My newest piece at Investors' Business Daily is up. I think that Scalia and Thomas have this decision partly wrong:
The Guidelines have created more sentencing disparity because they focus solely on just one of the penalties that criminals face: imprisonment. There are many other penalties imposed on criminals, including lost professional and business licenses, the inability to join some unions or work for the government, lost retirement funds as well as fines and restitution. Prior to the Guidelines going into effect, judges usually imposed lower prison sentences on criminals who faced large other additional penalties. . . . The dissents by Justices Anthony Scalia and Clarence Thomas were right in that all the Guidelines don’t have to be thrown out just because a small section of the Guidelines that applied to some trials violated Constitutional rights to a jury trial. Yet, the jabs Scalia pokes at the majority’s seeming inability to grasp the inconsistency between making the Guidelines voluntary and saving the guidelines’ mission to reduce sentencing disparity missed a crucial point. The critique only makes sense if the Guidelines actually reduced disparity.