by Matt Barr

Sentencing guidelines no longer mandatory, and a homework assignment for Sen. Reid

The Supreme Court today held (124-page PDF), 5-4, that the strictures of the Sixth Amendment apply to the federal sentencing guidelines in the same way they do to mandatory state sentencing guidelines. This is unsurprising, and anticipated, both by the Blakely majority and minority (the 5-4 distribution of that part of the opinion is the same). A different 5-4 majority, though, inexplicably decided to blot out the parts of the guidelines that make them mandatory, leaving them otherwise intact.

At issue in the present case was a federal convict, Mr. Booker, whom a jury found guilty of possessing 92.5 grams of crack. The sentencing judge held a post-trial sentencing proceeding and found by a preponderance of the evidence that Booker had actually possessed an additional 566 grams. The federal sentencing ranges for the two quantities differ.

If you buy that the Sixth Amendment's trial by jury requirements are implicated by sentencing rules (which the Court does, 5-4), Booker cannot be sentenced on the basis of having possessed more than 650 grams of crack, only on the basis of having possessed 92.5. The guidelines are unconstitutional, then, as applied to Booker.

Messrs. Justice Breyer and Kennedy, Ms. Justice O'Connor, Ms. Justice Ginsberg and the Chief Justice went "wonderfully" (Mr. Justice Scalia's word, and he meant it literally, not colloquially) further, and stripped the mandatory sentencing guidelines of their mandatory-ness by eliminating two subsections. I don't think there ought to be mandatory sentencing guidelines for policy reasons, so I think Congress should change the law. And no doubt it will, now. But this inexplicable transformation of mandatory guidelines into something that "should be consulted" is beyond logic, and beyond, I believe, the power of the Court.

Mr. Justice Stevens, who delivered the opinion of the Court as to the Sixth Amendment's applicability, dissents from the remedial opinion, joined in part by Mr. Justice Scalia -- don't believe everything you read! Mr. Justice Scalia dissents separately, in wonderfully (I'm using it colloquially) typical style:

The remedial majority takes as the North Star of its analysis the fact that Congress enacted a “judge-based sentencing system.” Ante, at 22 (opinion of BREYER, J.). That seems to me quite misguided. Congress did indeed expect judges to make the factual determinations to which the Guidelines apply, just as it expected the Guidelines to be mandatory. But which of those expectations was central to the congressional purpose is not hard to determine. No headline describing the Sentencing Reform Act of 1984 (Act) would have read “Congress reaffirms judge-based sentencing” rather than “Congress prescribes standardized sentences.” JUSTICE BREYER’s opinion for the Court repeatedly acknowledges that the primary objective of the Act was to reduce sentencing disparity. Inexplicably, however, the opinion concludes that the manner of achieving uniform sentences was more important to Congress than actually achieving uniformity -— that Congress was so attached to having judges determine “real conduct” on the basis of bureaucratically prepared, hearsay-riddled presentence reports that it would rather lose the binding nature of the Guidelines than adhere to the old-fashioned process of having juries find the facts that expose a defendant to increased prison time....

The Court claims that “a statute that does not explicitly set forth a standard of review may nonetheless do so implicitly.” Ante, at 17 (opinion of BREYER, J.). Perhaps so. But we have before us a statute that does explicitly set forth a standard of review. The question is, when the Court has severed that standard of review (contained in §3742(e)), does it make any sense to look for some Congressional “implication” of a different standard of review in the remnants of the statute that the Court has left standing? Only in Wonderland. (This may explain in part why, as JUSTICE STEVENS’s dissent correctly observes, ante, at 12, none of the numerous persons and organizations filing briefs as parties or amici in these cases —- all of whom filed this side of the looking-glass —- proposed, or I think even imagined, the remedial majority’s wonderful disposition.) Unsurprisingly, none of the three cases cited by the Court used the power of implication to fill a gap created by the Court’s own removal of an explicit standard. The Court’s need to create a new, “implied” standard of review -- however “linguistically” “fair,” ante, at 19—amounts to a confession that it has exceeded its powers.

Emphases in original, and footnotes omitted. He's not just bitching; he has an important point about possible unintended consequences here: "Today’s remedial opinion does not even pretend to honor [the] principle that sentencing discretion is unreviewable except pursuant to specific statutory direction." He would seem to be right. The remedial majority seems to be saying that appellate courts may now review sentences for their "reasonableness" -- a dramatic departure, if so, and one which might survive Congress' "fixing" the guidelines to make them mandatory yet Constitutional. (For neither majority says that mandatory sentencing guidelines are per se unconstitutional; as I note above, they were unconstitutional as applied to Booker, or, if you prefer, insofar as they allow facts not found beyond a reasonable doubt by a jury to increase a sentence.)

Mr. Justice Thomas also dissents, not with Scalia's flamboyancy, naturally. His opinion is better structured, I daresay better reasoned, and frankly more convincing. Sen. Reid's assignment: Read the two dissents. Both are fine pieces of work, but I dare him to say Thomas' reads as though written at an eighth grade level. Scalia's opinion begins on page 90, Thomas' on page 101 of the slip opinion.

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