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February 27, 2007

Perhaps if Justices Kennedy and Breyer realized the world cares a lot...

about the cert denial in Berger (details here and here), the outcome might have been different.  Of course, notwithstanding Justice Kennedy's opinion in Roper and Justice Breyer's willingness to defend reliance on foreign precedents, it is unfair to assert that they would have voted for cert if they knew the cert denied would garner international attention.  (Moreover, it is possible that both Justices voted for cert but that there weren't enough other votes.) 

Nevertheless, I think it is notable that this afternoon I have been contacted by two members of the foreign press to talk about the Berger case.  Specifically, I just finished a long interview with a reporter from Brazil's Vision magazine, and in a few hours I will have the honor of doing an interview with BBC Radio 5Live, which is part of national talk radio in the UK.   (Perhaps this is a variation on the Greenhouse effect, since I believe Linda Greenhouse's kind use of my quote in her Berger story has led to my 15 seconds of international fame.)

Some related posts on the Berger case:

February 27, 2007 at 06:15 PM | Permalink


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It is surprisingly easy to tune in to BBC radio, and congratulations. At least someone somewhere seeks the voice of reason.

Posted by: George | Feb 27, 2007 6:50:16 PM

Maybe, one day, like Mumia Abu Jamal, Berger will get a street named after him.

Posted by: federalist | Feb 27, 2007 9:15:36 PM

I supsect that people in almost every Western democracy find Berger's sentence absolute shocking and inexplicable. I don't know the precise sentences for comparable crimes in other such countries, but I would be very surprised if they are more than a few years (and probably often some form of probation). Without re-debating the merits of Berger's sentence, any thoughts on the reasons for US exceptionalism in sentencing? Is it a case of strong-form democratic policymaking leading to extreme results?

Posted by: Mark | Feb 27, 2007 10:10:45 PM

Mark, I think it's a couple of things--first and foremost, I think there is a widespread European attitude that harsh criminal punishments are simply uncivilized and beneath the dignity of an enlightened people. Second, I think that Europeans, historically anyway, could get away with low penalties for crime--there was no real underclass, and criminal behavior was a lot less widespread. With few murders and violent crime, there was simply no need to throw away the key.

In any event, it is interesting food for thought.

Posted by: federalist | Feb 27, 2007 10:22:06 PM

"Historically," there was no underclass in Europe? Federalist, you just officially lost all credibility.

Posted by: A | Feb 27, 2007 10:46:47 PM

A, not like we have here . . . . .

Posted by: federalist | Feb 27, 2007 10:53:34 PM

8th Ammmend: From evolving standards of decency to evolving standards of retribution? Seriously, though, does Kennedy et al. think evolution can only occur towards leniency (i.e., Ropper) or does is evolving 8th Ammend jurisprudence also open a pathway towards limiting this right?

Posted by: Steve | Feb 28, 2007 11:18:27 AM

Even assuming that Justices Kennedy and Breyer would reverse in Berger, they may have counted noses and concluded that there weren't three other votes for that position.

I mean, the only thing worse than Berger's fate would be an actual SCOTUS precedent that his sentence did not violate the Eighth Amendment.

Posted by: Marc Shepherd | Feb 28, 2007 2:09:03 PM

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