340
Scalia, J., dissenting
Of course the clutter swept under the rug by limiting the opinion to "determining facts of the offense" is not merely application of today's opinion to § 3E1.1, but its application to all determinations of acceptance of responsibility, repentance, character, and future dangerousness, in both federal and state prosecutions—that is to say, to what is probably the bulk of what most sentencing is all about. If the Court ultimately decides—in the fullness of time and after a decent period of confusion in the lower courts—that the "no inference" rule is indeed limited to "determining facts of the offense," then we will have a system in which a state court can increase the sentence of a convicted drug possessor who refuses to say how many ounces he possessed—not because that suggests he possessed the larger amount (to make such an inference would be unconstitutional!) but because his refusal to cooperate suggests he is unrepentant. Apart from the fact that there is no logical basis for drawing such a line within the sentencing phase (whereas drawing a line between guilt and sentencing is entirely logical), the result produced provides new support for Mr. Bumble's renowned evaluation of the law. Its only sensible feature is that it will almost always be unenforceable, since it will ordinarily be impossible to tell whether the sentencer has used the silence for either purpose or for neither.
If, on the other hand, the Court ultimately decides—in the fullness of time and after a decent period of confusion in the lower courts—that the extension of Griffin announced today is not limited to "determining facts of the offense," then it will have created a system in which we give the sentencing judge access to all sorts of out-of-court evidence, including the most remote hearsay, concerning the character of the defendant, his prior misdeeds, his acceptance of responsibility and determination to mend his ways, but declare taboo the most obvious piece of firsthand evidence standing in front of the judge: the defendant's refusal to cooperate with
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