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July 4, 2005

Celebrating liberty, Blakely-style

Us_flag I have plans later today to celebrate liberty by watching a parade and fireworks.  But, showing my true law geek colors, I started today by re-reading Justice Scalia's opinion for the Court in Blakely v. Washington.  Though other recent Supreme Court decisions may also make for good reads on July 4th, I am always inspired by the principles of freedom, democracy and limits on government oppression that I see at the core of Blakely's holding.  As a reminder of how these patriotic values course though Blakely, consider these passages from Justice Scalia's opinion for the Court:

That right [of jury trial] is no mere procedural formality, but a fundamental reservation of power in our constitutional structure.  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.

The jury could not function as circuitbreaker in the State's machinery of justice if it were relegated to making a determination that the defendant at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of the crime the State actually seeks to punish.

There is not one shred of doubt ... 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.  As Apprendi held, every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment.

The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to "the unanimous suffrage of twelve of his equals and neighbours," 4 Blackstone, Commentaries, at 343, rather than a lone employee of the State.

In addition to finding these quotes stirring, these quotes also make me a bit sad in the wake of Booker and some state rulings and legislation that have responded to Blakely by expanding judicial sentencing discretion.  Though there are virtues to enhanced judicial sentencing discretion, that sort of response to Blakely tends to treat the right to a jury trial as a "mere procedural formality" and also diminishes the ability for juries to "function as circuitbreaker in the State's machinery of justice."

July 4, 2005 at 08:12 AM | Permalink


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Come on, Prof! Do you want to abolish judicial discretion? How about mandatory sentences based on the guilty verdict? The jury is in charge and the judge is a mere ministerial functionary. Or how about full jury sentencing? Give the jury the discretion and see what they will do with their one chance to take a bite out of crime (and note the differences based on race, class and physical appearance of the defendant). Blakely's language is nice but you need to think about the realities.

Posted by: Silly | Jul 4, 2005 12:02:01 PM

As recently proved by North Carolina's Blakely fix, Mr. Silly, Blakely does not necessarily require an all-or-nothing, binary, judge-or-jury choice (though Justices Breyer and O'Connor seem to think that way). Rather, in the judicial branch we can (and should) have both jury and judge in the sentencing mix, each checking-and-balancing each other.

Notably, the best capital sentencing systems run this way: the jury has to recommend death, and then the judge has discretion to override that recommendation to mitigate down to life. In such a system, every case-specific decision-maker has to agree that the harsher sentence is fitting. I think, in the wake of Blakely, non-capital sentencing should work the same: the jury, as a representative of the people, has to authorize a longer sentence, but then a judge retains discretion to mitigate.

(Interesting, as evidenced by his opinion in Ring, Justice Breyer seems fond of such a system for capital sentencing (as his says the 8th Amendment requires jury capital sentencing). But apparently Justice Breyer is too wedded to his guidelines model to see that a jury-involved system could be great for non-capital sentencing.)

I fear that all-or-nothing, binary thinking about all these matters has often kept sentencing systems from evolving in a nuanced and progressive manner, and I fear such thinking is harming the post-Blakely world, too.

Posted by: Doug B. | Jul 4, 2005 7:56:14 PM

Professor, no one is against checks and balances but Blakely's allegedly constitutional rhetoric doesn't give us that. In the olden days, the jury authorized the longest punishment set by the legislature and the judge "mitigated" by not imposing this max. Blakely explicitly allows this kind of a response again as further evidenced by Booker. If we really want the jury to be a circuitbreaker, why not allow the jury to know the sentence that will follow based on their "factual finding" of an aggravating circumstance? Heck, why not allow explicit pleas for nullification? If the jury is the conscience of the community and needs to have a bigger role, why not really give it one?

Posted by: Silly | Jul 5, 2005 8:53:17 AM

As you might surmise from my prior comment, I am not against giving juries the additional powers you suggest, too. My main point is that having juries involved does not mean judges can't (or shouldn't) also have significant sentencing discretion. Your first comment, discussing making the judge "a mere ministerial functionary," suggested a binary world I am fighting against.

Posted by: Doug B. | Jul 5, 2005 10:12:33 AM

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