The idea seems plain enough. A person convicted of a crime shouldn't be
sentenced on evidence never heard by the jury.
Yet as long as anyone can remember, judges in the US have handed down
sentences relying on "facts" provided by prosecutors that didn't pass
the test of a jury's verdict.
Finally, last June, the US Supreme Court said this age-old practice had
to end. The decision, known as Blakely v. Washington, threw both federal
and state courts into a bit of chaos. Both Congress and the Bush
administration asked the court to clarify quickly what judges should now
do in sentencing, and whether juries should be given all the facts in a
case that may not relate to innocence or guilt.
On Monday, the first day of the court's new session, the nine justices
held an expedited hearing on the issue. Their comments, as well as their
written decisions last June in the 5-4 Blakely ruling, indicate they're
openly divided on whether judges can be trusted to determine whether
extra evidence not given to a jury is permissible when passing a sentence.
Justice Sandra Day O'Connor said in a recent speech she was "disgusted"
with the way the court dealt with the issue. At Monday's hearing, she
appeared frustrated enough with the majority's opinion that she
suggested "maybe we should just leave it to Congress."
But the liberal-conservative majority stood fast on their argument that
the Sixth Amendment right to trial by jury also requires any evidence
that leads to a sentence greater than the maximum be proven to a jury.
"The whole reason for jury trials is we don't trust judges," said
Justice Antonin Scalia.
In other words, leave fact-finding to juries and bar judges from going
beyond the law.
The high court has several options in deciding in the limits of judges'
discretion in sentencing and forcing prosecutors to lay out more
evidence to juries. Some critics worry cases might become too
complicated for juries with too much evidence to digest.
But the court looks to have renewed its faith in the ability of juries
to administer justice, within a system of governance that continually
needs to root itself in the common sense of common people.