Why Americans (but not Europeans) should be troubled by Boyd, Faulks and huge “trial penalties”

A great chat with a colleague in the economics department about Judge Posner’s work in Boyd (details here) help me see why that decision so troubles me.  The reason links to my work seeking cert in US v. Faulks (details here) and my concern with huge “trial penalties” (details here), and take me back to my long-ago insights about what Blakely is really about: a battle between an adversarial and inquisitorial model of criminal justice.

As I discussed here way back in September 2004, in Blakely, five Justices champion an adversarial model of sentencing in which sentence-enhancing facts must be proved to a jury beyond a reasonable doubt.  The Blakely dissenters, in contrast, embrace an inquisitorial model of where, in Justice Scalia’s words, “a lone employee of the State” makes all critical findings and determinations. 

In Boyd, Judge Posner and the Seventh Circuit is doing all the investigation (about a state crime, no less) to justify the defendant’s increased incarceration.  Similarly, in Faulks, the federal district court does all the investigation and adjudication (again of a state crime) as the basis for an addition 3 years of federal imprisonment.  The modern realities of the trial penalty (where defendants get 10+ more years for a crime because they go to trial), and the fact that 95% of all convictions are from pleas, shows in another way how our justice system has become a (prosecutor-controlled) inquisitorial system of criminal justice.

Understood in these terms, the endless sparring between Justices Scalia and Thomas and Justices Breyer and Kennedy makes so much more sense.  Justices Scalia and Thomas are aguably our most American Justices, and so Justice Scalia in Blakely assails Justice Breyer’s “esteem for non-adversarial truth-seeking processes.”  He also stresses that “Our Constitution and the common-law traditions it entrenches … do not admit the contention that facts are better discovered by judicial inquisition than by adversarial testing before a jury.”  Of course Justices Breyer and Kennedy are aguably our most European Justices and they keep showing their affinity for judge-centered criminal justice procedures.  But, I think Justice Scalia has the best last work in this concluding part of his Blakely opinion:

One can certainly argue that both these values [of efficiency and fairness] would be better served by leaving justice entirely in the hands of professionals; many nations of the world, particularly those following civil-law traditions, take just that course.  There is not one shred of doubt, however, about the Framers’ paradigm for criminal justice: not the civil-law ideal of administrative perfection, but the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.