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January 12, 2005

A brief Booker break (sort of)

I will have a lot more Booker commentary tomorrow, but a few other notable sentencing items caught my eye tonight. 

First, this New York Law Journal article provides a thoughtful account of "the latest in a series of cases where judges struggle with the legal, pragmatic and appropriate Internet restraints that may be imposed as a condition of probation or parole."  The piece had me wondering again about California's new law, discussed here, making it a crime for registered sex offenders to enter the state's Megan's Law database.

Second, Marty Lederman at SCOTUSblog here notes that Roper v. Simmons, concerning the constitutionality of the juvenile death penalty, is now the only opinion outstanding from the October session.  He also notes that Justice Kennedy almost certainly was assigned to write the majority opinion.   

And speaking of Justice Kennedy, I found it very interesting and notable that he did not speak at all in Booker.  Justice Kennedy has always seemed keenly interested in sentencing issues, as reflected in his potent speech to the ABA in 2003 assailing federal sentencing policies and in the various interesting opinions he has authored in sentencing cases.  Of course, especially since, practically speaking, Justice Breyer's Booker opinion echos aspects of Justice Kennedy's ruling for the Court in Koon (which championed judicial discretion through departures under SRA), it certainly seems possible that Justice Kennedy may have played a behind-the-scenes role in the ultimate Booker outcome.

January 12, 2005 at 11:52 PM | Permalink


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