Friday, February 02, 2007
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.
Tuesday, January 30, 2007
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.
Saturday, January 27, 2007
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."
Wednesday, January 24, 2007
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.
Tuesday, January 23, 2007
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.
MORE: Another colleague, Kate Stith from Yale, has chimed in with an additional comment about a notable aspect of Justice Alito's dissent:
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.
Monday, January 22, 2007
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)).
Cunningham arrives (and strikes down California sentencing)!
Apprendi, Blakely and now Cunningham ... the A,B,C of jury trial rights now includes three cases striking down state sentencing laws giving state judges undue authority to find facts to increase sentences. Here's the initial report on Cunningham from SCOTUSblog:
Dividing 6-3, the Supreme Court ruled on Monday that California's "determinate sentencing law" is unconstitutional because it allows judge's to find facts that lead to higher criminal sentences. Justice Ruth Bader Ginsburg wrote for the majority in Cunningham v. California (05-6551). The California system, the Court said, assigns to the trial judge, not the jury, authority to find the facts that expose a convicted individual to an elevated "upper term" sentence.
How huge Cunningham is for state and federal structured sentencing reforms will depend greatly on exactly what the opinion says. But, even sight unseen, the outcome of Cunningham spotlights that a majority of the High Court is now more interested in livening up Blakely than in continuing to water it down (as did the Booker remedy).
A lot more commentary will follow throughout today once I see and have a chance to consume the Cunningham opinion.
UPDATE: This AP account already has this quote from the opinion:
"This court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by the jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence," Justice Ruth Bader Ginsburg wrote for the court.
Wednesday, January 17, 2007
The wait for Cunningham continues
As detailed here at SCOTUSblog, the Supreme Court issued just one opinion today from a case that was argued only last month, Gonzales v. Duenas-Alvarez (05-1629). I was hoping we might get a decision in Cunningham, the California Blakely cases, but now it appears this case is to take longer than Booker for SCOTUS to adjudicate (informed speculations here).
To justify my anticipation (and impatience), let me document reasons why I am so eager to see what the Court does in Cunningham:
1. In the wake of Harris, the Blakely ruling was huge because it showed that five Justices were prepared to make the Apprendi doctrine truly revolutionary. But Justice Ginsburg's flip in Booker helped a distinct group of five justices water-down the impact of Blakely through the Booker remedy. Coming a full two years after Booker, the Cunningham case is likely to reveal whether a majority of the Court wants to continue to water-down, or now start to again liven up, the Apprendi-Blakely rule.
2. It seems clear that Justice Kennedy still wants the Apprendi-Blakely rule watered down and that Justice Stevens likes the Apprendi-Blakely rule livened up. But, after Recuenco and other intriguing post-Booker signals from oral arguments, it is hard to be certain about the views of any other Justices (especially now that we all have two full years' experience with the impact of the Blakely-Booker rulings).
3. Particularly unclear is how the new Justices will get into the mix in Cunningham. Many are assuming that the new Chief and Justice Alito are hostile to the Apprendi rule, but both Blakely and Booker revealed how conventionally thinking can be very wrong. Especially given Justice Alito's keen understanding of criminal justice issues and CJ Roberts' avowed affinity for consensus, I think their votes (and who may be writing separate opinions) are hard to predict.
4. Speaking of consensus, as I argued here, for the health of criminal justice systems nationwide, it is probably far more important to have a clear set of Sixth Amendment rules than to having a perfect set of rules. As detailed here and here, Stephanos Bibas and I authored this OSJCL article discussing consensus principles designed to help SCOTUS bring order to its sentencing jurisprudence. I am hopeful, but not especially optimistic, that the Court will use Cunningham to make its shaky sentencing doctrines more stable, sensible and predictable.
I cannot quite figure out if the long wait for Cunningham is a good or bad sign. Adding to the intrigue is the fact that, not long after the Cunningham oral argument, the Court granted cert on two Booker reasonableness cases (Claiborne and Rita). I am now wondering if we won't see Cunningham before the SCOTUS arguments next month in Claiborne and Rita; perhaps will get all these decisions handed down together only sometime in June.
Thursday, January 11, 2007
Speculating about Cunningham's composer
The latest "Supreme Court Today" newsletter by Aaron Streett of Baker Botts (available here) includes these thoughtful speculations about who's hard at work on the Cunningham case still pending before SCOTUS:
ASSIGNMENT WATCH: Two opinions remain of the 9 from the October sitting, and 2 Justices have not yet written opinions — RBG and SGB. The 2 remaining cases are Cunningham v. California (constitutional challenge to California sentencing guidelines) and Global Crossing v. Metrophones (administrative law/private cause of action under 1996 Telecom Act).
It is exceedingly difficult to guess our mystery authors. After all, both RBG and SGB played key roles in Booker, the case on which Cunningham turns — Breyer as the author of the remedial opinion, and Ginsburg as the swing vote who joined different 5-4 majorities to first strike down the federal Guidelines, and then to salvage them by making them advisory. As a result, either one could be writing Cunningham to uphold California's guidelines. On the other hand, either one could be writing Global Crossing: Breyer was an administrative law professor, and Ginsburg a former D.C. Circuit judge who also has expertise in that area.
My purely speculative guess: Breyer writes upholding California's system as salvaged by the California Supreme Court, thus reprising his role in Booker. And RBG pens Global Crossing over multiple dissents or concurrences (which would explain why the speedy RBG has been so slow in issuing her first opinion of the Term). However, if the Chief's dog adoption from the October sitting means that he was in the minority in both Cunningham and Global Crossing, then the roles could be reversed, with RBG striking down the California guidelines (over JGR's dissent) and SGB writing Global Crossing.
A final word of caution: virtually all of this speculation rests on the assumption that Roberts and Alito will mirror their predecessors' pro-Guidelines/anti-Apprendi views, thereby maintaining four votes to uphold judicial sentencing schemes. If either JGR or SAA turns out to be pro-Apprendi, however, then it would seem almost certain that RBG is writing Cunningham to invalidate California's guidelines.
Monday, December 11, 2006
At least another month until Cunningham
Lyle Denniston reports at SCOTUSblog that, after today's two rulings and new orders, the Supreme Court "completed its public sessions until after the holidays [and its] next scheduled public sitting is Monday, Jan. 8." This means that sentencing fans eagerly awaiting what the Court will say in the Cunningham case about Blakely's applicability to California's sentencing system will have to wait at least another month.
Some have speculated that, in light of the cert grants on Booker issues in Claiborne and Rita, the Court might not issue Cunningham until late Spring. Personally, I would be surprised if the Justices will sit on Cunningham until it deals with Claiborne and Rita (which won't be argued until late February), but who know what we should expect from slow-poke SCOTUS these days.
Of course, as the NY Times highlighted today, California has plenty of other things to worry about while it awaits new on the constitutionality of its sentencing system.
Friday, November 03, 2006
How do Cunningham and Claiborne and Rita intersect?
As detailed here and here, last month's SCOTUS argument in Cunningham, which was technically about Blakely's applicability in California, ended up being a lot about reasonableness and federal sentencing. In light of today's cert grants in Claiborne and Rita, I am trying to think through the relationships between what (and when) the Court will do with Cunningham.
It seems that the Claiborne and Rita argument won't be until February, but the top-side briefs are due in December. I have been expecting to see Cunningham decided sometime in January, but now I wonder if its likely to come soon (or come later) because of Claiborne and Rita. I am pretty confident (and happy) that the cert grants in Claiborne and Rita should limit the need to (over)interpret the meaning of Cunningham for the federal sentencing system.