Posted by Orin Kerr:
Implementing Blakely and Remedies for Structural Rules:
Today's opinions in [1]United States v. Booker provide an interesting
example of the problem with judicial remedies for violations of
structural rules -- rules that require or forbid a particular
relationship, but cannot compel a particular outcome. We see this most
often in the context of the Equal Protection clause. The Equal
Protection clause requires the structural rule of equal treatment; it
blocks state actors from treating alike groups differently. But the
Equal Protection clause can't make a legislature treat everyone well.
A legislature generally is free to respond to a judicial decision
finding an Equal Protection violation by lowering the bar and treating
everybody poorly, instead of just one group. A court can impose a
structural rule of equality, but it can't mandate a specific level of
protection.
What does this have to do with Booker? It seems to me that
implementing Blakely at the federal level raised a similar problem.
Blakely imposes a structural rule for how legislatures have to do
sentencing, much like equal protection decisions impose structural
rules on treating alike groups differently. If a sentencing scheme
requires the imposition of greater punishments upon finding a set of
facts, then a defendant has a jury trial right to the finding of those
facts. Over the long term, this structural rule isn't a guarantee of
good treatment. Much like equal protection doesn't necessarily mean
strong protection, Blakely doesn't mean strong Sixth Amendment jury
trial rights. It just means jury trial rights that follow the
structural rule of Blakely: If a sentencing scheme requires the
imposition of greater punishments upon finding a set of facts, then a
defendant has a jury trial right to the finding of those facts.
In Booker, the Court had to find the initial starting point for
implementing the Blakely structural rule. It's important to realize
that the issue was only the starting point; one way or another, it's
the legislature that gets to implement the Court's structural rule,
not the Court. But the various opinions of the Court reflect two basic
short-term approaches to implementing a structural rule change. One is
to force the legislature to raise the bar: in effect, to mandate a
strong level of protection across the board. That was the approach
favored by Stevens, Scalia, Thomas, and Souter: they would have
compelled the current sentencing regime to add protections to
defendants by keeping existing law intact but just adding jury trial
guarantees to all sentencing enhancements. It's kind of like mandating
that everyone be treated well in an equal protection case; the goal
would have been to use the new structural rule to bolster protections.
Justice Breyer's majority opinion took a very different take: it
takes the starting point of opting out of the structural rule
entirely, preserving as much of the status quo as possible. It says,
in effect, that Congress would have never designed the system it did
if it had known that the Court would later on impose the Blakely
structural rule. Given that, the thinking goes, it's pretty unfair to
impose Blakely's structural rule on the existing system. So rather
than use Blakely to bolster protections, the Court opted to follow the
Blakely structural rule by holding that the noncompliant guidelines
are no longer binding in the first place. Recall the Blakely rule: If
a sentencing scheme requires the imposition of greater punishments
upon finding a set of facts, then a defendant has a jury trial right
to the finding of those facts. Fine, Justice Breyer says: if we're
going to impose that structural rule, then we can be most true to
Congressional intent by holding that nothing in the guidelines
requires the imposition of greater punishment. Ergo, no need to create
all these new jury trial rights that we don't think Congress would
have wanted had they been forced to implement Blakely's structural
rule.
Many Blakely enthusiasts will find the Breyer opinion unsatisfying.
Part of that is because his opinion is a good example of Breyerian
pragmatism; Breyer is trying to minimize the judicially imposed
revolution by finding a starting point that preserves the status quo
as much as possible. If you don't like the status quo, you won't like
what Breyer does. I suspect that is true for many Blakely enthusiasts:
in my experience, many pro-Blakely people are more interested in
Blakely as a mechanism to create stronger Sixth Amendment protections
than as an asbtract structural rule. To them, reading Booker may give
them the feeling you have when you convince a court that there's an
equal protection violation, and then find yourself stuck with poor
treatment all around. While the violation has been cured in a
technical sense, it doesn't really bring you the end result you had in
mind.
On the other hand, the majority's approach seems to me a reasonable
way to begin to implement a new structural rule. Breyer's opinion
declines to hold Congress to a bargain it never struck. It implements
Blakely's structural rule in a minimalist way that in the short term
tries to preserve as much of the status quo as it can. In the long
run, implementing Blakely is Congress's problem; Justice Stevens'
opinion for the Court applying Blakely at the federal level means that
Congress has its work cut out for it over the long term. But Justice
Breyer's opinion gives Congress some breathing room in the short term
before Congress figures out what to do next.
References
1. http://www.supremecourtus.gov/opinions/04pdf/04-104.pdf
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