Engaging with the sentencing revolution, sort of

As previously discussed by Orin Kerr in this terrific post, one of the most interesting facets of Justice Stevens' opinion for the merits majority in Booker is the express discussion of the impact of the modern sentencing reforms on the Court's constitutional jurisprudence.  Discussing the "new trend in the legislative regulation of sentencing," Justice Stevens explains that "the Court was faced with the issue of preserving an ancient guarantee under a new set of circumstances:"

The new sentencing practice forced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime.  And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by Sixth Amendment formalism but by the need to preserve Sixth Amendment substance.

I was pleased that this passage confirmed my belief since the Apprendi decision that the Supreme Court's new Sixth Amendment jurisprudence reflects a reaction to the revolution in sentencing policy and practice brought by modern statutory and guidelines reforms.  See Appreciating Apprendi: Developing Sentencing Procedures in the Shadow of the Constitution, 67 Criminal Law Bulletin 627 (November-December 2001).  Indeed, my recent article in the Winter 2005 issue of the ABA's Criminal Justice magazine explains the Blakely ruling in exactly these terms.  (I am pleased that I can now provide that article, entitled "The Roots and Realities of Blakely," for downloading here: Download blakely_roots_for_aba.pdf.)

And yet, though I was pleased to see some engagement with the sentencing revolution, I was displeased that Justice Stevens' opinion fails to address or even acknowledge that historical approval in cases like Williams of lax procedural rights in a discretionary sentencing system was once expressly premised on the rehabilitative "medical model" of sentencing that dominated before modern reforms.   As discussed in my post about what Blakely is really about and also in the ABA article available above and also in Judge Nancy Gertner's  Mueffleman decision (available here), the modern sentencing reform movement largely reflects a general rejection of rehabilitation as a penal theory as sentencing is today predominantly about imposing punishment, not about devising a cure.

Thus, while the Booker merits majority is to be praised for its express discussion of the modern evolution of sentencing, a lot more could have been said on this topic.  (Notably, as evidenced by his dissents in cases like McMillan and Watts, Justice Stevens himself seem ready to rethink various aspects of Williams, but he likely did not have five votes for broader dicta to that effect in Booker.)  Moreover, because of the work of the Booker remedial majority, it appears that Justice Breyer has created a way for the federal sentencing system to still rely on an administrative system of sentencing justice.