228. Not arbitrary enough
On Monday, as had long been expected, the Supreme Court invalidated California's sentencing statutes. The case - once again - involved someone who has little in common with the average criminal defendant. Previous decisions in this line have involved a pharmacist and a millionaire. (See post 102.) This one involved a former policeman.
(Here's SCOTUSBlog's instant case brief - either those Akin Gumpsters fool around with the date and time stamp on their posts, or else they're amazingly quick at being thorough.)
I've long attributed the Court's strong preference for atypical defendants to simple class and racial bias, but perhaps there's a political angle, too, as the justices take care to pick defendants who won't be portrayed in the media as exceptionally dangerous. They leave it up to the lower courts to implement their decisions by releasing the exceptionally dangerous folks. (See post 224.) That way the marble-clad announcement of principle can be separated from the street.
The problem with the California sentencing system, Justice Ginsburg declared, was that sentences imposed by California judges weren't arbitrary. If California had given judges complete discretion to impose any sentence between 6 and 16 years, and didn't require the judge to have any reason at all to pick the highest number, that would have been just fine with the sixth amendment.
Conversely, if California had given judges no discretion whatsoever, requiring them to impose 12 years in every case without exception, that would have been hunky dory, too.
California's problem is that it gave judges fettered discretion. Its Assembly tried to promote a certain consistency while leaving judges room to make sure the punishment fit the crime by allowing the judge to impose sentences of 6, 12 or 16 years. Judges were supposed to impose the middle term in run of the mill cases, but could increase it for particularly dangerous and cruel perpetrators, or reduce it for those whose crimes weren't so bad, really, or who were unlikely to repeat.
That compromise, Justice Ginsburg said - and we can be sure she was serious, because she always is - "denied petitioner his right to a jury trial."
As for those jurors who actually decided the ex-cop's case? I'm sure Ginsburg didn't mean to dismiss their existence. It's just that she would have felt silly to to come out and say what she really meant, that the California sentencing scheme "denied petitioner his right to an arbitrary sentence."
It's both laughable and sad that a Court that nowadays hears so few cases (69 cases divided by nine justices and 36 clerks equals 1.5 cases per lawyer-year) should waste its time on such trivia. California's Assembly could reenact its sentencing scheme tomorrow and win the beaming approval of the justices (except Justice Ginsburg, who doesn't beam) just by choosing its words from the approved vocabulary list:
Verboten: "The judge shall impose a sentence of 12 years, except that if aggravating circumstances exist the judge may increase the sentence to 16 years, and if mitigating circumstances exist the judge may decrease the sentence to 6 years."
A-OK: "The judge shall impose a sentence between 6 and 16 years at the judge's sole discretion, but if the judge imposes any sentence other than 12 years the judge shall issue a brief written explanation for the departure so as to permit appellate review for abuse of discretion."
The Court's opinion suggests that it's actually possible to convince oneself that there is a difference of constitutional magnitude between those two hypothetical sentencing statutes. It's a little like those Magic Eye books that were so popular a few years ago - if you stare long enough, and let your eyes go funny, you can see a grand constitutional principle in the space between them. (I understand large doses of Placidyl help.)
But to make the visualization exercise work, you have to think in symbolic terms - that is, you have to commit the customary legal crudity of thinking up categories and then demanding that reality adjust to them. (See post 137.) (Nothing personal, Professor Berman.)
The case is entirely characteristic of recent Supreme Court jurisprudence in several ways. First, it's a squire, to use Burke's term. The Court put its own authority on the line with a grand pronouncement in 1970, and has had to spend an inordinate amount of time ever since trying to ensure that its authority is not flouted - dispatching an endless series of little squires to carry the Grand Pronouncement's armor. (See post 217.) From flowery prose adorning a noble principle to nitpicking the Legislative Counsel's choice of words - it's a pretty pathetic descent, really.
Second, it's anti-democratic. It says - no more and no less than this - that the people of California can't have the type of criminal sentencing system they want. They can only have the type of system six justices want for them. And there's nothing Californians can do about it. "It's water over the deck - get over it!"
Third, it's based on the common-law Constitution - the idea that "the Constitution" is the collected works of the Supreme Court. It would be silly to pretend that the actual text ratified by the American people prohibits California from having a compromise sentencing system, halfway between rigidity and randomness. It would be equally silly to pretend that the Constitution has prohibited sentencing schemes like California's since its enactment. Not the Constitution itself but Apprendi (the racist pharmacist) and Blakely (the wife- and child-abusing millionaire) prohibit them, starting as of, oh, last Monday.
The Framers, you see, understood that the secret to a good afterlife is to stay active.
Thursday, January 25, 2007 at 08:36PM in De-democratization, Four Crudities, Perpetrator demographics, Supreme Court's role
Reader Comments (3)
A-OK: "The judge shall impose a sentence between 6 and 16 years at the judge's sole discretion, but if the judge imposes any sentence other than 12 years the judge shall issue a brief written explanation for the departure so as to permit appellate review for abuse of discretion."
I am writing off the cuff but I think you have this one wrong. This is a Blakley case isn't it. I thought the point of the Blakely issues was that the jury had to find fact that increased the sentence, not the judge. Thats where the jury trial violation occurred. Considering my understanding of your take on things in general, I don't see how taking discretion away from judges would wrinkle your tie at all. But what do I know? I don't practice in federal court.. Yet.
Nonetheless, she says that the problem with California's system is that "judges are not free to exercise their 'discretion to select a specific sentence within a defined range.'" She adds that California can solve the problem by "permit[ting] judges genuinely 'to exercise broad discretion ... within a statutory range,' which, 'everyone agrees,' encounters no Sixth Amendment shoal." I drafted my example to meet that test.
Under existing Supreme Court precedent, additionally requiring a writing doesn't invalidate the grant of discretion to impose any sentence within the prescribed range - doesn't even raise any sixth amendment issue. But the precedent may change at any time.
In a truly bizarre mixed metaphor, Ginsburg says that Alito's position is "a recipe for rendering our Sixth Amendment case law toothless." (Becky Crocker, eat your heart out.) Not rendering the sixth amendment toothless, you notice, but the Court's own case law. Above all, Cunningham is an opinion about showing who's boss. So my proposal might be struck down as unconstitutionally cheeky.