Serious SCOTUS sentencing fun soon to begin
As I have detailed in some recent posts linked below, I expect this coming Supreme Court Term to have a lot of sentencing intrigue. And this very interesting new SCOTUSblog post by Tom Goldstein, headlined “A True Rightward Turn? The Upcoming Term and the 2008 Elections Posted,” confirms my sense that sentencing issues will be a big part of the 2007 Term. Tom’s post should be read in its entirety, but here are some of the sentencing highlights:
The next-highest-profile case [already before the Court] involves the crack-powder disparity in sentencing (Kimbrough v. United States) discussed in this post by Lyle. This is something of a “throwback” case; crack is not as prominent an issue as it once was. Nonetheless, it is one with which the public is familiar. The particular question presented is whether, in the wake of the holding of Booker v. United States (opinion here) that the Sentencing Guidelines are advisory rather than mandatory, district judges can refuse to follow the crack Sentencing Guideline (which imposes a 100:1 ratio to cocaine sentences by weight) on the ground that they disagree with the policy judgment underlying it. I think that the government is overwhelmingly likely to lose. It is hard to see any member of the Booker majority accepting its position when the Commission itself has said that its own Guideline is misguided and Congress has not mandated a particular sentencing ratio. I expect that the “headline” ruling in the case will be that sentences will come down for crack cocaine….
A second high-profile case is on its way to the Supreme Court: the Louisiana Supreme Court’s ruling upholding the constitutionality of the death penalty for child rape (Kennedy v. Louisiana, petition here and Lyle’s post here). I think this is a sleeper case that has a genuine prospect of shaping opinion of the Court going into the 2008 election because the defendant is likely to win on a doctrinal ground that will not make sense to the general public. The defendant was convicted of raping his 8-year-old stepdaughter, who initially told authorities she had been selling Girl Scout cookies immediately before the attack. Though the prevailing view is that the Eighth Amendment precedents preclude imposing the death penalty for rape, an average American will recognize this crime as profoundly horrific and evil.
Some related posts: