In 1984, as a federal appeals judge in Boston, Stephen Breyer helped design a new set of federal sentencing guidelines that promised to end the power of judges to impose unduly long sentences, or ill-advisedly short ones, says the Boston Globe. In June, five Supreme Court justices “tolled the death knell for the guidelines” in a Washington State case. Now, says the Globe, with the issue returning to the high court, Breyer needs to shift ground — or risk pushing along a mop-up of the sentencing mess that would make the current system worse. The justices today accepted two cases to settle the federal sentencing guideline question; arguments will be heard on the first Monday in October.
In a 2002 case called Harris, Breyer provided the key fifth vote in upholding the authority of judges, rather than juries, to find the facts that trigger a mandatory minimum sentence. Clinging to his first principles — transparent and proportional punishment — he was trying to stave off a frontal assault on the guidelines. The high court will hear appeals from the U.S. Court of Appeals for the Seventh Circuit and from a district court in Maine. Now Breyer will have to decide whether to concede that his vision of federal sentencing is dead — and whether to cast his future votes in a way that makes the best of the new reality.