Antonin Scalia

Scalia, Thomas, and Ginsburg File Rare Dissent from SCOTUS Refusal to Hear Crack-Cocaine Sentencing Case


Credit: C-SPAN

The U.S. Supreme Court turns down the vast majority of petitions it receives without offering any sort of explanation. But in a rare move today, Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg spoke out against the Court's refusal to hear a crack-cocaine sentencing case.

Jones v. United States centers on the criminal sentences handed down by a judge to three men for conspiring to distribute drugs. However, those men had been acquitted of the conspiracy charge by the jury, which voted only to convict them of distributing a small amount of drugs. The question before the Supreme Court was whether the harsher, judge-imposed sentence violated the Constitution.

In his dissent today from the Court's denial of the case, Justice Scalia, joined by Justices Thomas and Ginsburg, explains both the stakes and why the Court's refusal to hear the appeal got it wrong:

The Sixth Amendment, together with the Fifth Amendment's Due Process Clause, "requires that each element of a crime" be either admitted by the defendant, or "proved to the jury beyond a reasonable doubt." Any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, and "must be found by a jury, not a judge." We have held that a substantively unreasonable penalty is illegal and must be set aside. It unavoidably follows that any fact necessary to prevent a sentence from being substantively unreasonable—thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge. [Internal citations omitted.]

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  1. Is it me, or are these guys generally all over the place as far as drug sentencing is concerned?

  2. NYC Reasonoids: MEET-UP ALERT!

    When: Thursday, October 16, 2014, 6:00PM
    Where: Rattle N Hum, 14 East 33rd Street

    1. sounds like someone’s luring people in to steal their monocles…

      1. No, they are luring people away from their orphans. I suspect that the second they leave for the meetup, a cattle car pulls up outside their compounds and they start orphan rustling.

    2. By the way, since there is no such thing as a libertarian woman, shouldn’t you be calling it a “meat-up”?

  3. :Justices Antonin Scalia, Clarence Thomas, and Ruth Bader Ginsburg spoke out against…”

    In other news, snow shovel sales skyrocket in Hades.

    1. Thats a common grouping on these type issues. The only oddity is that Thomas isnt always on their side.

    2. Scalia will go against police if he thinks that a strict interpretation of some point of traditional procedural law is against them. Ginsburg is somewhat defendant-friendly. I’m most only surprised by Thomas, since he’s usually one of the “YAY POLICE” cheerleaders.

      1. Thomas is 100% with Scalia on the Sixth Amendment, as here. Also Confrontation Clause.

  4. you know something’s gone full retard when Scalia and Ginsburg are joining on the dissent.

    1. Just happens to be a case where the most liberal member of the Court and the 2 guys who actually read the Constitution coincidentally agree.


      1. I’m not too sure about that. It’s one thing when there’s some level of collective agreement. But just Ginsberg and Scalia/Thomas?

        1. That 3some is more unusual than a Scalia/Ginsberg dissent.

          But the latter has been pretty common over the years.

          And sometimes they can get 2-3 more to join them, for one of the extremes vs the middle 5-4 votes.

    3. Ginsburg has an understandable sympathy with people caught up in the criminal justice system.

      Scalia and Thomas may share that sympathy, but key to their stance is that they want to enforce the constitution according to its unforced, natural meaning, referring to the original understanding when necessary, rather than being twisted into knots by creative judicial interpretation.

      So they’re all on the same page in this particular situation.

      1. I also suspect that Ginsburg welcomes the opportunity to rein in the guideline system of federal sentencing.

        1. I think you are right about Ginsburg. The question is why don’t the other liberal justices share her concern. Everyone knows Kagen is the worst sort of government hack. But Suiter, Beyer and the Magic Latina are supposed to be better and sometimes are.

          1. I was listening to Kagen do a q/a NPR and was astonished by how awful she is. Not a single thing she said sounded like she has ever had an original thought. The only redeemable part of it that made me think she was not cutout caricature was how she said she liked to go hunting with Scalia.

          2. Didn’t Souter retire like years ago?

            Also, I don’t think Breyer is better than anyone on any issue. Even when he stumbles onto the right side of something, it’s always in the most authoritarian manner possible.

            1. Yeah. He was who the Magic Latina replaced. I lose track of them sometimes.

          3. I thought Breyer had a pretty well-developed reputation as being something of a pro-police toady, at least more so than the other lefty judges.

            1. Last term, Scalia was pro-defendant in every Fourth Amendment case– and Breyer pro-police.

          4. I think the liberals’ concern about criminal-justice abuses coexists with what I mentioned – the Cult of the Expert – I mean, the sentencing guidelines are scientific-looking, with tables and everything! Jurors are just random hicks without law degrees.

          5. Not Breyer. Heck, Breyer was responsible for the current Sentencing Guidelines. He’s not throwing his baby out.

  5. I totally did not understand the article. It sounds like they are saying that they refused to hear a case about whether a judges sentance was unconstitutional because his sentance was ubconstitutional? I must be missing something here.

    1. Never mind. I see. They were dissenting against not hearing the case. Too many microbrews last night. Not enought coffee tgis morning. Starting vacation off right.

  6. The Court is powerless.


  7. So these guys are now serving a sentence for a crime that they did not (according to the jury) commit, that is not in dispute, and 6 of the 9 Supreme Court justices are just ok with that?

    1. Yes. Here is how it works. The defendant goes to trial charged with multiple crimes (in this case conspiracy and distribution). On the merits of the case the government must prove all elements of the case beyond a reasonable doubt. So, we have a trial and the jury finds the defendant not guilty of one charge but guilty on the other. So, they are innocent of the first charge, right?

      Well not so fast. We have now moved onto the sentencing phase. In the sentencing face, the sentence can be increased because of other misconduct in addition to the crime the jury convicted the defendant of committing. So that first charge now becomes other misconduct. Oh but the defendant was acquitted of that charge.

      They were acquitted under the beyond reasonable doubt standard. The standard of proof for other misconduct in the sentencing phase is by a preponderance of the evidence. So the government just reintroduces the first charge as “other misconduct” and the judge decides that it has been proven by a preponderance of the evidence and then uses it as a sentence enhancer and gives the defendants the same or worse sentence they would have gotten had they been convicted of all charges.

      It is absolutely outrageous.

      1. You know, I know for a fact that your legal explanation there is 100% right. Yet when I read it I still can’t understand how it makes the slightest amount of sense at all or how it’s remotely constitutional.

        1. By its own twisted internal logic it makes perfect sense. It is only when you step back from that and look at what it is actually doing does it look so insane and evil.

          This is what happens when judges and prosecutors lose all regard for their mission of doing justice and just see their job as punishing the guilty. They construct clever rationalizations to do monstrously evil things in the name of achieving their desired goal, which they fool themselves into believing is a good.

        2. Its the same sort of logic that can get you an acquittal during a murder trial and an ‘at fault’ verdict at a civil trial immediately after.

          1. No, the two different standards of proof there make sense.

      2. Base on what you’re saying, at this point I’m not really sure why we even go through all the motions of having the trial in the first place.

        A prosecutor and a judge who are sympathetic to each other can just overcharge/undercharge to get the result they want. Seems like in the modern day justice system a defendant doesn’t even have a chance.

        And apparently those in charge of overseeing the system think that’s just hunky dory.

        1. In many ways yes. The only thing they need is a hook. They have to get the jury to convict you of something or they can’t do anything. But all they need is one charge. And that charge can be lying to investigators about an underlying charge that the jury acquits you of. It is just horrible.

      3. And if that’s not double jeopardy, I don’t know what could be.

      4. More horrible yet in that the government may not actually have to prove any of the charges beyond a reasonable doubt if the defendant pleads guilty to one.

        I know of a case where a guy was charged with securities trading fraud. He pleaded guilty to failing to disclose an ownership interest in one of the companies. His sentence factored in the entire drop in price of the stock that occurred when he was indicted, as “damages inflicted”. So his admitted failure to disclose ends up carrying the same sentence as if he’d embezzled something like $50 million.

  8. There are powerful headwinds against jury trials in this country – especially the pressure to plead guilty to avoid longer sentences.

    Anything which further erodes jury trials is to be avoided.

    Basically, the defendants claim this: (a) if they did *not* engage in a conspiracy to distribute drugs, the sentence they got would be substantively unreasonable and hence illegal (b) the judge found they *did* engage in a conspiracy to distribute drugs, but (c) the jury acquitted them of that very charge. So the question is whether the judge can put himself in the place of the jury in, essentially, convicting the defendant of an element of the crime which the defendants don’t admit and which a jury didn’t convict them.

    If the defendants are right about (a), then the fact of distributing drugs would be for all practical purposes an element of the crime, meaning the right to trial by jury applies, and trial by judge just won’t cut it.

    Here is the argument which converted me on this: Assume the government created a crime of “unlawful physical contact” which included everything from assault and battery all the way up to murder. The jury only decides whether unlawful physical contact took place, and then the judge takes over and decides whether the unlawful contact amounts to assault, manslaughter, or murder, and then imposes sentence in accordance with the penalty assigned for the particular offense.

    If *that’s* constitutional, farwell trial by jury!

    1. And effectively to double jeopardy and the right to proof beyond reasonable doubt. In the case you describe the defendant is being punished for an act for which he was previously acquitted because a judge finds him guilty of it by a preponderance of the evidence.

      And to think six SCOTUS justices and any number of district and circuit court judges of both parties think that is just fine.

      1. I sense an undercurrent of hostility to juries among members of the “justice” system. See the popularity of plea bargains.

        1. A combination of the Cult of the Expert and the system’s determination to run things their own way.

    2. I remember reading something a few years back that further supports your point. The details escape me now, but basically the idea was that the law has become so complex and scientific advances so great that “ordinary” people just don’t have the skill base to make these kinds of decisions.

      Yes, you are correct. It was basically a TOP.MEN. argument for handing the justice system over to “experts.”

      I mean, fuck the idea that perhaps we should simplify the law.

      1. Many years ago, I remember a discussion bouncing around on the idea of a professional jury.

        The idea was that it would eliminate the problem of relatively educated people routinely getting out of jury duty because they had full employment, leaving jury duty to the marginally employed who were generally not missed at their place of employment, even if they had it.

        Last time I was called for jury duty (and showed up) the most common question I was asked by people standing around waiting to be called was, “So what do you do for King County?”

        I have mixed feelings on it because the fear is that the jury pool would just become a professional arm of the system, assimilating the system’s interests and goals.

        1. I’ve never understood the resistance to jury duty. When I’ve had it, it’s been one day, I can use my computer and phone to work when I’m not in the courtroom, I can read a book in the courtroom, and they give me $15 for lunch. They actually make it fairly easy to be available for what is a serious and necessary duty.

          It irritates me when I know people who wave their flags around and thank troops wherever they go and talk about how important America is to them, but then do everything in their power to get out of what is and should be a serious and necessary, yet not horrible, duty to their community.

          1. When I’ve had it, it’s been one day, I can use my computer and phone to work when I’m not in the courtroom, I can read a book in the courtroom, and they give me $15 for lunch.

            I would agree that’s probably 90% of jury duty.

            the one and only time I actually showed up, it turned out to be the Rick Neuheisel trial and it was a freakin’ media circus. My first thought was, “Oh shit, I just got called for the local OJ Simpson trial, this is gonna be three months”.

            The pool was huge and I didn’t get called. And he settled before the trial started.

            I do remember when they announced what the trial was for, everyone in the room (all 200 of us) groaned.

            After the QA with the legal teams, there were lines of people talking to the officials waving their arms about how there was no way they could do jury duty if they got called.

          2. Of course, you can also be sequestered for weeks or months, and while most states have laws saying you can’t be terminated for serving on a jury, your employer is still not likely to pay you during that time. You won’t know whether you’re in for a one-day or multi-week affair until after you’ve been selected and can no longer get out of it. It can be a significant detriment to your life, liberty, and property.

            Now, having said that, I think the right to a speedy trial really ought to become a process requirement. Also, if the jury can’t reach a verdict quickly, it’s time to call a mistrial and start over with a new jury (or, better yet, if even a single juror cannot find the defendant guilty on the first vote, then reasonable doubt exists and the defendant is acquitted).

            Also, many people “get out” of jury duty by answering the questions honestly and being disqualified in voir dire. This is the fault of the prosecutors, defense attorneys, and to a lesser extent the judges, and should not be construed as an offense by the citizen.

            1. It can be a significant detriment to your life

              Meant that in a more metaphorical sense; you are not likely to die as a result of jury duty, and if you have serious medical problems you can be excused.

            2. I always answer the question honestly. That said, I’ve only been in the pool for murder trials in Baltimore, MD. They’ve always announced that the trial will take about 5 days. Once I told them I was closing on a house the next day. I’m already a pretty undesirable demographic for those juries so they couldn’t drop me fast enough. Other times I’ve made it farther in the process. I always kind of hope to get picked.

              1. I believe that if most libertarians answered honestly, you’d be immediately excluded from jury duty.

                1. Honestly about what? I’m usually asked if I would give more weight to the testimony of a police officer just because he is a police officer. No.

                  I’m asked if I know the defendant. No.

                  I’ve usually been asked if I’m in a gang. Again, no.

                  That’s usually about all I’m asked.

                  1. I can’t say for sure, but I think you get quite a different line of questioning for e.g. drug cases.

            3. Both times I was set to be on a panel for a criminal case, the prosecutor struck me without cause when I said I was a law student and I understood “innocent until proven guilty” to mean that the prosecution had to prove its case. And I was a lot more conservative back then, about six years ago. I was told that prosecutors in Cleveland had a general policy of striking law students.

  9. They must be punished for not accepting the plea bargain. There should be some way to punish the jurors who failed to convict them on the conspiracy charge.

  10. Scalia, Thomas, and Ginsberg are now opposed to judicial overreach?

    Excuse me while I fall out of my chair and comically crash to the ground.

    1. Who was the last judge on the Supreme Court to be genuinely opposed to judicial overreach?

    2. Scalia and Thomas at least are committed to reading the document as they can best determine it was intended to mean. They have both made pro defense opinions when other justices thought to be more “liberal” whatever that means have sided with the government.

      1. Scalia is the closest thing to a principled justice on the court, but he still sides with his personal convictions over the constitution from time to time.

    3. All three are very good on this line of Sixth Amendment cases, starting with Apprendi. Very pro-jury.

  11. Boy, if Ginsberg wasn’t already on the progs’ hate list for not resigning early, this has to put her at #1 with a bullet.

    Siding with Thomas and Scalia? Unpossible!

  12. The Sixth Amendment, together with the Fifth Amendment’s Due Process Clause, “requires that each element of a crime” be either admitted by the defendant, or “proved to the jury beyond a reasonable doubt.

    As I recall, according to Eric Holder, “due process” = and unnamed bureaucrat read your brief, stamped it “reviewed” and continued with the same procedure.

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