Judges Reasonably Doubted

The idea seems plain enough. A person convicted of a crime shouldn't be sentenced on evidence never heard by the jury.

Yet as long as anyone can remember, judges in the US have handed down sentences relying on "facts" provided by prosecutors that didn't pass the test of a jury's verdict.

Finally, last June, the US Supreme Court said this age-old practice had to end. The decision, known as Blakely v. Washington, threw both federal and state courts into a bit of chaos. Both Congress and the Bush administration asked the court to clarify quickly what judges should now do in sentencing, and whether juries should be given all the facts in a case that may not relate to innocence or guilt.

On Monday, the first day of the court's new session, the nine justices held an expedited hearing on the issue. Their comments, as well as their written decisions last June in the 5-4 Blakely ruling, indicate they're openly divided on whether judges can be trusted to determine whether extra evidence not given to a jury is permissible when passing a sentence.

Justice Sandra Day O'Connor said in a recent speech she was "disgusted" with the way the court dealt with the issue. At Monday's hearing, she appeared frustrated enough with the majority's opinion that she suggested "maybe we should just leave it to Congress."

But the liberal-conservative majority stood fast on their argument that the Sixth Amendment right to trial by jury also requires any evidence that leads to a sentence greater than the maximum be proven to a jury. "The whole reason for jury trials is we don't trust judges," said Justice Antonin Scalia.

In other words, leave fact-finding to juries and bar judges from going beyond the law.

The high court has several options in deciding in the limits of judges' discretion in sentencing and forcing prosecutors to lay out more evidence to juries. Some critics worry cases might become too complicated for juries with too much evidence to digest.

But the court looks to have renewed its faith in the ability of juries to administer justice, within a system of governance that continually needs to root itself in the common sense of common people.