[ Scalia ]
[ OConnor ]
[ Kennedy ]
[ Breyer ]
RALPH HOWARD BLAKELY, Jr., PETITIONER
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF WASHINGTON, DIVISION 3
[June 24, 2004]
Justice Kennedy, with whom Justice Breyer joins, dissenting.
The majority opinion does considerable
damage to our laws and to the administration of the criminal
justice system for all the reasons well stated in Justice
OConnors dissent, plus one more: The Court, in my
respectful submission, disregards the fundamental principle
under our constitutional system that different branches of
government converse with each other on matters of vital
common interest. Mistretta v. United
States, 488 U.S.
361, 408 (1989). As the Court in Mistretta
explained, the Constitution establishes a system of government
that presupposes, not just
Sentencing guidelines are a prime example of this collaborative process. Dissatisfied with the wide disparity in sentencing, participants in the criminal justice system, including judges, pressed for legislative reforms. In response, legislators drew from these participants shared experiences and enacted measures to correct the problems, which, as Justice OConnor explains, could sometimes rise to the level of a constitutional injury. As Mistretta recognized, this interchange among different actors in the constitutional scheme is consistent with the Constitutions structural protections.
To be sure, this case concerns the work of a state legislature, and not of Congress. If anything, however, this distinction counsels even greater judicial caution. Unlike Mistretta, the case here implicates not just the collective wisdom of legislators on the other side of the continuing dialogue over fair sentencing, but also the interest of the States to serve as laboratories for innovation and experiment. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). With no apparent sense of irony that the effect of todays decision is the destruction of a sentencing scheme devised by democratically elected legislators, the majority shuts down alternative, nonjudicial, sources of ideas and experience. It does so under a faintly disguised distrust of judges and their purported usurpation of the jurys function in criminal trials. It tells not only trial judges who have spent years studying the problem but also legislators who have devoted valuable time and resources calling upon the accumulated wisdom and experience of the Judicial Branch on a matter uniquely within the ken of judges, Mistretta, supra, at 412, that their efforts and judgments were all for naught. Numerous States that have enacted sentencing guidelines similar to the one in Washington State are now commanded to scrap everything and start over.
If the Constitution required this result, the majoritys decision, while unfortunate, would at least be understandable and defensible. As Justice OConnors dissent demonstrates, however, this is simply not the case. For that reason, and because the Constitution does not prohibit the dynamic and fruitful dialogue between the judicial and legislative branches of government that has marked sentencing reform on both the state and the federal levels for more than 20 years, I dissent.