I would love to see the Court tackle the big questions that remain out there in the capital realm (especially the issue it has danced around for over a decade, whether Jurek should be overruled in light of the near-universal rejection of its procedural scheme as providing too little protection tocapitall defendants), but for too many terms the Court has refused to address the mayhem caused by the unresolvedquestionss of Justice Scalia's sentencing revolution. To make Hill first to resolve the small handful of cases that would otherwise resolve in the next few weeks (or at the most a few months) anyhow would simply be ignoring the hard work the Court has on its docket in order to address an issue that, bluntly, is not as important, but a heck of a lot sexier, than others on the Court's docket.
Of course, as regular readers know, my solution would be for the Court to take up the many post-Blakely and post-Booker questions that I think merit SCOTUS attention. (Also, because I am tired of kvetching again and again about the Court's reviewing so many death penalty cases, I hope capital cases won't be used to fill the void.)
Tellingly, this abridged list of key post-Blakely and post-Booker issues I developed last May remains timely. In addition, now that lower courts have had over 16-months to wrestle with 3553(a) and reasonableness review (and also since Congress is not about to pass a Booker fix), the Court should begin addressing key Booker-remedy questions Â e.g., what weight should advisory guidelines now have? Are departures obsolete after Booker? Is a presumption of reasonableness for within-guideline sentences suspect or sound? Readers are, of course, highly encouraged to use the comments to recommend other cert. worthy topics.
Switching sides, okay, not quite.
No, not that.
Doug Berman over at the Sentencing Law & Policy blog argues today that the Court should sort out Hill as its first matter of business when it comes to criminal justice related issues. At the risk of sounding contrarian for the purpose of simply being contrarian Doug is wrong. Before I go any further, I should note Sunday is the Sentencing Law & Policy blogiversary, congrats Doug.
As a practical matter the lethal injection squabble will be resolved, one way or another, by the end of the year either by SCOTUS action or simply by states adopting new lethal injection statutes and/or protocols calling for executions of inmates to be carried out in a manner consistent with the AMVA's protocols or to use a single drug method of execution. Two sets of noncapital cases before the Court, in the long view of history are more important. The first set of cases, Hammon v. Indiana and Davis v. Washington, deal with the Confrontation Clause and the truth finding function of jury trials. The other set, Sanchez-Llamas v. Oregon and Bustillo v. Johnson, concern the Vienna Convention on Consular Relations' meaning as it relates to individual criminal defendants who are foreign nationals. Two capital cases are also more important than Hill, House v. Bell and Kansas v. Marsh. Bell ultimately is about the political viability of the death penalty and, more immediately, the issues of actual innocence. Marsh ultimately about whether the death penalty statute in Kansas (and potentially a very small handful of other states) remains enforceable. Capital cases disproportionately end up before the Court due to the calibre of counsel they tend to draw and because they are "sexier" than most other cases. Indeed, as Doug himself has frequently noted, noncapital sentencing related issues should be getting more attention than what they have been, with some serious Apprendi/Blakely/Booker issues remaining unresolved:
DISCLAIMER The site contains, chiefly, the thoughts and analysis of Karl Keys. It is designed to be a first draft of history & a first draft review of case law, not the last. The goal is to get timely, accurate and germane information to those involved or interested in capital litigation. In the balance between speed and accuracy, speed sometimes wins. The law may have changed, we may have misread and misunderstood something ten years ago and still be clinging to a misperception. It is not intended to be a comprehensive review of the law. This web site is only updated on a semi-regular (whenever there is nothing good on TV or pending court deadline). Any information or links contained on this website should not be viewed as the furnishing of legal advice or as to any claim of specialization rather is given for informational puproses only and does not constitute the formation of an attorney-client relationship.