A Criminal Enterprise

Scalia Invites New Apprendi-Based Challenges?

Posted in Cases, News by Bidish J. Sarma on October 7, 2009

In the Johnson v. United States oral argument today, Justice Scalia casually implied that he may see a constitutional problem with the underlying Florida statute at issue in the case.  Florida’s simple battery law apparently is a misdemeanor for the first offense, but a felony for the second offense.  This statutory scheme raises questions under Apprendi because misdemeanor convictions are not rendered by a jury that must find the defendant guilty beyond a reasonable doubt.  Therefore, when an individual is convicted of a second offense, an element of that crime — namely, that the defendant has committed the crime once before — has not been proven to a jury beyond a reasonable doubt.  It may come as no surprise that Scalia wants to see Justice Breyer’s Almendarez-Torres, 523 U.S. 224 (1998) opinion overturned.

Here is the snippet from Scalia, which can be found in this transcript:

I dare say that Congress in my view probably didn’t even contemplate that something which is a misdemeanor could become a violent felony if you did it the second time. . . . Have we ever approved that, by the way, kicking it up to the felony category simply because of recidivism?

Many states, including Louisiana, ratchet up misdemeanor first offenses to felonies for second or third offenses.  These schemes seem ripe for a constitutitonal challenge.

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