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February 5, 2007

CJ Roberts and sentencing law: fixing Eighth Amendment jurisprudence?

As explained here, Jeff Rosen's extraordinary article in the Atlantic Monthly has me thinking hard about what CJ Roberts' eagerness for greater consensus could mean for sentencing law.  This post ponders whether CJ Roberts, in his quest for consensus, might be interested getting the Court to clean up its Eighth Amendment jurisprudence in non-capital cases.

During his confirmation hearings in Fall 2005, then-Judge Roberts in his written Q&As after his confirmation hearings noted that the application of the Eighth Amendment "has been a source of deep disagreement on the Court."  This is true not only for the Court's death penalty jurisprudence, but it also describes the significant divisions and doctrinal uncertainty SCOTUS has produced through non-capital Eighth Amendment rulings in cases like Ewing and Harmelin and Solem and Rummel.  In all these cases, a fractured Court has asserted that the Eighth Amendment places a proportionality limit on non-capital sentences, but then has set forth opaque doctrines that do very little to help lower courts figure out how to understand and apply this constitutional limit.

Significantly, a new case, Arizona v. Berger, soon coming up for cert review presents CJ Roberts and other Justices with an interesting opportunity to work on the Court's Eighth Amendment jurisprudence.  Last year, in Berger, the Arizona Supreme Court rejected a former Phoenix high school teacher's claim that his 200-year prison sentence for possessing child pornography was cruel and unusual in violation of the Eighth Amendment (basics here, commentary here and here).

By any common-sense definition, the sentence in Berger seems both cruel and unusual.  I believe this sentence is the longest (by many multiples) ever imposed for a first conviction of possessing child pornography, and the sentence is longer (by many multiples) than what most producers of child pornography and child rapists receive. If the Eighth Amendment truly does include an enforceable proportionality limit in non-capital cases, the sentence in Berger seems to present issues meriting review.  Berger thus also provides an interesting opportunity for CJ Roberts to pursue his quest for consensus in the context of the Eighth Amendment.

Prior posts in this series:

February 5, 2007 at 09:47 AM | Permalink


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Of course I'm glad to hear that there's finally been some thought by the Ct on 8th Am. jurisprudence, but what about 6th Am. jurisprudence? Is it me, or is the area still confusing and essentially without a decent theoretical framework?


Posted by: Laura Appleman | Feb 5, 2007 1:22:38 PM

"If the Eighth Amendment truly does include an enforceable proportionality limit in non-capital cases, the sentence in Berger seems to present issues meriting review."

I don't understand this. Is there a deep split you haven't mentioned here? What court has held that such a sentence violates the 8th Amendment?

Posted by: JBH | Feb 5, 2007 1:25:25 PM

JBH: The briefing in Berger, as well as the Arizona Supreme Court opinion, discusses a lot of different doctrinal questions still unclear after Ewing. Also, since Berger seems to present a pretty strong set of facts for proportionality review, I think the facts as much as the holding make the case potentially cert worthy.

Posted by: Doug B. | Feb 5, 2007 1:56:03 PM

I'd like to see the sentence in Berger reversed, simply because it is wrong. Realistically, I don't see any way that the Court's precedents on proportionality can be put into any rational framework. Should Berger prevail, it will of course be good news for him personally. I doubt that the doctrinal debate will be any closer to resolution.

Posted by: Marc Shepherd | Feb 5, 2007 5:23:32 PM

I very much doubt that constitutional adjudication will provide a workable answer to the problem of proportionality in noncapital sentencing. The royal mess that the high court has made of capital sentencing law is warning enough. They achieved a meaningful improvement with the broad structural reforms of the mid-1970s, but their tinkering since then has arguably caused more harm than good.

Posted by: Kent Scheidegger | Feb 5, 2007 5:55:05 PM

In cases involving repeat offenders subject to draconian sentences based in part upon prior conduct, I think that it would be hard for SCOTUS to overturn prior jurisprudence and that Roberts would be disclined to upset that apple cart.

I do think that there is a window of hope for greater proportionality review in first offender cases and cases where prior criminal history is not used to aggravate a sentence.

Berger certainly presents the Court with an opportunity to open that window if it was inclined to do so.

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