338
Scalia, J., dissenting
denial of clemency, see Ohio Adult Parole Authority v. Woodard, 523 U. S. 272, 285-286 (1998), the imposition of punishment for violation of prison rules, see Baxter v. Palmigiano, 425 U. S., at 318-319, and even deportation, see INS v. Lopez-Mendoza, 468 U. S. 1032, 1043-1044 (1984) (citing United States ex rel. Bilokumsky v. Tod, 263 U. S., at 153-154).2 There is no reason why the increased punishment to which the defendant is exposed in the sentencing phase of a completed criminal trial should be treated differ-ently—unless it is the theory that the guilt and sentencing phases form one inseparable "criminal case," which I have refuted above. Nor, I might add—despite the broad dicta that it quotes from Estelle—does the majority really believe that the guilt and sentencing phases are a unified whole, else it would not leave open the possibility that the acceptance-of-responsibility Sentencing Guideline escapes the ban on negative inferences. Ante, at 330.
Which brings me to the greatest—the most bizarre—inconsistency of all: the combination of the rule that the Court adopts today with the balance of our jurisprudence relating to sentencing in particular. "[C]ourts in this country and in England," we have said, have "practiced a policy under which a sentencing judge [can] exercise a wide discretion in the sources and types of evidence used to assist him in de-2 Even at trial, I might note, we have not held the "no adverse inference" rule to be absolute. One year after Griffin v. California, 380 U. S. 609 (1965), we did say in Miranda v. Arizona, 384 U. S. 436 (1966), that a defendant's postarrest silence could not be introduced as substantive evidence against him at trial. Id., at 468, n. 37 (dictum). But we have also held that the Fifth Amendment permits a defendant to be impeached with his prearrest silence, Jenkins v. Anderson, 447 U. S. 231, 238 (1980), or postarrest silence, Fletcher v. Weir, 455 U. S. 603 (1982) (per curiam), if he later takes the stand during his criminal trial; we have also recognized the vitality of our pre-Griffin rule that a testifying defendant may be impeached with his refusal to take the stand in a prior trial. Jenkins, supra, at 235-236, and n. 2 (recognizing vitality of Raffel v. United States, 271 U. S. 494 (1926)).
Page: Index Previous 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 NextLast modified: October 4, 2007