The Judge is Supposed to be an Independent Arbiter; Allowing Boundless Judicial Discretion Violates the Sixth Amendment Under Hurst v. Florida

INGA IVSAN—The role of the trial judge in the plea bargaining process is not well defined at common law. Numerous cases cite the wide discretion of a trial judge without further analysis. However, there is a difference between the role of the trial judge in an adversarial system of criminal justice compared to a trial judge in an inquisitorial system.

Before the adversary system was implemented in the United States, colonial courts were marked by unsurpassed judicial power and the supremacy of the trial court judge over the prosecutor, the defendant, and even the jury. The American adversarial system of justice evolved from a distrust of unlimited judicial power. The Framers accordingly drafted the Sixth Amendment to confine judicial discretion and shift some powers from the bench to the jury. While the adversary system is not perfect, the Founding Fathers regarded it as superior to the skewed practice favoring prosecutors in Eighteenth Century England.

The adversary system of justice, rooted in common law and a constitutional requirement in the United States, should be contrasted with the inquisitorial system of justice in many civil law countries. In the inquisitorial system, the parties do not control the legal process, but a supposedly impartial judge takes an active role as a fact finder and decision-maker. Such a legal system is much more communitarian than individualistic. The goal of the inquisitorial system is not to guarantee individual liberties but to instead “seek the socially correct solution.”

The Sixth Amendment right to a fair trial requires that judicial discretion be constrained. In Hurst v. Florida, the United States Supreme Court voided a Florida death penalty sentence. The Court took issue because, in Hurst, factual elements required for imposition of the sentence were determined by the judge and not by a jury. However, under principles established in its ruling in Apprendi v. New Jersey, the Court determined any fact that “expose[s] the defendant to a greater punishment than that authorized by the jury’s guilty verdict” is an “element” that must be submitted to a jury. In Hurst, the Court stated:

The Sixth Amendment protects a defendant’s right to an impartial jury. This right required Florida to base Timothy Hurst’s death sentence on a jury’s verdict, not a judge’s factfinding. Florida’s sentencing scheme, which required the judge alone to find the existence of an aggravating circumstance, is therefore unconstitutional.

In striking down the Florida procedure granting discretion to the judge, the Court observed that the principles of Apprendi apply to plea bargains—citing Blakely v. Washington. The defendant in Blakely had been charged with kidnapping his estranged wife. In a plea agreement reached with prosecutors, the defendant admitted to certain facts that supported a maximum sentence of 53 months. Notwithstanding this stipulation, the judge found that the defendant had acted with deliberate cruelty, a statutorily enumerated ground which enabled the judge to depart from the stipulated maximum sentence and instead impose a 90-month sentence.

In striking down the 90-month sentence as an unconstitutional exercise of judicial factfinding in violation of the principles of Apprendi, in Blakely, Justice Scalia drew a clear contrast between the inquisitorial system used in civil law jurisdictions and the adversarial system of justice established by the Framers under the U.S. Constitution. As Justice Scalia explained, the Framers rejected the “administrative perfection” of the inquisitorial system in favor of “the common-law ideal of limited state power accomplished by strict division of authority between judge and jury.” In determining that the trial court judge had exceeded his authority by imposing a sentence greater than that called for under the plea agreement, Justice Scalia remarked:

The Framers would not have thought it too much to demand that, before depriving a man of three more years of his liberty, the State should suffer the modest inconvenience of submitting its accusation to “the unanimous suffrage of twelve of his equals and neighbours,” rather than a lone employee of the State.

Unlimited discretion in the hands of a trial court judge would imply an inquisitorial system of justice, in direct conflict with the adversarial system of justice guaranteed under the Sixth Amendment. Hurst follows in the tradition of Blakely by concluding that the Sixth Amendment is violated by vesting the trial judge, rather than the jury, with discretion over those findings critical to the imposition of the death penalty.

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