July 10, 2004


Eugene Volokh comments on the recent Booker decision of the 7th Circuit, which provides one one of the always worthwhile exchanges between Posner (this time in the majority) and Easterbrook (in dissent). There are two big issues. One is whether a lower court should overrule Supreme Court precedent if it thinks the Supreme Court will, even if the Supreme Court has not yet done it. Posner says yes; Easterbrook says no. I think Posner is probably right on that one-- remembering the caveat of "if it thinks the Supreme Court will". The other issue, the substantive one in this case, is whether the recent Supreme Court Blakely decision means that a jury, not a judge, must make any factual determinations for criminal sentencing. That is harder. The idea is a foolish one, unless judges are to have no discretion at all. Traditionally, judges have looked to all aspects of the severity of the offense and the past history of the defendant-- and, indeed, the jury has not been allowed even to hear any evidence about the past history of the defendant. If the Supreme Court acts consistently with Blakely, it says that somehow nobody noticed over the past 200 years that this practice is unconstitutional and that juries, not judges, must decide facts at sentencing hearings. There would remain a limited role for the judge, but only to apply the law to the fact-finding of the jury.

Note that this will require a big increase in expenditure on criminal courts. Currently, many (most?) criminal cases do not require trial by jury, because a plea bargain is reached. The criminal pleads guilty, so no jury is needed, and the judge imposes a sentence. Now, it seems, the Supreme Court says that a guilty plea is not enough. The defendant must also plead agreement to all the facts that might affect his sentencing. Before, the jury was dismissed after it reaches its verdict, which is usually "guilty". Now, it must be continued for a separate sentencing hearing, or a new jury must be chosen with the entire voi dire process of challenges.

The Supreme Court seems to have been confused on this-- as usual, ruling things unconstitutional without thinking about logical consistency or policy implications. Posner wants to impose the logical consequences of Blakely on them; Easterbrook wants to save them from themselves, and perhaps make them retract Blakely.

Easterbrook notes that the parole system is also overthrown by Blakely if the sentencing guidelines require juries:

Think of the indeterminate sentence: zero-to-life with release in the discretion of parole officials. The federal Parole Commission eventually developed a set of release guidelines designed to ensure consistent treatment of offenders. See United States v. Addonizio, 442 U.S. 178 (1979). Parole- release guidelines might say something like: "Hold bank robbers in prison for 10 years; hold armed bank robbers for 20; hold armed bank robbers who discharge their weapons or take hostages for 30; add (or subtract) time from these presumptive numbers to reflect the size of the heist." If my colleagues are right, then such a system violates the sixth amendment.

Here is what I think is the heart of the substance part (as opposed to the procedure part) of Easterbrook's dissent:
...the only finding that is indispensable to Booker’s sentence is the one specified by statute: did he distribute more than 50 grams of cocaine base? The jury found beyond a reasonable doubt that he had. Where in the resulting statutory range of 10 years to life the actual sentence falls depends on complex interactions among drug quantity, gun use, violence, role in the offense (was defendant the mastermind or just a courier?), cooperation, obstruction of justice, criminal history, and other factors, none of which is a sine qua non in the same sense as the statutory thresholds.
Judges dislike the Sentencing Guidelines intensely-- which is natural enough, since the Guidelines constrain them. Now they'll see part of their power shift to juries, which will no doubt make them even more unhappy. It does seem, though, that judges will still get to grant clemency, and the juries will only be stuck with the task of enhancing sentences for unusually evil offenders.

Posted by erasmuse at July 10, 2004 11:17 AM

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