Reasonable doubt advisory opinion?

Judge Bataillon, in the District of Nebraska, issued a careful opinion in Okai applying the doctrine of constitutional doubt to federal sentencing statutes. As a consequence of constitutional concerns, he required proof beyond a reasonable doubt, as a matter of statutory construction, where the sentence is increased based on disputed facts (as blogged here and here). Professor Berman posts today an order by another Nebraska district court judge criticizing Judge Bataillon’ s ruling and announcing, under the caption In The Matter Of Cases Pending Before Judge Richard G. Kopf, that he would not require proof beyond a reasonable doubt in his sentencing cases (as blogged here).

The brief judicial edict raises some interesting questions. Procedurally, in the absence of a specific case and advocacy by the parties, is this an advisory opinion? If an advisory opinion, what are the due process implications of the prejudgment regarding the burden of proof on future actual controversies? And substantively, by characterizing Judge Bataillon’s decision as constitutional, didn’t Judge Kopf make the same error as Justice Thomas in dissent in Clark v. Martinez by mistaking the statutory ruling for a constitutional one, which Justice Scalia took some pains to address in the Martinez majority opinion?

The major disconnect between the views of Judge Bataillon and Judge Kopf seems to be that Judge Bataillon used the serious constitutional doubts regarding the standard of proof to construe the sentencing statutes, which include no standard of proof, to require the level of proof that would render a constitutional ruling unnecessary. Judge Kopf characterizes Judge Bataillon's ruling as a decision on the constitutional merits, then asserts that only higher courts should make such rulings. The Supreme Court has repeatedly invoked the doctrine of constitutional avoidance as a principle of judicial restraint, keeping the judiciary out of making constitutional decisions unless absolutely necessary. Because Judge Bataillon's opinion in Okai is limited to statutory construction, the criticism of his purportedly constitutional ruling appears unwarranted.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon