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The U.S. Supreme Court’s recent decision-making in the realm of criminal law and procedure has confounded the conservative/liberal fault line that tracks much of its other jurisprudence. Neither the court’s results nor its lineups in particular cases are easily categorized. Depending on your perspective, this could be a source of comfort (confirming that the justices’ baser instincts are not driving their votes) or disconcert (revealing that no dependable methodologies permeate this area of jurisprudence). This term’s decisions continued this trend. Tackling, among other areas, the constitutionality of sentencing guidelines, dog sniffs for narcotics without any relevant suspicion of wrongdoing, potentially discriminatory peremptory challenges and the administration of the death penalty, not once did the justices divide into their most familiar camps-that is, the 5-4 divide present in Bush v. Goreand so many federalism-related decisions. More often than not, unlikely combinations reached striking decisions. In January, in the first major criminal law decision of the term, the other shoe dropped. The court held in U.S. v. Booker, 125 S. Ct. 738 (2005), that the Sixth Amendment, as construed seven months earlier in Blakely v. Washington, 124 S. Ct. 2531 (2004), applied with equal force to the Federal Sentencing Guidelines. That meant that defendants had a right to insist that any fact (other than a prior conviction) that subjected them to higher sentences under the guidelines be proven to a jury beyond a reasonable doubt. This much was expected. But the court’s remedy struck many by surprise. Rejecting the criminal defense bar’s suggestion to retain uniformity in sentencing by grafting Blakely‘s procedural protections onto the guidelines, the four justices who dissented in Blakelyand the first part of Booker-Chief Justice William H. Rehnquist and justices Sandra Day O’Connor, Anthony M. Kennedy and Stephen G. Breyer-plus Justice Ruth Bader Ginsburg, severed two provisions from the Sentencing Reform Act of 1987, creating what many have called a set of “advisory” guidelines. The word “advisory,” however, is something of a misnomer. In fact, the Bookerremedial majority replaced the system in which the guidelines were singularly controlling with a system in which sentencing courts must employ a balancing test. Judges still must calculate a guidelines sentence, but in setting the final sentence they must now weigh it against other sentencing goals, such as providing just punishment, protecting the public and the need to avoid unwarranted sentencing disparities. The parties retain the right to appeal any sentence, and appellate courts review sentences for “reasonableness.” Lower federal courts are now busy ironing out the particulars of this new sentencing system. It remains to be seen exactly how much weight courts should give to their guideline calculations-are they merely starting points or strong presumptions?-and how strict reasonableness appellate review will be. One expects these issues and others to be back knocking at the court’s door in the near future. Some state courts also have read Bookeras altering the landscape in ways relevant to them. Most important, the California and Tennessee supreme courts have interpreted Bookeras allowing them to salvage sentencing systems that are identical in all relevant respects to the Washington system invalidated in Blakely. See People v. Black, 113 P.3d 534 (Calif. 2005); State v. Gomez, 163 S.W.3d 632 (Tenn. 2005). Noting that the U.S. Supreme Court cured the Sixth Amendment infirmity in Bookerby restoring discretion to sentencing courts, these courts have held that their states’ determinate sentencing systems are constitutional because judges in their states have some of the same discretion: They need not impose heightened sentences upon finding aggravating facts.
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