I just cannot get over the chaotic situation present in federal sentencing law. About 13 years ago, Apprendi v. New Jersey, 530 U. S. 466 (2000) was decided. As I observed yesterday, in Alleyne the Justices split wildly once again on what Apprendi means. This is how the syllabus of the opinion describes the differing views of the Justices:
THOMAS, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, III–B, III–C, and IV, in
which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined, and an
opinion with respect to Parts II and III–A, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed a concurring
opinion, in which GINSBURG and KAGAN, JJ., joined. BREYER, J., filed an
opinion concurring in part and concurring in the judgment. ROBERTS,
C. J., filed a dissenting opinion, in which SCALIA and KENNEDY, JJ.,
joined. ALITO, J., filed a dissenting opinion.
Now, assume you are a criminal defense lawyer. Assume your client wants to know what that case called Apprendi means. Can you accurately answer your client’s question? Hell, no. In fact, I wager that you would commit malpractice if you tried.
The Justices should be ashamed of themselves. For God’s sake, pick a damn rule, any rule, but stop the dithering madness.