« Fascinating NY Times piece on victims, religion and the death penalty | Main | More intriguing plea bargaining scholarship »

October 28, 2007

After Cunnigham remand, New Mexico gets with the Sixth Amendment program

Following the leads of the highest courts in Hawaii and Tennessee (which both recently recongized that they have to live in Apprendi-land), the New Mexico Supreme Court this week recognized that the US Supreme Court's ruling in Cunningham conclusively determined that its state's mandatory sentencing scheme creates Sixth Amendment problems.   The ruling, in State v. Frawley (available here), begins this way:

This case is before us for a second time, after remand from the United States Supreme Court for reconsideration in light of its recent opinion in Cunningham v. California, ___ U.S. ___, 127 S. Ct. 856 (2007).  The issue we are asked to revisit is whether alteration of a defendant’s basic sentence upon a finding by the judge of aggravating circumstances surrounding the offense or concerning the offender, NMSA 1978, § 31-18-15.1(A) (1993), violates the federal constitutional right to a jury trial under the Sixth and Fourteenth Amendments to the United States Constitution.  We conclude Cunningham requires that we declare Section 31-18-15.1 facially unconstitutional.

October 28, 2007 at 08:32 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e200e54f000cef8833

Listed below are links to weblogs that reference After Cunnigham remand, New Mexico gets with the Sixth Amendment program:

Comments

I don't get the court's professed inability to sever.

The statute says judges should find the enhancing fact, but does not say "ONLY judges" should find it. Yet the court reads the statute as precluding jury factfinding, and so declares the entire thing unsavable, providing a huge windfall for defendants whose sentences are enhanced and whose appeals are pending. Nice going, NM!

Posted by: Da Man | Oct 29, 2007 5:16:22 PM

Yet another court that simply ignores that, in addition to require findings by a jury rather than a judge, it has added the requirement that those findings be BARD, so it can dodge the conclusion that doing so compels retroactivity:

"Our holding today, requiring that a jury and not a trial judge must find aggravating circumstances BEYOND A REASONABLE DOUBT [emphasis added]... our ruling today does not stand out as a watershed case because, like Schriro, it merely shifts factfinding from the judge to the jury."

Posted by: JCG | Oct 30, 2007 2:21:38 PM

Hey Da Man: The statute reads: "upon a finding by the judge of any mitigating or aggravating circumstances." It does not say, as you interpret it, that judges, instead of juries, "should" find enhancements. The statute leaves no room for juries here.

Posted by: Da Man II | Oct 31, 2007 1:07:54 AM

Hey Da Man: The statute reads: "upon a finding by the judge of any mitigating or aggravating circumstances." It does not say, as you interpret it, that judges, instead of juries, "should" find enhancements. The statute leaves no room for juries here.

Posted by: Da Man II | Oct 31, 2007 1:08:14 AM

Hey Da Man: The statute reads: "upon a finding by the judge of any mitigating or aggravating circumstances." It does not say, as you interpret it, that judges, instead of juries, "should" find enhancements. The statute leaves no room for juries here.

Posted by: Da Man II | Oct 31, 2007 1:08:19 AM

All you've done is restate the constitutional violation. Once you've invalidated that provision, you must ask whether the Legislature was so determined to have judges find the enhancing fact that it would prefer to have NO DEFENDANT receive the enhanced punishments the legislature clearly wanted them to receive.

To ask that question is to answer it. But it is not surprising why Defendants argue that the statute can't be "Blakely-ized": they get a windfall sentence reduction.

Posted by: Da Man | Oct 31, 2007 10:36:58 AM

But, according to the opinion, NM precedent does not ALLOW for the court to rewrite a statute. The court can_excise_the unconstitutional part(s), but it cannot rewrite or add language to make a statute constitutional. Here, IMO, the court did the correct, judicially conservative, thing - it deferred to the legislature. Funny how you prosecutor-types always harp on "activist" courts, but then whine when a court follows its supposed proper role when it "benefits" defendants.

Posted by: Da Man II | Nov 1, 2007 1:51:40 AM

DaManII:

There is NOTHING to rewrite once the invalid provision is stricken. Does a trial court rewrite a criminal statute every time it instructs the JURY to determine the elements under the reasonable doubt burden? No. The trial court is simply applying the procedure required by the Constitution. The fact that the statute may have previously directed judges to determine one of the elements doesn't mean that requiring juries to find it "rewrites" the statute.

Us prosecutor types sure do get upset when defendants who the legislature said should get 20 years argue that they can only receive 2 years because the Legislature wasn't prescient enough to predict Apprendi, Blakely, at als.

Posted by: Da Man | Nov 1, 2007 5:02:42 PM

Hawai`i responded with a special session of the leg: http://starbulletin.com/2007/11/01/news/story09.html

Text of the bill (adding BARD language) here: http://www.capitol.hawaii.gov/splsession2007b/Bills/HB2_.htm

Posted by: student | Nov 2, 2007 2:56:39 AM

Student:

So did the Arizona Legislature in response to Ring. But the Arizona Supreme Court did not hold that all capital inmates sentenced under the facially unconstitutional death penalty statute were automatically entitled to a remedy. The fact that the legislature sprun into action was proof that the Legislature did not want all inmates whose senetnces were the product of a sixth Amendment PROCEDURAL error to get a substantive windfall.

Posted by: Da Man | Nov 2, 2007 9:39:24 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB