Do Justice Breyer and other Blakely dissenters think the Sixth Amendment right to counsel should not apply at sentencing?

As noted here, the more I think about Blakely the more questions I have. And, as I re-read the Blakely dissents, I started to question how far the Blakely dissenters might carry their concerns with the practical consequences of extending the reach of the Sixth Amendment.

Specifically, it is hard not to notice how often Justices O’Connor and Breyer lament the “costs” of Blakely’s holding. (Justice O’Connor uses the word “cost” five times, and expresses her practical concerns in many other ways as well.) This sort of language is what previously prompted me here to describe the debate over Blakely in terms of a battle of principle versus pragmatism: the dissenters do not seem to present principled arguments against the majority’s holding, they seem to rely on pragmatic concerns about the consequences of the majority’s holding.

But, upon reflection, I wonder if it might be more appropriate to suggest that the Blakely debate is not as much about ends, but about means. The dissenting Justices are surely principled, they may just believe that Blakely‘s holding — that defendants at sentencing have a Sixth Amendment jury trial right and a Due Process right to proof beyond a reasonable doubt — does not serve constitutional principles. Justice Breyer, for example, summarizes his “concerns about the serious practical (or impractical) changes that the Court’s decision seems likely to impose upon the criminal process” by noting:

the tendency of the Court’s decision to embed further plea bargaining processes that lack transparency and too often mean nonuniform, sometimes arbitrary, sentencing practices; about the obstacles the Court’s decision poses to legislative efforts to bring about greater uniformity between real criminal conduct and real punishment; and ultimately about the limitations that the Court imposes upon legislatures’ ability to make democratic legislative decisions.

As always, Justice Breyer articulates his views thoughtfully and effectively, but this passage got me to realize how much the Sixth Amendment’s right to counsel may undermine the constitutional principles (or “practical” concerns) that Justice Breyer seems to champion.

First, realize that defense lawyer help secure valid plea agreements; ergo, defendants’ right to counsel tends to “embed further plea bargaining processes.” Second, we have learned from capital sentencing literature that who gets the death penalty often depends on who has the worst lawyer, not who commits the worst crime; ergo, because of difference in the quality of provided counsel, the right to counsel may pose obstacles “to legislative efforts to bring about greater uniformity between real criminal conduct and real punishment.” Third, legislature have repeatedly shown that they would rather not pay for defense counsel (public defender programs are chronically underfunded); ergo, the requirement that states’ must provide counsel “imposes upon legislatures’ ability to make democratic legislative decisions.” And, of course, considering Justice O’Connor’s focus on costs, it is quite costly for states to have to provide defendants with a lawyer.

In sum, my basic point is that the practical arguments against granting defendants a Sixth Amendment jury trial right and a Due Process right to proof beyond a reasonable doubt at sentencing might also argue against granting defendants a Sixth Amendment right to counsel at sentencing.

Of course, I am not seriously worried that any court would re-consider the now long-established right to a lawyer at sentencing. Indeed, the Supreme Court recently strengthened that right in a guidelines world through its unanimous holding in Glover v. US, 531 U.S. 198 (2001). (In fact, in Glover, Justice Kennedy asserted for the whole Court that “our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance”.)

But my point is that we are very comfortable — indeed, very proud — of bearing the “costs” of providing defendants with lawyers because we understand that a truly just criminal justice system should bear the cost of extending the Sixth Amendment right to counsel to sentencing. Similarly, I am starting to think Blakely is the first step in recognizing that a truly just criminal justice system should bear the cost of extending the Sixth Amendment jury trial right and a Due Process right to proof beyond a reasonable doubt to sentencing.