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August 28, 2005

Brave New Justice and sentencing issues

Professor Jeffrey Rosen has this thought-provoking cover story in today's New York Times Magazine, which considers "a Brave New World of constitutional disputes" and the role of "a Supreme Court of the future [as it faces] cases arising from the technological and social changes of the coming decades."  Rosen's article is a fascinating read as we gear up for "the first new justice of the 21st century," but sentencing issues unfortunately do not find their way into his discussion. 

Inspired by Rosen's forward-looking perspective, my mind raced to sentencing issues as we prepare for a Brave New Justice.  Below I have briefly outlined just some of the sentencing issues I expect SCOTUS to face in the coming years and decades.

1.  Continued Blakely/Booker fall-out.  I outlined in this post just some of the post-Blakely and post-Booker questions that need immediate Supreme Court attention; the Supreme Court may have to (and certainly should) take up a number of post-Blakely/Booker cases each Term for the foreseeable future.  (Some prior posts exploring how a Justice Roberts might impact the Supreme Court's Blakely/Booker jurisprudence are linked here.)   

2.  Continued capital sentencing issues.  The Supreme Court has been struggling with an array of death penalty issues for more than three decades, and the Court's work and cert. choices the last few terms suggest the current Justices remain eager to continue pursuing the constitutional regulation of capital punishment.  Especially given Justice Stevens' recent speech to the ABA and the Court's cert. grant in four capital cases already for the coming term, the Court seems likely to be actively involved in death penalty litigation for the foreseeable future.  (Prior posts exploring how a Justice Roberts might impact the Supreme Court's work in the death penalty arena are assembled here, and some of my previous kvetching about the Supreme Court's expenditure of so much time and energy on death penalty cases can be found here and here and here and here and here.)

3.  "Risk assessment" approaches to sentencing.  Turning from current controversies to future issues, I think that continued development of data mining technologies and increased use of risk assessment instruments at sentencing could present interesting and challenging constitutional issues.  A host of constitutional questions may arise when judges extend sentence lengths or otherwise impose different sentencing terms by relying solely on statistical data indicating that persons of a certain gender or race are more likely to re-offend.

4.  Use of new technologies to monitor (and alter?) offenders.  Electronic monitoring of offenders or alteration of criminal tendencies through drugs (e.g., chemical castration) are no longer only the stuff of science fiction novels.  As such technologies advance, and especially if they prove less costly and less intrusive than traditional incarceration, we should expect to see more and more jurisdictions experimenting with new technological responses to crime.  A host of constitutional challenges are likely to work their way through the courts if (when?) such technologies become a common component of the criminal justice system.

UPDATEA helpful reader has followed up by pointing me to this fascinating National Institute of Justice paper entitled "Technocorrections": The Promises, the Uncertain Threats.  Though written five years ago, the paper remains very timely, especially because it includes a long vignette exploring the use of new technologies for dealing with released sex offenders.  Here is an opening paragraph:

Emerging technologies in three areas — electronic tracking and location systems, pharmacological treatments, and genetic and neurobiologic risk assessments — may be used in technocorrections. Diverse, converging cultural forces are promoting them.  While these technologies may significantly increase public safety, we must also anticipate the threats they pose to democracy.  The technocorrectional apparatus may provide the infrastructure for increased intrusiveness by the state and its abusive control of both offenders and law-abiding citizens.

August 28, 2005 at 03:45 PM | Permalink


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