephen Breyer, expressed concern that the majority wanted to extend the logic of its sentencing decisions "into new territory that [those cases] had expressly and consistently disclaimed."

Law Professor Doug Berman, author of Sentencing Law and Policy, said:

"The real question is whether [the four justices in yesterday's majority other than Thomas] are willing to go whole hog" in a future case, Berman said, by ruling that juries must play some role in factoring prior convictions into punishment.

In the meantime, Berman said, lower courts, prosecutors and defense attorneys in state as well as federal courts will be confused because of the Supreme Court's "almost willful disregard for how lower courts have to process their decisions. They have muddied up this area so much it makes my head hurt."

Prof. Berman has more thoughts on the decision here and here . The New York Times has this account of the decision.

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