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January 1, 2012

Some of the big sentencing stories to follow in 2012

Though there were a number of notable sentencing stories over the past 12 months (some year-end reviews can be found here and here), all told the year 2011 struck me as relatively quiet on the sentencing law and policy front.  But 2012, in contrast, seems quite likely to include a number of big sentencing stories.   Here, in no particular order, are the five biggest sentencing law and policy stories I expect to be following most closely in the months ahead:

1. SCOTUS review of juve LWOP for murderers in Jackson and Miller. The Supreme Court's Graham decision in 2010 declaring unconstitutional all LWOP sentences for juvenile nonhomicide offenders was a watershed ruling which suggested a majority of Justices are ready to give the Eighth Amendment some constitutional bite outside the death penalty.  Just how much bite may be revealed through the Jackson and Miller cases to be argued in March in which LWOP sentences given to 14-year-olds convicted of murder will be before the Court.   Justice Kennedy may be a key swing vote here, as usual, but Chief Justice Roberts may also play a big role in the wake of his concurring opinion in Graham.

2. USSC and congressional discussion of federal sentencing under advisory guidelines.  A subcommittee of the House Judiciary Committee late last year held a hearing in which many Republicans expressed concern about how judges are exercising their post-Booker sentencing discretion.  Rumor has it that the US Sentencing Commission has responded to the expressed concerns by planning a public hearing on these issue for February.  I would be VERY surprised if any serious statutory sentencing reforms move forward in 2012, but just reform talk in Congress or within the USSC can often impact sentencing developments "on the ground."

3. Talk of crime and punishment (or the lack thereof) in Campaign 2012.  The last few national election cycles have had a notable lack of discussion of major domestic crime and punishment issues.  In part because Democrats have shifted to the right on the death penalty and other crime issues since the Clinton years, crime and punishment has largely been neutralized as a wedge issue and neither party has seemed too eager to make much of these topics.  But 2012 could be different, especially if some of the anti-federal-drug-war libertarian sentiments of candidates like Ron Paul and Gary Johnson get any significant media attention or serious populist traction.

4. Federalism tensions as states continue to move away from pot prohibition.  In 2012, it is possible that medical marijuana will be legalized in states with more than half of the US population, and voters in at least a handful of states will be considering ballot initiatives to legalize pot completely.  In part because federal pot prohibition seems unlikely to change in 2012, the year-long story will be how state and federal officials interact as states seek to respect local interest in softer pot policies while the feds (sometimes) seek to enforce unbending federal criminal prohibitions.

5. Prison populations and crime rates.  Probably the biggest story of 2011 was the report of the first modern (though modest) decline in the national prison population in the US (based on a 2010 accounting).  A budget crunch at the state level, which prompted reforms big and small in many states, accounts for this decline, and there is reason to expect these forces will continue in play in the year(s) ahead.  Meanwhile, national crime rates continue their historic decline, though some predict that what has been going down now for so long has to at some point start going back up.

Readers are, of course, welcomed and encouraged to comment on these issues and also to mention other big 2012 sentencing law and policy stories to follow.

January 1, 2012 at 04:55 PM | Permalink


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Biggest legal story of 2012 will never be uttered. It is an absolute lawyer taboo.

There will be 20 million FBI Index felonies in 2012, and only 2 million prosecutions, leaving 90% of criminals not inconvenienced in any way.

There will be 100 murders for every execution.

On the other hand the 40,000 additional laws taking effect January 1 will ensure that every man, woman and child will be a criminal subject to prosecution several times a day, especially the productive male.

I have patience. The public will one day be ready to get rid of the lawyer and its rent seeking. I will be ready with the wording of the constitutional amendment excluding anyone who has passed 1L from all benches, legislative seats, and responsible policy positions in the executive branch.

Posted by: Supremacy Claus | Jan 2, 2012 1:32:28 AM

How would people like no crime, economic growth of 10% a year, marked reductions in taxes, and markedly improved educational attainment? How about the end of medical error, and a tripling of the speed of medical research progress? A diversion of the $trillion going to the legal profession today going to research and development in all areas of technology?

How would lawyers like a profession half its current size, making a salary four times bigger, with ten times the public esteem for their essential utility product, the rule of law? That product is as essential as water and electricity. Turn it off, and you have Fallujah or North Philly, where you are spending full time on personal security and getting nothing else done. Imagine electrical service that was on 2 hours a day for the rich, and 2 minutes a day for the poor. When it went on for the rich, surges of excessive voltage would destroy the appliances. That is the analogy to the competence of the law today.

Posted by: Supremacy Claus | Jan 2, 2012 1:59:08 PM

These posts only deserve a response to proclaim they do not deserve a response. You have patience? I suspect you ARE a patient.

Posted by: michael | Jan 3, 2012 5:25:47 PM

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