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January 4, 2008

Supreme Court grants cert on three big sentencing issues!!

I have spent the whole day talking about sentencing without being on-line, and I return to my computer to discover that the Supreme Court has made my favorite subject their favorite subject in cert grants.  This post at SCOTUSblog has all the details of six grants today, three of which involve sentencing issues.  Here are the basics from Lyle Denniston's report:

The Supreme Court agreed on Friday to decide whether it is unconstitutional to impose a death sentence for the crime of child rape. This was one of six new cases granted review. The earliest any of these cases will be argued probably is the Court’s April sitting, beginning April 14.

The new capital punishment case involves Patrick Kennedy, a 43-year-old black man from suburban New Orleans — the only individual in the nation now on death row for committing a non-homicide crime. He was sentenced to die after being convicted of raping his eight-year-old stepdaughter. The case is Kennedy v. Louisiana (07-343). Louisiana is one of only five states that make child rape a capital crime. Kennedy’s lawyers argued that, in the other four states with such laws, prosecutors refuse to seek the death sentence for such crimes. They contend that enforcing a death sentence for the crime of child rape contradicts the Supreme Court’s 1977 decision (Coker v. Georgia) barring the death penalty for rape — a decision involving rape of an adult. The appeal also contends that a death sentence for child rape is so rare that it is cruel and unusual punishment under the Eighth Amendment.

In a second sentencing case granted review, the Court said it would decide whether a judge must give both sides notice in advance of imposing a criminal sentence that departs from the Sentencing Guidelines. The case is Irizarry v. U.S. (06-7517). The appeal asks whether such notice is required when the planned departure is based on a rationale not discussed in a presentence report or in filings before the sentencing hearing. The Eleventh Circuit Court ruled that such notice is not required because, now that the Sentencing Guidelines are advisory (under Booker v. U.S., 2005), both the prosecution and the defense will be aware that the sentencing court may depart from the Guideline range in using its discretion to consider all sentencing factors. Other Circuit Courts still require the notice. The Court thus will continue to explore the fallout from its recent Guidelines rulings.

In a third sentencing case accepted for review, the Court indicated it will decide whether a federal appeals court may increase a criminal sentence on its own, if the government has not filed an appeal. The case is Greenlaw v. U.S. (07-330).

Ironically, I am slow to report this major news on my blog because I was at a AALS conference session talking about whether law professors should blog.

January 4, 2008 at 04:52 PM | Permalink


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Since both the Government and defendants agree that Rule 32(h) should apply when the district court intends to give a non-Guideline sentence, who is going to argue against that position before the Court?

And why did the Court grant cert on that third issue? Does that happen more often than once every five years? The first issue also seems to be a complete waste of the Court's resources.

Posted by: | Jan 4, 2008 5:08:06 PM

Given that the Court specifically reserved, in a decision years ago, the question of whether the death penalty could constitutionally be imposed for the rape of a minor, I think the justices on today's Court understandably felt obligated to consider the question now that it has been squarely put to them.

Posted by: M. | Jan 4, 2008 6:11:07 PM

Oddly, the Government and defendant both agree that the lower court erred in the second and third issue noted above. By granting cert., does that mean a summary reversal is no longer possible?

Posted by: Confused | Jan 4, 2008 6:51:37 PM

In the second issue, I think that having to give notice of departure goes against Gall and Booker.

In the third issue, I wasn't aware that it was possible for circuit courts to impose a upgrade a sentence. I'm going to have an argument my professor for lying to me and telling me they only heart appeals and cannot impose sentences.

in the first issue, I'm against the death penalty, but I don't how its unconstitutional if he is given due process.

Posted by: EJ | Jan 4, 2008 10:55:43 PM

In the third issue, I wasn't aware that it was possible for circuit courts to impose a upgrade a sentence.

Strictly speaking, they didn't. But they vacated the original sentence, and their rationale will leave the District Court with no choice but to impose a longer one on remand.

The question is whether the Circuit Court may do that on its own initiative, when the government had not asked them to do so.

Posted by: Marc Shepherd | Jan 5, 2008 1:59:56 PM

EJ writes: In the second issue, I think that having to give notice of departure goes against Gall and Booker.

Thanks for sharing, EJ. Care to explain any further?

The Fourth, Ninth, and possibly the Tenth Circuits agree with you, and Third, Seventh, Eighth and Eleventh Circuits disagree with you ...

Posted by: | Jan 5, 2008 6:10:29 PM

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