Scalia, Thomas and Ginsburg dissent from cert denial in sentencing case
The U.S. Supreme Court’s cert denial in a drug-sentencing case has drawn a dissent by three justices who argue the court should not have passed up an opportunity to decide the limits of fact-finding by sentencing judges.
Justice Antonin Scalia wrote the dissent (PDF), joined by Justices Clarence Thomas and Ruth Bader Ginsburg. “The present petition presents the nonhypothetical case the court claimed to have been waiting for,” Scalia wrote.
Jurors had convicted three drug defendants in the case for distributing small amounts of crack cocaine, but acquitted the defendants of conspiring to distribute drugs. The sentencing judge nonetheless found that the defendants had engaged in the conspiracy and, relying largely on that finding, calculated guidelines ranges that were much higher than for distribution convictions.
“Petitioners present a strong case that, but for the judge’s finding of fact, their sentences would have been ‘substantively unreasonable’ and therefore illegal,” Scalia wrote. “If so, their constitutional rights were violated.”
The Supreme Court has held that substantively unreasonable penalties must be set aside, but has never decided whether the Sixth Amendment is violated when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness, Scalia said. Appeals courts have interpreted the Supreme Court’s silence to suggest there is no constitutional violation.
“We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment,” Scalia said, “or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.”
The case is Jones v. United States.
