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January 22, 2007

Justice Ginsburg's majority opinion in Cunningham

I am about to head to a coffee shop with a hard-copy of Justice Ginsburg's majority opinion in order to make sure I am fully caffinated for a close read.   Based on my first quick read, here's a line that will surely endure: "Booker's remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless."

Dan Markel here at PrawfBlawg has some initial insights about the majority opinion, all of which seem spot-on.  I agree with the notion that CJ Roberts' willingness to join a forceful opinion ensuring Blakely has teeth is possibly the most important bit of news today. 

More commentary about the majority opinion will follow, but I encourage readers to use the comments to pinpoint other quotes or ideas that merit extra attention from Justiuce Ginsburg's work for a full six members of the Court.

January 22, 2007 at 12:11 PM | Permalink

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Comments

The CASC denied my petition in People v. Boultingtinghouse which was published on other grounds. The denial was without prej. as to
Booker issues. I was going to file a new
petition in the morning after I digest today's
opinion. Any procedural comments?

Posted by: Ronald Richards | Jan 22, 2007 12:17:47 PM

Doug,

Not to nit-pick, but why do you think that line will "surely endure"? "Toothless" is quite an extreme, so I'm not sure why the suggestion that something is not "toothless" is going to have major impact.

Posted by: Orin Kerr | Jan 22, 2007 12:37:01 PM

Doug can speak for himself, but I think he means that the opinion comes across as a fairly solid endorsement of the Apprendi-Blakely line. It was penned by the Justice whose defection made Booker largely toothless. And it was joined without reservation by the Chief Justice, whom many had expected to be on the other side.

Posted by: Marc Shepherd | Jan 22, 2007 12:40:44 PM

Orin: many folks have stressed the Booker rememdy --- both formally and informally and especially in lower federal court litigation --- to allow lots of judicial fact-finding to increase sentences in various contexts. I suspect all those folks will be citing the toothless line in a lot of briefs arguing for the extension of Blakely into all new arenas.

And, if that's not the enduring line from Cunningham, what is?

Posted by: Doug B. | Jan 22, 2007 12:44:48 PM

At first glance, Cunningham may seem like a dream for defendants and defense counsel, but it has substantial potential to turn out more like a nightmare. Interestingly, Ginsburg spends several pages detailing the Booker remedy even though the remedy is not material to the question of whether the DSL violates Apprendi. All that conspicuous detail and attention on the Booker remedy makes the majority opinion, in my eyes, read like a primer on Bookerizing the DSL.

Ginsburg, in a nutshell: "Hey, California Legislature! The problem isn't judicial factfinding, it's that mandatory language! Look at how we saved the federal guidelines; you can save the DSL the same way! It's really easy! Unfortunately, we don't have the constitutional authority make the fix for you, but here's how to do it!"

After all Ginsburg's not-so-subtle hints about the Booker remedy, her statement that "Booker's remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless," is highly disingenuous. In fact, the remedy HAS rendered Apprendi largely toothless. This blog has called attention to statistics showing how above-guidelines sentences -- sentences which violate the Sixth Amendment under Blakely, but not Booker -- are almost always approved of as "reasonable." And it was Ginsburg's vote which allowed it all.

My fear is that the California Legislature will get Ginsburg's message. A very, very simple change to Penal Code section 1170(b) will suffice to Bookerize the DSL. Instead of the jury's verdict mandating the middle term unless aggravating or mitigating factors exist, the verdict will authorize any term -- lower, middle, or upper -- thus making the upper term the statutory maximum. The judge will then use her "broad discretion to sentence within a statutory range." She won't be bound by the circumstances in aggravation and mitigation -- they'll just be "advisory"!

Just you watch. This simple "remedy" can be in effect by the end of the week. Of course, such a move will engender California's own "reasonableness" mess as the Courts of Appeal sort out whether the middle term is still presumptive, and whether a judge has abused her discretion by giving the lower or upper term. It may turn out to be an interesting couple of years.

Posted by: CN | Jan 22, 2007 12:58:39 PM

Marc: I was one of those folks who predicted Roberts would be on the other side in Cunningham. I'm pleasantly surprised today, and I cheerfully take back my previous "result-oriented" dig at the Chief. I'm still waiting for Alito to prove me wrong, though.

Posted by: anonafpd | Jan 22, 2007 1:03:00 PM

After a quick read, the most important part of the majority opinion (at least as far as foreshadowing Rita/Claiborne), IMO, is the explanation that discretion is not the key component of a constitutional sentencing system, but rather the lack of judicial fact-finding. See Slip Op. at 17 ("We cautioned in Blakely, however, that broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system from the force of our decisions. If the jury's verdict alone does not authorized the sentence, if instead the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied.").

CA's attempt to analogize to the federal system after Booker (in that the judge have wide discretion to find aggravating facts, constrained by reasonableness) failed because the post-Booker Guidelines are constitutional not because the federal judge has discretion which is reviewed for reasonableness, but because the federal judge need not find facts to justify the sentence.

In other words: discretion + judicial fact finding = unconstituional. discretion + no judicial fact finding = constitutional.

Therefore, after reading Cunningham, I don't see how the Court can answer "yes" to the second question posed in Claiborne (Is it consistent with Booker to require a require a judge to find extradinary circumstances before imposing a substantial variance?).

Consider this quote from Cunningham: "Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment." Now put this in the context of the federal system: "Because a rule requiring extraordinary facts to justify a substantial variance allocates to judges sole authority to find facts permitting the imposition of an upward variance, the rule violates the Sixth Amendment."

But then the question is, how do you determine what is reasonable if you don't require judicial fact-finding? I think the Court will answer this by holding that a presumption of reasonablenss is constitutional so long as there is an explicit analysis of 3553(a).

Posted by: DEJ | Jan 22, 2007 1:05:28 PM

Thanks, Doug. I don't know of other lines that will endure, but then most Supreme Court opinions do not produce any enduring lines.

Posted by: Orin Kerr | Jan 22, 2007 2:04:28 PM

I still think that the Chief may be somewhat results oriented when it comes to decisions not sharply constrined by precedent. Given that the outcome in Cunningham is largely constrained by precedent, the Chief probably took the stare decisis route in order to put on the appearence of consensus building. That said, I do find it very strange that he sharply diverged from his comments at oral argument, much like in the government-notice case last yearconcerning the required amount of notice needed before taking away property. That said I think we can all eagerly await to see not only Kennedy's vote, but also that of the Chief in the partial birth abortion cases.

Posted by: Poirot | Jan 22, 2007 3:20:14 PM

To piggy-back on Poirot's comment, I disagree that Roberts' vote is big news. I doubt he would have voted the same had his vote been decisive.

Given his recent comments on consensus-building, I don't expect to see Roberts in the MINORITY of a 5 to 4 split very often. Once he saw that Ginsburg et al. already had 5 votes, I expect that he voted with that group simply to avoid a 5/4.

Not that that is a bad thing as far as it goes. I just don't think we can read Roberts' vote in this case as forecasting where he is likely to come down in a future sentencing case where his vote would be determinative.

Posted by: Josh Lee | Jan 22, 2007 5:06:57 PM

Given his recent comments on consensus-building, I don't expect to see Roberts in the MINORITY of a 5 to 4 split very often. Once he saw that Ginsburg et al. already had 5 votes, I expect that he voted with that group simply to avoid a 5/4.

Why is it so difficult to believe that he, you know, did what judges are supposed to do, and actually decided the case on the law? True, he seemed to be hostile to the Apprendi line at oral argument, but predicting Justics' votes from oral argument is notoriously error-prone.

Posted by: Marc Shepherd | Jan 22, 2007 5:22:07 PM

Have you read the recent Roberts interview?

He makes pretty plain his belief that judges should sometimes give up their individual views and desires for personal doctrinal consistency in the interests of consensus and compromise. Why is it so difficult to believe that Roberts put those ideas into practice in this case? Why do you assume that that's NOT "what judges are supposed to do"?

Posted by: Josh Lee | Jan 22, 2007 6:31:04 PM

I am still basically confused by this opinion. I read it to mean that the Judge can enhanced a sentence by ponderence of evidence unless it does not go over the statutory maximum. ex. The satutory maximum for bank robbery is 20 years. If the Jury verdict is guilty and the guidelines range is 5 years can the judge use other factors to increase to 10 years as long as it does not pass the 20 years - and is revelant satutory max the same as statutory max. I am confused.

Posted by: Welch | Jan 22, 2007 7:56:23 PM

It is not the statutory maximum of 20 years for robbery that is controlling. It is the guideline number...unless you're talking about a system where the guidelines are recommended and not mandatory. That's what both Blakely and Booker said.

Right now the Federal Guidelines are not "mandatory" but they were "mandatory" for many people who are currently incarcerated. It seems that Cunningham has just opened an avenue for everyone who had a final sentence prior to Blakely and/or Booker.

Dawn E. Worsley, Esq.

Posted by: Dawn Worsley | Jan 22, 2007 8:41:20 PM

Have you read the recent Roberts interview?

He makes pretty plain his belief that judges should sometimes give up their individual views and desires for personal doctrinal consistency in the interests of consensus and compromise. Why is it so difficult to believe that Roberts put those ideas into practice in this case?

I am reacting to those who suggest it's a foregone conclusion that he changed his vote. On what basis would you say so?

Yes, I've read those Roberts interviews. He does not go so far as to say he would routinely vote for what he believed to be the wrong side. Otherwise, there would be no cases decided by one vote, with Roberts in the minority. We know that has happened before, and will happen again.

Posted by: Marc Shepherd | Jan 22, 2007 9:25:27 PM

Marc, I understand your point. I am not confident that Roberts changed his vote. I just think it is a serious possibility. On the other hand, it is also a serious possibility that Roberts is, as a matter of personal jurisprudence, a Blakely fanatic. But I think that uncertainty proves my point: Given Roberts' views on the need to increase consensus, we can't assume that Roberts joining the majority opinion means he is going to be a staunch defender of Blakely in the future.

And I don't mean this as a criticism of Roberts at all. I happen to agree with him that the Court should make more of an effort to act like a Court--even if that means individual Justices must sacrifice expressing their individual views when they are in the minority.

I'm not suggesting that Roberts will never be on the small side of a 5-4. But, unless one thinks Roberts is a hypocrite, surely one should expect him to at least engage a presumption against dissenting.

And, who knows, perhaps Roberts is like me in this sense: While I appreciate the profound importance of Blakely, I don't have strong personal feelings about whether it was right or wrong.

Posted by: | Jan 22, 2007 10:42:18 PM

Somebody help me with an issue I haven't seen discussed. When Ginsburg discussed a remedy, she noted that some states have amended their determinate sentencing laws to involve the jury in sentence fact finding, Constituionally if the sentence goes up, but practiaclly it must be in all sentences, or none could ever go up. That is astounding! Doesn't anybody seen the impracticality of that? Overburdened state courts can't possibly have juries hear sentencing arguments in all non-capital criminal cases. This will be the end of trials. Can anybody help with some state experiments?

Posted by: Mike Israel | Jan 23, 2007 2:58:21 PM

How does the Cunningham rule, and the fact that is will be sun setting soon, affect defendants that pled to the common counts and aggravating counts in their case? How does the defendant signing a "Cunningham Waiver" affect their right for sentencing recourse?

Posted by: Interested Party | Jul 24, 2013 7:05:46 PM

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