Dagger in hand

A man of prodigious fortune, coming to add his opinion to some light discussion that was going on casually at his table, began precisely thus: "It can only be a liar or an ignoramus who will say otherwise than," and so on. Pursue that philosophical point, dagger in hand.

--Michel de Montaigne, Of the art of discussion.

Stab back: cmnewman99-at-yahoo.com


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Friday, January 21, 2005

When the doodoo hits the Fanfan.

Alright, I sent this query to some of my friends in academia and haven't received any enlightenment yet. Is there any to be had?

Pages 13-14 of the Stevens majority opinion in part (not to be confused with the Stevens dissent in part) explains to us how the 6th am is about protecting us from "judicial despotism," and says I have the right, before being deprived of an extra ten years of my liberty, to have the fact which provides the basis for adding those ten years submitted to 12 of my "equals and neighbors," rather than just to some "lone employee of the State."

All of the Supreme State Employees, however, apparently regard it as undoubtedly true (p. 8-9) that "when a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant."

So it's "judicial despotism" if a judge is required by Congress to add 10 years--no more, no less--to my sentence if he determines that I had another 566 g's of crack that the jury never heard about.

But if Congress just tells the judge to sentence me any way he deems reasonable (say, a "defined range" of 0-1200 months), and the judge decides all on his own to give me an extra 10--or 20, or 50--years in the clink because of those same 566 g's that the jury never heard about, this is not judicial despotism, and would be perfectly constitutional. As far as I can make out, there's no Sixth Am requirement that Congress prescribe sentences at all. They could just define crimes, and let judges make up sentences as they went along.

What am I missing here?

The elimination of judicial discretion to taylor the facts to the particular case and defendant.

Such as - did the defendant have knowledge of the other 566g? Or was he just there to purchase a small amount.

i.e. was he a dealer or an addict?

We have judges because one size does not fit all.
You see judges perform two functions:

Following the law and procedure.

Tayloring the sentence to the criminal: justice.

Let us not forget the justice part.

When Tayloring is not allowed justice is not served.
tailoring - Tayloring is something entirely different. In fact it may be what the justices objected to was Tayloring.
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