Beach Boys to the Supreme Court: Wouldn’t it be nice

If you care about sentencing in federal criminal cases, read today’s multiple opinions from the Justices in Alleyne.  Then, ask yourself what the rule is.

Wouldn’t it be nice if the Supreme Court took a detour from its magical mystery tour and took a shot at simply listing those statutes which require a jury to make a fact-finding that (may?) make a sentence go up?   Then, we dummies could do our work without the continuing chaos (now approaching a decade in length) caused by Apprendi-land.  After years, and years and years and years, is that too much to ask for?


3 responses

  1. Pingback: I dare you, try to explain Apprendi to a client « Hercules and the umpire.

  2. Wouldn’t it be nice if the Supreme Court…took a shot at simply listing those statutes which require a jury to make a fact-finding that (may?) make a sentence go up?

    That’s what English judges do, but is that a task of American judges? I’ve been under the impression that American judges are functionally and traditionally (if not legally) limited to adjudicating on the basis of the the laws presented by the contending parties. Judges do their own research into the law (and listing of the ones they find relevant) only to the extent needed to ascertain whether the lawyers have properly interpreted the laws they’ve brought to the case or are outright BSing the judge. Further research/cites only serve to help the judge(s) flesh out their rationale as they deliver their opinions, but aren’t original research in this context.

    I also had a thought on Justice Sotomayor’s concurring opinion in Alleyne. She wrote in part,

    Of course, under our doctrine of stare decisis, establishing that a decision was wrong does not, without more, justify overruling it.

    We generally adhere to our prior decisions, even if we question their soundness, because doing so “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”

    This is a very Brandeis-ian remark—and wrong, in my opinion, for the same reason Justice Brandeis was wrong in his original comment. As with Brandeis, this view of stare decisis overreaches because it only spreads the injustice of the error far and wide in the forlorn (if not cynical) hope of converting an injustice into a justice through constant repetition.

    If there is a muddle of conflicting decisions resulting from not using this too-strict version of stare decisis, it seems to me that the correct course of action for the Court is one or both of two things: write a precedential ruling that cuts that Gordian knot and establishes a clear outcome (if the text of the laws presented allow this, and only if then: American judges do not make law; the American people do through their legislatures), and/or use their opinion, with the absurdity of it to which they’re driven by the text of the law(s), along with the muddle of the law(s) which drove the muddle of subsequent decisions, to “encourage” the legislature to do their job and clear up the legislative confusion. Which is a task solely within the sphere of the people through their elected legislators and no task of a court.

    Eric Hines

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