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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::


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    [::..archive..::]
    ::

    :: Friday, June 25, 2004 ::
    Blakely v. Washington: Another Scalia libertarian crim pro opinion that scrambles the usual coalition. Held: factors leading to an upward departure from legislated sentencing guidelines must be found by a jury, beyond a reasonable doubt, and not be a judge.

    The line-up: Scalia, J., delivered the opinion of the Court, in which Stevens, Souter, Thomas, and Ginsburg, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Breyer, J., joined, and in which Rehnquist, C. J., and Kennedy, J., joined except as to Part IV—B. Kennedy, J., filed a dissenting opinion, in which Breyer, J., joined. Breyer, J., filed a dissenting opinion, in which O’Connor, J., joined.

    To savor:
    This case requires us to apply the rule we expressed in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000): “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” This rule reflects two longstanding tenets of common-law criminal jurisprudence: that the “truth of every accusation” against a defendant “should afterwards be confirmed by the unanimous suffrage of twelve of his equals and neighbours,” 4 W. Blackstone, Commentaries on the Laws of England 343 (1769), and that “an accusation which lacks any particular fact which the law makes essential to the punishment is … no accusation within the requirements of the common law, and it is no accusation in reason,” 1 J. Bishop, Criminal Procedure §87, p. 55 (2d ed. 1872).5 These principles have been acknowledged by courts and treatises since the earliest days of graduated sentencing; we compiled the relevant authorities in Apprendi, see 530 U.S., at 476—483, 489—490, n. 15; id., at 501—518 (Thomas, J., concurring), and need not repeat them here.
    This is a matter not only of defendants' rights but also of constitutional structure:
    Just as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. See Letter XV by the Federal Farmer (Jan. 18, 1788), reprinted in 2 The Complete Anti-Federalist 315, 320 (H. Storing ed. 1981) (describing the jury as “secur[ing] to the people at large, their just and rightful controul in the judicial department”); John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John Adams 252, 253 (C. Adams ed. 1850) (“[T]he common people, should have as complete a control … in every judgment of a court of judicature” as in the legislature); Letter from Thomas Jefferson to the Abbé Arnoux (July 19, 1789), reprinted in 15 Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) (“Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative”)....
    Between Blakely and Crawford, this has been a good year for the Sixth Amendment, and for Our Hero's project of reviving its protections. (And a deservedly bad year for the state of Washington. How 'bout them apples?)


    :: David M. Wagner 5:49 PM [+] ::
    ...

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