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September 19, 2007

Serious SCOTUS sentencing fun soon to begin

As I have detailed in some recent posts linked below, I expect this coming Supreme Court Term to have a lot of sentencing intrigue.  And this very interesting new SCOTUSblog post by Tom Goldstein, headlined "A True Rightward Turn? The Upcoming Term and the 2008 Elections Posted," confirms my sense that sentencing issues will be a big part of the 2007 Term.  Tom's post should be read in its entirety, but here are some of the sentencing highlights:

The next-highest-profile case [already before the Court] involves the crack-powder disparity in sentencing (Kimbrough v. United States) discussed in this post by Lyle. This is something of a "throwback" case; crack is not as prominent an issue as it once was. Nonetheless, it is one with which the public is familiar.  The particular question presented is whether, in the wake of the holding of Booker v. United States (opinion here) that the Sentencing Guidelines are advisory rather than mandatory, district judges can refuse to follow the crack Sentencing Guideline (which imposes a 100:1 ratio to cocaine sentences by weight) on the ground that they disagree with the policy judgment underlying it. I think that the government is overwhelmingly likely to lose. It is hard to see any member of the Booker majority accepting its position when the Commission itself has said that its own Guideline is misguided and Congress has not mandated a particular sentencing ratio. I expect that the "headline" ruling in the case will be that sentences will come down for crack cocaine....

A second high-profile case is on its way to the Supreme Court: the Louisiana Supreme Court's ruling upholding the constitutionality of the death penalty for child rape (Kennedy v. Louisiana, petition here and Lyle's post here).  I think this is a sleeper case that has a genuine prospect of shaping opinion of the Court going into the 2008 election because the defendant is likely to win on a doctrinal ground that will not make sense to the general public.  The defendant was convicted of raping his 8-year-old stepdaughter, who initially told authorities she had been selling Girl Scout cookies immediately before the attack. Though the prevailing view is that the Eighth Amendment precedents preclude imposing the death penalty for rape, an average American will recognize this crime as profoundly horrific and evil.

Some related posts:

September 19, 2007 at 09:59 AM | Permalink


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» Crack Disparaties Before the High Court from drugcrimedefender
Via ScotusBlog an interesting post on a crack cocaine sentencing case heading to the Supremes:UPDATE Tuesday a.m. The U.S. Sentencing Commission's latest report to Congress on cocaine sentencing can be found at the Commission's website, under Report to... [Read More]

Tracked on Sep 20, 2007 3:55:05 PM


Not nearly as horrific as Coker's crimes.

Posted by: Matthew Byrne | Sep 19, 2007 3:20:17 PM

The "100 to 1 ratio" isn't some willy-nilly USSC concoction, it is driven by the mandatory minimums which Congress imposed on these crimes. The article referenced sates that "Congress didn't mandate" that the USSC follow their ratio. That's not the whole story, Congress didn't mandate a 100 to 1 ratio for every quantity level, but the mandatory minimums make sentences for certain quantities, well, mandatory. This is why the new amendment (effective Nov. 1) has ratios all over the map except at the mand. min points. The USSC has now done all it can to lover some of the penalties, but to suggest as Tom does that it's all just a "policy" disagreement with the USSC is ignoring the mandatory minimum elephant in the room. Congress (i.e. "the people") are ultimately the ones who have decided on 100 to 1 for at least some specific quantity plateaus, and that has nothing to do with USSC "policy".

Posted by: dweedle | Sep 19, 2007 4:54:42 PM

dweedle, the government in Kimbrough is betting the farm on the proposition that Congress "mandated" the 100-1 ratio, so much so that in one footnote, it suggests that the new, proposed Guideline might not withstand challenge, even if it were not blocked by Congress. As you note, the government's position is not correct (at most, Congress set mandatory minimums and, while rejecting a guideline setting 1:1 ratios on the basis that crack was to some degree more harmful than powder, told the Commission to study the matter further). Seems to me that Goldstein is right about the likely outcome.

Posted by: David in NY | Sep 20, 2007 11:14:53 AM

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