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July 3, 2008

Looking ahead to SCOTUS docket dynamics

Even though there was a record low number of decisions this past Term, the Supreme Court had something for nearly everyone interested in criminal justice issues.  Gall and Kimbrough and Irizarry provided federal sentencing fans with a lot of consider, Baze and Kennedy kept death penalty debates heated, Danforth and Medellin and Boumediene covered great fed courts issues, and there were also a number of large and small statutory interpretation and criminal procedure issues addressed.

Next Term, as Tony Mauro highlights in this terrific Legal Times article, the Court seems poised to have a heavier docket and appears eager to do more work earlier in the SCOTUS season.  Notably, though, with the exception of the Hayes gun case and the Ice consecutive sentencing case, the Court's criminal justice docket for next Term seems to pale in comparison to the Term just completed.

Of course, only about half of the SCOTUS docket for next Term is set, and I suspect a few high-profile criminal cases will be added in the months ahead.  In particular, I think there is a decent chance one or more constitutional issues related to sex offender regulations could (and should) make it to the Court.  In addition, I suspect at least a few more post-Booker issues might still garner the Justices' attention (perhaps acquitted conduct or other burden-of-proof issues). 

There are lots of other matters that, viewing from the ivory tower, I'd like to see the Court take up (like a non-capital Eighth Amendment case involving a crazy-long mandatory prison sentence).  But, since I am now extra eager to be attuned to practitioner perspectives, I wonder if those laboring in the criminal justice trenches might use the comments to suggest other issues deserving the Justices' attention ASAP.

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July 3, 2008 at 10:23 AM | Permalink


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I'm looking forward to Chambers, the Court's third (at least) ACCA case in two Terms. Issue: whether the failure to report to prison that leads to an escape conviction is a violent felony under ACCA. There's a 10-2 Circuit split on this issue.

The Court is obviously interested in ACCA enhancements, and this also effects similar definitions of "crime of violence."

Posted by: DEJ | Jul 3, 2008 1:12:31 PM

Looking forward to the Hayes gun case.

Posted by: BS | Jul 3, 2008 3:21:19 PM

Here's a discrete, unsexy, issue which merits review: whether a second, state conviction for simple possession of a controlled substance is an "aggravated felony" because it is equivalent to the federal felony of recidivist simple possession. Prior to Lopez v. Gonzales, the 1st & 3rd Circuits had held it was not, and the 2nd had held it was. Since Lopez, the 6th Cir. has also held it is not, but the 5th & 7th Cirs. have held it is. This comes up a lot in illegal reentry sentencing and, I'm sure, in immigration cases.

Posted by: Apu | Jul 3, 2008 3:22:26 PM

Prof. Berman -

You say you think "there is a decent chance one or more constitutional issues related to sex offender regulations could (and should) make it to the Court."

Out of curiosity, do you have particular issues -- or perhaps more helpfully, particular cases -- in mind?

Posted by: Anon | Jul 3, 2008 3:42:47 PM

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