Sentencing Law and Policy

The current SCOTUS sentencing head-count

I noted in my post on the passing of Chief Justice Rehnquist that he was a key fifth vote in Almendarez-Torres and Harris.  But only after completing that post did I reflect upon the current Supreme Court "head-count" on key cases in the Apprendi-Blakely-Booker jurisprudence.  Consider these realities about the votes and views of the current seven Justices:

• There are still 5 supporting Apprendi, Blakely, and the Booker merits majority.
• Only 2 oppose the Apprendi-Blakely rule (Justices Kennedy and Breyer).

• There are 5 opposed to the Almendarez-Torres "prior conviction exception" to the Apprendi-Blakely rule (counting Justice Thomas in this number).
• Only 2 support the Almendarez-Torres exception (Justices Kennedy and Breyer).

• There are 4 opposed to the Harris "mandatory minimum" exception to the Apprendi-Blakely rule (and Justice Breyer never seemed too keen about this exception).
• At most, 3 support the Harris exception (Justices Scalia, Kennedy and Breyer).

• There are 4 opposed to the remedy adopted in Booker.
• Only 3 support the Booker remedy (Justices Kennedy, Ginsburg and Breyer).

• Based on the votes in Schriro, at least 4 may support Apprendi's retroactivity, and only 1 (Justice Kennedy) would seem to be a certain vote against Blakely's retroactivity.

The moral of this story for defense counsel and defendants is preserve, preserve, preserve; the moral for prosecutors might be to seek admissions or jury findings on all consequential facts.  Apprendi and Blakely appear as solid as ever; Almendarez-Torres and Harris look remarkably weak. 

This head-count also adds even more intrigue to my recent musings on which Blakely/Booker case and issue the Supreme Court will and should take up next.  I am inclined to believe that a Court short on members might want to dodge tough Blakely/Booker issues for a while, but the Justices cannot run for too long from all the Blakely/Booker issues that urgently need attention.

CJ Rehnquist has died

Ailing Chief Justice William Rehnquist died late Saturday evening at his home, and the story is already thoroughly covered in posts here and here from SCOTUSblog, posts here and here from How Appealing, and here and here from TalkLeft.  I find the timing as stunning as the news, and the many, many legal and political ramifications of this sad news are hard to fully fathom at this late hour.  [UPDATE:  Law Dork has a terrific set of links here, and I have pondered some of the politics at PrawfsBlawg here.]

Though sentencing law and policy surely won't be the focal point of CJ Rehnquist retrospectives or potential nominee debates, this change in the composition of the Court, as with the change in Justice O'Connor's seat, could have a profound impact on both non-capital and capital sentencing jurisprudence.  As I detailed in this post way back in June, CJ Rehnquist served as a key fifth vote in the 5-4 decisions that produced the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule.  Also, CJ Rehnquist was a fairly consistent vote in favor of upholding death sentences; as detailed in this post, the Supreme Court already has on its docket for next term four significant death penalty cases.

I have linked below just some of the posts I have done on sentencing issues relating to Justice O'Connor's retirement and Judge Roberts' nomination that seem especially relevant at this moment:

• Does SCOTUS need a trial judge?
• Great insights on SCOTUS and criminal justice
• Roberts, the cert pool, and sentencing jurisprudence
• Brave New Justice and sentencing issues
• Stevens, Roberts, Gonzales and the death penalty
• The impact of SCOTUS's heightened scrutiny in capital cases