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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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    :: Thursday, January 13, 2005 ::
    Booker & Fanfan

    It's a mess, with Stevens writing the opinion of the Court on one issue, and the principal dissent on the other, and Breyer writing the inverse opinions.

    The Stevens-led majority was sound on the main Blakely issue: facts that augment a sentence have to found by a jury. No more letting juries find beyond a reasonable doubt that Jones had 50 g of coke and then letting the judge find, "via ex-parte, hearsay-ridden memos" (Scalia's words), by the preponderance standard, that Jones in fact had 500 g, and sentencing him accordingly to a decade or two more than would be allowed by the 50 g finding.

    But, having established this, what's the basis for striking down the expressed will of Congress that judges should make use of the Guidelines, when they can do so within the constraints of the Sixth Amendment? It's not my will -- I'd have voted the other way if I were in Congress -- and besides, the Commission that wrote the Guidelines was unconstitutional all along, wasn'it. But if Congress voted the other way, and we're not going to revisit Mistretta (for now), where do we get off prohibiting Congress from mandating use of the Guidelines?

    A word to fans of judicial discretion in sentencing, of which I'm one: what was at stake in Booker was judicial finding of sentence-augmenting facts, without the evidentiary safeguards of a trial. The policy wisdom of determinate sentencing is, like Mistretta, an issue for another day.

    :: David M. Wagner 10:28 PM [+] ::

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