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Will Kennedy have any cross-over impact for non-capital cases?

By Douglas A. Berman

A week after it was handed down, I am now re-reading the Supreme Court's work in the Kennedy child rape case to ponder whether any aspects of the majority's Eighth Amendment holding or dicta might have an impact in non-capital cases.  As regular readers know, I have always been troubled by the eagerness of the Supreme Court (and some lower courts) to find many constitutional problems with death sentences and yet few constitutional problems with extreme non-capital sentences.  Disappointingly, most parts of the Kennedy ruling have a "death is very different" quality that may keep Kennedy from helping non-capital defendants.  Nevertheless, I think these snippets from the Kennedy majority opinion could and should have some resonnnace in non-capital contexts (all cites/quotes omitted):The [Eighth] Amendment proscribes all excessive punishments, as well as cruel and unusual punishments that may or may not be excessive [and its] protection against excessive or cruel and unusual punishments flows from the basic precept of justice that punishment for a crime should be graduated and proportioned to the offense...continue to full post

Full post as published by Sentencing Law and Policy on July 01, 2008 (boomark / email).