Sentencing Law and Policy

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.

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.

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.

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.

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."

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

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.

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.

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.

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.

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.

Download hernandez_from_ca.pdf

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.

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?

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:

• The continuing Cunningham fallout
• California's Cunningham fix moving forward
• California Supreme Court to start Cunningham clean-up
• A Cunningham fix in California

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.

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:

• A Cunningham fix in California
• California Supreme Court to start Cunningham clean-up
• California chaos after Cunningham?
• Hoping for Cunningham scholarship

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:

• People v. French, S148845
• People v. Hernandez, S148974
• People v. Mvuemba, S149247
• People v. Pardo, S148914
• People v. Sandoval, S148917

Strong commentary on Cunningham

Professor Vik Amar, who two years ago had this terrific commentary discussing the California Supreme Court's big Blakely decision in Black, now has a new FindLaw commentary on Cunningham.  The piece, the first of two parts and available here, is entitled "The Supreme Court Invalidates California's 'Determinate Sentencing' Law."   Here is the set up:

In this two-part series of columns, I will examine [Cunningham v. California] decision, and its important implications for current and future doctrine -- including its likely impact on two additional related cases the Supreme Court is hearing on February 20.

A Cunningham fix in California

Kara Dansky, the executive director of the Stanford Criminal Justice Center, sent this dispatch about a developing Cunningham fix in California:

Thought you might like to know about SB 40, which has gotten very little press here. Introduced by Senate Majority Leader Romero on Jan. 25, it would temporarily amend the DSL to give sentencing judges the discretion to impose any of the three base terms within the triad (the bill includes a sunset provision of Jan. 1, 2009).  Here's a link to the bill text.  It got through the Senate Public Safety Committee today.  Here's a little blurb about it in the Sacramento Bee, relegated to one of the back pages.  Finally, here's [a snippet of an] op-ed of mine that appeared in today's San Francisco Daily Journal, suggesting the temporary fix that appears in SB 40:

Senate Majority Leader Gloria Romero has introduced SB 110, which would create an independent, balanced, nonpartisan Sentencing Commission to take effect on Jan. 1 2008.  One of the Sentencing Commission's first tasks should be to devise and implement a coherent, transparent and fair sentencing system that complies with Cunningham and provides the proper amount of guided judicial discretion.

Perhaps, then, the thing for California to do in the short term is to take the approach most consistent with the sentencing policies we would like to implement in the long term.  Perhaps in the short term, the Legislature should amend Section 1170(b) to give judges the discretion to impose one of three base terms, include a sunset provision, and delegate to Romero's Sentencing Commission the responsibility of devising a long-term solution that protects public safety, is based on principles of fairness, justice and accountability, and satisfies state and federal constitutional mandates.

The ball, as the Supreme Court unambiguously announced, is in California's court.  It is no longer a question of whether sentencing reform is a good idea.  It is now simply a question of how we do it.

UPDATE:  Crime and Consequences has more on these legislative developments here.

The practical persistence of an offense/offender distinction after Cunningham

When first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule."  I first developed this idea in my Conceptualizing Blakely article, advanced it in a Stanford Law Review article, and most recently unpacked it (with Stephanos Bibas) in Making Sentencing Sensible.  As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.

Consequently, I was very pleased to see Justice Kennedy's opinion in Cunningham espousing this "principled rationale" for the application of the Apprendi rule: "The Court could distinguish between sentencing enhancements based on the nature of the offense, where the Apprendi principle would apply, and sentencing enhancements based on the nature of the offender, where it would not."  But, of course, I was less pleased that Justice Kennedy was writing in dissent and that footnote 14 of Justice Ginsburg's majority opinion asserts that "Apprendi itself ... leaves no room for the bifurcated approach Justice Kennedy proposes."

And yet, even though Cunningham seems to have rejected the offense/offender distinction as a formal part of Apprendi doctrine, I think the concept can and will persist as sentencing reform proposals and "second-generation" Blakely issues move forward.  Here are some reasons why:

1.  The "prior conviction" exception is still good law (and was repeated again in Cunningham).  Prior convictions are the classic example of "sentencing enhancements based on the nature of the offender," and they are still free from the Apprendi-Blakely rule.

2.  Many sentencing systems base enhancements on facts related to prior convictions (e.g., the defendant was on probation or parole), and most lower courts (though not all) have said that facts closely related to prior convictions are also not subject to the Apprendi-Blakely rule.

3.  Most offender facts distinct from prior convictions (e.g., whether the defendant cooperated, shows remorse, contributes to the community) tend to be mitigating factors put forward by the defendant.  Both formally (because they support sentence reductions) and practically (because they are admitted by the defendant), these sort of mitigating offender characteristics typically will not raise Blakely issues.

Thus, while Cunningham seems to have formally killed the offense/offender distinction as a part of Sixth Amendment doctrine, I expect the basic concept will have a phoenix-like revival in the practical application of most sentencing systems.

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):

• Cunningham arrives (and strikes down California sentencing)!
• Cunningham opinion basics
• Justice Ginsburg's majority opinion in Cunningham
• A few more observations on the Cunningham opinion
• CJ Roberts and sentencing law: his Cunningham work
• More reactions to and analysis of Cunningham
• A fine overview of the sentencing scrambles
• California chaos after Cunningham?
• Hoping for Cunningham scholarship

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."

Hoping for Cunningham scholarship

Especially with Claiborne and Rita afoot in the Supreme Court and the potential for Cunningham chaos in California, I am hoping we might see in some forum a quick blast of Cunningham analysis from both scholars and practitioners.  Two super-smart law profs, as well as many commentors, have already started this important dialogue, but I am unable to harness and organize this important work effectively or systematically on this blog (although I may try to do so through the Federal Sentencing Reporter). 

Perhaps one or more of the growing number of high-profile on-line companions to high-profile student law journals (background here and here) might jump on Cunningham ASAP.   As Orin Kerr spotlights here, the Virginia Law Review has now joined the club of more than a half-dozen major journals with an on-line companion.  These on-line journals would seem perfectly suited to take up the Cunningham challenge.  Will any?

California chaos after Cunningham?

The Supreme Court's Cunningham decision is less than 48 hours old (buzz indexed here), and I have already received e-mail suggesting the fall-out in California is chaotic from the get-go.  Helpfully, the First District Appellate Project, which has done great work tracking Blakely's impact in California as shown here, now has posted an extraordinary document here examining "Challenges to Upper Term Sentences After Cunnnigham v. California."  Here are the headings from the FDAP's important (and extended) practical examination of Cunnnigham:

I. A general triage approach to cases.

II. A general comment concerning compensation.

III. Specific suggested procedures for raising Cunningham claims depending on the current status of the case.

IV. A Note on questions of remedy.

V. A Note on questions of retroactivity.

In addition to encouraging all Californians to check out this practical analysis, I would appreciate reports in the comments about what is happening "on the ground" in the wake of Cunningham.

A fine overview of the sentencing scrambles

Emily Bazelon, who way back when wrote this great Boston Globe story focused on Justice Breyer's central place in federal sentencing reforms, now has this new Slate commentary discussing Cunningham and the Supreme Court's modern sentencing jurisprudence.  The piece is entitled "Diagramming Sentences: The Supreme Court's war on sentencing guidelines," and it has many fine insights and flourishes as it takes stock of the Supreme Court's work in the Apprendi line of cases.  Here are just a few of my favorite passages:

The California case is the latest battle in a strange war that has turned natural judicial enemies into allies, set Congress against the courts, and given law professors a new life's work.  Some of the justices probably have had their eye on easing the sentencing load on defendants, more and more of whom have been getting locked up for longer and longer periods.  But the court can't make pro-defendant reform its explicit aim — that sort of policy decision is the legislature's job, after all, and in any case the cobbled-together majority behind the recent decisions would never hold together. So, for now, at least, the court's war on sentencing has enraged the lower courts and left the law in a shambles.  These cases showcase destruction — this is what it looks like when the Supreme Court lays waste.

Is it a good idea to toss out sentencing schemes like California's and the federal guidelines?  That's a hard question....  On the margins, at least, the Apprendi cases have helped loosen sentencing straitjackets.... On the other hand, as federal appeals judge Michael McConnell argued last year in a law-review article, the Supreme Court's new approach may have derailed a push for broader sentencing changes....

Cunningham is only the court's first word on the subject this term. In two cases to be argued next month, the court will fill in more detail about how much discretion federal judges actually now have. Doug Berman, law professor and sentencing blogger extraordinaire, thinks that both cases look like vehicles for additional change and leniency. In one, the defendant is a military veteran whose perjury crime looks more like a misunderstanding than a deliberate lie. In the second, an appeals court supplied the facts it relied on to reverse the sentencing break given by a trial judge. Get ready for more destruction.

More reactions to and analysis of Cunningham

For a lot more reaction and insight on Cunningham, check out all the media pieces that Howard Bashman has assembled here.  In addition, my terrific OSU colleague Alan Michaels sent me a lengthy e-mail with a seven-point dissection of aspects of Cunningham.  He has permitted me to post his full e-mail (which can be downloaded below).  For a taste, here is one of his thought-provoking points:

The Court was at least reasonably tough here in not allowing a state to do an end run around the Court's earlier decisions by federalism-tinged arguments about construing their own law. This issue would seem to arise in at least a couple of other Crim. cases this term --- totally outside the Apprendi line --- including Smith and Panetti. It will be interesting to see if this toughness carries over to other areas or if its presence becomes dependent on the issue in question.

Download michaels_on_cunningham.doc

MORE:  Another colleague, Kate Stith from Yale, has chimed in with an additional comment about a notable aspect of Justice Alito's dissent:

Download stith_on_cunningham_dissent.rtf

CJ Roberts and sentencing law: his Cunningham work

Almendarez-Torres, Jones, Apprendi, Harris, Blakely, and Booker, the six major (non-capital) Sixth Amendment rulings of the Rehnquist Court, were all decided by 5-4 votes.  Cunningham, the first (of many?) major Sixth Amendment ruling of the Roberts Court was decided 6-3.  This notable reality is magnified by the fact that Chief Justice Roberts is the sixth Justice to buy his ticket to Apprendi-land.

As Linda Greenhouse and others have noted, CJ Roberts' vote is perhaps the biggest SCOTUS-watcher aspect of Cunningham, especially given his apparent hostility to Apprendi expressed at the Cunningham oral argument and Jeff Rosen's recent article in the Atlantic Monthly about CJ Roberts' eagerness for greater consensus.  Here are just a few questions kicking around my brain this morning:

1.  Did CJ Roberts' vote for defendant Cunningham at the Justices' private conference right after oral argument and then assign the opinion Justice Ginsburg OR was CJ Roberts' initially with the dissent until he saw that the majority opinion had the weight of nearly all recent precedents on its side?

2.  Might Justice Thomas — who initially resisted a broad reading of the Sixth Amendment in Almendarez-Torres but then became a true Apprendi believer — have played a large role in shaping CJ Roberts' vote?  Jan Crawford Greenburg has this WSJ op-ed suggesting Justice Thomas has been a far more influential Justice than many realize.

3.  What CJ Roberts' vote in Cunningham portend for the future of both Blakely and Booker?  Specifically:

• Will CJ Roberts resist — as has Justice Thomas — the prior conviction and mandatory minimum exceptions to the "bright-line" Apprendi-Blakely rule?

• Will CJ Roberts favor extending Blakely's reach to new settings to limit, for example, judicial fact-finding increasing financial penalties or revoking supervised release?

• How will CJ Roberts approach Claiborne and Rita, especially in light of his role as Chief?  Will he work extra hard (as I think he should) to push the Court to deliver a crisp and clear opinion to guide all confused federal sentencing participants about post-Booker rules?

Prior posts in series:

• CJ Roberts and sentencing law: a series
• CJ Roberts and sentencing law: the virtues (and vices?) of consensus

What will Cunningham mean for other state sentencing reforms?

Trying to figure out exactly what Cunningham might mean for California sentencing — both in terms of past sentences and future reforms — makes my head hurt.  This AP piece and this commentary covers this part of this story nicely.  And, in the days and weeks ahead as oral argument in Claiborne and Rita approach, many will debate what Cunningham might mean for post-Booker federal sentencing.

But not to be overlooked in all the Cunningham craziness is what the decision might mean for the development of structured sentencing reform in states throughout the country.  In short form, the impact of Cunningham depends largely on how a state dealt initially with Blakely: those that denied Blakely's applicability (like New Mexico) have a lot of new work ahead; those that dealt with Blakely head-on should see Cunningham as vindication for earlier efforts. 

For more background and insights on state stories, be sure to check out the recent issues of the Federal Sentencing Reporter and the Ohio State Journal of Criminal Law examining Blakely in the states.

A few more observations on the Cunningham opinion

There's so much more to say about the Court's work in Cunningham, I hardly know where to jump in.  Before heading home for the night, let me make a few more observations about the majority opinion:

1.   The Cunningham majority twice calls the Apprendi doctrine a "bright line rule" (which is how Justice Scalia described the rule in Blakely).  As I explained here a long time ago, the California lower court ruling reviewed in Cunningham was really possible because the Booker remedy obscured whatever bright line Blakely may have aspired to create.  Cunningham reveals that there are now six Justices eager to draw this constitutional bright line.

2.  Footnote 14 suggests that six Justices are not eager to have "Apprendi's bright line rule" include an offense/offender distinction that I have long been espousing.  Justices Kennedy and Breyer seem to have some affinity for such a distinction, but it seems that ship has sailed.  However....

3.  Still unclear now is the validity and scope of the "prior conviction exception" to "Apprendi's bright line rule."  My embrace of an offense/offender distinction was in part an effort to give this exception some conceptual vitality.  One would think that a "bright line rule" ought not be obscured by exceptions, which suggests the fate of the "prior conviction exception" may still be very much up in the air (although it may now qualify as super-duper precedent).

4.  The Cunningham majority emphasizes judicial fact finding as presenting constitutional problems, which suggests that the fact/judgment distinction that I have been also espousing (with some help) might still have legs.  I suppose time (and Claiborne and Rita) will tell.

First-cut media coverage of Cunningham

Howard Bashman (who else?) already has collected lots of early media coverage of Cunningham from NPR and law.com and San Francisco Chronicle and the Los Angeles Times.  Additional coverage is flagged here at SCOTUSblog.  Let me recap my first set of posts, which have already produced lots of great comments:

• Cunningham arrives (and strikes down California sentencing)!
• Cunningham opinion basics
• Cunningham as a lawyer's and law profs' dream (or nightmare)
• Justice Ginsburg's majority opinion in Cunningham
• Should the SG now ask for a GVR in Claiborne and Rita?

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.

Cunningham as a lawyer's and law profs' dream (or nightmare)

Thanks to this SCOTUSblog post, you can find the opinion of the Court in California v. Cunningham here (syllabus here).  The dissent, written by Justice Kennedy and joined by Justice Breyer, is here. Justice Alito's dissent, joined by Kennedy and Breyer, is here.

I have only had a chance to give all the opinions a very quick read, but my first take is that there is A LOT in all of the opinions that every criminal lawyer (and interested law professor) will have to think about.  For those arguing for extensions of Blakely (or against lower court approaches to Booker), there is a lot in all the opinions that should make you smile.  For those eager to have the Court start charting a more cautious, consistent and consensus post-Booker path, there are passages that may make you sad.

Especially since the opinions spend a lot of time discussing federal sentencing law and Claiborne and Rita, I think right now my heart goes out to the DOJ lawyers who had to file bottom-side briefs in those cases today.  I wonder if they can ask for a last-minute extension (or if the timing of the Cunningham ruling is not merely coincidental).

Cunningham opinion basics

The full Cunningham opinion can now be accessed via Westlaw (and is also likely soon to be available here).  I'll need a few hours — perhaps even a few days or weeks — to take in all in.  But here are the basics:

1.  Justice Ginsburg wrote the opinion for the Court, which is joined by Justices Stevens, Scalia, Souter, Thomas and (consensus-builder?) CJ Roberts.

2.  Justice Alito wrote the main dissent in which Justices Kenney and Breyer joined.  It starts with this notable sentence: "The California sentencing law that the Court strikes down today is indistinguishable in any constitutionally significant respect from the advisory Guidelines scheme that the Court approved in United States v. Booker, 543 U. S. 220 (2005)."

3.  Justice Kennedy wrote an additional dissent in which Justice Breyer joined (and which kindly cites my recent piece with Stephanos Bibas, Making Sentencing Sensible, 4 Ohio St. J. Crim. L. 37 (2006)).