January 12, 2005

Sorting Through Booker

by PG

I'm just going to post on this as I'm reading the opinion; corrections of my first impressions are welcome, and probably will be necessary, as it's much more complicated than the AP's first report would suggest (and the Blakely Blog is in Ft. Lauderdale, so that's no help). Even the New York Times article, posted a good three hours after the decision was announced, neglects to mention that it's not as simple as "the 17-year-old federal sentencing system is invalid insofar as trial judges, rather than juries, have been ruling on the facts that go into determining time behind bars." Indeed, one would have to look at both the headline "Supreme Court Rules Judges Are Not Bound by Sentencing Rules" and the text to capture the full story. As Will Baude says, "Indeed, it is almost as if the piece springs from a wonderland where the Breyer opinion did not exist."

Look at the breakdown: "STEVENS, J., delivered the opinion of the Court in part, in which SCALIA, SOUTER, THOMAS, and GINSBURG, JJ., joined. BREYER, J., delivered the opinion of the Court in part, in which REHNQUIST, C. J., and O'CONNOR, KENNEDY, and GINSBURG, JJ., joined. STEVENS, J., filed an opinion dissenting in part, in which SOUTER, J., joined, and in which SCALIA, J., joined except for Part III and footnote 17. SCALIA, J., and THOMAS, J., filed opinions dissenting in part. BREYER, J., filed an opinion dissenting in part, in which REHNQUIST, C. J., and O'CONNOR and KENNEDY, JJ., joined."

The majority follows Stevens's opinion with regard to the first question presented, "Whether the Sixth Amendment is violated by the imposition of an enhanced sentence under the United States Sentencing Guidelines based on the sentencing judge's determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant."

A reconstituted majority, which of the original majority includes only Justice Ginsburg (this may out-weird Powell as the one-man majority in Bakke), follows Breyer's opinion with regard to the second question, "If the answer to the first question is 'yes,' the following question is presented: whether, in a case in which the Guidelines would require the court to find a sentence-enhancing fact, the Sentencing Guidelines as a whole would be inapplicable, as a matter of severability analysis, such that the sentencing court must exercise its discretion to sentence the defendant within the maximum and minimum set by statute for the offense of conviction."

Of course, the answer to the first question is yes, and Breyer essentially says, "Well, if you say 'yes' to that, then you have to say that mandatory guidelines themselves are unconstitutional." In his dissent, Breyer frets that "the Court�s Sixth Amendment decision would risk unwieldy trials, a two-tier jury system, a return to judicial sentencing discretion, or the replacement of sentencing ranges with specific mandatory sentences." Justice Scalia's dissent from Breyer's opinion for the Court sneers:

If the Guidelines are no longer binding, one would think that the provision designed to ensure compliance with them would, in its totality, be inoperative. The Court holds otherwise. Like a black-robed Alexander cutting the Gordian knot, it simply severs the purpose of the review provisions from their text [...]

The question is, when the Court has severed that standard of review (contained in �3742(e)), does it make any sense to look for some congressional
"implication" of a different standard of review in the remnants of the statute that the Court has left standing? Only in Wonderland. (This may explain in part why, as JUSTICE STEVENS's dissent correctly observes, ante, at 12, none of the numerous persons and organizations filing briefs as parties or amici in these cases�all of whom filed this side of the looking-glass�proposed, or I think even imagined, the remedial majority's wonderful disposition.)

For less sarcastic severability analysis, try Thomas's dissent, which also focuses on the facts of the cases actually before the Court.

Although Columbia 3L Jason Hernandez has failed us today by being away from a computer when we needed him, check out his blog even before he gets back just to see the impact people are anticipating the ruling to have, as in the comments to this post.

January 12, 2005 2:36 PM | TrackBack
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