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January 16, 2006

Debating the future of federal sentencing

Last year, as the Supreme Court prepared to hear argument in Booker and Fanfan, Professor Stephanos Bibas and I had the pleasure of participating in Legal Affairs' Debate Club to explore the question "Can the Court clean up its Blakely mess?".  In my (biased) opinion, we plowed a lot of important ground in that debate, and the points made therein remain timely.

I am hopeful that, now with Professor Frank Bowman as my new debate partner, the Legal Affairs' Debate Club will agin prove to be a fruitful environment for developing sentencing reform ideas.  Celebrating the anniversary of the Supreme Court's decision in Booker (background here and here), our question for this week is simply "What is the future of federal sentencing?".  I have my first entry up here at the Debate Club, and Frank will be chiming in soon.

January 16, 2006 at 05:50 PM | Permalink


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The Supreme Court’s holding that a state’s procedure violates a defendant’s due process rights under the Sixth Amendment, as applied by the Fourteenth Amendment, may require a new rule of criminal procedure in the state, but it does not change the Sixth Amendment, nor alter a criminal defendant’s protection under the Sixth Amendment in a federal criminal proceeding. See: Apprendi v. New Jersey, 530 U.S. 466, 147 L.Ed.2d 435, 120 S.Ct. 2438 (2000); Ring v. Arizona, 536 U.S. 584, 153 L.Ed.2d 556, 122 S.Ct. 2428 (2002); Blakely v. Washington, 542 U.S. 743, 159 L.Ed.2d 403, 124 S.Ct. 2531.
Likewise, a Supreme Court holding that the United States Sentencing Guidelines (“Guidelines”) violate a defendant’s Sixth Amendment right does not change the Sixth Amendment; because the due process rights to jury trial and proof beyond a reasonable doubt are “no mere procedural formality, but a fundamental reservation of power in our constitutional structure.” See Blakely, supra..
Apprendi, Ring and Blakely were cases determining the application of long established federal rights to particular state cases. In finding the State procedure unconstitutional, the Supreme Court was forced to apply the protections of the Sixth Amendment to state procedures under the Fourteenth Amendment. These cases initiated new procedures within these states as the rights previously established on the federal level were applied to the states through the Fourteenth Amendment. They did not and could not; establish new federal, criminal procedures.
The irony of the Supreme Court’s decisions in Apprendi, Ring and Blakely was; by recognizing that state criminal defendants have Fourteenth Amendment due process rights of the Sixth Amendment, the Court was forced to consider whether federal criminal defendants had been deprived of those protections by the Federal Sentencing Guidelines. The determination was that federal defendants had been deprived of their rights to a jury determination of all facts essential to the punishment under the Sixth Amendment. See U.S. v. Booker, 543 U.S. 631, 159 L.Ed.2d 403, 125 S.Ct. 738 . For when the Supreme Court in Apprendi held “It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt. Apprendi, supra, @ 490; and in Ring, the Court held it was impermissible for “the trial judge, sitting alone to determine the presence or absence of the aggravating factors…”. Ring, supra, @ 588-89; and in Blakely, supra, found the application of Washington’s sentencing scheme violated the defendant’s right to have the jury find the existence of “any particular facts” that the law makes essential to the punishment. Blakely, supra. It found that State defendants were not receiving the constitutional protections guaranteed by the Bill of Rights.
The future of federal sentencing is as simple as applying the Constitution to the federal system as it is applied to the states, if it is not proven to the jury or admitted by the defendant, no increased punishment may be inflicted. Correcting unconstitutional sentences today saves our Constitution for tomorrow; the states will not long endure hypocrisy from the U.S. Supreme Court and may decide that their State Supreme Court will provide the most consistent constitutional rulings. The inferior federal courts have aligned like a herd of cats and the Supreme Court’s “Nero” watch continues.

Posted by: Barry Ward | Jan 17, 2006 2:04:08 PM

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