Jones V. United States (1999) - Dissenting Opinion

Dissenting Opinion

Justice Kennedy faulted the Court for skewing a simple question of statutory interpretation by invoking the "specter of grave and doubtful constitutional interpretations". He believed that the Court's textual analysis was incorrect, and that the constitutional rule the Court formulated would "upset the proper federal balance" of power between the judiciary and the legislature. As far as the textual analysis was concerned, the fact that the opening paragraph was complete in itself, and that the first subsection added no new facts, led Kennedy to conclude that the other two were mere sentencing enhancements. "Serious bodily harm", like recidivism, was "as typical a sentencing factor as one might imagine"; indeed, Kennedy pointed to the laws of several states that made the magnitude of harm to the victim or victims the basis for increased criminal punishment. Significant differences between the structure of the federal carjacking statute and both the other federal robbery statutes and the state statutes on which the majority relied also suggested to Kennedy that the text of the federal carjacking statute made "serious bodily injury" a sentencing factor.

Because, for Kennedy, the text of the statute was not clearly susceptible to two different interpretations, there was no need to invoke the principle of constitutional avoidance as the majority did. In any event, the constitutional rule the Court articulated could too easily be circumvented, simply by rewriting the statute using slightly different words. The requirements imposed by the Sixth Amendment should not depend on the vagaries of Congress's choice of words when it drafts a statute. And if that should be so, the Court should more clearly spell out what words and phrases Congress should use in order to trigger certain constitutional protections. Furthermore, Kennedy saw no difference of constitutional significance between recidivism, which the Court had already held was excluded from the set of facts to which the jury-trial requirement applies, and "serious bodily injury"; the mere "tradition" of doing so might justify this difference, if it were more clear that the carjacking statute were consistent with that tradition.