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February 12, 2007

What are the odds of a cert grant in Berger?

Though my SCOTUS sentencing quota was hit by the cert grants in Claiborne and Rita, I am very pleased to see from SCOTUSblog here that the Berger case made on their "petitions to watch" for the Justices' Conference on Friday.  For a number of both simple and complicated reasons, I think the Berger case — in which a former Phoenix high school teacher claims that his 200-year prison sentence for possessing child pornography violated the Eighth Amendment (basics here, commentary here) — presents a terrific and perhaps rare opportunity for the Court (and its new Justices) to examine and refine its confusing non-capital Eighth Amendment jurisprudence.

Here is a line from the Reply Brief in Berger that nicely highlights one of many reasons why recent developments suggest the time might be ripe for SCOTUS to wade back into this part of the constitutional sentencing universe:

The Court's Eighth Amendment opinions have never expressly considered how the Amendment is to be applied when mandatory minimum sentences are required to be served consecutively, and lower court decisions are in substantial disarray.  Review at this time is especially appropriate in view of the sharply increasing use by Congress and the State legislatures of mandatory minimum sentences, coupled with consecutive sentence requirements.

Some related Berger posts:

February 12, 2007 at 05:38 PM | Permalink


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