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August 3, 2017

"Justice Thomas, Criminal Justice, and Originalism’s Legitimacy"

The title of this post is the title of this notable new essay authored by Judge William Pryor as part of a Yale Law Journal Forum collections of essays under the heading "Justice Thomas: Twenty-Five Years on the Supreme Court."  The essay covers lots of elements of Justice Thomas's criminal justice jurisprudence, and I recommend the piece in full.  And especially because Judge Pryor is the current Acting Chair of the US Sentencing Commission, I figure sentencing fans might find this passage from the essay interesting:

A second area where Justices Thomas and Scalia agreed on a legal rule but disagreed on how to apply it was in determining whether statutory mandatory minimum sentences violated the right to a jury trial. Both Justices agreed with the rule established in Apprendi v. New Jersey that any fact, other than a prior conviction, that increases the penalty for a crime beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. And both voted to invalidate mandatory sentencing guidelines that required judges to find facts that would increase sentencing ranges. But the Justices disagreed about why mandatory sentencing guidelines were problematic. Justice Scalia saw the problem as permitting fact-finding to increase the ceiling of a judge’s discretion in a way that could disadvantage a defendant. Justice Thomas, on the other hand, saw the problem as changing the range of discretion, even if the sentencing ceiling remained unchanged.

This difference led the Justices to opposite positions in Alleyne, discussed above. Justice Thomas wrote for the majority that facts that trigger statutory mandatory minimum sentences must be proved to a jury because the facts “alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment.” Justice Scalia joined a dissent written by Chief Justice Roberts that viewed the application of a statutory mandatory minimum as a limit on the discretion of the judge that in no way affected the role of the jury.

As an aside, I respectfully disagree with both Justices Scalia’s and Thomas’s decisions to join in the majority opinions in Blakely and Booker, the foundational decisions underlying Alleyne. The notion that mandatory guidelines that regulate judicial discretion within a statutory range of punishment to reduce sentencing disparities somehow violates a defendant’s right to a jury trial even though it is entirely permissible for judges, in an indeterminate system, to find sentencing facts and impose punishments anywhere within a broad statutory range has never made sense to me. I side with another Yalie, Justice Samuel Alito, on that one. But accepting the logic of Blakely and Booker that the Sixth Amendment requires a jury to find all facts essential to the potential penalty, only Justice Thomas’s position in Alleyne makes sense.

August 3, 2017 at 01:35 PM | Permalink


I walked through the Missouri Atty Generals Office, down a hallway with an Ass. A.G., back in 1974 or so. I was working on a criminal case against the State. JB Johnson case. We walked by an empty lawyer's office which had a Confederate Flag on the wall behind the desk chair and a small state flag with a confederate flag in its corner.
"What's up with that!" I asked.
"Oh, that is just Clarence. He is UnReconstructed!"

In those days UnReconstructed meant that one opposed the three Reconstruction Amendments to the Constitution, particularly the 14th Amendment.

We later met up with Clarence at the lunch room and I was introduced. Attorney General Danforth had hired him. And later Senator Danforth got Clarence hired to be head of the EEOC.
And promoted him for the Court of Appeals and Supreme Court.

Posted by: Liberty1st | Aug 3, 2017 2:23:42 PM

Yale? Dismissed. Worthless.

Posted by: David Behar | Aug 3, 2017 11:18:16 PM

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