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Sentencing Law and Policy
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Great insights on SCOTUS and criminal justice

By Douglas Berman

Over at The New Republic Online, Professor Bill Stuntz has this fantastically interesting commentary about the Supreme Court’s role in the criminal justice system.  Here are just a few passages from a short piece that raises more interesting ideas than most articles 10 times longer:

[T]he Supreme Court’s most important job is not managing the culture wars.  Regulating the never-ending war on crime is a much bigger task.  Alas, it may also be the job the Court does worst.

Civilizations define themselves by when, how, and whom they punish. Those choices are especially important in a society like ours, with a long history of both criminal violence and official racism. Forty-five percent of American prisoners are black. The imprisonment rate — the number of prison inmates per 100,000 people — stood at 482 in 2003. Among black males, the figure was 3,405. For black men in their late twenties, the number exceeds 9,000.  Court decisions that help shape those numbers are vastly more important than the latest church-state fight. And the justices do shape those numbers, both by what they regulate and by what they leave alone….

Why does the Court do such a bad job in this area?  The answer may be simple ignorance.  The criminal justice system is a massively complex enterprise.  Figuring out the effects of the latest abortion ruling is child’s play compared with unpacking the consequences of decisions like Wardlow and Kyllo on policing or the effects of cases like Miller-El and Booker on criminal trials and plea bargains.  Getting those consequences right would be hard even for experts. And the highest court in the land is not filled with experts.  Souter is the only sitting justice with substantial experience in criminal litigation — and that was on the not-exactly-mean streets of New Hampshire.  Frontline urban prosecutors and defense attorneys rarely end up on federal appeals courts, the breeding ground for future justices.  So they never make it to presidential short lists.

Justices who have never seen the inside of a police station are happy to expound on the virtues and vices of different kinds of drug enforcement.  If they knew more, they might say less. Veterans of the criminal justice trenches understand that, when it happens, productive change comes from the men and women who serve in those trenches.

One reason I like this commentary so much is because it spotlights, as I have in recent posts here and here and here, that Justice O’Connor’s replacement could possibly have a profound and surprising impact on the Supreme Court’s criminal justice jurisprudence.  I also like the commentary because it has me thinking about the possible virtues and potential impact of an O’Connor replacement who has some experience as a sentencing judge (although, interestingly, very few of the “short-list” names bandied about by the press have experience as a federal or state trial judge).

Since the latest buzz is that we may get a nominee from President Bush this week, now seems like a good time to collect some recent posts on these SCOTUS topics: