Wednesday, August 31, 2011
"Is California’s Cunningham fix finally going to see the sun set?"
Lawyer and sentencing guru Mark Allenbaugh (firm website here) alerted me to an important developing issue in the revision and reform of California's sentencing law. At my request, Mark kindly wrote this post's title and this terrific guest-post on the topic:
In 2007, the U.S. Supreme Court in Cunningham v. California ruled that California’s three-tiered determinate sentencing scheme (known as the Determinate Sentencing Law or DSL) was unconstitutional per Apprendi v. New Jersey and Blakely v. Washington, ostensibly ending its 30-year reign. Like its far more robust federal counterpart, DSL has been met with constant criticism.
Under California’s DSL, the presumptive sentence was the so-called mid-term sentence. For example, if the three terms available were 16, 24 and 36 months (and this is generally how the terms are spread, i.e., over a definite period of years), the sentencing judge would have to sentence the offender to 24 months (which really means a prison term of 12 months, since California is a half-time state, i.e., one can get up to 50% good time credit unlike the pithy 15% at the federal level) unless the judge found certain factors in mitigation, which would allow for a sentence at the low term (16 months in this case) or factors in aggravation, which would allow a sentence at the high term — 36 months. Of course, this latter example was exactly the problem with California’s DSL, or so thought the U.S. Supreme Court — the presumptive mid-term sentence of 24 months really was the statutory maximum, which, since it could be raised to 36 months by judicial fact-finding, violated Apprendi.
Shortly after Cunningham the California legislature passed S.B. 40, which supposedly would provide a “Cunningham fix” by eliminating the mid-term presumption. The legislation simply provided that a judge had discretion to sentence to any of the three terms, thereby ostensibly making the high-term the statutory maximum term. Wisely, the legislature put a sunset provision into the 2007 law, which is now set to expire on January 1, 2012.
In light of the current financial crises effecting so many government institutions in the state (it was not that long ago when the “Governator” had to pay state employees with IOUs), coupled with the recent U.S. Supreme Court decision in Brown v. Plata upholding a federal three-judge panel’s order that California must significantly reduce its prison population, it is surprising that a new piece of legislation — S.B. 576 — that will, if passed, extend the Cunningham fix’s sunset provision to 2014, hasn’t received more attention. Just last week, on August 25, the bill was unanimously voted out of committee and may soon be on Governor Brown’s desk. Sources indicate that the bill could be on the Governor’s desk as early as the end of this week!
An easy way, it would seem, to begin addressing California’s prison over-crowding crisis would be to let the Cunningham fix die a dignified death. Making aggravating facts that must be proved to a jury to get the high-term obviously will make it more difficult to sentence offenders to the high-term, but will also ensure the due process rights that concerned the Supreme Court in Cunningham are met. What California needs is not clever sentencing legislation to do an end-run around due process, but, as even President Obama has championed through the Fair Sentencing Act, smarter sentencing schemes that do not result in over-crowded prisons, which breed a culture of recidivism.
Ironically, it was Governor Brown (aka “Governor Moonbeam” for the disco generation) who signed California’s DSL into law in 1977. He too has been a vocal critic of the DSL even while serving as the State’s Attorney General. Now once again in the Governor’s seat, if presented with the bill to sign into law by the legislature, and in consideration of the fiscal, legal and humanitarian realities facing California’s prison system, Governor Brown would be wise to heed the words of his former girlfriend Linda Ronstadt and say to the bill “You’re no good! You’re no good! You’re no good! Baby, you’re no good!”
Monday, February 02, 2009
California Supreme Court finds Cunningham retroactive to Blakely
Providing perhaps a fitting judicial celebration of Groundhog Day, the Supreme Court of California has decided today that the Supreme Court's ruling in Cunningham must be applied retroactively to state cases that become final on direct appeal between Blakely and Cunningham. The unanimous decision in In re Sotero Gomez, S155425 (Cal. Feb. 2, 2009) (available here), starts this way:
This case presents the question whether Cunningham v. California (2007) 549 U.S. 270 (Cunningham) applies on collateral review of a judgment that became final before Cunningham was decided but after Blakely v. Washington (2004) 542 U.S. 296 (Blakely) was decided. We conclude that Cunningham does apply in these circumstances, and reverse the contrary decision of the Court of Appeal.
Sunday, February 01, 2009
California Supreme Court to address Cunningham retroactivity
Thanks to this post at C&C, I see that the Califorina Supreme Court is due to hand down on opinion on Monday concerning the retroactive application of the Cunningham decsion to state cases that become final on direct appeal between Blakely and Cunningham. My first instinct is to say that Cunningham should apply to these cases, but I know better than to make any firm predictions about how appellate courts are going to resolve Blakely issues.
Thursday, October 18, 2007
The consequences of Cunningham in Hawaii and Tennessee
With so much going on, I have failed to report previously that in the last few weeks the highest courts in both Hawaii and Tennessee have (finally) recognized that they have to live in Apprendi-land. Specifically, recognizing the impact and import of the Supreme Court's ruling in Cunningham (which applied Blakely to California's structured sentencing system), the Supreme Courts of Hawaii and Tennessee have both recently held that their states' mandatory sentencing schemes create Sixth Amendment problems.
These recent rulings came in State v. Maugaotega (available here) and State v. Gomez (available here). A local press report provide the basics in this article from Hawaii. And BNA subscribers can read about both rulings at this link.
Sunday, September 23, 2007
California sentencing getting the finger after Cunningham
Thanks to this post by Kent Scheidegger at Crime & Consequences, entitled "Cunningham, Chili, & Fingers," everyone can catch up with various post-Cunningham issues playing out in California court by reading about the sentencing appeal of Anna Ayala, the woman who infamously tried to defraud Wendy's by putting a human finger in her own chili. Kent points to this newspaper account of the ruling, which provides this summary of the latest legal developments:
A Las Vegas woman could get at least two years shaved off her nine-year prison sentence for planting a severed finger in a bowl of chili at a San Jose Wendy's restaurant, under a state appeals court ruling issued Friday. Anna Ayala, 41, who said on national television that she had bitten into a fingertip at the Wendy's in March 2005, and husband Jaime Placencia each received nine-year prison terms for the scam from a Santa Clara County Superior Court judge last year.
In her appeal, Ayala argued that the judge shouldn't have sentenced her to the maximum of five years in prison on a felony count of presenting a false insurance claim, one of three counts of which she was convicted. In an opinion Friday, the Sixth District Court of Appeal agreed, saying Judge Edward Davila's decision to impose five years for "aggravating circumstances" was based on his own fact-finding and not by a jury's conclusions.
As Kent rightly notes, various post-Cunningham developments in California means that Ms. Ayala should not to quickly count on receiving a lower sentencing on remand.
Thursday, July 19, 2007
Claearing up Cunningham consequences in California
The California Supreme Court today has handed down two opinions to address an array of state sentencing issues following in the wake of the Supreme Court's Cunningham decision applying Blakely to California's sentencing scheme. The rulings come in People v. Black, No. S126182A (Cal. July 19, 2007) (available here) and People v. Sandoval, No. S148917 (Cal. July 19, 2007) (available here).
A very quick pre-lunch scan of these decisions suggest that prosecutors will be much more pleased than defendants with these rulings. I hope California practitioners might help me identify if there is anything especially consequential or noteworthy in these decisions.
UPDATE: The San Francisco Chronicle has this article providing an effective review of these rulings. Here is a snippet:
Hundreds of California prisoners who had hoped to win reductions in their sentences after the U.S. Supreme Court ruled the state's sentencing law unconstitutional were rebuffed today by the state's highest court.... Today's rulings involved two prisoners sentenced before March 30 and will affect hundreds of similar cases around the state. In virtually all the cases, the standards set by the court will allow judges to reaffirm upper-term sentences....
[One defendant's] lawyer, Eileen Kotler, said the rulings effectively negated the U.S. Supreme Court's recent decision. She plans to appeal. State Attorney General Jerry Brown, whose office defended the sentences in both cases, said the rulings appeared to have spared judges from a deluge of new sentencing hearings. But he said the cases also highlight the fact that the fixed-term sentencing law -- which he signed as governor -- is broken and needs major reforms.
Wednesday, May 30, 2007
Arguments over Cunningham's consequences
As detailed in articles from the San Francisco Chronicle and the Metropolitan News-Enterprise, the California Supreme Court on Tuesday heard oral argument in a set of cases dealing with the fallout of the Supreme Court's Cunningham decision. Here are snippets from the Chronicle's report:
The prison terms of hundreds of inmates were at stake Tuesday as the California Supreme Court tried to determine how much power trial judges have to increase sentences in the wake of a U.S. Supreme Court ruling declaring the state's sentencing system unconstitutional.
The state justices heard two cases in San Francisco that will set standards for sentences cast in doubt by a U.S. Supreme Court ruling in January. In that ruling, the court said a 1977 California law allowing judges to add years to the sentence prescribed by the jury verdict violates the constitutional right to a jury trial....
In response to the Supreme Court ruling, legislators hurriedly passed a prosecution-backed bill that lets judges choose any of the three terms without making factual findings. The new law took effect March 30 and is scheduled to expire in two years, giving lawmakers and Gov. Arnold Schwarzenegger time to consider alternatives that may include establishment of a sentencing commission with authority to propose wholesale changes.
The law does not apply to prisoners sentenced before March 30, the subject of Tuesday's cases. The state Supreme Court's rulings, due within 90 days, will probably determine the outcome of more than 100 cases pending before it and hundreds of cases in lower courts.
Thursday, April 05, 2007
A view from the California sentencing trenches
Following my request for information from folks working in California about the implementation and application of SB 40 (basics here and here), I received a thoughtful note from a probation officer (who has allowed me to share his insights here):
By way of introduction, I have been a probation officer in a small rural Northern California County (pop <100,000) for over 15 years. In that time I have written hundreds of sentencing reports, including death penalty cases and others with sentences of well over 100 years. I have a considerable amount experience in California sentencing laws. As a result, I am somewhat bemused by all the uproar over SB40.
What people are seemingly forgetting is that the vast majority of cases end up with a plea bargain. When this happens the defendants are explicitly told what the maximum penalty can be, prior to the court accepting their plea of guilt. They are allowed to present evidence in their behalf at the sentencing hearing, although very few actually do. Most of the time their attorneys just make a half-hearted argument. But the point is, even before Cunningham and SB40; defendants knew exactly what they were looking at when they entered a plea. Much of the time they waive that right as part of the plea....
There has been a suggestion that our system is racially prejudiced. I wonder if in this day and age it is more economically prejudiced than racially prejudiced. Those with enough money can afford the best lawyers and often get a much better deal. I would like someone to do a study on how economics relates to sentencing. To quote an old cartoon, "Everyone is innocent until proven broke."
Wednesday, April 04, 2007
A brewing battle over California's Cunningham fix
This item from Jeff Adachi, the Public Defender of San Francisco, spotlights that at least some defense attorneys plan to challenge vigorously the application of SB 40, California's new sentencing provisions that became law last week (and sunset at the end of 2008). As explained in this post, I am worried that SB 40 could create more problems than it solves, but perhaps this Cunningham fix will prove effective despite some defense complaints.
I would be grateful if folks working in California will report in the comments (or send me by e-mail) news of any major developments in the implementation or application of SB 40.
Some recent related posts:
- California Cunningham fix is now law
- Cunningham fix litigation and other California problems
- Wondering about criminal legislation that sunsets
Friday, 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.
Thursday, March 29, 2007
Cunningham fix litigation and other California problems
As detailed in this AP story, SB 40, the California bill that essentially seeks to Booker-ize California's sentencing structure in response to Cunningham "was sent to Gov. Arnold Schwarzenegger on Wednesday" after the state senate "approved the bill on a 32-2 vote without debate." As I suggested here a few weeks ago, the "fix" of SB 40 seems likely to create more legal problems than it solves. Let me explain:
1. Since SB 40 functionally increases available sentences, defendants can (and some surely will) raise ex post facto challenges if prosecutors seek to invoke this "fix" at the sentencing of any crime committed before the fix becomes law.
2. Since SB 40 has a Jan. 1, 2009, sunset provision, shrewd defendants convicted who fear long sentences might reasonable try to "play out the clock" once the law becomes applicable. Though perhaps trial judges won't allow defendants to keep postponing sentencing dates, it seems unlikely that most appeals of SB 40 sentences will be complete before SB 40 is scheduled to sunset. Will state appellate courts enforce a sunsetted law being challenged by a criminal defendants? Should they? Can they?
3. In light of the Cunningham ruling and what could happen in Claiborne and Rita, it's quite possible that SB 40 will itself be found unconstitutional on the merits by lower California courts (or federal courts eventually).
I hope that the sponsors and supporters of SB 40 have thought through these litigation realities, though my own sense of California's sentencing history and legislative process does not give me great confidence. Were I advising Governor Schwarzenegger, I would encourage him to veto SB 40 if only to spare lower courts the litigation mess (and to buy more time to see what happens in Claiborne and Rita).
But, as articles here and here highlight, litigation over sentencing rules is perhaps just a tiny concern for state policy-makers in light of broader correctional problems facing California. Here are details from the Los Angeles Times:
Busloads of protesters fighting the construction of new penitentiaries swarmed the Capitol on Wednesday, while inside the statehouse, the simmering politics surrounding the prison overcrowding crisis boiled into full view.
The protesters attacked Gov. Arnold Schwarzenegger's plan to build 78,000 new prison and jail beds, saying that $11 billion worth of "bricks and mortar and debt" are no substitute for true reform. Instead, the demonstrators — some dressed in orange prison jumpsuits and standing in makeshift cells — said lawmakers could quickly thin the inmate population by releasing geriatric and incapacitated convicts and by sanctioning thousands of parole violators in their communities rather than in state lockups.
Meanwhile, political fireworks were flying over a decision by Senate Democrats to place a moratorium on bills that would lengthen criminal sentences and thereby exacerbate prison crowding. The maneuver infuriated Republicans, but Sen. Gloria Romero (D-Los Angeles), chairwoman of the Senate Public Safety Committee, said it could not be "a business-as-usual year" in Sacramento given the overcrowding emergency.
Wednesday, March 14, 2007
Cunningham fix moves forward in California
As detailed in this Sacramento Bee article, a propsed statutory fix in response to Cunningham is moving forward in California's legislature:
A bill to stabilize California's criminal sentencing system that was knocked for a loop by a recent U.S. Supreme Court decision passed the Assembly Public Safety Committee on a 5-2 vote Tuesday. Senate Bill 40 cleared the panel, which in the past has killed controversial criminal justice bills, after members heard from its author, state Sen. Gloria Romero, D-Los Angeles, and prosecutors representing her home county that the alternative to its passage would mean "chaos" in the courts.
"I understand the reluctance and the concern of some, but reluctance and concern translates into courts functioning in a state of disarray and justice not being served," Romero said in an interview after the hearing. "I do feel confident that (the full Assembly) will understand that the stakes are too high to sit on our thumbs and do nothing."
The bill was prompted by the Supreme Court's ruling on Jan. 22 that California's determinate sentencing law, in place since 1977, violated the Constitution. The state's sentencing structure allows judges to impose terms from a range of three options. But the high court struck down the so-called "triad," saying that judges, in imposing the toughest of the three terms, were not submitting to the jury the factual underpinnings of their decisions. SB 40, written in response to the ruling, would give judges the discretion to pick any of the three terms in the range of options without having to make any factual findings. The bill also contains a Jan. 1, 2009, sunset provision.
Romero's bill sailed through the Senate on a 36-1 vote last month, but it ran into a rumble Tuesday, due in large part to opposition expressed by San Francisco Public Defender Jeff Adachi. Adachi said the bill as written would give judges too much discretion, with the lack of uniformity from jurisdiction to jurisdiction likely to result in sentencing disparities. Adachi said ethnic minorities and the poor are likely to face disproportionately stiffer sentences under the terms of SB 40. Instead of SB 40, Adachi told the committee he favors a system in which prosecutors would be required to conduct a second mini-trial to determine the length of the defendant's sentence after obtaining the conviction. The San Francisco public defender called Tuesday's vote "extremely unwise." "The reason we have such bad criminal justice policy in California is because people do what's politically expedient and not what's right," Adachi said afterward. "At least they should have studied what the alternatives were."
Because of the sunset provision in SB40 and the possible constitutional dimension to the Supreme Court's pending decision in Claiborne and Rita, I actually think SB40 might actually create more chaos than it will solve. But California's sentencing and correction system is so messy right now, it's not clear exactly how any Cunningham response would help or hurt California sentencing.
Thursday, March 08, 2007
Off to the coast for the first "Stanford Executive Sessions on Sentencing and Corrections Reform"
I'm off to the airport again this afternoon, this time headed to California to participate in the exciting first meeting of the Stanford Executive Sessions on Sentencing and Corrections Reform being run by the Stanford Criminal Justice Center. Details about the concept and the format for the sessions can be found here.
Not suprisingly, with Cunningham and California's on-going prison crises, there is a lot to talk about. The Executive Session schedule is very full for Friday, so blogging may be light over the next few days.
Tuesday, February 27, 2007
Coping with Cunningham
A helpful reader has sent me a recent California Court of Appeal case which, in order to help cope with the Cunningham fallout, holds that California judges may constitutionally find facts to select between concurrent and consecutive sentences. Here is the great start of People v. Hernandez, No. C053061 (Cal. Ct. App. Feb 26, 2007) (available for download below):
The sky is not completely falling in California after Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856, __ L.Ed.2d __] (hereafter Cunningham) changed life as we knew it under the determinate sentencing law (DSL). Cunningham did not address consecutive sentences under the DSL, which, as we will explain, can be imposed based on facts found by the trial court, without violating the Sixth Amendment to the United States Constitution.
Tuesday, February 20, 2007
Lots of Cunningham GVRs
Unsurprisingly, today's SCOTUS order list (available here) includes a whole bunch of Cunningham GVRs for case from California. In addition, as previewed here, the Court also dealt with the Gomez (the Tennessee Blakely case), and it did so with a GVR.
I am not sure there is much notable in these expected developments, but perhaps more informed readers have more to say about the particulars.
Saturday, February 17, 2007
More strong analysis of Cunningham opinions
Vik Amar, writing this time with his colleague Aaron Rappaport, has at FindLaw this great second commentary on Cunningham. The first one (available here) was entitled "The Supreme Court Invalidates California's 'Determinate Sentencing' Law." This second piece has the title, "Justice Alito's Dissent in Cunningham v. California: How Can Someone So Wrong, Be So Right?" and here is its set up:
One of the most interesting features of Cunningham was Justice Alito's intricate dissenting opinion, which was also joined by Justices Kennedy and Breyer. As one of Justice Alito's first opinions in this controversial area of criminal constitutional law — and one of his most prominent opinions to date more generally — his writing deserves careful study. Particularly interesting is how his dissent highlights and explores one of the great puzzles emerging from this line of cases: When, and why, does the exercise of judicial discretion at sentencing violate the Sixth Amendment?
Thursday, February 15, 2007
The Cunningham fog in California
This article from California, entitled "Courts in fog on sentencing after overturning of law," provides more details on post-Cunningham sentencing struggles is the national largest criminal justice system:
The U.S. Supreme Court decision that overturned California's sentencing law has left judges and lawyers across the state waiting for legislators to fill the legal vacuum left by last month's ruling.... Lawyers are already turning to appellate courts for guidance. A Riverside County district attorney's petition filed this week with the 4th District Court of Appeal asked the court to "give direction to the Riverside County trial courts" in the absence of a new sentencing law.
In the Legislature, the ball is rolling slowly. The state Senate approved a bill Tuesday to square California's Determinate Sentencing Law with the Supreme Court. The Inland delegation voted for the bill, which goes to the Assembly sometime next week.... Legal experts, the state attorney general's office and other observers predicted that thousands of inmates would appeal their upper-term sentences after the U.S. Supreme Court ruling. But the first-wave effect from Cunningham deals with new cases, not old ones.
Without word from the Legislature or state high court, prosecutors and defense lawyers are at odds about how aggravating factors may be determined in the future, other than the certainty that a judge is out as the lone fact-finder. Prosecutors want to make aggravating factors part of the official court record so a jury can consider them, once the issue is resolved. "We are reserving the right to seek an aggravated term," explained San Bernardino County Assistant District Attorney Michael Risley. Defense attorneys are challenging the efforts during arraignments, saying the absence of a law clarifying the sentencing rules makes aggravation claims pointless.
Recent related posts:
Wednesday, February 14, 2007
California's Cunningham fix moving forward
As detailed in this AP report, a proposed legislative response to the Supreme Court's Cunningham decision is moving forward in the California legislature. Here are some specifics:
Judges would get more discretion to sentence criminals under a bill passed Tuesday by the state Senate in response to a recent U.S. Supreme Court decision. The court invalidated California's current law because it requires judges to choose the middle of three sentencing options unless the facts of a particular case justify a shorter or longer prison sentence. By law, many of the factors judges weigh in that decision are never considered by jurors. The justices said it is unconstitutional to increase a sentence based on facts that were not found true by a jury.
The Senate bill, sent to the Assembly on a 36-1 vote, would end the problem by giving judges the discretion to choose any sentence within a range set by law for a particular crime.... The lone opponent, Sen. Tom McClintock, R-Thousand Oaks, said sentences should be set by a jury, not a judge as under [Senator Gloria] Romero's bill.
I find it interesting that there was a voice — but only one — urging a jury-based legislative response to Cunningham.
Friday, February 09, 2007
The continuing Cunningham fallout
This AP article provides an update and additional details about the impact of the Supreme Court's Cunninghman decision in California. Here are snippets:
California lawmakers are poised to vote on legislation to counter a U.S. Supreme Court ruling invalidating the state's criminal sentencing law. Senate Majority Leader Gloria Romero, the proposal's chief architect, said SB40 is set to go before the state Senate on Tuesday. Her announcement Thursday came a day after the California Supreme Court also weighed into the dispute and urged lawmakers to respond to the Jan. 22 decision by the U.S. Supreme Court....
Romero's legislation gives judges the discretion to impose the lower, middle or upper terms, so the measure would not unconstitutionally increase sentences because no base term would exist.... "We think it's the most practical response," Romero, D-Los Angeles, said in an interview Thursday. "We have a patient that has been declared dead."
The bill, supported by California Attorney General Jerry Brown and Los Angeles County District Attorney Steve Cooley, faces an uncertain fate in the Assembly. Bill Maile, a spokesman for Gov. Arnold Schwarzenegger, said the Republican governor does not comment on pending legislation.
The California Supreme Court on Wednesday asked lawmakers to rewrite California's sentencing law and also agreed to deal with the 10,000 or so inmates who must be re-sentenced under the high court's decision. Romero said it was the job of the judiciary, not the Legislature, to deal with the flood of appeals for re-sentencing.
Some recent related posts:
Thursday, February 08, 2007
California Supreme Court to start Cunningham clean-up
Thanks to Jonathan Soglin, I know that the California Supreme Court has now jumped into post-Cunningham action. Here's the report I received from Jonathan:
Today the Supreme Court granted review in five cases presenting Cunningham issues. The precise issues to be briefed are not specified. All five cases have the same briefing schedule: opening brief on the merits due Feb. 28 (3 weeks from today), answering brief due within 21 days of filing of the opening brief and the reply brief due within 7 days of filing of the answering brief. No date is set yet for oral argument. The cases are: