Antonin Scalia

Antonin Scalia, Bleeding-Heart Liberal

|

Yesterday the Supreme Court heard arguments in two drug cases that raise the question of how far and for what reasons judges may depart from federal sentencing guidelines now that the Court has declared them advisory rather than mandatory. In one case, a guy who sold MDMA pills in college but went on to graduate and start a construction business received probation instead of the three-year prison sentence suggested by the guidelines. In the other, a man who was caught with crack, cocaine powder, and a gun got 15 years, the statutory mandatory minimum, instead of the 19 years the guidelines recommended. The headline over the Los Angeles Times story about the cases ("Justices Say They Lean to Sentencing Leeway") suggests the Court is inclined to approve both of these departures, even though the latter is based in part on disagreement with the claim, accepted by Congress, that crack cocaine possession is a far worse offense than powder cocaine possession.

That groundless belief is the basis for the notorious 100-to-1 weight ratio that gives a first-time offender possessing five grams of crack a five-year sentence, the same as the punishment received by someone possessing 500 grams of cocaine powder, and gives someone possessing 50 grams of crack a 10-year sentence, the same as the punishment received by somone possessing five kilograms of cocaine powder. Unfortunately, neither judicial discretion nor the pending changes to the sentencing guidelines, which will take effect on November 1 unless Congress nixes them, will change those particular penalties, which are dictated by statute.

This is another situation, like the debate over the president's detention powers, where Antonin Scalia belies the left-liberal caricature of him as an authoritarian ogre and sees eye to eye with the ACLU. He is the Court's leading advocate of the Sixth Amendment argument that juries, not judges, must determine facts that trigger enhanced penalties, which was the rationale for making the sentencing guidelines advisory. His main opponent on this issue is Stephen Breyer (not coincidentally, an architect of the guidelines as a member of the U.S. Sentencing Commission), a Clinton appointee whom leftish Court observers tend to view more favorably than Scalia:

It "would be the end of the guidelines," Breyer said, if judges were free to decide for themselves on appropriate prison terms…

Justice Antonin Scalia, however, is a skeptic. He said the guidelines often result in overlong prison terms. "The guidelines are only guidelines. They are advisory," he told [Deputy Solicitor General Michael] Dreeben, so judges should be permitted to hand down shorter sentences.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

35 responses to “Antonin Scalia, Bleeding-Heart Liberal

  1. Damn Pinko!

  2. From Scalias dissent in Mistretta v. New York (1989)(where he believed that the sentencing guidelines themselves were an unconstitutional delegation of legislative power to a commission made up of judges and legislators):

    “Under the guidelines, the judge could give the same sentence for abusive sexual contact that puts the child in fear as for unlawfully entering or remaining in the United States. Similarly, the guidelines permit equivalent sentences for the following pairs of offenses: drug trafficking and a violation of the Wild Free-Roaming Horses and Burros Act; arson with a destructive device and failure to surrender a cancelled naturalization certificate; operation of a common carrier under the influence of drugs that causes injury and alteration of one motor vehicle identification number; illegal trafficking in explosives and trespass; interference with a flight attendant and unlawful conduct relating to contraband cigarettes; aggravated assault and smuggling $11,000 worth of fish.”

    And this:

    “By reason of today’s decision, I anticipate that Congress will find delegation of its lawmaking powers much more attractive in the future. If rulemaking can be entirely unrelated to the exercise of judicial or executive powers, I foresee all manner of “expert” bodies, insulated from the political process, to which Congress will delegate various portions of its lawmaking responsibility. How tempting to create an expert Medical Commission (mostly M.D.’s, with perhaps a few Ph.D.’s in moral philosophy) to dispose of such thorny, “no-win” political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research.”

  3. “. . . to create an expert Medical Commission (mostly M.D.’s, with perhaps a few Ph.D.’s in moral philosophy) to dispose of such thorny, “no-win” political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research.”

    Isn’t that left-liberaltopia?

  4. Boy, and I thought the “left-liberal caricature of him as an authoritarian ogre” was pretty much the same opinion as that held by Radley Balko.

    So, is Radley Balko a “left-liberal caricature” artist, or is Mr. Balko just plain wrong about Scalia inhabiting an alternate universe?

    He must be one O them stinkin’ libruls.

    If you’ve got to be a left-liberal to think the man is a bit of an ogre, than you are a hell of a lot further right than I would have guessed.

    And I thought you were against the drug war. Only a little bit against it I guess.

  5. “It ‘would be the end of the guidelines,’ Breyer said”

    Oh, the horror!

  6. And I thought you were against the drug war. Only a little bit against it I guess.

    When somebody questions Jacob Sullum’s credentials on drug policy, are we obligated to take 2 drinks or 1? And is it absinthe or something else?

  7. If it’s absinthe, I’ll take 2 regardless of my level of obligation.

  8. Scalia is against a womans Right To Choose
    Breyer is Pro-Choice
    The Court’s Liberal Justices are nearing retirement or death. We need a President who will
    appoint liberal Justices who will stand up for our rights.

  9. As a Constitutional scholar, trust me when I say this: Breyer should stick to ice cream.

  10. When somebody questions Jacob Sullum’s credentials on drug policy, are we obligated to take 2 drinks or 1? And is it absinthe or something else?

    The sundry and false assumptions from ideologues about the Reason staff’s views are amusing to say the least. Gabe Harris thinks they’re fascist sympathizers, Bob thinks they’re carrying water for the Democrats, and TLB thinks they’re Aztl?n shills.

    This isn’t to say I’ve agreed with the Reason folks on everything, but I haven’t accused them of being things they’re obviously not.

  11. “Scalia is against a womans Right To Choose

    “Breyer is Pro-Choice

    “The Court’s Liberal Justices are nearing retirement or death. We need a President who will appoint liberal Justices who will stand up for our rights.”

    It’s interesting that some people use the word “choice” to describe this:

    http://www.priestsforlife.org/resources/photosbyage/index.htm

    And that’s just the first trimester.

    More pictures:

    http://www.priestsforlife.org/resources/monica/mm1.htm

  12. Asharak wrote:

    This isn’t to say I’ve agreed with the Reason folks on everything, but I haven’t accused them of being things they’re obviously not.

    Prolibertate wrote:

    As a Constitutional scholar, trust me when I say…

    Prolibertate has unjustly accused me of being a Constitutional scholar!

  13. I’ve already had a couple of drinks, but I’ll always drink to Balko.

    Was that the question?

  14. Harrowing pictures Mad Max. Thanks for the links.

  15. I’ll get the second round of drinks for Radley Balko.

    Scalia only criticizes mandatory sentencing and “overly long prison terms” because they infringe upon judicial autonomy. He’s not so keen to defend the autonomy of others.

    Not that he isn’t right in this case, of course. I just think he’s a tool.

  16. Mad Max and x,y,

    So, when do we get to see the photos of the babies that God aborted by miscarriage?

    Now, do I get to post gruesome pictures of women who’ve died in childbirth? What about some pictures of even earlier stages of life, like gametes spilled onto porn stars backsides or toilets full of menstrual flow and discarded eggs?

  17. Curse me for joining the abortion threadjack!

  18. Rimfax,

    Yawn . . . there’s a distinction between killing someone deliberately and someone dying (however tragically) from natural causes.

    Come on, you can do better than this.

  19. Now, do I get to post gruesome pictures of women who’ve died in childbirth? What about some pictures of even earlier stages of life, like gametes spilled onto porn stars backsides or toilets full of menstrual flow and discarded eggs?

    Rimfax,

    Sure you can, but I bet the later too are not as repulsive as the pics of a abortion. Aborting a baby to save the mothers life is justifiable but aborting a baby for birth control becomes wrong at some point in the term. When does a living being become a person?

  20. Yeah, but the thread-jacking is more interesting. . . you know, Scalia gets it right, but because he’s still not a new-school libertarian he’s still a jerk.

    Rim and harv, go and look up some facts on the % of abortions performed for medically necessary reasons. It’s statistically nil.

  21. Wow, it’s like no one’s ever seen the 2-axis political belief graph. I’ll bet he’s classically liberal on guns to the effect that he gives a crap. Plenty of conservatives have some strong libertarian beliefs. There are really very few real authoritarian-right types in public life. (Not counting Democrats)
    We need a President who will
    appoint liberal Justices who will stand up for our rights.

    hah! That’s a hoot.

  22. “. . . to create an expert Medical Commission (mostly M.D.’s, with perhaps a few Ph.D.’s in moral philosophy) to dispose of such thorny, “no-win” political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research.”

    Isn’t that left-liberaltopia?

    This reminds me more of Plato’s philosopher-kings…

  23. Abortion threadjack? Sweet! It’s been a while…

    *grabs bowl of popcorn, curls up on couch*

  24. Reason previously claimed:
    Crack and powder are simply two forms of the same drug, and each form produces identical effects.
    five grams of crack a five-year sentence, the same as the punishment received by someone possessing 500 grams of cocaine powder

    If the effects are identical and the risks are very different, I’m curious as to why anyone would bother with crack, espcially since it requires more paraphernalia.
    Any guesses?

  25. Mr. F. Le Mur:

    You can score some crack for 5 or 10 bucks. To get a decent night of cokin’, you have to start with at least $50. Perhaps my figures are off, but I assume the ratio is still valid.

    Though this post is characterized as a left-right issue, but wouldn’t it would be different if the sentences handed down were way longer than the guidelines allow, like say 50 years for smashing a mailbox?

  26. And I should have added that I think Scalia is correct. No commission can dole out the proper punishment because it doesn’t (and can’t) know the facts.

  27. Just a couple points:

    1. A ‘first-time’ offender’ with 5g of crack will not receive a mandatory 5-year sentence, at least with a strict application of the guidelines. The guidelines have whats called a ‘safety valve,’ so that if the offender has 0 or 1 criminal history points, he qualifies for the safety valve. The safety valve does two things. First, it gives a 2 level reduction to the offense level. Second, and sometimes more importantly, it lifts any mandatory minimum sentence if that sentence would be higher than the guideline range. Thus, if the offender satisfies the requirements for the safety valve, then the statutory mandatory minimum does not apply. Generally speaking, if the offender is ONLY in possession of 5g of crack cocaine (and not a gun as well, etc.) AND it truly is a first offense, then the only ‘mandatory minimum’ that will apply is the guideline range.

    2. Its a sad fact that the ‘bigger’ dealers tend to keep the drug in powder form until its necessary to distribute it. This is to keep potential sentences lower if they get pinched. I represented one individual who was a ‘runner’ who got pinched with over 100g of powder. The intent was to stamp it once he delivered it to the local distributor. He said this is how it is when its transported. Unfortunately, this results in the actual ‘big time’ dealers getting sentenced much less severely than the street level user.

  28. *grabs bowl of popcorn, curls up on couch*

    *bails*

  29. So, when do we get to see the photos of the babies that God aborted by miscarriage?

    Now, do I get to post gruesome pictures of women who’ve died in childbirth? What about some pictures of even earlier stages of life, like gametes spilled onto porn stars backsides or toilets full of menstrual flow and discarded eggs?

    1. Here we go with the God snark. I’ve said once, but it bears repeating. I didn’t bring up “God.” I’m not religious in any sense of the word. That people keep resorting to this tactic tells me their arguments aren’t strong.

    2. There’s a difference between intentional and unintentional actions. That this bears repeating tells me you haven’t thought much about the issue.

    3. I’d be happy to look at any pictures you care to link to. More and more complete information is helpful in any debate.

    4. I’m interested to know if you have any substantive comments to add.

  30. “. . . there’s a distinction between killing someone deliberately and someone dying (however tragically) from natural causes.”

    Can you define “natural” for me? You may not have brought up nature, but you sure brought up deterministic thought.

    I gotta go with saharvey on this one. A plague on both your houses.

  31. And actually ON topic:
    Thrilled that “mandatory” sentencing is being called into question. Just as thrilled that Antonin Scalia went after states regulating the interstate commerce of wine. Probably moreso. Ant’ny’s okay with me. Much of the time.

  32. 3. I’d be happy to look at any pictures you care to link to.

    Obviously x,y just likes reproduction-related snuff pictures.

  33. gametes spilled onto porn stars backsides

    Yes, indeed, let’s see more pictures like that, especially since H&R doesn’t trip the content filters at work.

    Back on topic, Scalia drives me nuts because when he isn’t riding one of his personal hobby horses, he’s insightful, correct, and sarcastic as hell. When he’s on one of his kicks, he will twist the hell out things to get where he thinks he should be. When he’s right, he’s usually spot-on. When he’s wrong, it makes you wonder what they put in the water cooler that day.

  34. I’m sure people with high IQs use powdered cocaine!

  35. As a Constitutional scholar, trust me when I say this: Breyer should stick to ice cream.

    Now that’s funny…..LOL

Please to post comments

Comments are closed.