Various thoughts on current events with an emphasis on politics, legal issues, books, movies and whatever is on my mind. Emails can be sent to firstname.lastname@example.org; please put "blog comments" in the subject line.
[A blog was started mainly to deal with the issue discussed below, so do go there to read about the material in more detail ... apparently, many practioners aren't quite sure what the ruling means, so take the below with the usual salt shaker.]
The Supreme Court in a split decision decided that mandatory federal sentencing guidelines that required judges to take into consideration facts (determined by a preponderance of evidence) not held to have occurred by the jury (by a beyond a reasonable doubt standard) is unconstitutional under the Sixth Amendment. All the same, Justice Ginsburg gave Justice Breyer (who loves guidelines ... he was involved in their creation) another majority in respect to the remedy that mandates that judges do consider such guidelines in their sentencing (their decision open on appeal to be judged by a "reasonableness" standard), but not to be bound by them.
In fact, Justice Breyer basically overturned more of the law than the other majority (per Justice Stevens) thought proper, and robbed some of the original intent of the law: namely, it's move toward determinate sentencing. As Justice Scalia notes in partial dissent: "In order to rescue from nullification a statutory scheme designed to eliminate discretionary sentencing, it discards the provisions that eliminate discretionary sentencing."
Overall, one also gets the sneaking suspicion that judges also have a way to get around the requirement that juries determine the facts behind the sentence, the whole point of the reasoning (as applied to the remedy?). Justice Scalia appears to agree, wondering if the remedy allows what the holding denies. Justice Stevens (with Souter and Scalia/Thomas in part*, the latter duo wrote separate opinions) wrote the main dissent on the remedy issue, however, and targets its basic foundation:
The predicate for the Court's remedy is its assumption that Congress would not have enacted mandatory Guidelines if it had realized that the Sixth Amendment would require some enhancements to be supported by jury factfinding. If Congress should reenact the statute following our decision today, it would repudiate that premise. That is why I find the Court's professed disagreement with this proposition unpersuasive.
The overall point of this partial dissent is that the guidelines are largely legitimate as a constitutional matter (their overall philosophy against judges doing their jobs / individual sentencing notwithstanding), except to the degree it allows sentencing on facts not determined by juries. In fact, a judge's conclusion that a defendant obstructed justice and evaluation of their prior criminal record both are allowable, the former apparently a determination of law.
Justice Breyer's stance might work as a policy matter, but let's leave assumptions on what Congress desired to them. In fact, otherwise Congress might just do nothing, since judges probably still can work within the current system under his regime. Justice Stevens notes that few cases would be affected by the new rule in any respect, perhaps fewer if the justices held with him across the board.
I guess we can hope that Congress will settle this question with new legislation, but it probably will be done so by tons of legislation. Have fun criminal justice personnel everywhere!
The justices also decided two cases involving detainment of aliens resulting in a split victory for civil libertarian, but one that appears to suggest regular rules still apply. Justice Scalia (breaking from Thomas) wrote a 7-2 opinion upheld a habeas corpus ruling respecting an illegal detention of two Cuban nationals.
He also wrote for a 5-4 opinion, also applying statutory terms, that permitted an alien to be removed to a country without the advance consent of that country's government. permits an alien to be removed to a country without the advance consent of that country's government, in this case Somalia (having no real government at the time in place to agree).
The laws are not completely silent respecting aliens, even in (terror) war time.
* Justice Scalia mostly agreed, adding some sarcasm and opposition to reliance on legislative intent. Justice Thomas agreed somewhat less, but still appears to felt his gist was correct.