CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?
As explained here, Jeff Rosen’s extraordinary article in the Atlantic Monthly has me thinking hard about what CJ Roberts’ eagerness for greater consensus could mean for sentencing law. This post ponders whether CJ Roberts, in his quest for consensus, might be interested getting the Court to clean up its Eighth Amendment jurisprudence in non-capital cases.
During his confirmation hearings in Fall 2005, then-Judge Roberts in his written Q&As after his confirmation hearings noted that the application of the Eighth Amendment “has been a source of deep disagreement on the Court.” This is true not only for the Court’s death penalty jurisprudence, but it also describes the significant divisions and doctrinal uncertainty SCOTUS has produced through non-capital Eighth Amendment rulings in cases like Ewing and Harmelin and Solem and Rummel. In all these cases, a fractured Court has asserted that the Eighth Amendment places a proportionality limit on non-capital sentences, but then has set forth opaque doctrines that do very little to help lower courts figure out how to understand and apply this constitutional limit.
Significantly, a new case, Arizona v. Berger, soon coming up for cert review presents CJ Roberts and other Justices with an interesting opportunity to work on the Court’s Eighth Amendment jurisprudence. Last year, in Berger, the Arizona Supreme Court rejected a former Phoenix high school teacher’s claim that his 200-year prison sentence for possessing child pornography was cruel and unusual in violation of the Eighth Amendment (basics here, commentary here and here).
By any common-sense definition, the sentence in Berger seems both cruel and unusual. I believe this sentence is the longest (by many multiples) ever imposed for a first conviction of possessing child pornography, and the sentence is longer (by many multiples) than what most producers of child pornography and child rapists receive. If the Eighth Amendment truly does include an enforceable proportionality limit in non-capital cases, the sentence in Berger seems to present issues meriting review. Berger thus also provides an interesting opportunity for CJ Roberts to pursue his quest for consensus in the context of the Eighth Amendment.
Prior posts in this series: