Justice at Stake?

When trying to justify to others all the time I spend obsessing over Blakely, I often contend that the issues implicated by the case — and by sentencing reform more generally — transcend the criminal justice system. I am pleased to discover that the group Justice at Stake — a nonpartisan partnership of more than 40 legal and civic groups, including the ABA, the American Judicature Society, the National Center for State Courts & the Constitution Project — agrees with me about the broader importance of all these issues.

The folks at Justice at Stake have informed me that, as part of their efforts to “help keep courts fair and impartial, and to protect the independence of the judiciary,” they been following Blakely and the policy debates it has triggered. To that end, they have just released a brief report entitled “Courts…or Calculators? The Role of Courts in Criminal Sentencing” (available here) that reviews the revived political debates surrounding sentencing and the courts in the wake of Blakely. As explained to me, the goal of the report is “not so much trying to add to the tall stack of legal analysis about Blakely, [but] trying to make sure that the judge’s role in sentencing is not overlooked in the growing debate.”

The report is a great (and quick) read, which adroitly state the pragmatic concerns that have led many to express concerns about the prospect of Blakely being extended to the federal guidelines:

If the Supreme Court strikes down the federal guidelines, and Congress has to rewrite the federal sentencing system, many people fear that the political addiction to mandatory minimums and other tough-sounding measures will carry the day — and the role of the courts in picking punishments that fit the crime will be further eviscerated.

Though I am moved greatly by these sorts of pragmatic concerns about what could happen after Booker and Fanfan, I am moved even more by this passage in Professor Alschuler’s pragmatism coda in his forthcoming FSR piece (available here):

The answer to the question, “Does the Constitution entitle defendants to have the facts that make them eligible for increased sentences determined by juries beyond a reasonable doubt?,” cannot be, “Yes, if wise leaders in Congress are likely to respond by approving guided discretionary sentencing or the submission of some sentencing issues to juries, and no if those yahoos are likely to enact new mandatory minimum sentences.”