August 02, 2004

Catching Up with Crises

by PG

It seems like just yesterday that the biggest concern in collapsing the judicial system's capacity was the possibility that 50,000 detainees would file habeas corpus petitions to undermine America's ability to fight the War on Terrorists. Now the Big Story is Blakely v. Washington's disruptive effect on sentencing guidelines, through which the Supreme Court apparently has undermined America's ability to fight the War on Regular Criminals.

The latter doesn't seem to worry Prof. Eugene Volokh as much as the former did, though the difference may be simply that, like Justice Scalia, he agrees with the majority's reasoning in Blakely while disagreeing with it in Rasul. For most other observers, however, the immediate problem of hundreds of thousands of actual criminal cases far outweighs the hypothetical difficulty that granting habeas corpus to detainees may create.

Even among the lawyerly populace, the concern is more with the practical consequences of Blakely than with its constitutionality. When the Ninth Circuit decided that the "under God" portion of the Pledge of Allegiance rendered it a First Amendment violation, Congress trooped out en masse to chant it defiantly and passed legislation to contradict the ruling. In contrast, the Senate resolution regarding Blakely does not overtly question the Court's judgment, but only asks "that the Supreme Court of the United States should act expeditiously to resolve the confusion and inconsistency in the Federal criminal justice system caused by its decision in Blakely." Part of the resolution does poke at the decision a bit

Whereas in Mistretta v. United States, 488 U.S. 361 (1989), the Supreme Court of the United States upheld the constitutionality of the Sentencing Reform Act and the Federal Sentencing Guidelines against separation-of-powers and non-delegation challenges;
Whereas in Blakely v. Washington, 124 S. Ct. 2531 (2004), the Supreme Court held that the sentencing guidelines of the State of Washington violated a defendant’s Sixth Amendment right to trial by jury;
Whereas despite Mistretta and numerous other Supreme Court opinions over the past 15 years affirming the constitutionality of various aspects of the Guidelines, the Blakely decision has raised concern about the continued constitutionality of the Federal Sentencing Guidelines
but overall the tone matches that of a recent Washington Post editorial -- more "Clean Up This Mess" than "Reverse Your Decision."

With Blakely, the onus of clarification is on the judiciary. If facts that can amplify a defendant's sentence must be determined by a jury, then the Court must explain if this is true of all such facts or only those that in isolation would be the catalyst for increased sentences (see footnote 7 of Scalia's opinion for the distinction); if this rule will applies to the Federal Sentencing Guidelines or only the states'; if it will be retroactive to all sentences (a course likely to be far more crippling to the system than even a hundred thousand habeas petitions by detainees); etc. etc.

Personally I don't think that the federal sentencing guidelines have been made utterly unconstitutional. The chart is still good for use, but it must be used in conjunction with a jury's findings on the relevant facts. If the jury decides that a defendant has committed an offense at level 3 with no proven aggravating factors and has 10 criminal history points (doesn't this sound like a bizarre sequel to Grand Theft Auto?), then the judge can still run her finger along the axes and find that 2-8 years is the appropriate sentence, and presumably use her discretion within that wide span. This involves more work for juries, but that's not necessarily a bad thing.

However, with Rasul and Hamdi, I am inclined to agree with the hawkish Economist that Congress should take up the burden of assigning a legal status to the enemy combatants who heretofore lived in a vague limbo, neither Geneva Convention-governed POW nor Constitutionally-protected criminal.

"This week, the American judicial system began the long task of righting this huge wrong. The Supreme Court said that Mr Bush had the right to hold combatants without trial but, crucially, it decided that the detainees at Guantánamo could have recourse to the United States courts—something Mr Bush has (disgracefully) fought hammer and tongs. [...]
So progress has been made. But it is plainly not fast enough, and it is also clumsy: the judges are making America's terrorist laws because the politicians have not done so.
The Court's main determination made regarding the Bay's detainees is that they ought to have some sort of legal status, some way of getting off the island, and that the executive branch does not have a free hand in its treatment of them. However, Kennedy's concurrence in Rasul cites "the joint role of the President and the Congress in the conduct of military affairs," and Scalia says he dissents because he "would leave it to Congress to change [habeas statute] §2241" instead of getting the judiciary involved in overseeing the executive's military decisions.

Surely no body could give more guidance than Congress gave through the federal sentencing guidelines; their work there is done. Regarding enemy combatants, however, Congress has done absolutely nothing. Since September 11, it has resigned its powers:

To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water
Congress hasn't even had the guts to declare that the public Safety requires suspending the privilege of the Writ of Habeas Corpus. So while the courts figure out the consequences of Blakely, the legislature should be working out what to do with Rasul.

August 2, 2004 03:53 PM | TrackBack
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