Democracy and Distrust

One of the many interesting and important points that Professor Bill Stuntz made at yesterday's Harvard Law School panel was that the Blakely decision seems to be trying to make the criminal justice system more democratic. Professor Stuntz then provocatively suggested that this may be what's wrong with Blakely because, according to Professor Stuntz, the criminal justice system may already be "too democratic."

Indisputably, Blakely can and should be read as a decision at least in part about democratic values. Consider, for example, this line from Justice Scalia's majority opinion: "Just as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary." Slip op. at 9. Moreover, as evidenced by Judge Wilkinson's concurring opinion in Hammoud (details here) and the recent commentaries by Professors Aaron Rappaport (available here) and Vikram Amar (from Findlaw here), the SG's effort to keep Blakely from applying to the federal guidelines implicates a number of deep structural principles concerning democracy.

But, like all parts of the post-Blakely world, the democracy story is nuanced and should be carefully examined from various angles. First, of course, it should be highlighted that in the federal system neither prosecutors nor judges are democratically elected, whereas in state systems these actors typically are "more democratic." Thus, to the extent that prosecutors problematically dominate sentencing decision-making in the federal system — as suggested by the likes of Judge William Young here and Professor Marc Miller here — perhaps the federal system could indeed do better by becoming more democratic (at at least more accountable) at the case-specific level.

Second, like so much else in the world of sentencing, the meaning and value of democracy is often in the eye of the beholder. Recall, for example, that Justice Thurgood Marshall in Furman relied on democratic principles when voting for judicial abolition of the death penalty because he hypothesized that a fully informed electorate would reject capital punishment (see 408 U.S. 238, 360-63 and here for background on the "Marshall hypothesis"). And, of course, Judge Marvin Frankel, the father of guideline sentencing reforms, urged that sentencing law be developed by an unelected "Commission on Sentencing" because on important sentencing issues "legislative action tends to be sporadic and impassioned, responding in haste to momentary crises, lapsing then into the accustomed state of inattention." Criminal Sentences: Law Without Order at p. 119.

Finally, since criminal defendants might be considered the ultimate "discrete and insular minority," the democracy angle leads me to wonder what Professor John Hart Ely, author of the rightly legendary Democracy and Distrust, might have thought of Blakely. Given that, according to this bio, Ely played a role in the Gideon decision and practiced as a criminal defense lawyer before going into the academy, I have to think he would have far more praise than scorn for Blakely.