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June 24, 2002

Bizarro Court Contradictions

Inconsistencies in Supreme Court doctrines are hardly novel, but rarely do you get them displayed so dramatically on the same day.
...In this case, the issue is whether judges can add punishment to a sentence based on facts that a jury has not considered. In the case of the death penalty, the court ruled that only juries can evaluate the facts that add death to a sentence. But in another case, the Court ruled that a judge can convict you of a gun-related offense even where you were not charged with one, if the judge decides you used a gun with a crime you were convicted of by a jury. These contradictory decisions were all based on trying to understand the implications of the 2000 Apprendi decision which held that judges violate the 6th Amendment right to a jury trial by adding punishment without jury review.
...Rehnquist and O'Connor won the hardline consistency award for giving judges full power to add punishment without any jury decision. The inconsistent judges defending the jury in the death penalty case but not in the gun-charge decision were Kennedy, Scalia and Breyer. On the consistent pro-jury side were Stevens, Ginsburg, Souter and, the big surprise, Thomas. While keeping most of his hard-line views, Thomas has been making some interesting libertarian criminal justice decisions recently. In the gun-charge case, Thomas wrote the dissent which said that if you want to punish someone for using a gun, you should have to charge them with that crime.
...On the other hand, I will note that I actually found quite compelling Breyer's concurrence in the gun-charge case (where his point of consistency was to argue for overruling Apprendi), since he simultaneously attacked the policy of mandatory minimums in sentencing while opposing Supreme Court interfering in democratic decision-making in shaping criminal punishment. He makes some compelling arguments that the practical outcome of such court interference is unlikely to be a better situation for defendants.
...To harp on the 2 million people in US jails, that result highlights the failure of court-enforced rights to create justice in our court system since the 1960s. There are actually good arguments that they created inflexibilities in the democratic process that encouraged exactly the insanity of mandatory minimums and longer sentences that have filled our prisons. I'm a bleeding heart liberal on crime issues, but I think those arguments have to be made at the statehouse, not in the courts, to be effective in ending the prison-industrial complex nightmare that has engulfed our nation.

Posted by Nathan at June 24, 2002 01:13 PM

Comments

Thomas' position is not so surprising. He is a near-absolutist when it comes to constitutional interpretation. Thus, he reads the 6th Amendment exactly as written, and fails to see how judicial discretion is constitutionally warranted in criminal trials. His absolutist views also come in handy on First Amendment cases. If nothing else (and I am NOT a fan of Thomas), his absolutist ways do lead to more consistent rulings, in contrast to today's two contradictory decisions.

Posted by: Kos at June 24, 2002 03:39 PM

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