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January 1, 2007

Branch-by-branch sentencing stories to watch in 2007

Out with the old, in with the new: today it's time to transition from reviews of 2006 to previews of 2007.  (For those still catching up, recent posts have reviewed the top sentencing stories from 2006 and my personal sentencing year.  Also, my periodic recap posts with links are in this archive.) Though the top stories from 2006 will all carry over into 2007, here are my three big questions — one for each branch of government — that I am excited to watch play out in 2007:


Will there be more major jolts to sentencing doctrines?  After a calm 2006, the Supreme Court is poised to issue major sentencing rulings in the first half of 2007.  Cunningham could greatly impact the application of Blakely in the states (details here), and Claiborne and Rita could greatly impact the application of Booker in federal courts (details here).  And though I doubt Blakely will be made retroactive in Burton (basics here), I do expect a Supreme Court struggling to fill its docket to take up additional Blakely and Booker issues in the months ahead.

Extra intrigue:  Intra-court and intra-branch disagreements make future developments especially uncertain and intriguing.  Will two new Justices bring more SCOTUS consensus on Blakely issues and/or forge a new direction for a confusing set of constitutional doctrines?  Will lower state and federal courts keep up with evolving SCOTUS doctrines, or will many continue to resist giving rulings like Apprendi and Blakely and Booker broad application in new settings?


Will there be more tinkering with the machinery of death or moving on?  In the two states with the largest death rows — California and Florida — governors have to figure out just how to tinker with lethal injection protocols in order to resume executions.  Meanwhile, as detailed here at DPIC, nearly a dozen other states enter 2007 with formal or informal moratoriums on executions.  The Washington Post in this editorial asserts it is "now a good time to push for repeal of death penalty laws in states outside the region truly committed to its use."  Is this just wishful thinking by death penalty opponents or a real possibility in some states?

Extra intrigue:  New administrations in some states likely do not want polarizing death penalty debates to disrupt a possible post-inauguration honeymoon.  However, in Florida and Ohio, scheduled executions may prevent new governors from dodging death penalty issues for very long.  Will any executive officials grab the capital bull by the horns in the coming year?  If they do (or don't), what will be the political fallout in "purple" states like Florida and Ohio?


Might we truly see a new politics of crime and punishment?  On Christmas Eve, the New York Times Magazine ran this notable article entitled "The Right Has a Jailhouse Conversion," and I have long spotlighted recent evolutions in crime politics (here and here).  Especially after the 2006 election results, one can realistically hope that sound sentencing reforms might start to eclipse tough-on-crime rhetoric in the legislative arena.  At the federal level, positive re-entry and sentencing legislation seem like real possibilities in 2007, especially if key legislators can engineer bipartisan coalitions to avoid sound-bite sniping at proposed reforms.

Extra intrigue:  The 2008 presidential race is already in gear, and many front-runners are senators who may have to weigh in on any federal reform bills.  Though I have not heard much from Hillary Clinton or John McCain or Barak Obama on issues of crime and punishment, a long election season ensures almost every hot-button issue gets some attention.  Especially given how women and minorities are impacted by modern crime and punishment issues, I am particularly intrigued to see how Clinton and Obama address (or avoid) these issues.

January 1, 2007 at 01:32 PM | Permalink


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In yesterday's Legal Times, Tony Mauro had this profile of Solicitor General Paul Clement. On Christmas Day, Tony also had this article about how the Court is changing under Chief Justice Roberts. Over the weekend, Jeffrey Toobin had this op-ed... [Read More]

Tracked on Jan 2, 2007 1:53:11 PM


It's been disappointing how little either Hillary Clinton or Barack Obama have spent speaking on some of the more substantive isues. While Hillary Clinton's rhetoric and knowledge gives a person a lot of hope, there's still the mixed record of her husband that she's running on. Barack Obama on the other hand inspires a fantastic amount of hope but there's still a lot of things that might suggest Hillary Clinton would be the stronger candidate than Obama.

Posted by: Obama Clinton! | Apr 12, 2008 8:36:34 PM

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