Blakely v. Washington

Justice Scalia never ceases to amaze. His scholarship is almost always beyond reproach, and he has a tidy, eloquent writing style that is as close as the current court comes to Holmes. Admittedly he seldom seems to get the really difficult and nebulous policy cases (usually because he is generally in a concurring or dissenting minority); but every now and then he comes up with an earth-shattering opinion like Blakely v. Washington, and contrives to make his argument seem quite trivial.

The opinion in Blakely is joined by a motley handful of justices. Thomas, Stevens, Ginsburg and Souter went with Scalia, while Rhenquist, O'Connor, Kennedy and Breyer dissented vigorously. The breakdown of the votes alone is an interesting and encouraging sign that, however halfwit Democrats in the Senate might think otherwise, not every opinion handed down in the federal judiciary is driven by partisan ideology. However, the case itself is more interesting than anything else I know to have been decided this term.

The case involves sentencing guidelines. Sentencing guidelines are statutory lists of things that a judge sentencing a convict is to consider in determining the harshness of the penalty he imposes. The largest example is the federal guidelines, which occupy volumes and constitute, in effect, an enormous list of factors that judges must consider, together with specific increases or diminutions in sentence to which each corresponds. These guidelines became all the rage two or three decades ago, because they were seen as means both of combatting potential racial bias of judges sentencing on a purely discretionary basis, and of prosecuting the "war on drugs," and other alarmist fads, to frighten criminal defendants into plea bargains with the prospect of potentially interminable sentences. The only trouble with this clever solution is that the facts upon which the judge bases his conviction are, by definition, not tried to a jury or beyond a reasonable doubt, because they are not elements of the crime.

Blakely was an estranged husband who kidnapped his wife with violence and force of arms. The state of Washington charged him with kidnapping, to which he pled guilty. The maximum sentence that can be imposed under Washington law for second-degree kidnapping is 4 years and 5 months. However, Washington law also provides that a judge can increase the maximum penalty if he finds notable aggravating factors. Blakely's judge found that he committed his crime with "deliberate cruelty" (whatever that means), and sentenced him to 7 and a half years. The simple point that Scalia makes in Blakely is that the Sixth Amendment requires that all elements of a crime for which a defendant is to be punished must be submitted to a jury. What that means in the context of sentencing guidelines is that a judge cannot impose a sentence above the one that he could "impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." (Slip Opinion at 7.) Thus, even though a legislature could allow a judge discretion to sentence a convict of a particular crime to 5 to 10 years at his whim, it cannot condition that discretion on an additional finding by the judge.

"How now," you (and Rhenquist and Co.) might ask, "is it really a benefit to defendants to make their sentences subject to arbitrary discretion of judges rather than allowing mandatory fact-findings to expose the standards to some scrutiny?" Well, perhaps not, depending on how the legislature of the jurisdiction accomodates the change. But the beautiful, radical, historically incisive point that Scalia makes is this:

Just as sufferage ensures the people's ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. . . . The Sixth Amendment by its terms is not a limitation of judicial power, but a reservation of jury power. It limits judicial power only to the extent that the claimed judicial power infringes on the province of the jury.

(Slip Opinion at 10, 12) Thus, the fact that giving greater discretion to the judge might in some cases be to the detriment of the defendant has nothing to do with the purpose of the right to jury trial. The issue is whether all the facts that are sufficient to impose a certain penalty have passed through the democratic filter of a unanimous jury. When the legislature imposes a certain maximum penalty of seven years for a crime, the defendant is on notice of that penalty, and that the democratic process may impose it on him if he commits it. However, when a defendant is on notice that his crime carries a maximum penalty of four years, he is legally entitled to serve no more than those years, no matter how dastardly his actions may be--if the state wants to punish him further, it must define the crime and prove it beyond a reasonable doubt before a jury. It is a matter of separation of powers: the legislature may define a crime and give a judge broad leeway in enforcing it (if the maximum penalty sits with its democratic conscience); but it cannot abdicate that democratic responsibility and, in effect, give the judge the task of defining and trying offenses.

So, perhaps, chalk one up against Adams's "government of laws" over the "government of men." After all, with mandatory increases above the minimum sentnces gone, legislatures will, in many cases, increase the maximum penalties for crimes and will have to allow judges to consider whatever in in their silly little heads to determine who gets the maximum and who the minimum. I, however, am inclined to regard the decision in Blakely as a victory for the proper division of legal and equitable powers in our government--a distinction too often glossed over in the popular understanding of the judiciary.

One of the first concepts that is assiduously beaten out of a law student's head--not necessarily by professors, but by relentless example in the law itself--is the foolish notion that the law is somehow synonymous with justice (in the sense of dicaeosyne). It is true that statutes and common law are generally animated by concerns over the fairness of their impact in actual cases, and so "justice" as an abstraction can sometimes be useful in learning the contours of the law. But the law is the law--by definition it establishes the criteria that will be employed in resolving disputes, to the exclusion of all others, however they might bear on the "fairness" or "justice" of the outcome. It is from this harsh aspect of the law, ironically, that we get the chestnut that "justice is blind," when it is not anything of the sort (except etymologically): it is the law that is blind, and willfully so.

Now, I'm not a huge believer in the imposition of ex post temporal justice. When I am informed that a person awaiting judgment is innocent, I tend to reply, along with the character Little Bill in Clint Eastwood's Unforgiven, "Innocent of what?". The world of considerations that one might counterpoise in the balance of "fairness," or whatever standard of moral estimation one might choose is infinite. Who but divine providence, the wheel of karma, or the judgment of God could gather them all? Attempts to use the law of man to impose divine justice and create a heaven on Earth (a scheme that, for most liberals seems chiefly to entail taking money from some people and giving it to others) strikes me as both futile and presumptuous.

The function of the law is quite different. The law simply draws disputation to a symbolic close. It draws rough and ready but consistent boundaries around controversies. A fine example is to be found in the laws of medieval Iceland. The laws were simply an elaborate procedural code to which disputants could resort to obtain a formal judgment of compensation. It was not a substitute for self-help--indeed, it had no governmental enforcement mechanism, and so a defendant who refused to pay could only be brought to heel by the plaintiff himself. Nevertheless, the law provided a sort of formalistic end to what could otherwise become an endless cycle of retribution, by giving someone wronged an excuse for not seeking retribution, and the wronger one for paying. It ensured, in effect, that while injuries would inevitably arise out of ill-will, they need not be perpetuated by pride. The law sought only to give a pretty predictable result that wouldn't be excessively resented by either party.

The sentencing function of a judge is as close as the law comes to an attempt to do individual justice. The judge is supposed to be a learned person unbiased as between the criminal defendant and the popular will, searching his heart for the best way to implement the law without ignoring the equities of the situation. The jury on the other hand is supposed to be the agent of the people--deciding how the law should be applied to keep the peace. To muddle these two roles would create the perverse result attempting to turn justice into the law (as when the legislature attempts to enumerate every possible factor that could relate to an individual defendant's culpability). We appoint or elect judges in part because we trust them with arbitrary decisions to do individual justice within the law. To take away that function is simply, as Scalia observes, to reduce them to mechanical triers of fact such as are found in civil-law systems, and to overlook the inevitable coarseness and fallibility of human laws.

I feel compelled to remark on a quaint circumstance in which I found myself the other day. I was gathering sources for the article I have been editing for the past several months (more on the article itself hereafter), and went into the periodical stacks on the first floor of the Graduate Library here at Michigan, looking for a back issue of, curiously, Vanity Fair. The three floors which constitute the so-called first floor of the Grad stacks are like many repostories of very old books, only much more so. They have no windows, and their unnecessarily low ceilings are perpetually lit by bare yellow bulbs, whose illumination, whatever the time of day or night, is neither dim nor bright, and which cast their bilious academic light without glare or shadow. In this light the bare white walls take on a cheesy color. I can't quite tell when this particular section of the library was constructed, but the cast-iron and brass railings on the abrupt little staircases going from level to level, as well as the deeply worn cement steps suggest a date around the turn of the last century. The smell in there is of acid eating away at paper--paper likely being pressed into a longevity not intended by the publishers who used it: For the first floor is, as I've mentioned, where the library keeps periodicals.

To get to anything on the first floor, one has to find it in a long series of rooms that all look the same. The library directory will only provide a general direction (North, East or West) in which to look--the rest you must deduce from the curious methodology by which they have arranged the widely disparate call numbers of periodicals. I've never met another person down there, and have often found the color-coded lines they paint on the bare cement floors useful in finding my way back out.

On this occasion, I found my way deep into the stacks, and found the periodical my author had cited. It was bound uniformly, three issues to the volume, in blue institutional bindings with brief information embossed on the spine. When I opened my volume, however, there issued forth a pungent aroma of two-year-old perfume and cologne samples and the smell of glossy print that has lain untouched on a shelf. There unfolded in my hands, amidst the century-old classics reviews and mechanics' journals a sheaf of testaments to the ephemeral: gaudy full-page advertisments for toxic-looking liqueurs and absurd, trendy fashions already on the wane; lurid articles on outdated points of celebrity gossip and inconsequential political issues that have since burned off like morning fog; and pointless discussions of the fads then occupying that disgusting idle class of the arbitrarily decadent and wealthy, who constitute the scrofulous underbelly of our otherwise brilliantly efficient capitalism.

I cannot say why I felt the contradiction in the situation so keenly, but it seemed utterly wrong to me that these sweet-smelling, debauchery-covered pages should be filed in the bowels of a learned institution, where living souls seldom stir. For one thing, the magazine is damned hard in which to research, since its pagination is made extremely irregular by reams of advertisments. It seemed a shame both that the work of the myriad scholars whose articles line the musty shelves of the first-floor stacks should be adulterated with a cheesy fashion rag intended to console a fluff-headed bint awaiting a root canal, and that images of fleeting, youthful beauty and pleasure should be shut up in a dank catacomb where even students are driven only by necessity.

As I have come to see it, this contrast is the reason I find myself unable to take seriously those increasingly popular works on history that purport to expose the ordinary lives of the ancients--books on the naughtiness discovered at Pompeii, or on what Henry VIII did after hours, or some such. Mind you, I don't object to evidence of the details of ancient life as a foundation for understanding historical perspective, like the first chapter of Gibbon's Decline and Fall. I can even condone the study and cataloguing of trivia for its own sake. But I find it absurd to adjudge the character of civilizations or the value of their other contributions by their graffiti and pornography, as it would be to look for the character of ours in fashion magazines. Some things were just never meant to be preserved. The academic study of the inherently idiomatic and ephemeral aspects of society both trivializes works of science and art that were meant to be universal, and sterilizes the momentarily pleasurable. Feminist academic objection to the existence of pornography is an example--it says nothing about our culture's universal attitudes toward femeninity that a few (or many, or most) men in the country like to see a statuesque nude or two in their free time. The line between reasoned calculation or overt representation and ephemeral fancies may not always be sharp, but it should not be disregarded. While a man may have to answer to his maker for every aspect of his being, it would seem wise for the scholar and the lawmaker to leave anything not intended for publication or preservation alone.


I suppose all these conclusions lead naturally to a point I have wanted to make for a while, namely that the law cannot and should not be concerned with acieving individual justice on the ground in all circumstances--just as general principles cannot concern themselves with ordering every facet of individual existence, but to discuss it further would require more background than I have the strength to provide at the moment.