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March 30, 2007

California Cunningham fix is now law

As detailed in this news article, "Gov. Arnold Schwarzenegger signed a bill Friday that was designed as a legislative fix to the state's criminal sentencing law that was upended by a U.S. Supreme Court decision earlier this year declaring a key portion of it unconstitutional."

I detailed in this recent post some of my litigation concerns with SB 40, which today became law, as a sound response to the Supreme Court's Cunningham decision.  But David in the comments thoughtfully responded to many of my concerns.  Meanwhile, Jonathan Soglin at Criminal Appeal has this new post on the bill, which reminds me that the California Supreme Court has awhole bunch of cases in which it will be trying to assess the post-Cunningham fall-out.

To provide a summary, this is likely a good time for lawyers in California to get some exciting sentencing litigation experience.

March 30, 2007 at 03:58 PM | Permalink


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I haven't had a chance to look at SB40 (although I really should since I'm interning at the San Francisco DA and want to get a job there after school) so I'm not sure if there are enough similarities. When Arizona changed its law after Ring, the state Supreme Court upheld that as procedural and not ex post facto. Would the same reasoning that the state court applied be potentially applicable here?

Posted by: da_2_b | Mar 30, 2007 10:57:26 PM

David, I agree with Doug that SB40 is constitutionally suspect. As you point out, the ex post facto problem is short-lived and will age out once cases are tried with an offense date after the date of enactment of SB 40.

The big, and enduring, problem, in my view is the separation of powers issue. Only the legislature can set the parameters of punishment for a particular crime. Under previous California law it passed constitutional muster to have three possible punishments for one crime only because the legislature also established a series of criteria to guide the judge's discretion as to which of the three optional sentences to select. That criteria is now gone and judges have complete discretion to choose one of three sentences.

Suppose the legislature enacts a law that says "Anyone convicted of Felonious Larceny is subject to a sentence of either 8 years, 10 years or 12 years and we'll just leave it up to judges to decide on a case by case basis, by the seat of their pants. Whatever the judge decides is fine with us." Would that abdication of legislative obligation to set punishment for crime pass separation of powers muster? I don't think so. But that essentially is what SB 40 does.

Compare California's system with North carolina's, which has three ranges of available sentences rather than three discrete punishments. Suppose in NC someone is convicted of Felonious Larceny and the possible ranges are 10 to 12 in the presumptive range, 8 to 10 in the mitigated range and 12 to 14 in the aggravated range. Then, following Blakely the legislature Bookerizes, or renders advisory, the sentencing grid. (which they didn't but that is another story and illustrates that jury determination of an Apprendi fact is not a big deal) Now the range of available sentences is anywhere from 8 to 14. So, an 11 month sentence is okay because it is still within the original set of punishments determined by the legislature.

I hope there will be some serious litigation on whether SB 40 passes separation of powers muster. I don't see how it can.

bruce cunningham in North Carolina

Posted by: bruce cunningham | Mar 31, 2007 1:54:56 PM

SB40 has a two year sunset. If SB40 sunsets and a new Cunningham friendly bill replaces it, the defendant sentenced today will have no Federal right to challange his previously lawfull max term sentence in conformance with the new bill. AEDPA limits Habeas petitions to one year after final appeals That alone makes SB40 DOA. Nice try Gloria.

Posted by: ron | Apr 2, 2007 2:01:10 AM

I am currently on a writ of cert. What happens now that I have served my sentence. Waiting cunningham fix!

Posted by: don | Apr 4, 2007 7:31:05 PM

i was wondering how the cunnigham law works i really didnt understand the information provided in here can you describe where i should look besides this postage thanks

Posted by: maria ramirez | Nov 24, 2007 5:58:38 PM

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