Maybe I'm not a very smart lawyer, but it's not been obvious to me why the federal sentencing guidelines should be a problem if the sentencing judge determines the facts to be applied in calculating the sentence after a conviction. I can see keeping the judge out of the jury room when it comes to determining guilt, but afterwards -- well, we are no longer talking about the rights of the accused. We're talking about what to do about a convicted felon. I kinda thought that as long as the disposition of a convicted felon wasn't cruel or unusual, we could pretty much do what made sense. And the sentencing guidelines, as a procedural response to the problem of inconsistent sentencing from judge to judge, made sense, even if some of the weights or considerations might have seemed a mite peculiar.
But we should need a jury to determine facts used to apply the mandatory sentencing guidelines? What about a bench trial? If a defendant were to waive a jury and try the case to the judge, could the mandatory sentencing guidelines apply in such a case? What about a guilty plea? Or. how about if a defendant wanted the sentencing guidelines imposed in a mandatory fashion, and waived a jury for the purpose of determining the sentence under the guidelines, so as to avoid being maxed by a judge with propensities?
I guess we are saying that if we want mandatory sentencing guidelines, there would have to be a jury to hear the facts to be applied in determining the sentence, right?
Oh, right. We've worked our way around those little problems by making the guidelines advisory, not mandatory. Well, isn't the same judge going to determine those same facts to consider what to do with the guilty guy's sentence? Hmmm. Maybe I'll get smarter as we go along but I have two observations right now.
One: I think confirming new Article III judges just got a whole lot more complicated and fun to watch. It isn't as if those who can be expected to grill judicial nominees on their sentencing philosophy vis-a-vis the sentencing guidelines are all that interested in preserving the rights of criminals. It's that now there's just one more consideration providing an opportunity to wrinkle foreheads and bite lower lips for the news cameras, and to express grave concerns about the candidate's fitness to blah, in light of the blah, particularly when blah blah. Blah.
Two: It feels good not to be practicing law.