Brief initial reflections on the late Justice David Souter's sentencing law legacy

As reported in this extensive New York Times piece authored by Linda Greenhouse, "David H. Souter, a New Hampshire Republican who was named to the Supreme Court by President George H.W. Bush and who over 19 years on that bench became a mainstay of the court’s shrinking liberal wing, died on Thursday at his home in Concord, N.H.  He was 85."  The article provides a lovely accounting of the man as well as his political and legal background and legacy. 

In part because Justice Souter did not author all that many major sentencing opinions, his sentencing legacy arguably is defined by his provision of key fifth votes in Sixth Amendment cases like Apprendi and Blakely/Booker and Eighth Amendment cases like Roper and Kennedy.  And, not to be overlooked, Justice Souter authored the opinion for the Court in Jones v. US, 526 U.S. 227 (1999), a statutory interpretation case that ultimately provided the conceptual underpinings (and a uniquely composed majority) that resulted in the Apprendi revolution in 2000.   In particular, footnote 6 of the Jones opinion for the Court authored by Justice Souter provided this textured discussion of what would become constitutional law a year later:

FN 6 The dissent repeatedly chides us for failing to state precisely enough the principle animating our view that the carjacking statute, as construed by the Government, may violate the Constitution.  See post, at 1, 14, 17.  The preceding paragraph in the text expresses that principle plainly enough, and we re-state it here: under the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.  Because our prior cases suggest rather than establish this principle, our concern about the Government’s reading of the statute rises only to the level of doubt, not certainty. Contrary to the dissent’s suggestion, the constitutional proposition that drives our concern in no way “call[s] into question the principle that the definition of the elements of a criminal offense is entrusted to the legislature.” Post, at 16 (internal quotation marks omitted).  The constitutional guarantees that give rise to our concern in no way restrict the ability of legislatures to identify the conduct they wish characterize as criminal or to define the facts whose proof is essential to the establishment of criminal liability.  The constitutional safeguards that figure in our analysis concern not the identity of the elements defining criminal liability but only the required procedures for finding the facts that determine the maximum permissible punishment; these are the safeguards going to the formality of notice, the identity of the factfinder, and the burden of proof.

There are a few other notable separate opinions by Justice Souter in sentencing cases like Koon v. US and Rita v. US.  Indeed, as a lone dissenter in Rita, I was especially drawn to his vision of vindicating Fifth and Sixth Amendment principles in federal sentencing:

Taking the Booker remedy (of discretionary Guidelines) as a given, however, the way to avoid further risk to Apprendi and the jury right is to hold that a discretionary within-Guidelines sentence carries no presumption of reasonableness. Only if sentencing decisions are reviewed according to the same standard of reasonableness whether or not they fall within the Guidelines range will district courts be assured that the entire sentencing range set by statute is available to them.  See Booker, supra, at 263 (calling for a reasonableness standard “across the board”). And only then will they stop replicating the unconstitutional system by imposing appeal-proof sentences within the Guidelines ranges determined by facts found by them alone.

With my Booker-addled brain, I suspect I am overlooking this morning some other sentencing work by Justice Souter that merits mention when taking stock of his legacy.  I would welcome comments that provide additional accounts of his sentencing legacy.