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July 4, 2006

Biggest SCOTUS non-capital sentencing developments

Continuing my end-of-term Supreme Court commentary (started here and here), let me follow up this review of death penalty developments of the just-completed Term with a list of what I consider the biggest non-capital sentencing stories.

1.  The calm before the storm.  After 2004 gave us Blakely and 2005 brought Booker and Roper, 2006 was a relative snoozer.  A Court in transition dodged any major sentencing cases, refusing to grant cert on Booker plain error or on other major sentencing issues dividing lower courts.  But next year is shaping up to be huge, with Blakely's applicability in California and Blakely retroactivity already on the SCOTUS docket.  I suspect the Court might also take up some post-Booker issues next term.

2.  Blakely errors can be harmless.  If Justice Scalia was as principled as he claims to be, he might have led the Blakely five to rule that Blakely errors cannot be harmless.  But prudence prevailed in Recuenco, and three of the Blakely five — Justices Scalia and Souter and Thomas — joined four others to rule that Blakely errors can be harmless.  As I explained here, by voting to limit the potential consequences of Blakely, after Recuenco perhaps the entire Court can feel more at ease expanding the reach of Blakely rights in future cases.

3.  The "prior conviction" exception lives on.  As detailed here and here, a seemingly routine denial of cert prompted remarkable dueling opinions from Justices Thomas and Stevens about whether the Court should reconsider the Almendarez-Torres "prior conviction" exception to the Apprendi-Blakely rule.  As suggested in this post, this duel not only suggests that stare decisis might keep the prior conviction exception alive indefinitely, but also suggests that the mandatory minimum exception from Harris might not get the same treatment.

4.  An evolution in the docket and case dispositions.  As discussed a bit here and here, I sense that the new Court may be slowly transforming its role in the regulation of the criminal justice system.  Fewer cert grants in death penalty cases and some error-correcting per curiams on sentencing and related issues suggest that the Court is moving away from its legal culture of death and may start taking a more active role regulating the work of lower courts in non-capital cases.

July 4, 2006 at 06:51 PM | Permalink


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