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Monday, January 31, 2005

E. A. Farnsworth

Professor Ethan Allan Farnsworth, a member of the Columbia faculty since 1954, passed away this morning. He was a wonderful professor who taught the first-year course on contracts with enthusiasm and good humor. He knew everything there was to know about the field in which he taught but never seemed to tire of answering his students most basic questions. He used the Socratic method, but he never once attempted to embarrass or humiliate a student - he certainly was no Kingsfield.

As his students, all of us knew that Professor Farnsworth had been the reporter for the Restatement (Second) of Contracts, that his treatise was the definitive source on black letter contract law, and that his casebook was being used at law schools all over the country, but Professor Farnsworth never touted his credentials. He didn't need to, of course. But more than that, I just don't think intellectual preening was his style.

Professor Farnsworth liked to take his students to lunch at the Columbia Cottage, a standard, no-frills Chinese restaurant near campus. I last spoke to him there at a lunch with several of his former students, my classmates. True to form, he took a keen interest in what each of us was doing, and he dispensed advice on law school and life that was as useful as all the contract law he had taught us the previous fall.

In short, Professor Farnsworth was a gentleman, and he was old school. He will be missed.

Continue Reading "E. A. Farnsworth" . . .

Comment on Illinois v. Caballes (dog sniffing)

Publius comments on Illinois v. Caballes, wondering just how the Supreme Court decides how much overinclusion is too much overinclusion. It seems to me that the major difference in these two cases is the premises searched. In Caballes, we have a car being searched. In Kyllo v. United States (the marijuana thermal imaging case), the cops searched a person's house.

The facts of Kyllo remind me of the Simpsons episode in which Kent Brockman tells the viewers, "Of course, there's no way to see into the Simpson home without some kind of infrared heat-sensitive camera. So, let's turn it on."

I'd be much more offended to have the man tracking my behavior at home than in my car. Of course, I still object to the man tracking my vehicular movements.

I think that's what the Caballes Court is getting at when it refers to "intimate details" worthy of Fourth Amendment protection. Occasionally intimate details arise in a car, but the Court isn't too worried about protecting those.

Continue Reading "Comment on Illinois v. Caballes (dog sniffing)" . . .

More on Economic Substantive Due Process

Lord Coke's post below discusses economic substantive due process:
In the post-Lochner era, the Supreme Court has tolerated state use of the police power to oust private law relationships. Privately erected law, though, still controls in the absence of state legislation which can be rationally justified under the police power. The state must have some good reason to demand that its laws govern in place of those laws drafted by individuals.
A member of Columbia Fed Soc just posted his Law Review note on SSRN discussing the Court's recent substantive due process jurisprudence in punitive damages, and arguing that it should extend to the context of statutory damages.

In a footnote to his proposition: "[BMW v. Gore] prescribed 'guideposts' that are to guide courts in determining whether the state court’s award fell within the scope of its acceptable interest in deterrence and retribution," he says:
Gore, 517 U.S. at 568 ("Punitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition."); see also Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 432 (2001); Prosser and Keeton on Torts 9-10 (5th ed. 1984). Although these are the two acceptable interests cited by the court, they are certainly not the only two discussed in case law and in the literature. See Anthony J. Sebok, What Did Punitive Damages Do? Why Misunderstanding the History of Punitive Damages Matters Today, 78 Chi-Kent L. Rev. 163, 163--64 (2003) (noting the "variety of plausible purposes" for punitive damages, including compensation); David G. Owen, A Punitive Damages Overview: Functions, Problems and Reform, 39 Vill. L. Rev. 363, 373-374 (1994) (explaining that "[a]lthough most courts refer only to 'punishment' and 'deterrence' as rationales for [punitive] damages, this masks the variety of specific functions that punitive damages actually serve," including such additional functions as education, compensation and law enforcement).
Note that the finding of economic substantive due process limits in the context of punitive damages is a wild departure from the court’s history, which has, since Lochner, never validated substantive due process outside of the individual rights context. Compare Williamson v. Lee Optical of Oklahoma 348 U.S. 483, 487 (1955) (acknowledging significant overinclusiveness in a statute, but holding that “it is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement”) with Roe v. Wade; Lawrence v. Texas. Instead, the Court has applied a "minimum rationality" standard to economic legislation, allowing any rational purpose for the statute. In limiting the state’s interest to punishment and deterrence, the Court departs from that standard in the context of punitive damages.
The issue produces an interesting split in the Court; State Farm had dissents from Justices Scalia, Thomas, and Ginsburg.

It will be interesting to see what happens in the case the note is based on--Lowry's v. Legg Mason--and whether the Fourth Circuit agrees that the punitive damages jurisprudence should be extended to statutory damages.

Continue Reading "More on Economic Substantive Due Process" . . .

Wednesday, January 26, 2005

A New Conservative Message of Liberty

Last week, President Bush used broad strokes to paint a powerful conservative agenda for conservative ideals at home and overseas. This forum will hopefully host a discussion on some of the legal merits and challenges of this agenda.

The lynchpin of the President's aggressive conservative agenda is his pursuit of an Ownership Society, both at home and abroad. In policy terms, this seems to mean immediate pursuits of tax reform and social security privatization. Less interesting to me than the first pieces of legislation to be passed under the banner of Ownership Society are the legal ramifications of a movement to concentrate different types of property ownership in the hands of individuals.

A core ideal of conservative political thought is minimal government. An ownership society, in its purest form, helps pursue this goal. The substantive due process doctrine of the last 130 years has been any thing but clear. A consistent theme, though, is that certain institutions should primarily be ruled by laws created by individuals, while certain domains remain ripe for governmental intrusion.

In the Lochner era, the Supreme Court prevented state governments from intruding into the legal relationships privately erected to govern individual conduct. Where two or more people entered into a contract, the Supreme Court was willing to displace a governmental aim for a set of private laws constructed over the zones controlled by individuals. Thus, bakeries and bakers were free to set the law governing their private spheres of influence, outside of governmental intrusion. Even when the level of scrutiny at use in evaluating governmental intrusions into private law relationships was lowered in Nebbia and Lee Optical, the Court never repudiated the primacy of private law. In the post-Lochner era, the Supreme Court has tolerated state use of the police power to oust private law relationships. Privately erected law, though, still controls in the absence of state legislation which can be rationally justified under the police power. The state must have some good reason to demand that its laws govern in place of those laws drafted by individuals.

The non-Economic substantive due process pseudo-doctrine shows a similar deference to private sovereignty over areas of individual control. In Griswold v. Connecticut, Justice Douglas defends his Mad-Lib Style of Constitutional Jurisprudence by referencing the sanctity of the marital bedroom as an institution which existed before the Bill of Rights. While not immediately clear what point he hopes to draw from this history lesson, the effect for Justice Douglas (and for all the Kool-Aid drinkers who followed him), was to withdraw from the realm of permissible governance a sphere of influence totally vested to private control. Roe v. Wade and Eisenstadt v. Baird follow the same logic. This is the right to privacy: to take certain things which are instrumentalities or domains of private individuals, where no public interest can be found, and turn their governance over to individuals while simultaneously denying power to the government.

The relationship between government and society is bounded. Government does not have totalitarian access in this country. The powers of our troops (during peace time) run out at the doors of private homes. The powers of state governments do not extend into the bodies of their citizens. And, as a default, the first right to govern over property (where no one else will be harmed) belongs to the property owner.

This message could have profound policy implications, and change traditional conceptions of what we think of as conservative dogma. For example, an Ownership ideal might look to pursue a larger population of business and home owners, at the expense of large housing and commercial conglomerates, as a means of granting private law making power to a greater number of individuals and over a greater assortment of properties and interests (and thereby chipping away at the powers of government).

Such a move would be dramatic enough in the long run. For now, it will be a fight enough to move a small amount of the economy from the control of the government to the control of private investors. The social security fight is the first battle in the effort to expel the government from the deep recesses of our society. The hope is to remove governmental control over some sums of money, and return sovereignty over this domain to the polity. This is the first (though perhaps greatest) fight ahead in a long battle to achieve sweeping private rule over the American economic and spatial landscapes.

Continue Reading "A New Conservative Message of Liberty" . . .

Monday, January 24, 2005

Illinois v. Caballes (dog sniffing reaffirmed)

The Supreme Court handed down Illinois v. Caballes today, finding in an opinion by Justice Stevens, that the use of a trained narcotics detection dog during a lawful traffic stop does not implicate legitimate privacy interests that would offend the Fourth Amendment.

What I find interesting about the case is the way the majority distinguishes Kyllo v. United States (the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search):
Critical to that decision was the fact that the device was capable of detecting lawful activity -- in that case, intimate details in a home, such as "at what hour each night the lady of the house takes her daily sauna and bath." The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
Since detection of unlawful activity does nto offend the Fourth Amendment, it seems that the issue is overinclusion. But Justice Stevens doesn't speak to the risk of the dog sniffing out lawful, private activity. He states elsewhere in the opinion that the record contains no evidence of high error rates, but doesn't acknowledge that a finding of high error rates, particularly the existence of false positives, would make this case harder to distinguish.

This may be exaggerating the issue, however, since thermal imaging is able to detect 100% of much legal, private conduct, whereas even the highest evidence pegs narcotics dogs error rates as significantly lower.

But I wonder what error percentage would be enough for members of the majority to concede a fourth amendment violation. Kyllo was 5-4 with an interesting majority makeup (Scalia, Souter, Thomas, Ginsburg, and Breyer). So for Scalia, Thomas, and Breyer, the point at which the the search violates the fourth amendment is somewhere between dog-sniffing (12.5-60% according to the dissent) and thermal-imaging (presumably 100%).

UPDATE: Orin Kerr at the Volokh Conspiracy discusses the case
UPDATE: More analysis and links to other blogs on Grits for Breakfast

Continue Reading "Illinois v. Caballes (dog sniffing reaffirmed)" . . .

Saturday, January 22, 2005

Breyer's Judicial Review, Part II

In an earlier post, I noted what seems like a wild departure from the court's regular power of severability in judicial review. Breyer's Booker opinion doesn't just sever the unconstitutional part of the statute, but attempts to incorporate Booker I into a new scheme that "would deviate less radically from Congress' intended system."

Breyer's authority (Welsh v. United States (a concurring opinion), Heckler v. Mathews (a footnote), and Sloan v. Lemon) for his proposition that "sometimes severability questions . . . can arise when a legislatively unforeseen constitutional problem requires modification of a statutory provision as applied in a significant number of instances" still has me absolutely puzzled. All three cases speak in terms of an extension/nullification dichotomy--that either the Court can sever unconstitutional provisions or applications or nullify the whole statute. None of these cases decides to "modify" the statute the way Breyer does.

And I have no idea why Breyer cited Adrian Vermeule's article. Here is the footnote he cited:
There is a common misconception that severability analysis refers only to the severance of provisions or subsections enumerated or labeled independently in the official text of the statute. In fact, however, severability problems arise not only with respect to different sections, clauses or provisions of a statute, but also with respect to applications of a particular statutory provision when some (but not all) of those applications are unconstitutional. From the standpoint of severability analysis, the labeling of statutory provisions--labeling often determined by legislative drafting offices or codifiers rather than by legislators themselves--bears little substantive import. Moreover, severability clauses in federal statutes often treat severance of provisions and severance of applications identically. Accordingly, courts and commentators have for the most part treated severance of invalid statutory provisions and severance of invalid applications of a particular statutory provision as governed by similar principles. Because any possible differences between the two types of severance are irrelevant for present purposes, this article follows the standard practice and refers generally to "severability." (internal citations ommitted)
I don't see what this adds. No one (I think) is arguing that the problem with Breyer's "modification" is that it is an unconstitutional application of the statute that is being severed as opposed to an actual provision. The issue is modification v. severance, not whether an as-applied invalidity is comparable to a facial invalidity in the context of separation.

I must be missing something . . .

Continue Reading "Breyer's Judicial Review, Part II" . . .

Friday, January 21, 2005

Judge Pryor's Keynote Address

Columbia Law Review Editor in Chief Rick Kaplan introduced Judge William H. Pryor, Jr., Eleventh Circuit Court of Appeals. Kaplan asked the audience to constrain questions to sentencing, and remember that Judge Pryor will be hamstrung in addressing specifics regarding the federal guidelines due to being in the federal judiciary himself.

For the A3G-minded, I note that Judge Pryor wears a dark grey pinstriped suite, white shirt and what looks like a violet colored tie scattered with red dots. A square folded white handkerchief rests in his breast pocket, and a gold pin adorns his lapel.

Judge Pryor began by thanking the Columbia Law Review, and its staff, "tired and overworked, and surely soon to be overpaid."

Few in the 1960s could have foreseen the weakening of rehabilitation, the invention of sentencing commissions, the new ethos of experimentation with intermediate punishments, or the unprecedented growth in incarcerated populations. Understanding this revolution requires understanding several competing forces of change. Political: war on drugs, corresponding mandatory mins; victims’ rights and corresponding dislike of parole; the grassroots movement for restorative justice, often driven by religious groups. Economic: maintaining prisons. Legal: the Supreme Court decisions regarding the 6th Amendment, beginning with Apprendi, continuing with Blakely, culminating with Booker.

His perspective was shaped as chief prosecutor for the state of Alabama, and its leading advocate for sentencing reform. If it has been needed urgently anywhere, it has been in Alabama. He outlined his talk: The crisis of the criminal justice system that made him a reformer. Political power and the pitfalls of reform. A few practical lessons and insights, especially for state and public officials interested in prospects for reform.

In 1997, when he became state attorney general, crisis was the only word that could fairly describe the criminal justice system. The state was housing twice as many inmates as the prisons were designed to do. The crisis and the lawsuits grew. The problem dates back to 1971, and injunctions against it became constitional law landmarks of equitable remedies. Still, there was an explosion in the growth of the prison populations. Alabama used incarceration as a punishment for more often than almost any state. The prison population was relatively stable at 5000 inmates for 1930-1980; in 2003, there were 28,000 inmates.

Although conditions had improved since the federal litigation, Alabama was not increasing its spending on correction sufficiently. It has had the lowest per-inmate spending at $9, 073 each year. Private, for-profit prison companies were unwilling to assume the risk of operating prisons at the price; some found it implausible that Alabama actually spent that little, and recommended better accounting. They were shocked to find that the numbers were in fact accurate. They said greater efficiency was not possible within the present budget.

Indeterminate sentencing systems were not meant to bring about an explosion in inmate population, but it did. There was widespread dissatisfaction with the sentencing system. Though politicians promised to be tough on crime, those whose votes they sought had the greatest complaints. As the youngest AG in the U.S. at the time, Pryor was not cynical enough to think that reform was impossible, but he knew that the path to it was littered with obstacles. Competing stakeholders distrusted each other’s proposal for change, but the political counterweight was the support for reform.

Similar offenders should receive similar punishments based on the severity of their criminal behavior, but this idea was feared by judges who wanted wide discretion to tailor their sentences. That discretion was in reality chimerical, because actual time served generally was more affected by the parole board than the sentence assigned.

Alabama needed rational sentencing, a system that used scarce prison resources to incarcerate the most dangerous while using intermediate measures for drug and property offenders. Perry Hooper, Chief Justice of Alabama, proposed a joint venture of the Judicial Reform Study committee, one devoted to sentencing. The legislature certainly would not adopt a sweeping reform of sentencing in an election year. Partnership with a Chief Justice also would distance Pryor’s proposals from the federal system. A unwieldy commission of 39 members was appointed in 1998.

On October 22, 1999, the commission issued its unanimous report: comprehensive sentencing reform was needed. The most practical recommendation was the creation of a permanent commission to advise the legislature. Judge Colquitt wanted to keep the commission small; Pryor wanted to maintain lots of important stakeholders to ensure a coalition that would favor the commission’s sentencing reform proposals. The governor, a former attorney general, harshly opposed the current parole system; an African American state senator said he would sponsor the legislation. The legislation creating the permanent commission passed.

The commission did not have an appropriation from the state general fund, putting it in even worse condition than the prisons themselves. Judge Colquitt was appointed chairman. By January 2001, the commission had office space, staff and funding, but the information it needed was scattered among four agencies. The commission requested funding for necessary database technology and a support staffer, to develop a true picture of the existing system. Alabama never had had such a database of complete sentence information on each offender. The use of “good time” credit for parole had become an entitlement, both lenient and incomprehensible. The one person still living who could grasp how long someone would serve retired shortly after the commission began operation.

The commission had several recommendations for system wide reform, based on reliable data. These reforms would allow Alabama to establish truth in sentencing, avoid unwarranted disparities and avoiding both overcrowding and the premature release of dangerous offenders. The commission recommended three short term proposals, to amend property crime statutes to reflect inflation; to increase funding for probation and parole officers; and to fund intensive drug rehab for inmates. Drug and property offenders accounted for 44% of the prison population. The probation and parole systems were overcrowded and needed a significant improvement in staffing and technology.

Long term proposals: consolidation and expansion of community corrections and rehab; a new sentencing structure with voluntary sentencing guidelines (or to use the commission’s term, “standards”), because they wished to provide meaningful judicial discretion, the record of states with voluntary guidelines in reliving prison overcrowding, and Alabama judges and prosecutors were strongly opposed to a mandatory guidelines.

4 lessons to be learned from his experience of reform:
1) Sentencing reform takes patience, commitment and data. Problems created over decades cannot be solved with temporary task forces. Replace “tough on crime” with “smart on crime.”
2) Even before Booker, the federal system was not the only model; the laboratories of the states have provided several successful alternatives. Federal reform itself might benefit from borrowing from the state models (proving a benefit of the federalist system, which permits the vast majority of crime to be handled at the state level).
3) Successful reform requires a broad-based coalition to sustain itself. That collaboration can be sustained through a permanent commission.
4) Sentencing reform requires constant expert assistance. It requires funding, but not nearly as much as the money spent in prison litigation.

Pryor concluded by saying that he was happy to answer questions, "with the admonition that whatever questions are asked and answers I have to give are all that stands between this crowd and the bar."

Q: How did the vast increase in the inmate population happen?
A: Elected judges and prosecutors responded to the public’s desire for increased sentences. In most areas of the state, there wasn’t any good alternative to that option, because there were so few other sentencing options. Also, the politically appointed Board of Pardons and Paroles frequently was quite restrictive, as well as arbitrary.

Q: How will the political will for reform arise?
A: Hopefully the promise of certain sentences, no longer undercut by an arbitrary Parole Board, will be sufficient.

Q: Virginia's system is secured by the requirement that every legislative change in sentencing and crime statutes be matched with funding. Does Alabama have a similar safeguard?
A: When there's a political call for increasing sentencing, we now have someone with authority and credibility who can come in and say what the cost will be.

Pryor read from an article he'd been sent on his Blackberry that provided plenty of evidence for his observations.
Instead, lawmakers have passed bills calling for longer sentences, but without allocating money to pay for them. Knight vowed to put a stop to that.

He said every bill this session that calls for more prison time must come with a funding stream. "It's easy to get up and demagogue on 'tough on crime,' but you're not tough on crime if you don't come up with the funding," he said.

Continue Reading "Judge Pryor's Keynote Address" . . .

Panel 2: Considerations at Sentencing -- What Factors Are Relevant and Who Should Decide?

Moderator Judge John S. Martin, Jr. opens with a quote from a Southern judge who said, "If you go to trial, your client will receive justice. If you plead guilty, he will receive mercy." He introduces the panelists: Paul H. Robinson, professor at Penn Law; Kyron J. Huigens, Professor at Cardozo Law; Kevin R. Reitz, Professor at University of Colorado Law; and Barbara Tombs, the Executive Director of the Minnesota Sentencing Guidelines Commission (with past experience in Kansas and Pennsylvania as well).

Sentencing Decisions: Matching the Decisionmaker to the Decision Nature
Paul H. Robinson
If we could construct any kind of sentencing system, what would it look like? There’s obviously some disagreement on who should decide: some states have broad judicial discretion. Mandatory minimums signal that the legislatures are taking this decision making power for themselves. There also are parole boards. Each does something well, but other things less well. The question should be, "Who should decide what?" the sentencing decision is in fact a series of discrete decisions, and for each of those discrete decisions, some of the decision makers will be better than others.

6 decisions:
1) policymaking,
2) rule articulations: translating general policy into articulable rules, what factors should determine punishment, etc.;
3) fact finding: recreating past events;
4) judgment making: expressing normative judgments (was the person deliberately cruel?)
5) determining punishment amount: applying the case findings determined in decisions 3 and 4 to the articulated rules determined in decision 2
6) determining punishment method: translating the decision 5 conclusions concerning punishment amount into a specific sentence (distinct from 5; it has options of jail, prison, probation, community service, etc.)

On the aspect of policy making, juries obviously don’t have the expertise or resources; also with the problem of disparity, you can’t have every jury coming up with its own policy for each case. Judges have more competence, but suffer from the same disparity and poverty of resources problems. The parole board has the problem that it only can affect prison sentence length. The legislature and sentencing commission seem like better actors; the former is the primary decision maker, the latter the delegated authority.

On rule articulation, parole board, jury and judge are disqualified for reasons similar to those above. Here the sentencing commission should be the primary decision-maker, with the legislature given veto authority to protect democratic policy choices.

On factfinding, legislature and sentencing commissions aren’t practical, and the parole board is less so than the judge or jury. The fact finding process is expensive. The primary decision maker is the jury, with a slight advantage over the judge because perceived as more fair and less biased, but the judge is a feasible alternative to jury.

Judgment making: not practical for legislature, not much better for sentencing commission or parole board; the jury again is the primary decision maker for its perceived advantage over the judge in making normative judgments.

Determining punishment: not practical for legislatures; supervision authority for sentencing commission; parole board less practical than sentencing commission; the jury lacks training; the judge is the primary decision maker because she can implement sentencing guideline rules.

Determining punishment method: not practical for legislature; support role for sentencing commission; parole board again less practical; jury again lacks training and competency; judge is primary decision maker, with information and support from sentencing commission.

1. Mandatory minimum sentences
2. Federal sentencing reform act of 1984
3. Feeney amendment to the federal PROTECT Act: as proposed, as enacted
4. Blakely v. Washington
5. Jury Sentencing
6. State sentencing guideline systems

If you think about broad judicial sentencing, judges are good at some things but not everything. In a system with uncontrolled judicial decision making does not have the best decisions for the first four aspects. Jury sentencing suffers a similar problem. Thinks that Sentencing Reform Act of 1994 gets it right, but the commission gets it wrong (Robinson was on the commission but dissented from its conclusion).

Booker puts forward the remedy that authority should be shifted away from sentencing commission or legislature to the judge, which Robinson finds bizarre; if the constitutional problem is that the jury needs to make the decision, as per the 6th amendment, why give the authority to judges?

Huigens: Says he always has been in the minority on these issues; defended Apprendi when other academics and practitioners worried about the problems created for the criminal defense system. The assumption is that more legality, more rules, is always a good thing at all stages of the process; the response is “how do we make guidelines work with juries involved?” His own reaction has been “Why not just return to discretionary sentencing?” No one else seemed to think it was a good idea until Justice Breyer, and now we are returned to discretionary sentencing.

But why? It’s really not clear how turning it into a discretionary sentencing system solves the 6th amendment problem. The Court never has overruled Williams v. New York (1947), which says that judicial fact finding is acceptable in a discretionary system. This comes up in the Apprendi dissents, because it seems inconsistent with the majority opinion. To put it another way, why would you have more constitutional regulation where the legislature has imposed additional rules; if you don’t impose a legal structure, then there is no constitutional regulation. This is counter-intuitive.
If a judge can’t find the element of the offense, unless the defendant waives his right to a jury trial, then the judge can’t find the factual matter of the sentencing either.

Huigens says he has a preference for discretionary sentencing; legality isn’t necessarily a good thing all the way through. More rule bound decision making isn’t necessarily a good thing. There is a different and additional value at work in the criminal justice system, what he calls “fine-grained-ness,” a close relationship or high correlation between moral and legal judgments. Lacking this correlation, the system will lose legitimacy.

In the clash of legality and fine-grained-ness, we try to balance these competing values. This balance isn’t the same at every stage of the process, or even from one offense to another. The balance we draw in offense definition and adjudication is not the same one we draw at sentencing; historically, we prefer legality in the former and fine-grained-ness in the latter.

This balancing between legality and fine-grained-ness has a mechanics. One piece is the “rules versus standards” debate. We want a high degree of legality for familiar reasons: notice, etc. We avoid the use of standards (especially the use of negligence concepts) in defining offenses; in sentencing, standards predominate.

If you look in the history of death sentencing, you see how this comes out. Fuhrman and Gregg command that we avoid arbitrariness, by taking a more rule-like approach, asking for more legal structure. But if you look at Woodson and Locket, there is an emphasis on individualized decision making. In this tension, the latter body of cases seems to have won out; a win of fine-grained-ness over legality. After conviction, considerations of mitigating factors suddenly become important, as they were not permitted to be during the trial.

The new sentencing conundrum: policy and constitutional law at cross-purposes
Kevin R. Reitz

Cites the increase in the prison population and our use of sanctions such as community penalties (Megan’s law, etc.) and execution. The states that have done the best job in sentencing reform have instituted presumptive guidelines, though some like DE and VA have succeeded with voluntary guidelines.

A few months after Blakely, another scholar noted that Blakely is harshest on the best state sentencing guidelines, and may encourage good states to go bad, and bad states to go bad.
The new 6th Amendment right at sentencing: constitutional Swiss cheese. The Blakely exceptions:
- Williams; reinforced in Booker II
- Harris; McMillan
- Patterson
- Almendarez-Torres

System Type Blakely Problems? Past prison growth record
Presumptive gdlns Clear problems slow-growth
Voluntary gdlns none mixed record
Presumptive stat. sent. Clear problems mixed record
Indeterminate sent. None high growth record
Mandatory gdlns Clear problems high growth record
Mandatory min. gdlns none high growth tendencies
Mandatory min. stat. None high growth tendencies

Policy Options
- Approach (Blakelyization) – the legislature must figure out a way to provide jury fact finding procedures
- Avoidance (find a Blakely Exception) change the whole system so Blakely isn’t an issue

Avoidance strategies
- Indeterminacy (Williams)
- Mandatory min sentencing rules (Harris)
- Top down presumption (Patterson)

Reitz says that his biggest concern is that Blakely and 6th amendment complications will stop reforms from happening in the states. For example, PA before Blakely planned to cut back the authority of the parole board, but post-Blakely the parole board is the sentencing commission’s best friend, because having the parole board set sentences seems to be an exception that exempts regulation from 6th amendment problems.

Barbara Tombs
States deal with sentencing in a different parameter than the federal government does. State systems have a clear focus that the federal guidelines lack; are they for retribution, rehabilitation, etc. In Minnesota, it’s clearly for retribution, and it keeps MN focused on what the guidelines can do. Also, who is going to your prison system? Who are you supposed to be incarcerating, and why? Particularly important with drug offenders.

Commissions have an advantage in dealing with issues such as this because of the structure of the commissions; they talk to all the parties (prosecutors, judges, et al.). A lot of issues can be addressed through those commissions, though the commission can be dysfunctional, and if it is not working properly and information is not being shared, there will be problems with the sentencing structure.

The political environment of the state is critical. Blakely and Booker will hurt the younger commissions more than the older ones. When Apprendi came down, it didn’t affect many states; there wasn’t much discussion about change and the fix was easy. When Blakely came down, changing the statutory max, there was much more upheaval. Most states are at the point where they have sentencing enhancement structures, and thus are affected by Blakely, and they need to figure out how to fix it. In Minnesota, they are modifying the guidelines. Going fully discretionary, if you look at legal and moral issues, there’s still the problem of disparity in a diverse state. Moral values change very much from Minneapolis to St. Cloud. Tombs cited Minnesota’s upward departures for murder and sexual assault, and downward departures for drug offenders.

The whole issue in Booker was the need for jury sentencing, but after the first couple pages you never hear jury sentencing again; what was pre-eminent in Blakely gets lost in Booker.

Moderator Judge Martin says that he thinks two things are wrong with the sentencing system. We have valued ending disparity too much; we should instead focus on what system will lead us to the just result in the greatest number of cases. Second, those who worry that Booker will lead us to terribly disparity, forget that it provides for appellate review.


One person asks about parole and post-release supervision. Huigens clarifies that indeterminate sentencing involves an archipelago of parole and so forth, while discretionary sentencing gives the authority to a judge. One of the key problems with the parole system was a lack of legality and the enormous discretion, poorly handled, by the parole boards.

Another says there are two complaints against Swiss cheese: it’s the wrong kind of cheese, or that the holes are bad. What would happen if the Supreme Court of the United States started looking at those holes, those Blakely exceptions that exist in the caselaw?
Reitz: If you has a Supreme Court that was all on the same page of being excited about the 6th Amendment, you would want the Court to develop a coherent jurisprudence, so the states wouldn’t be handicapped in developing their systems.

Lynch asked, can we afford a system that makes nuanced decisions, trying each fact before the juries?
Reitz: Wishes for a pre-Blakely world, because the Court has imposed procedural costs, ones that unfairly affect the better systems while leaving worse ones untouched. Already we are seeing Blakelyized jury returns, and the reports are that the costs are not that high. The systems are moving forward.

Lynch: Is there overlap between the best sentencing systems and the best penal codes?
Robinson says that there is some but it is not thorough, calling Ohio “a mess” for its penal code.

Continue Reading "Panel 2: Considerations at Sentencing -- What Factors Are Relevant and Who Should Decide?" . . .

Panel 1: Prosecutorial Discretion and Its Challenges

The panels is made up of Ronald F. Wright, Professor at Wake Forest University School of Law; Nancy King, Professor at Vanderbilt University School of Law; Michele Hirshman, First Deputy Attorney General, New York State (said to be first in line for Attorney General if Spitzer's run for governor succeeds); Martha Coakley, D.A. of Middlesex County, MA.

Wright: If you take a public choice view of regulation, there are imbalances everywhere. Even in the 1800s, dairy farmers were interested in regulating margarine and leaving butter alone. This is true with criminal law as well.

Regulatory Imbalance
- police as regulated parties -- patchy
- judges as regulated parties -- more comprehensive
- parole boards, regulated out of existence


- prosecutors as regulated parties -- code limits relaxing

The imbalance lies at the bottom of the frustrations facing the state sentencing commissions.

Kansas and Minnesota: We're not going there.
- Legislative instructions, recognize the sentencing impact of prosecutor choices
- Other priorities override
- Linguistic impossibility
- Political impossibility

Kansas is a nice example of where a committee got together, thought about, decided there were too many political barriers to regulating prosecutors. One problem was what Wrights calls a linguistic impossibility; how to make meaningful rules to guide prosecutor's discretion, when prosecutors' jobs are so difficult to define narrowly? [Wright says he sees the same problem with regulating judges, however.] Hard to find a legislature enthusiastic about regulating prosecutors, especially as criminal codes grow more prolix and the choices available to prosecutors multiply.

Washington: We're been there, and we can go back.
- Christopher Bayley and Norm Maleng catch guideline fever.
- Evidentiary sufficiency, for property and personal crimes.
- Factor list.
- Legislation (with prosecutor blessing) requires commission to create guidelines
- Cf. "descriptive" sentencing guidelines for judges.
- But aren't these limited expectations to place on prosecutors?
When the legislature said it would regulate the prosecutor along with the judges, the prosecutors went along with the standards of evidentiary sufficiency and factor list.

New Jersey: We're going where no prosecutor has gone before.
Not known as a hotbed of sentencing reform. Until recently, there was no sentencing commission.
- Super-potent mandatory minimums, based on school zone proximity and drug amounts. The prosecutor could reach a plea agreement and the judge was required by statute to impose the sentence agreed upon.
- Judges push back in 1992, State v. Lagares, saying as a matter of separation of powers, judges' power includes selecting sentences and the statutes that cut judges out of the deal were unconstitutional. T
- County-level guidelines: the remedy was for the state attorney general to issue guidelines to the prosecutors.
- Brimage 1 (1998): prior record, offense features. Supreme Court said the guidelines varied too much from county to county. New Jersey attorney general issued state-wide guidelines that look quite a bit like sentencing guidelines. They even speak in terms of "departures" from the prosecutor guidelines. It was revised to a 104 page guideline, to allow for more consideration of "relevant conduct."
- Brimage 2 (2004): more "relevant conduct." If someone had a gun, or was in a gang; if someone cooperated with the government.
- Legislature tolerates this, even embraces it to extend to juvenile sentencing.

Imagine a little bit of New Jersey in a commission state...
- Incremental development, guidelines for particular problem areas.
- Rounds initiated by prosecutor's office.

The Commission Advantage
- Clearcut legitimacy through delegation
- Informational advantages (cf. Nancy King's project) to identify next target
- Political capital
- "Abuse of discretion" standard to review application
- "Arbitrary and capricious" review of rule content

Scanning the Regulatory Horizon
- "Collaborative governmance," involving the "regulated" party
- Cf. endangered species, workplace safety, EEOC
- Iterative process
- End point: regulation leess comprehensive than for judges, but more coverage than for police.

King: Major purpose of guidelines has been to remove disparity among defendants who commit similar crimes: racial disparity, disparity among judges and districts. One thing wee've noticed less is disparity among modes of conviction. When a sentence doesn't differ because of skin color, or judge's political party, but because he chose a bench trial rather than jury trial or chose to plead guilty, sentencing guidelines doen't regulate those kind of differences. There's this gigantic disparity that isn't quantified or regulated closely.

She did a study to look not just at the plea vs. trial difference, but also the jury vs. bench sentence. One of the reasons to look at this is that a commission that would like to regulate this disparity first would need to know what the patterns are. The economic prediction is that the most expensive kind of trial would have the highest sentences.

The study covered several years in Pennsylvania, Maryland, Minnesota, Kansas and Washington, and showed fewer bench trials in states with mandatory guidelines than in ones with advisory guidelines. King put up several graphs that I can't reproduce, but that went into detail about dispositions in the various states, for various degrees of drug cases, etc.

Are we interested in regulating what goes on with sentencing given a certain charge? More bench trials and voluntary guidelines makes for strong differences in bargaining power over the sentences. In other states, they bargain over the charge, not the sentence, because there's not enough room in the mandatory guidelines to bargain over the sentence.

Guidelines are designed to replicate the average sentences given for particular crimes, but those averages include those given for guilty pleas, which adjusts the average downward from what it would be if it were based only on the sentences given after trials (with no bargaining over the sentence).

Hirshman: She said that she wants to challenge some assumptions by Wright and King, and particularly outline how prosecutors already are constrained in ways both healthy and unhealthy. We should encourage an ethos among prosecutors to seek justice, while permitting them discretion early in the process, and judges discretion later in the process. The constraints on state prosecutors that exist within New York state law serve as a check on discretion and ability to move a case in a certain direction -- with which Hirshman disagrees, and for which reason she claims that she would not run for office.

For example, in New York State, unlike the federal system, our grand jury places enormous restrictions on what a prosecutor can do; we cannot get evidence from an individual unless they are prepared to waive their automatic immunity. This makes it difficult for a grand jury prosecutor to build a case. Elaborate evidentiary rules constrain how prosecutors can prove a case.

Although Hirshman disagrees with the substance of these rules, she believes that the basic underlying theme is a good one: the test of your discretion is your ability to build cases that are strong, fair and just. In any prosecutor's office, the test of whether the prosecutor is doing a good job is whether they are enforcing the law with appropriately obtained evidence that actually captures what happened in the crime. Consider whether what goes on in the "shadows" of plea bargaining, where prosecutors are challenged by defense counsel, does produce more and better justice than we sometimes get after a full-blown trial.

Coakley: Promises to keep it short, because "a lecture is a long answer to a question nobody asked." If the system needs fixing, what are the most efficient ways to do it? Why aren't we talking about defense counsel? don't they have an obligation to ensure that the accused's rights? Michael Dukakis's loss in the 1988 presidential election due to Willie Horton is just the most high-profile instance of MA's turf battles about sentencing. Coakley's former boss says, "It's hard to get into jail in MA." She feels strongly about the need for an adversarial system with high-quality representation; case-by-case sentencing will provide better justice than sentencing guidelines.

State prosecutors are dealing with murder, armed robberies, child abuse; they lack the federal prosecutors' discretion over which charges to bring. In MA, one rule permits judges to reduce sentences if they just think the jury's decision was unfair, as in the notorious Woodward nanny-baby-shaking case. Coakley believes that our attention is better spent on improving criminal representation and ensuring that judges do their job than on guidelines to limit prosecutors' discretion.

One academic and criminal lawyer says that there is a polarization between defense counsel and assistant DAs, there is little room for bargaining. Another person points out that there are multiple forms of discretion, and Wright agrees, saying that the critical question is how much discretion the prosecutor has versus the judge.


Coakley: There is a formal review process within her office. There are several criteria for where bringing a charge has to have a nexus to what the evil that the statute is meant to punish.

Wright: Lack of enforcement and visibility. How consistently is this happening in various offices? This is a deeper question about democracy, and a hope that if people can see the rules, they'll insist on their being just.

King: Rules are overrated. Rule-based enforcement to avoid disparity means that if we depend on appellate review, we must look at the federal system, where almost all cases waive appellate review as part of the agreement.

One person asks about drug cases, and Wright says that with the density of schools, a very large number of people who aren't selling to kids still get charged under school zone laws.

Someone from the New Jersey Sentencing Commission puts in his two cents.

King says that there's a phrase called "law school charging," in which prosecutors look around for whatever they can find to put against the defendant. (The reference presumably being to students' being given a fact pattern and told to pull out every issue they can find.) Coakley says MA judges have a normative response who can exercise their discretion to counter that of prosecutors; the system has a way to correct unfairness.

Lynch stepped in to talk about the local cultures of prosecutors, judges and defense attorneys; there are different ways these are done in different places, and this may account for the patterns.

Moderator Shechtman thanks the panel and praises King's empirical work, which he says doesn't happen enough. He notes a Florida guideline where the state legislature requires that a certain charge be filed in conjunction with another; this elimination of discretion for both prosecutors and judges means that unlike New York, where such charges are left up to the prosecutors to file, there is no room to bargain over it.

Continue Reading "Panel 1: Prosecutorial Discretion and Its Challenges" . . .

Opening Remarks from Sentencing: What's at Stake for the States?

Judge Gerard Lynch, Southern District of New York, talked about how the evolution of sentencing law. He said that while historically sentencing was left to the discretion of judges, over time the public sought greater security and less mercy, and perhaps even less justice. It changed from a legal regime that was literally lawless in the 1970s, to one that had a rich body of substantive and procedural sentencing law. The academy has been slow to respond to these changes.

The federal system accounts for about 7% of the prison system of the U.S. -- not big compared to California or Texas. Its especial concern is with white-collar, narcotic and immigration crime, so it plays small part in the public safety concerns that drove the sentencing changes of the 1970s. The states, in their roles as laboratories of change, pioneered sentencing law, as with California's three-strikes. Now they move in the other direction, away from mandatory minimums, in order to relieve pressure on state budgets.

Now we can survey what those laboratories have come up with -- the cure for cancer, Viagra or Frankenstein's monster?

He introduced the moderators: for Panel 1 (prosecutorial discretion and its challenges), Professor Paul Shechtman of Columbia Law; Panel 2 (considerations at sentencing -- what factors are relevant and who should decide?), Judge John S. Martin Jr. of Debevoise & Plimpton LLP, and jokingly described in his work under Thurgood Marshall's DOJ as having lost more cases than any other federal solicitor in history.

The keynote address will be given by Judge William H. Pryor, Jr., Bush's recess appointment to the Eleventh Circuit Court of Appeals, claimed to be here in his capacity as a determined advocate of sentencing reform as attorney general of Alabama.

Tomorrow, Panel 3 (theories and policies underlying guideline systems) will be moderated by Prof. Kate Stith, Yale Law School.

Panel 4 (the institutional concerns inherent in sentencing regimes) will be moderated by my criminal law professor, James S. Liebman.

And the clicketyclack of my typing just annoyed the woman sitting next to me into moving away.

Continue Reading "Opening Remarks from Sentencing: What's at Stake for the States?" . . .

On Originalism and the Changing Constitution

This week I both watched Scalia's defense of originalism in his debate with Justice Breyer and had a discussion in my Constitution and Foreign Affairs class about originalism. I wish Justice Scalia taught the class.

My professor, after a weak effort to defend originalism, confessed that she was not an originalist because she does not think that an 18th century Constitution can effectively deal with modern problems. Because the framers did not consider nuclear war and modern terrorism, the constitution must change to adapt to these needs.

Well, duh.

The issue is not whether the Constitution should change, but what the mechanism for change should be. Change is built into the Constitution through amendment. Thus, any argument against originalism on these grounds has to explain why the amendment process is inadequate. And not only that, but why it will not work to just amend the amendment process.

The argument against originalism has to be both that the Constitution needs to change to adapt, and we need a countermajoritarian body, as opposed to the people, deciding what needs to change. I'm not saying that this isn't a plausible argument, only that the change/not change dichotomy is ridiculously false.

Continue Reading "On Originalism and the Changing Constitution" . . .

Thursday, January 20, 2005

The Chief's Performance

For anyone who missed the inauguration, SCOTUSblog has a recap on how Chief Justice William H. Rehnquist performed. It sounds like he looked quite healthy, didn't require any assistance.

Continue Reading "The Chief's Performance" . . .

Tuesday, January 18, 2005

Kelo and Precedent, Ex Ante

I just finished up helping Professor Merrill with an amicus brief for the eminent domain case - Kelo v. City of New London before the U.S. Supreme Court (docket no. 04-108). The brief was in support of respondents (city). I actually assumed my professor came out the other way on the case, seeing that he is a federalist. In helping with the brief, however, I think I may have changed my mind and also support respondents.

The case asks the question of whether the "public use" limitation of the Just Compensation Clause of the Fifth Amendment should be interpreted to incorporate a substantive limitation on takings for economic development.

The synopsis of the case on the Institute for Justice (counsel for petitioners) website:
In 1998, pharmaceutical giant Pfizer built a plant next to Fort Trumbull and the City determined that someone else could make better use of the land than the Fort Trumbull residents. The City handed over its power of eminent domain--the ability to take private property for public use - to the New London Development Corporation (NLDC), a private body, to take the entire neighborhood for private development. As the Fort Trumbull neighbors found out, when private entities wield government's awesome power of eminent domain and can justify taking property with the nebulous claim of "economic development," all homeowners are in trouble.
I've just skimmed some of the other briefs and I'll post more once I get a chance to read them in more detail. But as far as I can tell, petitioners and their amici advance only one legal argument: They seek a clear break from precedent in an attempt to change the "public use" requirement of the Fifth Amendment to allow greater property rights protection.

They ask the court to adopt the reasoning of the recent Michigan Supreme Court case, County of Wayne v. Hathcock, 471 Mich. 445, 684 N.W. 2d 765 (2004), and a heightened standard of review of public use determinations as in the uncompensated appropriations cases, Nollan v. California Coastal Council, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994).

Now the second argument I find kind of weird since it seems pretty obvious why Nollan and Dolan -- cases where the takings go uncompensated as opposed to the "public use" cases where the takees get just compensation -- would get less deference to the legislature and heightened judicial scrutiny.

In dealing with the first argument -- the adoption of Hathcock -- Professor Merrill offers some insightful critique of the case and the possible negative effects of the Supreme Court adopting the case. But what convinced me was the history of the public use requirement in Supreme Court precedent and what a substantial break the adoption of Hathcock would be.

I pulled together all of the cases the U.S. Supreme Court has ever decided on "public use" and as far as I can tell, the Supreme Court has invalidated one case in its history on the grounds that the use was not sufficiently public. The court has continued to show substantial deference to state legislatures in determining what constitutes a "public use" in spite of radical changes in state court jurisprudence on the issue.

My surprise is probably due to the fact that state courts have varied widely and have adopted very strict interpretations of public use at various points in their history. But the U.S. Supreme Court has stayed above the fray and Merrill thinks (and I think that I think) the Court should continue to do so. What constitutes "public use" is a state determination based on states' circumstances and should be (and according to Merrill largely has been) protected by state courts.

I guess the fact that this would be a clear break with precedent shouldn't be dispositive, but I am certainly a fan of leaving an issue so vague and variable as "public use" up to the states and letting the Supreme Court uphold only a "floor" of rights with the Constitution. (quoting Justice Scalia in his recent debate with Justice Breyer).

UPDATE: Crime & Federalism weighs in.

Continue Reading "Kelo and Precedent, Ex Ante" . . .

Friday, January 14, 2005

Breyer's New Judicial Review

What I find most intriguing about Justice Breyer's Booker opinion is what in the world he thinks his scheme is doing. As Justice Stevens' dissent points out in the discussion of severability:
Our normal rule . . . is that the "unconstitutionality of a part of an Act does not necessarily defeat or affect the validity of its remaining provisions. Unless it is evident that the legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law." (citation ommitted).
The Court's power of judicial review, therefore, is limited to severing statutes or portions of statutes that are in violation of the constitution, or in the case where it is evident that Congress would not have enacted the statute, throwing the whole thing out. Breyer seems to come up with a system where he can have his cake and eat it too.

Since this isn't a finding of facial invalidity (I don't think), Breyer is basically arguing that in light of the first majority opinion's decision to sever applications of the statute that violate the Sixth Amendment, the Court is going to rewrite the statute to square with Congress' original goal with respect to the guidelines. I haven't yet had time to go through Breyer's support for his handiwork (guess what . . . I wrote this word before reading Scalia's dissent where he refers to the Breyer opinion by the same word) where he cites 3 cases I haven't heard of and a law review article, but I have a hard time understanding where in Article III or in any statutory grant the court has the power to "fix" statutes in this way if they, after being partially severed, do not completely square with Congress' original intent regarding the statute. Such a grant would, it seems, not even be a constitutional delegation as it would go far beyond a line item veto.

Instead, what Breyer seems to be proposing is that Congress and the President get to enact and sign a PURPOSE into law, which the court, either through enforcing the provisions as the statute as stated or by changing them to accomplish the purpose, will make sure to uphold. Since the "uniformity" purpose of the Guidelines cited so often by Breyer is probably impossible under the constitutional part of the Sentencing Guidelines, Breyer thinks it is okay to rewrite the statute in order to salvage the purpose.

Thus, (Breyer thinks) although the part of the Judiciary Act of 1789 that impermissibly expanded the original jurisdiction of the Constitution to include writs of mandamus was severed off the statute, since Congress meant for Marbury to be able to sue Madison in the Supreme Court, Marshall could have just read the Judiciary Act to, instead of allowing original jurisdiction in the Supreme Court, somehow allow waiver of lower court adjudication to open up a fast track to the Supreme Court. Sounds ridiculous to me . . . pragmatism at a whole new level.

Continue Reading "Breyer's New Judicial Review" . . .

Thursday, January 13, 2005

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.

Continue Reading "Fanfan is Misguidedmisguided" . . .

Tuesday, January 11, 2005

Scalia-Breyer Debate !!!

Justices Scalia and Breyer will be debating "The Relevance of Foreign Law for American Constitutional Adjudication" on Thursday the 13th at 4:00 pm EST at American University Law School.

At 4:00 you can get a broadcast here. See here for more information.

(Thanks to Volokh post for the pointer)

UPDATE: webcast available here (Real Audio Format)
UPDATE: interesting debate on the debate at Opinio Juris
UPDATE: Mike Dorf weighs in

Continue Reading "Scalia-Breyer Debate !!!" . . .