« It puts the lotion on its skin, or else it gets the gavel again | Main | The Daily Memo - 1/23/07 »

Supreme Court Decision Update - Cunningham v. California

prisoner.jpgThe Supremes’ final decision from yesterday was Cunningham v. California (PDF of the opinion). We’re a bit late on our update, but that’s the way the ball rolls. This case is yet another instance where the Supremes invalidated sentencing guidelines, California’s system, this time, because of Sixth Amendment violations.

QuizLaw Analysis: The Supremes like guidelines that are discretionary, giving judges broad discretion. But if there isn’t such broad discretion, the facts supporting a larger-than-normal sentence need to come from the jury, not a judge. Since California’s system lets the judge decide facts in support of a greater sentence, the whole thing’s a no-go. So the Court tells California to go back to the drawing board and fix its sentencing system.

What’re we talking about here? John Cunningham, a scum bucket, was tried and convicted in California of continuous sexual assault of a kid under 14. In 1977, California enacted the determinate sentencing law (the DSL), which says that this crime is punishable with one of three sentences - 6 years in the clink, 12 years in the clink or 16 years in the clink. The DSL says that the 12 year sentence should be used in this case unless a judge determines that there were one or more aggravating circumstances justifying the larger 16 year term. The judge in this case, based on a post-trial sentencing hearing, found by a preponderance of the evidence that there were six aggravating facts, and smacked Cunningham with the 16 year sentence.

Now it’s important to understand that, as with Cunningham’s situation, for most offenses the DSL provides rather strict guidelines, with three optional precise terms, as opposed to a range of terms (i.e., 6, 12 or 16 years, rather than anything between 6 and 16 years). The rules giving judges guidance on applying the DSL list some of the aggravating factors that can support a greater sentence and, as outlined by the Supremes’ majority opinion, “the California Supreme Court has repeatedly referred to circumstances in aggravation as facts.” So, with this in mind, the issue here is whether California’s DSL violates the Sixth Amendment based on prior Supreme Court ruling about sentencing and the jury’s role in deciding facts. And the Supremes, in a 6-3 opinion penned by Justice Ginsburg, find that the DSL does indeed violate the Sixth and Fourteenth Amendments.

Why is the Sixth Amendment at issue here? Because, as Ginsburg says:

This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.

Now, to understand what’s going on in this case, it’s helpful to look at three other Supreme Court opinions - Apprendi, Blakely and Booker.

Tell me about Apprendi. In Apprendi v. New Jersey, the Supremes held that if there’s a fact, aside from prior convictions, which might expose a defendant to a sentence greater than the statutory maximum, the Sixth Amendment requires a jury to find that fact, not a judge. And it must be beyond a reasonable doubt, not by a preponderance of the evidence (which is an easier standard to meet).

And Blakely? The Supremes reaffirmed the Apprendi rule in Blakely v. Washington, looking at Washington’s Sentencing Reform Act. The maximum penalty for the crime at issue there was ten years, but the Washington Act said that the sentence had to be between 49 and 53 months unless the judge found additional facts warranting a greater sentence. So the defendant here, Blakely, was hit with a 90 month sentence because the judge found the crime to be deliberately cruel. The Supremes said this was no good, in violation of the Apprendi rule and the Sixth Amendment, because Blakely got a greater sentence based on facts decided by the judge. And this was true even though the sentence was under the maximum (10 years) because it was outside the proscribed standard range (49-53 months). The only way a judge could give a greater sentence, as the judge did here, was by finding additional facts - “[t]he judge could not have sentenced Blakely above the standard range without finding the additional fact of deliberate cruelty. Consequently, that fact was subject to the Sixth Amendment’s jury-trial guarantee.”

And Booker? The Supremes again reaffirmed the Apprendi rule in US v. Booker, this time looking at the Federal Sentencing Guidelines. In this case, the facts
determined by the jury said Booker should get a sentence between 210 to 262 months in the clink. Under the Guidelines, the judge can’t go beyond that without finding additional facts - the judge in this case did find such additional facts and gave Booker a greater sentence. The Supremes said this was also a Sixth Amendment violation. However, the Supremes said that the Guidelines would be ok if they were advisory, instead of mandatory, because then it would just be the judge exercising “broad discretion in imposing a sentence within a statutory range.” So the Supremes then basically said the Guidelines should be understood to be advisory, meaning judges aren’t tied to the sentencing range:

But they would be obliged to “take account of” that range along with the sentencing goals Congress enumerated in the Sentencing Reform Act.

Can we get to this case now? Yes. Yes we can. Ginsburg says that California’s DSL looks much like the unconstitutional sentencing systems in Blakely and Booker. The middle term (the 12 year sentence in this instance) is relevant statutory maximum, not the higher term (the 16 year sentence) because that higher term may only be given when the judge finds aggravating facts. This “should be the end of the matter,” but it’s not thanks to the California Supreme Court. In another case, the California Supremes said that the DSL was fine, even in light of these Supreme Court cases. Ginsburg now says, not so much.

The California Supremes decided the DSL was ok by looking at the type of discretion the trial judge was given and by determining that the system was pretty fair to defendants. But Ginsburg says this is all a bunch of bunk because “[t]his Court’s decisions, however, leave no room for such an examination.” The California Supremes also said that the DSL was like the post-Booker Federal Sentencing Guidelines, merely advisory in nature. But Ginsburg says this is also bunk, because judges aren’t free to pick any sentence within a range - they can’t give anything between 6 and 16 years, only a specific sentence of 6, 12 or 16 years. And:

Fact-finding to elevate a sentence from 12 to 16 years, our decisions make plain, falls within the province of the jury employing a beyond-a-reasonable-doubt standard, not the bailiwick of a judge determining where the preponderance of the evidence lies.

So what happens to the California sentencing system now? Ginsburg ain’t saying. She says the ball’s in California’s court. They can follow some other states, keeping the determinate sentencing and simply asking “the jury - either at trial or in a separate sentencing proceeding - to find any fact necessary to the imposition of an elevated sentence.” Or they can have a new system which creates a range of sentences, giving the judge “broad discretion” within that range. It’s up to California.

Seems straightforward - what’s the dissent tweaked about, then? As we said, this was a 6-3 opinion. Justice Alito wrote a dissenting opinion, joined by Justices Kennedy and Breyer. in addition, Justice Kennedy wrote a separate dissenting opinion, joined by Justice Breyer. So, what’s Alito’s problem? He thinks that the California DSL is pretty much the same as the post-Booker advisory Federal Sentencing Guidelines and that, therefore, the DSL doesn’t violate the Sixth Amendment:

Both sentencing schemes grant trial judges considerable discretion in sentencing; both subject the exercise of that discretion to appellate review for “reasonableness”; and both - the California law explicitly, and the federal scheme implicitly - require a sentencing judge to find some factor to justify a sentence above the minimum that could be imposed based solely on the jury’s verdict.

So, essentially, Alito thinks that the California scheme gives the judge broad sentencing discretion, especially in terms of potentially aggravating and mitigating factors, and the Court has always said that broad discretion means the scheme doesn’t violate the Sixth Amendment.

And what was Kennedy’s other dissenting opinion for, if he joined with Alito? Well, he’s on board with everything Alito said. But he wanted to add an additional comment to note that he thinks Apprendi and its subsequent line of case are all wrong. Just wrong. But he’ll concede that there could be a rationale letting those cases still have some control and effect “while reducing the collateral, widespread harm to the criminal justice system and the corrections process now resulting from the Court’s wooden, unyielding insistence on expanding the Apprendi doctrine far beyond its necessary boundaries.” Basically, Kennedy thinks the world of sentencing enhancements should be broken up into two categories, those that are based on the nature of the offense and those based on the nature of the offender. In Kennedy’s world, the Apprendi doctrine would apply to the “offense” enhancements, but not the “offender” enhancements.

| Comments (5)


My husband recently was sentenced to a 3 yr max for Resisting Arrest (the circumstances around which did not rise to the level of a felony). The judge had striken 2 strikes (10 yrs old)(thankfully) which left one to require mandatory doubling of the 3 to 6 years in prison. If Im understanding the law correctly, should he have been given the mid range sentence of 24 months if there were no aggravating factors?

is this case retroactive?

My boyfriend was convicted on a vehicle violation penal code 4463, and given the upper term of three years plus and enhancement of three years due to a prior prison term dating back to 1994. which the judge sentenced him and not a jury for the present offense.. Is he illegable for review of his sentence?

My husband was convicted of a molestation charge, first offense ever, he is 63 years old with health problems and got 5 years with 85% with just a judge, no jury. He is in California, is he eligible for release? He had an enhancement added for 3 years. His lawyer did not tell him about the difference between 80% and 85%. What can we do now with the new decision.

Unfortunately, I can't comment on any of your specific situations (for starters, I'm not a criminal attorney).

But what I can say is, where someone received a sentence in a similar manner to the sentence discussed in this case, they may be able to file an appeal for review of that sentence, the result being they could possibly get a resentencing. But this would not apply to every sentence that was simply issued by a judge. And this case does not mean that anyone is entitled to automatic release. And it doesn't mean that, during resentencing, they wouldn't get the exact same sentence.

All of which is a long way of saying that you really need to consult a California criminal attorney to find out what options you may have.