The Blakely Revolution, Justice Scalia, and the Living Constitution:
In his part of the majority opinion in United States v. Booker, Justice Stevens had what I think is the most honest explanation of the origins of the Blakely revolution. As sentencing guidelines schemes became increasingly popular in the 1980s and 1990s,
the Court was faced with the issue of preserving [the] ancient guarantee [of the Sixth Amendment] under a new set of circumstances. The new sentencing practice forced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime. And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by Sixth Amendment formalism but by the need to preserve Sixth Amendment substance.
  In the view of Blakely proponents, times had changed, and the Court needed to rethink Sixth Amendment rules "to preserve Sixth Amendment substance" in light of new sentencing guideline regimes.

  The obvious question is, how could Justice Scalia and Justice Thomas join in this example of what might plausibly be called "living constitutionalism"? My speculation is that there are two reasons.

  First, Justices Scalia and Thomas are open to creating new constitutional rules when they think that something new is needed to restore the function of an old doctrine. If changing technology or practice threaten the function of the old rule, Thomas and Scalia are willing to create new ones. An interesting example of this is Kyllo v. United States, in which Justice Scalia's opinion, with Justice Thomas on board, created a new Fourth Amendment rule to regulate thermal imaging devices. Changing technology threatened to eliminate the Fourth Amendment's traditional protection of the home, and so Scalia created a new rule to try to restore old protections.

  Second, Justices Scalia and Thomas much prefer rules to standards. That is, they like clear legal rules knowable ex ante instead of mushy balancing tests applied ex post. Apprendi/Blakely opponents never came up with a rule to protect the Sixth Amendment jury trial guarantee, while Apprendi/Blakely proponents did. Faced with a choice between a rule and a mushy balancing test, Justices Scalia and Thomas naturally gravitated to the new rule adopted by the Court in Blakely.

  I have enabled comments.

Related Posts (on one page):

  1. The Blakely Revolution, Justice Scalia, and the Living Constitution:
  2. Implementing Blakely and Remedies for Structural Rules:
  3. Initial Reaction to Booker/Fanfan Majority Opinions:
Daniel Moloney (mail):
It seems that the immediate impact of Booker is to affect the calculation of the plea bargain process by weakening the hand of the prosecutors by giving more discretion to the judges. There's less certainty now about how long a sentence you'll get, because the judge can deviate downward at his own discretion. In drug cases, where they think the guidelines are too harsh, I'd bet most judges would deviate downwards.

This will probably lead the prosecutors to try to get defendants to plead guilty to more elements of a crime. Rather than assume that the judge will accept the aggravating elements as before, now if a prosecutor wants to lock a guy up for a long time, he has to get him to plead guilty not just to the heart of the crime, but also to the aggravating factors. If the defense attorney doesn't think the prosecutor can convince a jury of those aggravating factors, he can probably negotiate a lesser sentence than under the previous system.

However, if the judges want, they can keep the older system in place--they can follow the guidelines and look for aggravating and mediating conditions under the preponderance of evidence standard, just as before. In non-drug cases in which the laws are ususally regarded as more sane, you might not have much difference now. So I suspect that the biggest on the ground difference will be in drug cases, and that this difference will start showing up immediately in the courts of all but the strictest judges.
1.13.2005 1:14pm
Nancy Ann Kirsch (mail):
Eugene Volokh you had better haul some serious serious ass and get some more jokes up on this board or people are going to stop reading this stuff.

I am your most important reader, and you must follow my commands.
1.13.2005 2:13pm
John N.:
Thomas for one seems to have said that his affinity for clear rules motivated his switch between Almendarez-Torres and Apprendi. See CT's concurrence in Apprendi.

As to the notion that AS and CT are willing to generate new constl rules when "something new is needed to restore the function of an old doctrine," might this explain their votes in the Eleventh Amendment cases?
1.13.2005 3:02pm
Crime & Federalism (mail) (www):
A couple of questions...
The Guidelines were created to prevent similarly situated D's from having disparate sentences due to the hang 'em and walk 'em judges. The Guidelines, to most people, seemed to demand high sentences. First, is that a valid, or is it another wive's tale? Second, if it is a valid assumption, then isn't Booker a windfall for D's? You'll still have hanging judges, but since the Guidelines would have hung D's anyhow, at least some D's will be able to get lenient judges.
1.13.2005 4:09pm
David Innes (mail) (www):
We've previously discussed whether the current court was more liberal or more conservative. I've contended that it's simply more moderate. I think the latest decision affirms that.

Daniel Maloney seems to think prosecutors have been weakened because they'll now actually have to present and prove aggrivating factors to juries rather than letting judges tack on more stuff after the fact. I appreciate that this will affect prosecutors from a bureaucratic perspective -- municipal and legislative entities will have to find the money to actually try such cases -- but I don't see how justice is made more lenient. Are we to believe most American jurors, upon learning of aggravating factors and recommended guidelines, won't be at least as likely to apply penalties as would a judge? Are we to believe they'll be less pursuaded by a prosecutor's assertion of factors than a judge would be.

The point being that while I can see that the greater prosecutorial enterprise might be inconveninced by this reassertion of the 6th Amendment's jury clauses. That might provide the basis of a "liberal court" argument on strictly technical grounds. I see no corresponding benefit for individual defendants, though, which punctures any substantive charge of liberalism.

Reading other comments on the web it strikes me once again that it's the formerly radical Blues who tend to prefer the conserving nature of this ruling, while it's the formerly reactionary Reds who advocated the liberal, situational-ethics-y ("if it feels good let prosecutors do it") interpretation of the 6th Amendment.


By the way, I want to emphasize the socio-political importance of this case with regards to during-trial vs. after-trial sentencing guidelines.

The latest Men's Health magazine had a full page article explaining legal ways to get out of jury duty. Assembling juries is hard work. Post-trial antics like mandatory sentencing guidelines makes jury duty more meaningless. This decision won't change attitudes that much, but it takes a step in the right direction.

The oddball dual decision -- that sentencing guidelines are unconstitutional but should still be taken into consideration -- doesn't bother me as much if it's a matter of presenting those guidelines, and proving the affected factors, in court rather than in the judges chambers.

The more this split ruling increases the relevance of juries in criminal legal proceedings the better.

David Innes
1.13.2005 5:22pm
Thomas (mail):
I'm not sure I agree with this reading. The "living constitution" viewpoint, it seems to me, is the Breyer viewpoint, which is that the legislature may modify the meaning of the guarantees provided by 6th amendment by moving away from the common law baselines.
1.13.2005 6:24pm
think RED (mail) (www):
enjoy the latest republican site:

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1.16.2005 12:27am