Saturday, July 10, 2004

The Incredible Shrinking Judiciary

Slate is featuring an article entitled "The Incredible Shrinking Judiciary." The article discusses how judges are increasingly powerless in their courtrooms. The article discusses Blakely and makes the following claim:

But the Blakely case stands for something else—a recognition that sentencing should happen in courtrooms as opposed to legislatures. The case was yet another blow to the creeping power of legislatures in sentencing decisions.

I'm not sure I agree with that. Nor do I agree with the concluding paragraph:

The result won't be the Congressional power-tripping scheme we have now. Nor will it be a return to the old discretionary sentencing scheme, in which judges get the final say. Instead, when Congress and the court are done shooting each other down, the one man still standing—or actually, the 12 men still standing—will be the jury. Judicial control of the courtroom is dead, and Congressional control is foundering. The result will be an experiment in direct democracy more radical than any of Gray Davis' nightmares. The glamour days of the federal judiciary might be over, but jury duty is about to get a lot more interesting.

Blakely is not about curbing the legislature; it's about revitalizing the jury. Blakely did not curb the legislature's authority to set the range of penalties for federal crimes. Nothing in Blakley would prevent Congress from creating mandatory minimum sentences for all federal crimes, for example. I think that Blakely is about the role of the jury (which always sits in the courtroom, to my knowledge.) A corollary to that principle is that the Sentencing Guidelines, which by the most part are promulgated by the Sentencing Commission which sits in the Judicial Branch, can't usurp the role of the jury.

A possible result of the Blakely decision may be a more draconian, restrictive system of mandatory minimums and higher statutory maximums. More Congressional muscle flexing, not less. I would consider that to be an unfortunate result but I don't think that Blakely would prevent it. I, therefore, have to disagree with the basic premise of the article.


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