Justice Antonin Scalia Provides the Key

JUSTICE ANTONIN SCALIA: HIS INSTAURATION OF THE SIXTH AMENDMENT IN SENTENCING

By Donald V. Morano

On June 24, 2004, Justice Scalia wrote the majority opinion for two 5 to 4 decisions of the Court: Blakely v. Washington, 124 S.Ct. 2531, and Schriro v. Summerlin, 124 S.Ct. 2519. These two opinions, especially the Blakely opinion, have thrown into doubt the validity and constitutionality of the Federal Sentencing Guidelines, as well as all State determinate sentencing systems. The entire Federal criminal justice system has been placed in disarray as hundreds, even thousands, of lower court opinions attempt to sort out the implications of Blakely and Schriro.

Notwithstanding all of this confusion and the surfeit of writing on the subject, I write this article because I think I have a fresh and important insight or key. That key is Justice Scalia. He has been in the majority in the line of cases from Apprendi v. New Jersey, 530 U.S. 466 (2000), Ring v. Arizona, 536 U.S. 584 (2002), and Harris v. United States, 536 U.S. 545 (2002), to Blakely and Schriro. More than that, he commands a majority of the Court in his formalistic thinking regarding sentencing and sentencing guidelines.[1]

We shall trace how Justice Scalia has shepherded in his earlier opinions the Apprendi-rule regarding sentencing that he pronounced and explicated for the Court in Blakely v. Washington, 124 S.Ct. 2531 (June 24, 2004), and Schriro v. Summerlin, 124 S.Ct. 2519 (June 24, 2004).[2] Thus, we shall review what the words of Justice Scalia in these opinions implicate concerning the U.S. Sentencing Guidelines.[3]

In his dissent to the otherwise unanimous opinion of Justice Blackmun in Mistretta v. United States, 488 U.S. 361 (January 18, 1989), Justice Scalia wrote:

While the products of the Sentencing Commission’s labors have been given the modest name “Guidelines,” see 28 U.S.C. § 994(a)(1) (1982 ed., Supp. IV); United States Sentencing Commission Guidelines Manual (June 15, 1988), they have the force and effect of laws, prescribing the sentences criminal defendants are to receive. [Emphasis added]. A judge who disregards them will be reversed 18 U.S.C. § 3742 (1982 Ed., Supp. IV). I dissent from today’s decision because I can find no place within our constitutional system for an agency created by Congress to exercise no governmental power other than the making of laws. [(Emphasis added). Id., at 413].

In subsequent cases, Justice Scalia has not pressed his argument that the United States Sentencing Commission is unconstitutional and, for this reason, the Sentencing Guidelines enacted by the Commission are also unconstitutional. He, however, has succeeded in gaining a majority of the Court – i.e., three of its new members since Mistretta, Justices Souter, Thomas, and Ginsburg, and Justice Stevens to construe the Federal Sentencing Guidelines as he did in dissent in Mistretta. That is, that each sentencing guideline constitutes an enacted “law” that “prescrib[es] ... the [statutory maximum] sentence[] criminal defendants are to receive,” under that guideline range.

With hindsight, we see how in the following words in his concurring opinion in Apprendi v. New Jersey, 530 U.S. 466 (decided June 26, 2000), Justice Scalia has stated the meaning of Apprendi in accordance with what he first wrote in dissent in Mistretta:

What ultimately demolishes the case for the dissenters is that they are unable to say what the right to trial by jury does guaranteeif, as they assert, it does not guarantee – what it has been assumed to guarantee throughout our history – the right to have a jury determine those facts that determine the maximum sentence the law allows. [Emphasis added]. They provide no coherent alternative.

Justice BREYER proceeds on the erroneous and all-too-common assumption that the Constitution means what we think it ought to mean. It does not; it means what it says. And the guarantee that “[i]n all criminal prosecutions, the accused shall enjoy the right to ... trial, by an impartial jury” has no intelligible content unless it means that all the facts which must exist in order to subject the defendant to a legally prescribed punishment must be found by the jury. [Id., 498-499].

Thus, in Justice Scalia’s first sentence above, he succinctly states that the majority opinion of the Court is the one and only meaning that the right to trial by jury can have. He notes the incoherence of the dissenting justices and singles out Justice Breyer’s attempt to salvage the Federal Sentencing Guidelines. Most importantly for the issue of retroactivity, he speaks of these guarantees found in the Sixth Amendment as self-evident – i.e., as “assumed ... guarantee[s] throughout our history.”

Two years later, on June 24, 2002, the Court handed down two opinions, Harrisv. United States, 536 U.S. 545, and Ring v. Arizona, 536 U.S. 584. In Harris, Justice Scalia parted company with the other four justices he had joined in Apprendi and joined the majority opinion written by Justice Kennedy. The Harris court ruledthat:

McMillan [v. Pennsylvania, 477 U.S. 79 (1986)]and Apprendi are consistent because there is a fundamental distinction between the factual findings that were at issue in these two cases. Apprendi said that any fact extending the defendant’s sentence beyond the maximum authorized by the jury verdict would have been considered an element of an aggravated crime – and thus the domain of the jury – by those who framed the Bill of Rights. The same cannot be said of a fact increasing the mandatory minimum but not extending the sentence beyond the statutory maximum), for the jury’s verdict has authorized the judge to impose the minimum with or without the finding. As McMillan recognized, a statute may reserve this type of factual finding for the judge without violating the Constitution. [Id., at 557].

Here, Justice Scalia, true to his consistent understanding of the Apprendi-rule, had to join the majority in Harris. He understood that the Apprendi-rule has nothing to do with anything except statutory maximum sentences, and, conversely, that it cannot be used to overturn statutory minimum sentencing laws enacted by Congress.

Ironically, the Court, in Ring v. Arizona, 536 U.S. 584, used Justice O’Connor’s dissent in Walton that the Arizona death-penalty statute can not be reconciled with Apprendi v. New Jersey, 530 U.S. 466 (1990), to overrule Walton v. Arizona, 497 U.S. 639 (1990). In Ring, only Chief Justice Rehnquist and Justice O’Connor dissented, because they continued to reject Apprendi.

We see, however, how Justice Scalia, in a concurring opinion joined in by Justice Thomas, was conflicted. He wrote:

The question whether Walton v. Arizona, 497 U.S. 639 (1990), survives our decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), confronts me with a difficult choice. [Emphasis added]. Whatcompelled Arizona (and many other states) to specify particular “aggravating factors” that must be found before the death penalty can be imposed, see 1973 Ariz. Sess. Laws ch. 138 §5 (originally codified as Ariz. Rev. Stat, §13-454), was the line of this Court’s cases beginning with Furman v. Georgia, 408 U.S. 238 (1972) (per curiam). SeeWalton, 497 U.S., at 659-660 (SCALIA, J., concurring in part and concurring in judgment) In my view, that line of decisions had no proper foundation in the Constitution. Id., at 670. [Emphasis added]. (“’[T]he prohibition of the Eighth Amendment relates to the character of the punishment and not to the process by which it is imposed’” (quoting Gardner v. Florida, 430 U.S. 349, 371 (1977) (REHNQUIST, J., dissenting))). I am therefore reluctant to magnify the burdens that our Furman jurisprudence imposes on the States. Better for the Court to have invented an evidentiary requirement that a judge can find by a preponderance of the evidence, than to invent one that a unanimous jury must find beyond a reasonable doubt.

On the other hand, as I wrote in my dissent in Almendarez-Torres v. United States, 523 U.S. 224, 248 (1998), and as I reaffirmed by joining the opinion for the Court in Apprendi, I believe that the fundamental meaning of the jury-trial guarantee of the SixthAmendment is that all facts essential to imposition of the level of punishment that the defendant receives [Emphasis added] – whether the statute calls them elements of the offense, sentencing factors, or Mary Jane – must be found by the jury beyond areasonable doubt. [Id., at 498].

In the first paragraph, he distances himself from fellow justices who had based their decision to overturn the death sentence of Ring on the Eighth Amendment. If the Court in Ring were restricted to ruling based exclusively on the Eighth Amendment, Justice Scalia shocks us with the provocative statement:

Better for the Court to have invented an evidentiary requirement that a judge can find by a preponderance of the evidence, than to invent one that a unanimous jury must find beyond a reasonable doubt.

Further, in the second long one-sentence paragraph, once again he distances himself from Justice Breyer and the defenders of the Sentencing Guidelines. He comments sarcastically about those justices who make distinctions such as sentencing factors and elements of the offense in order to preserve the Guidelines.[4]

Most importantly, he filed a concurring opinion in Ring to reaffirm the bedrock principle of Apprendi. That is, “the right [of a defendant] to have a jury determine those facts that determine the maximum sentence the law allows.” (Justice Scalia’s concurring opinion in Apprendi, id., at 2367). But in Ring, he states the Sixth Amendment right of a defendant to have the jury find “all facts essential to imposition of the level of punishment that [he] receives.”[5]

Justice Ginsburg in her majority opinion in Ring rejected the argument made by the State of Arizona, the Respondent, that “Ringwas ... sentenced within the range authorized by the jury verdict.” (Id., at 604). Justice Scalia, however, in Schriro v. Summerlin, 124 S.Ct. 2519, 2523 (2004), held that

[a] rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. [Id., at 2523. (Emphasis added)].

Accordingly, we see how strained is his concurring opinion in Ring, inasmuch as two years later in Schriro he adopts in the majority opinion he writes the very defense that was used by the State of Arizona in an unsuccessful attempt to preserve the compatibility of Walton and Apprendi.

The Implications of Blakely and Schriro

On June 24, 2004, Justice Scalia wrote two 5 to 4 majority opinions with very different majorities. In both Blakely v. Washington, 124 S.Ct. 2531, and Schriro v. Summerlin, 124 S.Ct. 2519, the majority opinion was without a concurrent opinion.[6] Here we are doing what Justice Scalia has declined to do – i.e., to explicate what we can know with moral certitude is the direction in which he will lead the Court.[7]

In Blakely, Justice Scalia reaches back not only to Apprendi and the subsequent line of cases that we have discussed above but also to Blackstone, the common law, and the Framers of the Constitution. He writes:

Our precedents [Emphasis added] make clear ... that the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Emphasis in the opinion]. See Ring, supra, at 602 (“’the maximum he would receive if punished according to the facts reflected in the jury verdict alone’”) quoting Apprendi, supra, at 483)); Harris v. United States, 536 U.S. 545, 563 (2002)(plurality opinion) (same); cf. Apprendi, supra, at 488 (facts admitted by the defendant. In other words, the relevant “statutory maximum” is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury’s verdict alone does not allow, the jury has not found all the facts “which the law makes essential to the punishment,” Bishop, supra, [Criminal Procedure (2d ed. 1872)] §87, at 55, and the judge exceeds his proper authority. [Id., at 2537].

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. 1875. [Id., at 2536. (Footnote omitted)].

Thus, in Apprendi, Justice Scalia can state that he is doing no more than

apply[ing] the rule we expressed in Apprendiv. New Jersey, 530 U.S. 466, 490 (2000). (Emphasis added). “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.” [Id., at 2536].

Or, as Justice Scalia has stated the rule in his concurring opinion in Apprendi, a defendant has “the right to have a jury determine those facts that determine the maximum sentence the law allows.” (Id., at 499). He has applied this definition of statutory maximum sentence to sentencing guidelines. This meaning, therefore, according to Blakely, is the plain meaning that is required by the Sixth Amendment and the common law.

Here we see the crux of the consternation in the Federal courts that Blakely has caused. Before Blakely, every U.S. Circuit Court of Appeals had held that Apprendi did not apply to sentencing guidelines within the statutory maximum. Each of these courts had accepted as the meaning of “statutory maximum” the maximum sentence permitted not by a specific guideline but by the maximum penalty Congress provided for the offense. But the Apprendi-rule as presented in Blakely is that each sentencing guideline constitutes a “statutory maximum” sentence. By implication, therefore, Blakely overrules each of these circuit court opinions that misconstrues the meaning of “statutory maximum,” when applied to the guidelines.

According to the Blakely-rule, the Sixth Amendment is violated when a judge imposes an enhanced sentence under the U.S. Sentencing Guidelines based on the judge’s determination of a fact (other than a prior conviction) that was not found by the jury or admitted by the defendant. In direct contradiction to the Blakely-rule, the Guidelines require the sentencing judge to make findings of fact, according to a preponderance-of-the-evidence standard of proof, that determine the sentence, unless the judge makes an upward or downward departure. Thus, the Apprendi-rule, by strict logical implication, requires declaring the Guidelines unconstitutional.[8]

First of all, because of our parsing of the words of Justice Scalia in this line of cases, we can understand that his ruling in Schriro of the non-retroactivity of the Court’s ruling in Ring. But we can also see that, in contrast, the Apprendi-rule has the most extensive retroactive effect in overturning sentences under the Guidelines. In Schriro, he wrote:

New rules of procedure, on the other hand, generally do not apply retroactively.... [Id., at 2523].

A rule is substantive rather than procedural if it alters the range of conduct or the class of persons that the law punishes. [Emphasis added]. See Bousley, supra, at 620-621, 118 S.Ct. 1604 (rule “hold[s] that a ... statute does not reach certain conduct” or “make[s] conduct criminal”).... In contrast, rules that regulate only the manner of determining the defendant’s culpability are procedural. See Bousley, supra, at 620, 118 S.Ct. 1604.

Judged by this standard, Ring’s holding is properly classified as procedural. Ring held that “a sentencing judge, sitting without a jury, [may not] find an aggravating circumstance necessary for imposition of the death penalty.” 536 U.S., at 609, 122 S.Ct. 2428. Rather, “ the Sixth Amendment requires that [those circumstances] be found by a jury.” Ibid. Thisholding did not alter the range of conduct Arizona law subjected to the death penalty. It could not have, it rested entirely on the Sixth Amendment’s jury-trial guarantee, a provision that has nothing to do with the range of conduct a State may criminalize. [Emphasis added]. Instead, Ring altered the range of permissible methods for determining whether a defendant’s conduct is punishable by death, requiring that a jury rather than a judge find the essential facts bearing on punishment. Rules that allocate decision-making authority in this fashion are prototypical procedural rules, a conclusion we have reached in numerous other contexts.... [Id., 2523].

From the language of Justice Scalia in cases leading up to Blakely and, especially, in Blakely, we see that the Apprendi-rule is more than a new substantive procedural rule. In Blakely, Justice Scalia wrote:

Our commitment to Apprendi ... reflects not just respect for longstanding precedent, but the need to give intelligible content to the right to jury trial. That right is no mere procedural formality, but a fundamental reservation of power in our constitutional structure. [Emphasis added]. Just as suffrage insures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary. [Letters of John Adams and Thomas Jefferson to support this proposition]. Apprendi carries out this design by ensuring that the judge’s authority to sentence derives wholly from the jury’s verdict. [Emphasis added]. Without that restriction, the jury would not exercise the control that the Framers intended. [Id., at 2538-2539].

Accordingly, the Apprendi-rule that Justice Scalia announced clearly in Blakely is not a new substantive procedural rule but is a most venerable and fundamentalsubstantive procedural rule that must be given fullest retroactive effect.[9] Justice Scalia can count on the same four justices: (1) that were in the majority with him in Apprendi, (2) that joined his Blakely opinion without a word of concurrence, and (3) that were three in dissent in Schriro minus Justice Breyer, and Justice Thomas who joined in his majority opinion. In sum, Justice Scalia can count on Justices Stevens, Souter, Thomas, and Ginsburgto follow his lead in the instauration of the Sixth Amendment in sentencing in the federal courts.

1

[1] Justice O’Connor in dissent in Blakely, who is alarmed by what she sees as the devastating consequences to federal sentencing of Blakely, denigrates Justice Scalia as being motivated in Blakely by “doctrinaiare formalism.” (Id., at 2547).

[2] We think that Justice Scalia has had a master plan, even from when he was the sole dissenter in Mistretta v. United States, 488 U.S. 361 (1989). At the very least, this dissent became central to the recent majority opinions that he has authored. In Mistretta, he argued that the Guidelines “have the force and effect of laws.” 488 U.S. 361, at 414.

[3] The Court has granted writs of certiorari in United States v. Booker, 375 F.3d 508 (7th Cir.) and United States v. Fanfan, an unreported opinion from the District Court of Maine, Supreme Court Docket Nos. 04-104 and 04-105, respectively. These two cases were argued on the first day of the term, Monday, October 4, 2004.