March 23, 2010
"Apprendi Land Becomes Bizarro World"The title of this post is part of the cool title of this new paper now on SSRN from Benjamin Priester. The full title of the piece is "Apprendi Land Becomes Bizarro World: “Policy Nullification” and Other Surreal Doctrines in the New Constitutional Law of Sentencing," and here is the abstract:
Imagine a final exam essay answer in constitutional law which sets forth doctrinal principles like the following: Decision-makers should preferably give vague explanations grounded in moral philosophy rather than specific explanations connected to particular findings. Appellate review of trial court decision-making is unconstitutional. Courts are entitled to substitute their own policy preferences for those enacted by the legislature on questions of non-constitutional law; in fact, it is probably unconstitutional to enact legislation expressly compelling courts to follow the legislature’s non-constitutional policy preferences. One might expect such an exam answer to receive an F – but if the exam question involved the United States Supreme Court’s new constitutional law of sentencing, then the student has probably earned an A. Welcome to Apprendi Land – which has now become Bizarro World. This article examines and criticizes these and other surreal doctrines in the Court’s decisions, and argues that the Court must abrogate its expansion of Apprendi doctrine to restore most issues of sentencing policy to non-constitutional status.
March 23, 2010 at 06:13 PM | Permalink
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The argument in this paper reminds me of the argument of death penalty opponents who complain that it costs too much to kill people. They both are so fearful of the government running amok that they hamstring it, then whine about what a mess has been made by the reformers.
If the law in this area is a mess, one only need to look at the insubordination of the judges who are allies of Benjamin Priester to know here the blame lies.
Posted by: Daniel | Mar 23, 2010 7:45:17 PM
No lawyer should be permitted on any bench, any legislative seat, nor any responsible policy position in the executive branch. A statute should ban these self-dealing incompetents.
Posted by: Supremacy Claus | Mar 23, 2010 9:47:47 PM
In my view, there is no such thing as the "constitutional law of sentencing." It is quite ironic that Mr. Priester chooses to quote Justice Scalia's concurring opinion in Ring v Arizona as the source for the term "Apprendiland"
The planeride to Apprendiland is classic Scalia mockery of Justice Breyer's notion that Ring has something to do with sentencing. As Scalia also says in Ring, "Unfortunately, (for Justice Breyer) today's judgment has nothing to do with jury sentencing. Those states which leave the decision of life and death to the judge may continue to do so." Or close to that. Justice Breyer was making an Eighth amendment argument. Justice Ginsburg says the argument was strictly based on the sixth amendment.
What Apprendi is about, in my opinion, is encapsulated in Justice Thomas' statement in Apprendi, that the decision is about "simply put, what is a crime?"
Or, as Justice Scalia says in his circuitbreaker sentence in Blakely , a jury verdict cannot be a mere preliminary to a judicial inquisition into the facts of the crime "the state actually seeks to punish."
At bottom, Apprendi prohibits a bench trial for a greater offense after a jury trial for a lesser offense.
Posted by: bruce cunningham | Mar 23, 2010 11:28:44 PM
I am certainly closer to Bruce's viewpoint on what Apprendi is than Priester's. Priester's "solution" doesn't address the basic problem of the bench trial on a preponderance to determine what the crime really was.
Under Priester's "fix" a State legislature could make a felony offense of "using force against the person of another without permission" as a substitute for all assaults, with a max punishment of 30 years. Then the legislature could have a mandatory guideline system that allowed the judge to determine what relevant facts should increase the sentence from misdemeanor type sentences all the way to assaults with firearms causing serious bodily injury which would result in a sentence of decades.
I will say that I welcome any discussion on the part of critics of Booker etc. The DOJ seems to have simply chosen to ignore the existence of this entire body of law. AUSA's in my world simply recommend guideline range sentences without any meaningful discussion of how non guideline considerations affect the determination of a sentence.
On that point I think Mr. Priesters argument concerning "determinations of the normative value of facts in imposing sentence" goes too far and ignores the opportunities that an advisory system offers. He worries that pro gun or pro marijuana judges will simply ignore the guidelines altogether and impose sentences of probation. This ignores the reality of the of the type of arguments that defense counsel makes after Blakely etc.
My view of why advisory guidelines are better does not rest upon the assumption that judges will ignore the guidelines. They won't and they don't. However, if there is a specific guideline provision that has no sensible justification, (e.g. 16 levels for illegal rentry), at least we have the opportunity to point that out to the judge. This is also consistent with what the commission has said about the "continuing evolution and role of the guidelines." USSG Chap 1 part A.2. Although we have not seen much action taken on the commission's part in mitigating the harshest and least justifiable portions of the guidelines, at least they have said they are willing to listen to the trial court's determinations for feedback. I am hopefull that the bench will realize that this is a perfectly valid reason to vary from the guidelines and that unless they are willing to do so, the commission will not have the data they need to correct the most obvious flaws. Eventually, if all parties engage in good faith in this enterprise, the judges would be more likely to follow the advice of the guidelines, because it would be sound advice, rather than something the commission pulled out of the air, or did at the request of ATF etc.
Posted by: KRG def attny | Mar 24, 2010 2:49:05 PM
I read the blog above and not the article by Preister.
When Scalia said Welcome to Apprendiland, perhaps he was being jocular.
I cannot fathom why Apprendi should be reconsidered or repealed. These conclusions by Preister are themselves surreal. Bruce Cunningham's observations above are better than anything I could say. At bottom Apprendi prevents a bench trial for a greater offense after a jury trial for a lesser offense. The case of Jones posited the proposition better than Apprendi. Facts must be charged by a grand jury. Apprendi lost a step.
Posted by: mpb | Mar 24, 2010 9:36:38 PM
Thanks for the compliment but I'm afraid I'm going to have to disagree with you on both of your points. "Facts must be charged by a grand jury." That is true for federal cases, which Jones was, but not for state criminal prosecutions, which Apprendi was. The reason for that is that Hurtado v California is still good law that the indictment clause does not apply to the states.
I realize that Justice O'Connor said in her Apprendi dissent that the indictment clause applies to the states, but that was clearly a slip of the tongue.
As far as the Scalia being jocular, I think facetious or sarcastic is a better description of his comments directed at Breyer in Ring v Arizona. Breyer agreed that juries should determine whether a def gets death or not, but he based that opinion on the Eighth Amendment. Scalia said that while he is always pleased to travel with Breyer, Breyer was on the wrong plane (meaning the Eighth instead of Sixth amendment) Therefore Breyer should "get off before the doors close or buy a ticket to Apprendiland" Just so there was no mistake about it, Scalia said that once a jury finds an ag in the guilt phase, "where it logically belongs anyway" a judge could decide life or death. The best example of the correctness of Scalia's position is the Arizona case of State v Martinez which says once a jury finds one capital ag, which exposes a def to death, the judge can find other ags. Any ag after the first one is not an Apprendi fact because it does not increase the potential punishment any more than the first ag did.
But anyway, thanks for joining my view that Apprendi is about who convicts people of crimes, the jury, not about giving the jury a constitutional role to play in sentencing.
Posted by: bruce cunningham | Mar 24, 2010 10:13:53 PM