Fanfan is Misguidedmisguided

While slippery slope arguments are rarely sensible, the reason they get people going is that they sometimes are correct. In the Booker-Fanfan decision, we seem to have an instance of the Supreme Court guiding itself from incremental past decisions instead of keeping an eye on the major 6th Amendment picture.

The critical issue under the sentencing guidelines isn't judicial factfinding. The issue is only whether the impact of facts should be decided by Congress or the judge. Since the 6th Amendment does not demand an absence of judicial discretion over factfinding, the Blakely-Booker line of cases seems misguided.


What's the proof that this has nothing to do with judicial factfinding? Consider the following hypothetical. Let's say, the sentencing guidelines are totally abolished, or that we go back in time to before they existed. Let us assume also that the same facts as those in Booker lead to a guilty verdict from the jury. This would be the point where the supposedly impermissible tilt of the sentencing guidelines would kick in.

Before the advent of the guidelines, though, a judge would have near-total discretion to assign a sentence within the statutory range. For the possession of at least 50 grams of crack, this would mean the judge could assign a sentence between ten years and life in prison.

A hypothetical judge with no Congressionally mandated guidelines could say "Mr. Booker, under the law, possession of crack can lead to a sentence of 10 years to life. In my court, I take very seriously the amount of crack that someone has. I think it's more damaging to society and more morally reprehensible when an individual possesses a lot of crack. It seems to me that you, sir, possessed 92.5 grams of crack. Therefore, I will sentence you to thirty years in prison, because you possessed well more than the statutory minimum."

My hypothetical judge surely relied on judicial factfinding to fix Mr. Booker's sentence. The crack statute presented a minimum and maximum punishment, and the hypothetical judge picked within that range based on facts that he decided in his sole discretion.

If the core principle of the Sixth Amendment requires jury determinations for all facts which impact sentencing, than my hypothetical judge surely acted outside of his constitutional authority. But the Booker majority rejects such a view. They specifically say that when a judge acts outside of the guidelines, his wide sentencing latitude does not violate the constitution.

I think this excursion helps expose some of the strange thinking of the Booker majority. When a jury grants the judge authority to sentence up to the statutory maximum, they are not really concerned with how the judge decides on the exact sentence within the statutory range. Whether a judge picks a sentence from within a range based on subjectively attractive factors or Congressionally mandated facts, the jury's role ends with a guilty verdict.

I think that an examination of the role of the jury produces this insight. The jury is there to lay the community's wisdom on top of a legislative scheme. Jury Nullification provides the extreme example of this. Before a citizen is to be subjected to forceful deprivations of liberty at the government's hands, a community body must endorse the state's notion that a specific defendant committed a specific act, that that specific act is morally unacceptable, and that the specific act roughly deserves the punishment contemplated by the legislature. This role is critical to preventing tyranny, but not necessarily violated by either discretion or legislative control over sentencing minutiae.

The real battle in Booker is between the legislature and the judiciary. Since judicial fact finding in the name of discretion is constitutional, we know that the fact finding is not at issue; the only issue is whether the impact of judicially found facts is determined by a judge or by the Congress. Is this a significant constitutional issue? Maybe, but probably not one that incorporates Sixth Amendment rights. The Sixth Amendment seems to look mostly to the injection of community wisdom into the criminal deliberation process. It does not in any way determine who should weigh the relevance of all the various facts which affect a sentence.