New Article Spotlight: Early Booker Article

Paul Kirgis of St. Johns appears to have one of the first Booker articles already accepted for publication.  He has just posted The Right to a Jury Decision on Sentencing Facts After Booker:  What the Seventh Amendment Can Teach the Sixth on SSRN.  Here's the abstract:

When the Supreme Court invalidated a Washington state sentencing scheme in its 2004 decision in Blakely v. Washington, both courts and commentators assumed that the newly invigorated Sixth Amendment jury right would topple the Federal Sentencing Guidelines as well. To address those concerns, the Supreme Court moved quickly to hear a pair of appeals directly raising the constitutionality of the Guidelines. The resulting decision, United States v. Booker, with its two majority opinions, seems to offer something to both jury-right advocates and Guidelines advocates. The first Booker majority held that the Sixth Amendment applies to judicial decision-making under the Guidelines. But the second majority held that any constitutional infirmity could be expunged by simply making the Guidelines discretionary instead of mandatory. The apparent principle resulting from the case is that if a judge finds facts increasing a defendant's sentence beyond the otherwise allowable maximum because Congress required her to find those facts, the sentence is unconstitutional. On the other hand, if a judge finds facts increasing a defendant's sentence beyond the otherwise allowable maximum because Congress suggested that she find those facts, the sentence is perfectly valid. In other words, at least until Congress acts, judges may continue to decide exactly the same factual issues they have always decided. Any victory for jury-right advocates is, then, a pyrrhic one.

Booker fails on its face as a matter of logic. Its constitutional remedy negates the very right the case purports to protect. But it also fails for another pragmatic reason. By validating judicial power to find facts pertinent to sentencing, Booker entrenches an unjustifiable disparity between the scope of the jury rights in civil and criminal cases. The Supreme Court has recently reaffirmed that, where punitive damages are at issue in a civil case, the jury should make any factual determinations on which the award of punitive damages turns. In contrast, Booker will permit judges acting under the now-advisory Federal Sentencing Guidelines to determine exactly the same factual matters, such as the degree of harm to the victim, as a predicate for imposing a criminal sentence. This article explores that anomaly and argues that the gap between the scope of the civil jury right and the scope of the criminal jury right should be closed by requiring jury decisions on all fact questions, regardless of when those questions arise in a proceeding. The article offers a definition of "fact questions" for criminal cases and then discusses some of practical issues that this approach would raise.

The article has been accepted by the Georgia Law Review, but is not yet on SSRN, so if you want a draft, you'll have to speak to the author.  Contact info here.  [Mark Godsey]