Friday, August 12, 2011
The Constitutional Common Law of Punishment
Punishment theory has become a dizzyingly complex and increasingly systematized affair. The name of the game seems to be to continue skimming away and refining, excluding this or that reason to punish as not central, or core, or truly important -- pouring all sorts of energy into discerning what is a sufficient reason and what a necessary reason, and so on. I talk about some of these developments in this paper and I ask whether, if judges, lawyers, and legislators are at least in some small measure the target of these theories (something which might well be contested), what use these efforts could possibly be to them.
But I had a thought yesterday that I wanted to throw out for reaction. We have reached a kind of rough equilibrium in federal sentencing. After the Apprendi/Blakely/Booker cycle, the federal sentencing guidelines are merely advisory, and there is rather deferential appellate review accorded to the decisions of sentencing judges. I take it that part of the aim of the sentencing guidelines was to engage in a very thoroughgoing systematization of the reasons to punish as well as the amount to punish. We're now back to a much looser and less regularized approach, where judicial discretion is far greater and the range of reasons that a sentencing judge might offer for selecting a particular sentence is quite broad and granted significant deference.
We have gotten to this place in federal sentencing for constitutional reasons, because of the Sixth Amendment requirement that fact-finding which results in sentencing consequences either be admitted by the defendant or be proved beyond a reasonable doubt by juries. And yet...those constitutional reasons have resulted in a sentencing approach highly reminiscent of a kind of common law of punishment, in which individual judges are free to call upon many different kinds of highly context-specific reasons to punish. That is, the constitutional framework has led us policy-wise to a comparatively unruly and unsystematic approach to punishment.
So here is my question: is this linkage happenstance or structural? Is it sometimes, or even usually, the case that constitutionalism leads in a non-systematic direction? To put it a slightly different way, is there something about constitutionalism which makes it more probable that the law will admit of multiple and perhaps even clashing justifications for any particular legal and/or policy judgment? Or is the case of the constitutional common law of punishment serendipitous and sui generis?
https://mirrorofjustice.blogs.com/mirrorofjustice/2011/08/the-constitutional-common-law-of-punishment.html
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There is a pattern here, but it's not about all law heading toward a "comparatively unruly and unsystematic approach," nor is about criminal law heading that way, specifically, allow sentencing is heading that way.
The pattern is simple:
Legislatures and juries must be constrained by formal rules, and can not have too much discretion. Allowing too much discretion is unconstitutional.
Judges, however, do not need such contraints, and in fact, efforts to constrain their discretion is unconstitutional.
In short, the judiciary trusts itself, and not others, with discretion.
Executive and independent administrative agencies are in the middle. Judges trust those who look and seem like quasi-judges, but not those that seem more like democratic actors. Also, some judges trust certain falvors of bureaucrats that are more likely to reach the "right" results. For example, public school actors using race are trusted by judges of some persuasions but not others, who trust military bureaucrats but not educational bureaucrats.
Follow the pattern, and life is easy.