The Supreme Court heard arguments from an Oregon case over whether a jury must decide facts that trigger stacked sentences. For some details, click here.

Such a decision (which I don't think should be covered by Apprendi), even if decided in the defendant's favor in the Oregon case, shouldn't change Texas law. In Texas, there are no specific facts to be decided in stacking. The judge, in certain cases, simply has the discretion to do it.

But, you can sure bet that defense attorneys will raise the issue again and again, trying to get Apprendi applied in Texas. So far, all courts have said no.

What do you think will happen in SCOTUS?

I haven't read the transcripts, but based upon a couple of touchstones from past cases, I think they may expand Apprendi to cover stacking.

First, I tend to engage in a lazy calculus of "the conservatives on the Court typically side with the State". Unfortunately, there's at least one conservative, Justice Thomas, who thinks Apprendi should be expanded to cover prior convictions as well. That's right, he thinks juries should have to pass on prior convictions for purposes of enhancement. I disagree with him, but he's the man with the robe. With a conservative judge ready to sign on for such an expansion, I can't see how he would have a problem expanding it to stacking. That's one reliable vote in question, and I can't imagine Breyer, Ginsburg, Stevens, and Souter really WANTING to keep people in prison for a long time instead of getting rehabilitated. Such an expansion makes that harder.

Second, stacking occurs in child crime cases. A majority of SCOTUS has expressed resevations about the reliability the testimony on which such convictions are based. Again, lazy thinking here on my part, but if they don't like the death penalty for child crimes because they are based upon child testimony then they may not be to bunched up about striking down lengthy sentences for child predators, either. Maybe Kennedy will use his awesome power to hold the line at death, though. And stacking occurs in other big cases as well.

Third, this Court has demonstrated displeasure with rigid sentencing by undoing the federal sentencing guidelines. They've allowed trial court's the ability to make downward depatures on controversial issues like disparity of sentencing lengths for crack cocaine when compared to powder. I wonder if move is because they are tired of having to engage in another layer of sentencing on their part. When sentencing is set out like an instruction manual, there's really no way for courts of appeals to justifiably defer to the trial court when the decision isn't really based upon discretion. This means more work for them. Texas has avoided much of this Booker and Apprendi hoo-ha because we trust juries, and we defer to them. Expanding Apprendi to cover stacking may give them more room to wash their hands of high sentences by deferring to the jury's decision.

Fourth, if it hurts Texas, they'll do it.

Just my thoughts.

All true enough as to the personalities involved. But, back to the actual law. Apprendi held that increasing the punishment for a crime requires a fact finding by a jury, except as to prior convictions. So far, the SCOTUS has limited this to laws that actually enhance (expand) the punishment range for a particular crime.

Stacking doesn't change the punishment for a particular crime. It simply determines the order in which that sentence will be served. That is not a decision that increases the punishment.

If we start from the premise that the defendant should always serve his sentence, then concurrent sentences are just a gift that allows lots of criminals to get multiple credit for time served. How in the world does that get translated to a longer punishment? That is not a principled explanation of Apprendi. It also would lead to tremendous leaps in logic that could be used to apply to many more situations that have nothing to do with deciding the actual punishment for a particular crime.

Why not extend that logic to deadly weapon decisions, since a deadly weapon can change parole eligibility, requiring the defendant to serve more of his sentence before reaching parole eligibility? For that matter, why not have a jury formed to decide when he is eligible for parole?

SCOTUS is close to stepping in the deep end of the pool.

My two cents, but I think they will narrowly apply Apprendi to the issue at hand. If a fact finding is required in order to stack sentences, then a defendant is entitled to a jury determination of that fact. It should not be a problem for Texas except maybe for Article 42.08(b).

So, then, what is the unique legal explanation for making an exception for enhancement by prior convictions? More and more, the SCOTUS is operating by the "because-we-say-so" logic.

Furthermore, even if a jury makes the underlying factual decision, SCOTUS still has to separately decide if a judge retains the authority, assuming such a factual decision, to exercise the discretion as to stacking. Or, maybe we should just make stacking mandatory under all circumstances, absent an agreement between prosecutor and defendant otherwise (taking judge and jury out of the equation and strengthening plea bargaining).

Not that I disagree, but how far could the legislature go before we possibly got into a separation of powers issue like we did with the first habitual offender statute and its automatic life.