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.