Crow's Nest

Prof. Berman, SLP, (Friday, 2/15)

"mentioned in this post that there was an extraordinary exchange between Justice Kennedy and members of the Senate Judiciary Committee on sentencing issues during Justice Kennedy's testimony before the Committee yesterday. (This exchange has gone mostly unreported, except by Jan Crawford Greenburg here). After watching the video again, I though(t)(sic) I would flag (and put in bold) Justice Kennedy's very first statement: "I am not comfortable with anything in the federal correctional system and with our sentencing policy."

As noted here, the Claiborne and Rita cases to be argued next week have a lot to do with the "the federal correctional system and with our sentencing policy" beyond just Sixth Amendment issues. Thus, as with so many other cases, Justice Kennedy is clearly a key voice and vote to watch in Claiborne and Rita.

It is also interesting to speculate how some of Justice Kennedy's other comments might color his cert vote in a case like Berger, in which a first offender is challenging a 200-year prison sentence for possessing child pornography as a violation of the Eighth Amendment (details here). Back in 1991, Justice Kennedy wrote the key plurality opinion in Harmelin that has largely ensured the Eighth Amendment now provide little or no limit on the length of non-capital sentencing terms. I wonder if Justice Kennedy might be inclined to take up Berger to provide a 21st century spin on the doctrine.

Because of this, I think I know what some lucky DOJ staff attorneys will be doing this weekend. Cancel that trip to the Bahamas, for now.