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.