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February 15, 2007

The first statement from Justice Kennedy's sentencing testimony

I mentioned in this post that there was an extraordinary exchange between Justice Kennedy and members of the Senate Judiciary Committee on sentencing issues during Justice Kennedy's testimony before the Committee yesterday.  (This exchange has gone mostly unreported, except by Jan Crawford Greenburg here).  After watching the video again, I though I would flag (and put in bold) Justice Kennedy's very first statement: "I am not comfortable with anything in the federal correctional system and with our sentencing policy."

As noted here, the Claiborne and Rita cases to be argued next week have a lot to do with the "the federal correctional system and with our sentencing policy" beyond just Sixth Amendment issues.  Thus, as with so many other cases, Justice Kennedy is clearly a key voice and vote to watch in Claiborne and Rita.

It is also interesting to speculate how some of Justice Kennedy's other comments might color his cert vote in a case like Berger, in which a first offender is challenging a 200-year prison sentence for possessing child pornography as a violation of the Eighth Amendment (details here).  Back in 1991, Justice Kennedy wrote the key plurality opinion in Harmelin that has largely ensured the Eighth Amendment now provide little or no limit on the length of non-capital sentencing terms.  I wonder if Justice Kennedy might be inclined to take up Berger to provide a 21st century spin on the doctrine.

February 15, 2007 at 12:27 PM | Permalink


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I think you're tilting at windmills here. Justice Kennedy's votes on the Apprendi line of cases have been totally consistent and unwavering. As a policy matter, he disagrees with the current trend for overly long sentences. As a legal matter, he accepts the legislature's right to enact them.

Posted by: Marc Shepherd | Feb 15, 2007 12:34:58 PM

But the legislature really did not enact the long guideline sentences at issue in Claiborne and Rita. And Justice Kennedy's pro-discretion ruling in Koon is an obvious example of his willingness to read legislation broadly to serve his policy perspectives.

The issue in Berger is more directly about constitutional law, by Kennedy's opinion in Harmelin rejected the suggestion by Justice Scalia and Rehnquist to find no proportionality limit in the Eighth Amendment. So, even in that context, Kennedy sees some role for judges in supervising the sentencing work of legislatures.

Posted by: Doug B. | Feb 15, 2007 12:54:32 PM

Kennedy flipped on at least two other another Eighth Amendment proportionality issues -- executing children and the mentally retarded.

Posted by: rothmatisseko | Feb 15, 2007 3:41:51 PM

I think Marc Shepherd is right. Justice Kennedy has consistently seen these questions as legislative rather than judicial. He has criticized legislative decisions that he finds unwise, but he has not seen these decisions as foreclosed to legislatures by the Constitution.

Posted by: Orin Kerr | Feb 15, 2007 4:16:35 PM

rothmatisseko, if you think 17-year-olds are "children," try this experiment. Go to a high school and get permission to speak to a class of seniors. Begin by saying, "Good morning, children." See what kind of reaction you get.

Posted by: Kent Scheidegger | Feb 15, 2007 5:41:14 PM

Kent, try the same thing in a classroom full of 14 year olds.

Shall we execute 14 year olds as well?

Posted by: Bobbie | Feb 16, 2007 10:08:13 AM


no juvenile has been executed for years, after the mandatory appeals, they are no longer children

Posted by: federalist | Feb 16, 2007 10:52:00 AM

In his testimony Justice Kennedy said: “Our sentences are too long, our sentences are too severe, our sentences are too harsh... there is no compassion in the system. There’s no mercy in the system.”

Never have truer words been said. Every defense advocate's sentencing letter should begin with this quotation.

Posted by: Michael Levine | Feb 16, 2007 2:30:34 PM

Bobbie, did I say that we should execute 17-year-olds?

My point, obviously, is that rothmatisseko is distorting what the case was about by calling the 17-year-olds in question "children."

Posted by: Kent Scheidegger | Feb 16, 2007 7:03:15 PM

It would be nice if Kennedy also mentioned the flip side of lenience to criminals. Just ask the guy who had Lionel Tate stick a gun in his face or the parents of Channon Christian.

Posted by: federalist | Feb 16, 2007 7:14:23 PM

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