Although Booker arguably strikes a blow for liberty (see my post of January 12, 2005), second-hand accounts (and my quick skim of small portions) of Booker suggest that Court embraced a proposition that strikes me as extraordinarily odd:
A trial judge violates the constitution (the Sixth Amendment right to trial by jury) if she enhances the sentence of a criminal defendant beyond the normal statutory maximum if a jury has not found that the evidence presented to it shows beyond a reasonable doubt that the factor or factors justifying such enhancement do in fact exist; but a trial judge can impose a harsher than normal sentence (i.e., enhance a sentence beyond the normal statutory maximum) without jury adjudication of the existence or nonexistence of factors that the trial judge believes warrant the imposition of a harsher than normal sentence -- as long as the trial judge is not required by a legislative command to impose a harsher than normal sentence under specified circumstances.If this is the Court's conclusion, the conclusion is odd. Does the Court's conclusion rest on the proposition that evidence is immaterial if a trial judge (or the judiciary) is free to decide which circumstances warrant the imposition of a harsher than normal sentence? Why should the decision to enhance a sentence be free from the constitutional requirement of proof beyond a reasonable doubt merely because the trial judge (or the judiciary) is left with the freedom to decide which circumstances warrant a harsher than normal sentence? Does the Court's position rest on the fallacy that evidence is immaterial if decision involves discretion? See P. Tillers, The Value of Evidence in Law (1988).