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January 27, 2007

Cunningham recap

Though the harsh mandatory sentences for two border agents (details here and here) and for Genarlow Wilson (latest here) have drawn my attention recently, the biggest news of the week was the Supreme Court's Cunningham decision declaring California's sentencing scheme unconstitutional.  I will have some more analysis of Cunningham soon, but first I want review prior posts on the decision (all of which have great additional analysis in the comments):

UPDATE: At the Ninth Circuit Blog here, Steve Sady provides his two cents on Cunningham and the ACCA and reasonable doubt.  Here is how it begins: "The Supreme Court opinion in Cunningham once again demonstrates that the Nation's highest court is far ahead of the Circuits in protecting Fifth and Sixth Amendment rights."

January 27, 2007 at 01:31 PM | Permalink

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Comments

Professor Berman,
Having finally read every word of the opinion in Cunningham and dissents, it strikes me that there are at least some justices who are being disingenuous. There are two main arguments to uphold the California law: 1) The California system does not require any "fact" to be found to give the upper sentence- and 2) even it did, for whatever reason, it functions like the Booker fix and therefore must be constitutional.
How is it that there are no justices who agree to one point and not the other? The first question is a factual one, the second question a legal one. All of the dissenting justices who would uphold the California law because of reason #2 (it functions like the Booker fix), happen to believe that the California law conveniently doesn't really present the question. Likewise, the majority justices, who believe that should California law require a fact to establish an upper sentence, it would be subject to Apprendi's constraints, all happen to believe that the California law functions in just that way. It seems to me to be too much of a coincidence.

Posted by: Jacob Berlove | Jan 27, 2007 7:43:47 PM

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