ON MARCH 24, 1998, a divided Supreme Court upheld Hugo AlmendarezTorres’ eighty-five-month sentence for reentering the United States after a previous deportation. The reason Almendarez-Torres was sentenced to more than seven years in jail for this crime was that he had had a burglary conviction prior to his first deportation. Without this prior conviction, the maximum statutory penalty for reentering was less than a third of the sentence he received. The Supreme Court held that this much stiffer sentence could be imposed on Almendarez-Torres even though the indictment did not mention and the jury did not establish that a prior conviction had taken place.
The central question in the case was whether the prior conviction was part of the second criminal act (reentering the United States) or whether it was part of the sentencing phase and thus not subject to the protections afforded by the Sixth Amendment’s right to a jury. Justice Stephen Breyer’s majority opinion for the Court concluded that the prior conviction “is a penalty provision, which simply authorizes a court to increase the sentence. … It does not define a separate crime.” In the dissent, Justice Antonin Scalia argued that the prior conviction was an element of the crime and thus should be determined by a jury.
The case was the opening gambit in what has become one of the most confusing areas of the law: criminal sentencing requirements. It is also one of many cases where the opinions and the positions of the justices seem to contradict the attitudinal model. A liberal justice (Breyer) wrote the pro-punishment majority opinion and two moderates (Kennedy and O’Connor) and two conservatives (Thomas and Rehnquist) joined him. Against them, a conservative (Scalia) wrote a pro-defendant dissent, joined by three liberals (Stevens, Souter, and Ginsburg).
Two years later, the Supreme Court went in a different direction in Apprendi v. New Jersey (2000). In this case, the Court used the Sixth Amendment to overturn a sentence that went beyond a statutory maximum based upon facts that were not established by a jury. One of the justices who changed course was Clarence Thomas, who argued that he “succumbed” to error in Almendarez-Torres and that the Court should simply reverse itself. In contrast, Justice Stevens, who had been on the losing side in Almendarez-Torres, made it clear that “even though it is arguable that