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June 22, 2007

Whither (or wither) Apprendi-Blakely rights in coming constitutional sentencing fights?

Cutman One (of many?) reasons why the Supreme Court's Sixth Amendment jurisprudence has been so quirky and unpredictable has the the fact that the Court has been, from the very beginning and even in all state cases, shadow-boxing about the validity, viability, virtues and vices of the federal sentencing guidelines.  Ever the persistent cutman, Justice Breyer has managed through the Booker remedy and his Rita opinion to keep the federal guidelines standing in round after round of the (now decade-old) modern Sixth Amendment jurisprudential bout.  (And, because of their procedural posture and facts, it seems very unlikely that Gall or Kimbrough could deliver a constitutional knock-out blow to the federal sentencing guidelines). 

But, as evidenced by rulings like Cunningham, Justice Breyer has limited ability to prevent — and perhaps limited interest in preventing — the Court's Sixth Amendment jurisprudence from knocking down other structured sentencing reforms.  And yet, even though Cunningham majority opinion had six votes for a seemingly strong view of the Court's Sixth Amendment work, reading all the opinions in Rita gives me the impression that only three Justices (Justices Scalia, Souter and Thomas) are deeply concerned with safeguarding, in Justice Souter's words, "the guarantee of a robust right of jury trial."

In the wake of Rita, I ultimately think we will need to await a district non-federal-guidelines case to know where the Court is prepared to go with its Apprendi-Blakely jurisprudence (e.g., a case dealing with the scope of the prior conviction exception or Blakely's applicability to supervised release revocation or to restitution awards). With the federal guidelines now likely to surviving — even though they may end up significantly bruised after Gall and Kimbrough get in their blows — perhaps Justice Breyer (and others in the Rita majority) will be prepared to spend more time in Apprendi land when the fate of the federal sentencing guidelines do not hang in the balance.

June 22, 2007 at 11:06 AM | Permalink


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I think that this is far more complicated, Doug. For one thing, when the Court goes out of its way to invalidate *state* sentencing regimes, that to me indicates a robust appetite for enforcing the Sixth Amendment. Although the Court has historically hesitated to invalidate federal statutes, this has mainly been where the statute's constitutionality depended upon the scope of Article I. The Court also historically has hesitated to disturb criminal decisions of the state courts; thus, I think it is meaningful when five or more Justices go out of their way to invalidate a state scheme.

Second, I think that Justices Stevens, Ginsburg, and Kennedy -- and probably Souter as well -- dislike the Guidelines because they are too penal. Ultimately this is the sense I get from Justice Stevens concurrence in Rita. Thus, while remedial Booker has inherent constitutional problems with it -- which, as Scalia notes, are bound to come to the fore very soon (see Unitedd States v. Mercado) -- they also recognize that remedial Booker could allow for more easy downward departures, at least so long as downward departures receive deference as well. That explains the content of Stevens Rita concurrence. In the short term, the block of four might be willing to live with some constitutional tension (though Souter appears to want to have his cake and eat it too) in exchange for the often times draconian "Guidelines minimums." I think we'll see that in Kimbrough and Gall.

In the long term, I think that Cunningham indicates that, when the Court is confronted with one of the hypotheticals presented in Scalia's Rita concurrence (see United States v. Mercado for a potential vehicle), it will become clear once more that Blakely is the alpha here.

Ulimately, Blakely is based on far more persuasive constitutional analysis, statutory construction, and inherent logic than remedial Booker is. In the end, this is why Blakely will ultimately win out. It might take time, but I'm confident. In the meantime, I think that those that think the Guidelines are often times draconian should take solace in the fact that Rita portends positive outcomes in Kimbrough and Gall.

Posted by: Aaron | Jun 22, 2007 11:31:23 AM

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