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January 31, 2007

Why Americans (but not Europeans) should be troubled by Boyd, Faulks and huge "trial penalties"

A great chat with a colleague in the economics department about Judge Posner's work in Boyd (details here) help me see why that decision so troubles me.  The reason links to my work seeking cert in US v. Faulks (details here) and my concern with huge "trial penalties" (details here), and take me back to my long-ago insights about what Blakely is really about: a battle between an adversarial and inquisitorial model of criminal justice.

As I discussed here way back in September 2004, in Blakely, five Justices champion an adversarial model of sentencing in which sentence-enhancing facts must be proved to a jury beyond a reasonable doubt.  The Blakely dissenters, in contrast, embrace an inquisitorial model of where, in Justice Scalia's words, "a lone employee of the State" makes all critical findings and determinations. 

In Boyd, Judge Posner and the Seventh Circuit is doing all the investigation (about a state crime, no less) to justify the defendant's increased incarceration.  Similarly, in Faulks, the federal district court does all the investigation and adjudication (again of a state crime) as the basis for an addition 3 years of federal imprisonment.  The modern realities of the trial penalty (where defendants get 10+ more years for a crime because they go to trial), and the fact that 95% of all convictions are from pleas, shows in another way how our justice system has become a (prosecutor-controlled) inquisitorial system of criminal justice.

Understood in these terms, the endless sparring between Justices Scalia and Thomas and Justices Breyer and Kennedy makes so much more sense.  Justices Scalia and Thomas are aguably our most American Justices, and so Justice Scalia in Blakely assails Justice Breyer's "esteem for non-adversarial truth-seeking processes."  He also stresses that "Our Constitution and the common-law traditions it entrenches ... do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury."  Of course Justices Breyer and Kennedy are aguably our most European Justices and they keep showing their affinity for judge-centered criminal justice procedures.  But, I think Justice Scalia has the best last work in this concluding part of his Blakely opinion:

One can certainly argue that both these values [of efficiency and fairness] would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course.  There is not one shred of doubt, however, about the Framers' paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.

January 31, 2007 at 01:57 PM | Permalink

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» Round-Up from SCOTUSblog
Virginia Heffernan of the New York Times has this review of the four-part PBS program, "The Supreme Court", which begins tonight at 9 p.m.; Tom Shales has this review of the documentary in today's Washington Post; and Stephen Wermiel reviews... [Read More]

Tracked on Jan 31, 2007 4:10:40 PM

Comments

But would Scalia agree with the constitutionality of your offense-offender characteristic division? I don't think so. It seems he is content resting on principle, striking down unconstitutional sentencing practices without thinking about a workable and constitutional solution. He does this even if it means handing the remedy to justices who will use Booker to increase the inquisitorial nature of the judicial system.

Admirable, but also somewhat tragic. Typical Scalia.

Posted by: R | Jan 31, 2007 3:30:53 PM

If Blakely is about preferring adversarial to inquisitorial sentencing procedures, and if the Framers wanted juries rather than judges to control sentencing, then are indeterminate sentencing systems unconstitutional? And purely advisory guidelines are too?(at least if they give judges a broad sentencing range) Or is Blakely really about prosecutorial power? Which could be controlled either by judges (under indeterminate sentencing or advisory guidelines) or by juries (Blakelyized guidelines). But then, shouldn't the Court have exempted determinate sentencing systems (like those in Washington and California) that leave judges free not to enhance even if they find aggravating facts?

As for the European perspective, do you mean to imply that they favor huge trial penalties? In the Euro systems I've studied, defendants who cooperate usually get leniency, and in many of these systems explicit sentence negotiation is becoming more common. But negotiated criminal justice is still very controversial in most Civil Law systems, and, in practice, plea(equivalent)-versus-trial disparities are relatively modest. So while it is true that Europeans still strongly believe in judicial sentencing discretion (there are no sentencing guidelines, and few mandatories), they are very troubled by large trial penalties.

Posted by: Richard Frase | Jan 31, 2007 4:11:30 PM

Richard,

I would like to respectfully disagree with the fundamental premise underlying your statement, "If Blakely is about preferring adversarial to inquisitorial sentencing procedures and if the Framers wanted juries rather than judges to control sentencing, then are indeterminate sentencing systems unconstitutional?"

I believe the Framers specifically provided that juries have no constitutional role to play in sentencing. The Sixth Amendment applies only to "criminal prosecutions" not sentencing. The Framers gave juries a role only in deciding whether to acquit or convict someone of a crime.

This notion is most clearly seen in the first sentence in Justice Thomas'Apprendi concurrence, where he talks about the case is about simply "what is a crime?" Likewise, Justice Scalia talks about "the crime the state actually seeks to punish " in his Blakely majority opinion. And in his Ring concurrence , Justice Scalia chides Justice Breyer by saying that "unfortunately this case has nothing to do with sentencing" Plus, Scalia makes it crystal clear in Ring that he believes that Apprendi gave no role to juries in sentencing, as opposed to a role in convicting or acquitting of crimes, when he went out of his way to say that states who leave the ultimate life and death decision to judges may continue to do so.

R, looked at from the perspective that Apprendi is about two things and two things only--what is a crime, and who convicts people of crime- Justice Scalia's position is perfectly coherent and , to me, principled.

Bruce

Posted by: bruce cunningham | Jan 31, 2007 9:27:59 PM

I agree with the basic premise, but is this really the right way to look at it? It is not so much a penalty for going to trial, but a problematic bonus for plea bargaining. A simple way would be to reduce or eliminate plea bargaining (perhaps cap the deals to a 10% bonus on jail time?). All of these people deserve the full term, but some are evading it.

Posted by: jvarisco | Feb 1, 2007 8:57:48 AM

Here's a question. We all know that appellate courts cannot take judicial notice on appeal of a criminal case to cure a sufficiency of the evidence problem. At bottom, what's the difference between that and a trial judge being able to make factual resolutions that have the legal effect of increasing a sentencing outcome beyond what the jury verdict did? There are differences, of course. But they both seem equally problematic.

And aren't the complaints about Apprendi and the current climate of plea bargaining beside the point, since plea bargaining was not all that common in the late 18th Century?

Posted by: federalist | Feb 1, 2007 3:43:12 PM

A key difference between the European and American systems is the nature of the appellate system.

European appeals routinely address both questions of fact and law (and have more flexibility than merely ordering a trial de novo if the trial court screwed up a material point).

American appeals make it easy to appeal issues of law, and very hard to appeal questions of fact. And, of course, there are no American appeals of acquittals.

The result is that getting it right the first time is far more important in American justice than in European justice.

This makes who the finder of fact is far more important, because the finder of fact's decision is far more likely to remain undisturbed than in a European setting.

Posted by: ohwilleke | Feb 3, 2007 6:36:14 PM

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