More on Law and Punishment

Jan/Feb 2005 -- The United States Supreme Court announced the much-anticipated federal sentencing law decisions in early January. The line of cases that started with Apprendi v. New Jersey and continued through Blakely v. Washington reached its culmination in the decision of United States v. Booker.

But just when you'd think that there aren't any surprises left, the Court took another bizarre turn. There has been a consistent split of 5-4 in all but one of these cases. (The exception is Ring v. Arizona, for reasons involving particular death penalty issues.) The lines are not conservative-liberal: Justices Scalia, Stevens, Ginsburg, Souter, and Thomas have been on one side, while Chief Justice Rehnquist and Justices O'Connor, Breyer, and Kennedy have been on the other.

Almost every commentator, including me, expected that the Court would overturn the Federal Sentencing Guidelines. The question was what would happen next. The Court did overturn the guidelines on the same 5-4 split as in most of the other cases. However, somehow the minority recruited Justice Ginsburg and got to write the opinion about the remedy in the case.

So, Justice Breyer wrote the opinion about what to do—in light of the unconstitutionality of the Federal Sentencing Guidelines—even though he dissented in the entire line of cases except for the Arizona death penalty case. It is also ironic that Justice Breyer served on the original Federal Sentencing Commission that wrote the first guidelines.

The remedy portion of the opinion held that the Federal Sentencing Guidelines are now advisory only. The remedial majority gave specific advice about what federal judges should do in the interim, until Congress meets to amend the law. Four dissenters—who used to be part of the majority—gave a different opinion as to the result. The original majority grounded its position in this entire line of cases on the Sixth Amendment right to trial by jury. The original majority held that for enhancement of a criminal sentence beyond a normal maximum range, a jury must find the facts giving rise to that enhancement. Yet Justice Breyer's opinion seems to offer an end run around the main holding.

How in the world is Congress supposed to pass a law that will satisfy a future majority? Chaos still reigns.

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