From Apprendi to Booker to Gall and Kimbrough: The Supreme Court Blunders its Way Back to Luck-of-the-Draw Sentencing
July 3, 2008
by William Otis
A quarter-century ago, bipartisan majorities in Congress had come to understand that the federal sentencing system was, in today’s parlance, “broken.” Sentencing was rife with irrational disparity, principally because each judge could sentence as he saw fit—through the prism of his own temperament, experience, or even mood. Judges did not have to follow any uniform sentencing standards, or even proceed under any established theory as to what sentencing was supposed to accomplish. Appellate review of sentencing was virtually non-existent....

Forensic Science Needs Checks and Balances
July 3, 2008
by Roger Koppl, Radley Balko
Justice is the foundation of liberty. Thus, the proper functioning of our criminal justice system is a vital concern for all who value liberty. When figures such as David Hume first laid down the classical liberal principles which form the foundation of our criminal justice system, however, scientific evidence did not yet have the important role in criminal cases that it does today. Since the beginning of the twentieth century, that importance has grown so much that forensics is now a central function of the criminal justice system in the United States and in courts around the world....

A Floor, Not a Ceiling: Federalism and Remedies for Violations of Constitutional Rights in Danforth v. Minnesota
July 3, 2008
by Ilya Somin
Few doubt that states can provide greater protection for individual rights under state constitutions than is available under the Supreme Court’s interpretation of the Federal Constitution. More difficult issues arise, however, when state courts seek to provide greater protection than the Court requires for federal constitutional rights. Can state courts impose remedies for violations of federal constitutional rights that are more generous than those required by the federal Supreme Court? That is the issue raised by the Court’s recent decision in Danforth v. Minnesota. In a 7-2 decision joined by an unusual coalition of liberal and conservative justices, the Court decided that state courts could indeed provide victims of constitutional rights violations broader remedies than those mandated by federal Supreme Court decisions. I contend that this outcome is correct, despite the seeming incongruity of allowing state courts to deviate from the Supreme Court’s interpretation of the Federal Constitution. The Supreme Court should establish a floor for remedies below which states cannot fall. But there is no reason for it to also mandate a ceiling....

The Fourth Amendment and Federalism: The Supreme Court Tussle Over the Two
July 3, 2008
by Marc Harrold, Michael John Gorman
This term, the Supreme Court will decide two cases on the Fourth Amendment. Both come from state supreme courts (Arizona and Virginia) and demonstrate a subtle but sizeable trend in state high courts to find greater individual protections in the Constitution, without first looking to their own charters of freedom. By finding those rights in the federal constitution, state courts are forcing the Supreme Court’s hand. It is a needless game of chicken that good federalism can avoid....