Thursday, October 12, 2006

Cunningham predictions, anyone?

Readers continue to add great comments to my first reflections on the Cunningham oral argument.  And today's has brought a little  Cunningham media coverage from The Daily Journal and the Los Angeles Times.  Also, I especially liked Andrew Siegal's insights based on the Cunningham argument here at PrawfsBlawg.

But now I would like to turn from reactions to predictions.  For me, the Cunningham oral argument confirmed my own disinclination to make any strong predictions about how the Justices would deal with the case.  Based on the argument, it seems that Justices Kennedy and Breyer might be warming to Blakely (at least as a matter of stare decisis), and yet either Justices Alito and Roberts may take former Justice O'Connor's place as Lord of anti-Aprrendi-land.

Given all the complications surrounding California law and post-Booker federal sentencing, today I have been thinking about whether SCOTUS might look for an easy way out in Cunningham.  In my view, a DIG would be very irresponsible (and perhaps more harmful to California than a decision either way), but perhaps the Justices can find some other way to dispose of this case without coming fully to blows over the reach of Blakely and the implications of Booker.  Still, I suspect that both Justice Stevens and Justice Scalia might not sign on (or sit by quietly) if the Court pursued an easy way out that did not give Apprendi and Blakely its due.

So, smart readers, anyone have any great ideas or have any grand predictions?  What do you think SCOTUS should and/or will do in Cunningham?  Care to predict who writes, what they might say, and how many votes opinions get?  (For my hopes, if not predictions, check out the advice that Stephanos Bibas and I have for the Cunningham Court in our new piece "Making Sentencing Sensible".)

October 12, 2006 in Cunningham coverage | Permalink | Comments (5) | TrackBack

The (unrealized?) backdrop for Cunningham

I noted in this post about the Cunningham oral argument (which has prompted great comments) that a number of Justices seemed concerned with the potential practical impact of finding California's sentencing system unconstitutional.  These questions implicitly assumed that, from a policy perspective, California's sentencing scheme was sound.  But, as this new interesting commentary, spotlights the reality of sentencing and corrections in California isn't so sound:

Jerry Brown and Chuck Poochigian do not agree about much.  But both of these candidates for attorney general say that the way California criminals are sentenced and do their time needs changing.  If Brown, the Democrat, former governor and now mayor of Oakland, and Poochigian, a Republican state senator from Fresno, agree that the current system is a threat to public safety, maybe it's time for the rest of us to listen.

The problem, the candidates agree, is that most crimes now come with sentences set by law. Convicts serve their terms and are then released back to society, even if they are more dangerous when they come out than when they went behind bars.... With sentences for each crime determined by the Legislature, lawmakers trying to look tough on crime have passed bills lengthening sentences and adding time for complicating factors, such as carrying a gun during the commission of a crime. But the politicians have largely ignored the tougher question of what happens when those convicts get out of prison, as most inevitably do.

The parole system, which is supposed to ease the transition of inmates back into the community, is a farce. The state releases more than 120,000 inmates every year, but nearly 70 percent quickly violate the conditions of their parole and are returned to prison. These violators on average serve an additional five months and are then released again. "It's a revolving door," Poochigian said recently. "The system's not working very well."...

The state's nonpartisan Little Hoover Commission, which evaluates the effectiveness of government programs and policies, long ago recommended that California create a sentencing commission with the power to restructure the state's system of punishment, subject to approval by the Legislature. The commission's charge would be to protect public safety, tailor punishments to fit the crime and foster responsibility in inmates by creating meaningful incentives for them to change their behavior.  Other states have used this technique with some success.  Maybe it's time for California to follow their lead.

Some related posts on California's sentencing and correction problems:

October 12, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

Wednesday, October 11, 2006

Reflections on the Cunningham oral argument

To avoid blogging about every page, I had to go to a coffee shop to read the transcript this morning's SCOTUS argument in Cunningham (transcript here, early analysis here).  Because so much could be said about the argument and about particular lines of questions, I hope interested readers (and especially attendees) might chime in with observations in the comments.  Here are a few of my first-cut reactions:

1.  The actual facts of the case played no role at all during oral argument: the entire discussion was whether the California Supreme Court's (far-fetched?) gloss on California's statutory sentencing law was sufficient to rescue the California structured sentencing system from its apparent violation of Blakely principles.

2.  The Justice all seem to be quite aware of how the Booker remedy is playing out in lower federal courts, and yet they all seem to be largely unaware of how Blakely principles have impacted state sentencing reforms.  Kudos to Jeff Fisher for his work on an NACDL amicus brief (available here), which highlighted state reactions to Blakely and clearly impacted his old boss, Justice Stevens.

3.  Based on their oral argument questions, I got the impression that both Chief Justice Roberts and Justice Alito are somewhat hostile to Blakely.  Of course, as suggested here and here, if these two new justices are really in sync with Justices Scalia and Thomas, they would be big fans of Blakely.  But I sense that pro-government sentiments may impact these new Justices more than the originalist principles that seem to drive the views of Justices Scalia and Thomas in this arena.

4.  The Court seemed to be working toward a constitutional distinction between fact finding (a job for juries) and exercising policy judgments at sentencing (a job for judges).  Of course, since I endorsed such a distinction as a way to understand Booker in my recent "Conceptualizing Booker" article and also in my co-authored "Making Sentencing Sensible" article, I would be pleased to see the eventual Cunningham opinion formalize such a distinction.

5.  A number of Justices seemed quite concerned — perhaps too concerned? — with what might be the practical consequences of a ruling in favor of the defendant.

October 11, 2006 in Cunningham coverage | Permalink | Comments (15) | TrackBack

Cunningham looks to be another state case about federal sentencing

I have now heard from three different terrific sources that this morning's SCOTUS argument in Cunningham, which was technically about Blakely's applicability in California, ended up being all about reasonableness and federal sentencing.  (I am inclined to say, "I told you so," to anyone who might have been wondering why I have been making a big deal about this case (as detailed in this category archive).)

Here is part of a great report on the argument that Lyle Denniston already has up here at SCOTUSblog:

A few minutes into the Supreme Court's hearing Wednesday on a California criminal sentencing case, it already had become clear that the case is not really about a specific state sentencing law but is all about what is constitutionally "reasonable" in any system that gives a judge discretion to impose an enhanced prison term.  And behind that question lies the future of the federal guidelines system in the wake of the Court's 2005 ruling in Booker v. U.S. In fact, much of the hour's argument in Cunningham v. California (05-6551) amounted to a seminar on Booker.

UPDATE:  The Cunningham transcript is now available here (bless those quick same-day transcribers).  I'll likely blog a lot about the argument once I have a chance to read the transcript closely.

MORE REPORTS:  Baylor Law Prof. Mark Osler was kind enough to file a thoughtful report on taody's oral argument, which can be downloaded below.  Here are some highlights:

The Court seemed much more focused on the federal guidelines than state issues, a focus established at the start of arguments by Chief Justice Roberts, who opined that the California system looked much like the federal guidelines.  The focus on federal issues may in part have been created by the fact that the California Supreme Court gave the state's defenders little to work with in this appeal. Justice Breyer was befuddled by what that court was trying to say about Booker in the Black opinion, and none of the justices seemed to buy the argument that the California system passes muster because it's requirements and prohibitions are based on "reasonableness."

After the arguments this morning, I think the Court is likely to hold that the California Determinate Sentencing Law (DSL) is unconstitutional, and that the resulting opinion may have a significant impact on the federal guidelines in perhaps far-reaching ways.

Download cunningham_report_from_osler.doc

October 11, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

Tuesday, October 10, 2006

What will Alito and Roberts do in Cunningham?

Talking to a great reporter today about Cunningham reminded me that Apprendi/Blakely/Booker debates are mostly virgin territory for Chief Justice Roberts and Associate Justice Alito.  Though both may have gotten a small taste of the Court's fractured Blakely universe late last term in Recuenco (discussed here and here), neither wrote in that case and the vote was not especially close.

Of course, Justice Alito had a lot of exposure to Apprendi/Blakely/Booker not only during his service on the Third Circuit, but also through his involvement (until his SCOTUS nomination) with the Constitution Project's bipartisan Sentencing Initiative group.  That group has been actively working on sound sentencing structures in light of Blakely, and in previous posts here and here I discussed Justice Alito's notable involvement and withdrawal from this endeavor.  And, of course, Justice Alito's pre-judicial experience was mostly as a federal prosecutor during the start of the federal guidelines era.  Thus, Justice Alito surely brings into Cunningham a lot well-developed instincts and beliefs about modern structured sentencing reforms.

In sharp contrast, Chief Justice Roberts seems to be mostly a blank slate in the entire criminal justice arena.  Though he wrote opinions in a few police cases last Term and had a few guideline cases during his brief tenure as a circuit judge, I doubt he has had many occasions to think broadly about modern structured sentencing reforms or particularly about the the particulars of the Court's work in the Apprendi/Blakely/Booker line of cases.  Yet, as I suggested here during his confirmation hearings, if CJ Roberts wants to build consensus in this arena, he may have to make a concerted effort to convince Justices Breyer and Kennedy to finally purchase their tickets to Apprendi-land.  But that assumes, of course, that CJ Roberts thinks, like Justices Scalia and Thomas, that Apprendi-land is where the Court should be headed.

Some related posts on the new Justices and the Apprendi/Blakely/Booker line of cases:

October 10, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

Some media coverage of Cunningham

Perhaps because Blakely issues are so intricate, there has been little media attention given to in Cunningham, even though it is surely the most significant Apprendi/Blakely case that the Supreme Court has heard in two years.  Thus, I was pleased to see Cunningham get a little coverage this morning in this California newspaper article.  Here is a snippet:

The U.S. Supreme Court is set to hear arguments Wednesday about a Contra Costa County case that could decide how much discretion California judges have when sentencing convicted criminals. The ruling could change the fundamental laws of sentencing that have guided trial judges for the past three decades.

"In terms of impact on the judicial process, this is huge," said Laurie Levinson, Loyola University School of Law professor. "It could blow apart the California sentencing scheme."...  The justices are being asked to determine whether California judges have the authority to decide the truth of aggravating factors, or whether a jury should decide that. The decision could impact convicted criminals awaiting sentence, those currently appealing their cases and possibly even those who have exhausted their appeals, Levinson said....

Ultimately, the justices need to decide between two extremes, said Robert Weisberg, Stanford School of Law professor. In one scenario, judges would sentence a defendant to the middle term unless a jury finds the aggravating factors as true. The other option is giving the judge complete discretion. "Right now, it's hard to tell how the law is supposed to operate," Weisberg said.

Some additional Cunningham basics:

October 10, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

Monday, October 09, 2006

Collecting Cunningham coverage and briefs

On Wednesday morning, the Supreme Court will hear arguments in Cunningham v. California.  Cunningham is probably the most significant Apprendi/Blakely case that the Court has heard in over two years, and its ruling could have a significant ripple effect on federal and state sentencing systems nationwide. 

Basic previews of Cunningham are available from summaries put together by folks at Cornell and at Medill.  I have done more than a dozen posts about Cunningham that you can access at this archive, and broader coverage of Blakely in the states can be found in this archive.  My posts with links to the briefs and other key reading about Cunningham can be accessed below:

October 9, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

Wednesday, October 04, 2006

Proofs of Making Sentencing Sensible

As first detailed here, Stephanos Bibas and I have authored an article urging SCOTUS to bring some order to its sentencing jurisprudence as it considers Cunningham, the California Blakely case.  The article, entitled "Making Sentencing Sensible," is now in proofs and will very soon be published in the Fall 2006 issue of the Ohio State Journal of Criminal Law

Commentors provided terrific feedback on the earlier draft here (and via e-mail), and now I am posting below the revised draft that incorporates this feedback.  We still have a few days to catch any typos or other small errors on the proof, so feel free to keep the helpful feedback coming.

Download making_sentencing_sensible_proof.pdf

October 4, 2006 in Cunningham coverage | Permalink | Comments (6) | TrackBack

Thursday, September 28, 2006

Blakely issues still not getting any respect

I often cannot help but complain that Blakely issues (and other criminal justice issues) do no get the attention and respect they deserve.  And my dander is up again now that Supreme Court preview season is in high gear.  SCOTUSblog has lots of previews assembled here; the linked items continue the trend I have noticed of all the previews giving short shrift to the criminal law issues — and especially the two big Blakely cases — on the docket.  Oh well, you can always get your fill (and more) of SCOTUS Blakely coverage here.

Just a few of the hundreds of recent SCOTUS/Blakely posts:

September 28, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

Thursday, September 14, 2006

Joint advice for SCOTUS on Cunningham

Stephanos Bibas and I have just completed an article addressing the Supreme Court's sentencing jurisprudence, which will be published this fall in the Ohio State Journal of Criminal Law.  The article, the draft of which can be downloaded below, is entitled "Making Sentencing Sensible."  Here is the abstract:

This Term, Cunningham v. California offers the Supreme Court a rare opportunity to bring order to its confusing, incoherent, formalistic body of sentencing law.  Sentencing law must accommodate many structural and individual constitutional interests: federalism, the separation of powers, democratic experimentation, individualization, consistency, efficiency, and procedural fairness and notice.  The Court, however, has lurched from under- to over-regulation without carefully weighing competing principles and tradeoffs.  A nuanced, modern sentencing jurisprudence would emphasize that a trial is a backward-looking, offense-oriented event well suited for a lay jury.  Sentencing, in contrast, includes forward-looking, offender-oriented assessments and calls upon an expert, repeat-player judge to exercise reasoned judgment.  Juries should find offense facts, but judges may find offender facts and also exercise judgment at sentencing.  Within these bounds, the Court should preserve states' flexibility to experiment with different roles for juries, judges, legislatures, sentencing commissions, probation and parole officers, and trial and appellate courts.  In particular, while certain types of mandatory guidelines are unconstitutional, voluntary or even presumptive guidelines should be permissible so long as appellate courts meaningfully review sentencing judges' reasons for imposing sentences within and outside ranges. This modest approach, which preserves room for experimentation, fits best with legal-process values and is least likely to provoke evasion.

Download bermanbibas_osjcl.rtf

September 14, 2006 in Cunningham coverage | Permalink | Comments (11) | TrackBack

Thursday, August 24, 2006

Petitioner's reply brief in Cunningham

I just received a copy of the petitioner's reply brief in Cunningham, the California Blakely case to be argued in the Supreme Court on October 11.  That brief can be downloaded below; the petitioner's opening brief can be accessed here, the respondent's brief is here.  Here are parts of the reply brief's introduction:

The State of California and its amicus claim that under DSL [California's sentencing law], the upper term is the statutory maximum for Sixth Amendment purposes because a judge may impose the upper term based on the jury's verdict alone.  Therefore, they maintain, the imposition of an enhanced sentence based on the judge's own determination of factors in aggravation is constitutional.  However, their position rests on tortured reasoning and the same arguments raised by the state of Washington in Blakely, but soundly rejected by this Court.

The state and its amicus further attempt to fit the square peg of the DSL into the round hole of constitutionality carved out by this Court in Booker.  To accept their convoluted logic is to accept the conclusion that Booker implicitly overruled Blakely.  Although the DSL and the revised federal system may have some comparable features, they are different in at least one constitutionally-significant regard -- the DSL allows for judicial factfinding in imposing sentence beyond the statutory maximum authorized by the jury's verdict, while the federal system does not.

Download Cunningham.rom.pdf

Related posts coving Cunningham:

August 24, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

Saturday, July 15, 2006

Bottom's up in Cunningham

The bottom-side SCOTUS briefs in Cunningham, the California Blakely case, were due earlier this week, and I have a copy of the filing from the state of California as respondent.  (The top-side briefs are available here.)  The California brief, which can be downloaded below, confirms that the case will be as much about reasonableness review and the federal system after Booker as about the California system after Blakely.  Consider this passage from the brief's argument summary:

The constitutionality of the California system is confirmed rather than undermined by the fact that the trial court's discretion in selecting among the three base-range terms is subject to the constraint, set out in California Penal Code section 1170(b), that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime."  Section 1170(b) is not a threshold requirement that renders an upper term sentence unauthorized in the absence of judicial factfinding beyond the verdict alone.  Instead, section 1170(b) is a reasonableness constraint on the court’s selection of a term within the base range after the court has considered all of the relevant circumstances relating to the offense and offender.  The court's selection of a sentence within the base range is reviewed for abuse of discretion.  In this way, section 1170(b) operates like the reforms this Court adopted in Booker.

Download Cunningham_Brief_for_Respondent.pdf

Recent related posts:

July 15, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

Tuesday, May 09, 2006

What do Justices Alito and Roberts think about bright lines?

The top-side SCOTUS briefs in Cunningham, the California Blakely case (which are available here), are both fascinating and very different reads.  In a future post, I plan to discuss the briefs in more detail.  But my first reaction is that Cunningham sets up a great test of whether the Roberts Court is going to define and develop the Apprendi-Blakely rule as a bright line.

I have discussed these issues before in this post last year entitled "Does Blakely draw a bright line? What is that line?".  As noted in that post, though Justice Scalia in Blakely called the rule in Apprendi a "bright line," the New Mexico Supreme Court's Blakely ruling (basics here) asserted that the Apprendi-Blakely-Booker line of cases "ought not be viewed as drawing a bright line," and the California Supreme Court's ruling on Blakely (basics here, commentary here and here) likewise asserts that the "high court's precedents do not draw a bright line."

Clearly, the Booker remedy helped obscured whatever bright line Blakely may have aspired to create.  (Moreover, as I detail in my Reconceptualizing Sentencing article, the Supreme Court's sentencing jurisprudence was conceptually muddled even before Blakely and Booker came along.  Writing in a similar vein in his Columbia Law Review article, Kevin Reitz describes the Supreme Court's Sixth Amendment jurisprudence as "constitutional Swiss cheese.") 

Consequently, the fundamental question as we approach Cunningham is whether the new Roberts' Court will want to clarify that Blakely does draw a bright line or instead now will suggest Blakely can and should be applied by states in a more nuanced way.  Not surprisingly, both top-side briefs in Cunningham assert and stress that the Apprendi-Blakely rule draws a bright line.  I suspect the briefs on the other side will be fighting this notion.  And the future of Blakely — not just in California, but throughout the nation — may turn ultimately on what Justices Alito and Roberts think about bright-line rules in this context.

May 9, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

Monday, May 08, 2006

First set of briefs in Cunningham

As I mentioned in this recent post, it's time to start getting excited about the Supreme Court's consideration of Cunningham, the California Blakely case, which Professor Michael O'Hear is speculating could be "The Supreme Court's Next Sentencing Blockbuster."  (In anticipation of lots of coming Cunningham fun, I have created a new category archive, cleverly titled "Cunningham coverage," at this link.)

I just received copies of briefs filed today by the petitioner (Mr. Cunningham) and the NACDL in support of petitioner.  I have made both of these briefs available for download below.  Based on a quick scan, I bet I will have a lot more to say about these briefs in the days ahead.  In the meantime, perhaps readers can talk up matters in the comments.

Download cunningham_petitioner_brief.pdf

Download cunningham_amicus_brief_final.pdf

May 8, 2006 in Cunningham coverage | Permalink | Comments (1) | TrackBack

Friday, May 05, 2006

Getting excited for Cunningham

Though I've not discussed the case in a while, it will soon be time to start getting excited about the Supreme Court's consideration of Cunningham, the California Blakely case.  Though Cunnigham won't be argued until the Fall, I believe some of the briefs are due later this month.  And, to help gear up for Cunningham mania, Michael O'Hear has written a great little treatment of the case fittingly entitled "Cunningham: The Supreme Court's Next Sentencing Blockbuster?"

Michael has graciously allowed me to post his work, which is available for download below (along with links to prior Cunningham coverage).  Among many trenchant observations, Michael makes this point about how Cunningham could impact the Booker fix debate:

Cunningham may effectively impose new constraints on legislative responses to Booker, or, alternatively, point the way for Congress to reinstitute more mandatory guidelines in a constitutional fashion. Most obviously, the central question posed by Cunningham is how discretionary a "discretionary" system needs to be in order to avoid Apprendi problems. In its discussion of this question, the Court may further delineate some of the constitutional parameters within which legislative reformers will have to operate.

Download ohear_cunningham.pdf

Recent related posts:

May 5, 2006 in Cunningham coverage | Permalink | Comments (2) | TrackBack

Monday, February 27, 2006

A bit more Cunningham coverage

The San Francisco Chronicle has this article which highlights the importance of the Supreme Court's cert grant in Cunningham, the California Blakely case, and details that SCOTUS involvement has already had an impact on California sentencing practices:

Uncertainty surrounds thousands of prison sentences in California after the U.S. Supreme Court announced it would decide whether the state's 29-year-old sentencing system violates a defendant's right to a jury trial....

Some California prosecutors are changing their practices to cushion the impact of a possible ruling declaring the current procedures unconstitutional, said David LaBahn, executive director of the California District Attorneys Association.  He said such a ruling would probably shorten some sentences but would not require wholesale changes.

Recent related posts:

February 27, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

Saturday, February 25, 2006

The ABC's of Cunningham

The biggest news of an amazing sentencing week, media headlines notwithstanding, was the Supreme Court's cert grant in Cunningham, the California Blakely case.  And the folks at the First District Appellate Project — which has this website that's the go-to locale for all California Blakely stories — have responded with this interesting document entitled "The ABC's of Preserving Apprendi-Blakely-Cunningham Claims Following the Cunningham Cert. Grant."

Recent related posts:

February 25, 2006 in Cunningham coverage | Permalink | Comments (0) | TrackBack

Wednesday, February 22, 2006

Great Cunningham coverage in the Daily Journal

Thanks to this link via Howard Bashman, we can all now see Brent Kendall's fine coverage of the cert grant in Cunningham in his article entitled "Supreme Court Puts Sentencing In California on Shaky Ground" appearing today in the Daily Journal of California.  Everyone interested in Blakely issues should read the whole piece (and also my links below), but here are some highlights:

Criminal sentencing in California was thrown into a state of uncertainty Tuesday as the U.S. Supreme Court agreed to decide the constitutionality of the state's determinant sentencing law, a move that could ultimately force the state to overhaul its three-tiered sentencing system....

Veteran criminal defense lawyer Andrew M. Stein in Bellflower said a U.S. Supreme Court decision that invalidates the California system "would be chaotic." "You'd have to have a completely new and distinct system for how sentencing enhancements are pled, proven and ruled upon," Stein said. Santa Clara University law professor Gerald Uelmen is one of many legal observers who think the state Supreme Court erred in upholding the state's scheme.  "We will have a big mess to sort out" if the Supreme Court overturns that ruling, Uelmen said....

State Deputy Attorney General Jeffrey Laurence said it was not surprising that the court decided to review the state's sentencing system "in the sense that the states were going in different directions under their own sentencing schemes."  Laurence said he was looking forward to the finality a Supreme Court ruling would provide.  He added that he was confident that the state Supreme Court's Black decision would stand.

The Attorney General's Office, Laurence said, was not advocating that prosecutors make any changes to the way they approach cases while they wait for a Supreme Court ruling....  Robert Kalunian, chief deputy public defender for Los Angeles County, noted the vast majority of felony cases reach an agreed upon plea bargain and that those cases are unlikely to be affected.  As for cases that will be going to trial, Kalunian said, "If I was a judge, I would be very cautious in sentencing someone to an increased sentence without a finding of fact by the jury."  "If the California Supreme Court got it right the first time, we wouldn't be in this situation," he said.

Dwight Moore, the supervising deputy district attorney in San Bernardino County, said that in order to avoid revisiting cases if Black gets overturned, district attorneys could go ahead and ask juries to find aggravating factors.  "If it doesn't get overturned, we did some extra work, but if it does, we're covered," Moore said.  "That will be decided on a case by case, courtroom by courtroom basis." Moore said that, unlike their defense counterparts, the vast majority of prosecutors think the state court's Black decision was correct. "Every DA must be including in their prayers at night, 'Dear Lord, please let the Supreme Court let Black alone,'" Moore said.

Recent related posts:

February 22, 2006 in Cunningham coverage | Permalink | Comments (1) | TrackBack

Tuesday, February 21, 2006

Cunningham cert grant: taking stock and reading up

Though the media is focused today on California's struggles to kill Michael Morales (background here [and update here]), the much bigger news for California and nationwide sentencing practices is the Supreme Court's cert grant in Cunningham (basics here).  The folks at Bloomberg News in this story appreciate one reason why Cunningham is so noteworthy: "The dispute may affect thousands of criminal cases around the country."   I would say Cunningham definitely will impact tens of thousands of criminal cases (perhaps hundreds of thousands depending on how SCOTUS approaches what TalkLeft here calls "the quicksand of sentencing law").

I have so much to say about Cunningham, but also lots of time to speak: argument in Cunningham won't be until October and we will probably have to wait until at least this December or next January for a ruling from the Court.  I suppose I am glad SCOTUS will take it time with Cunningham since the case could possibly present an important turning point in the Court's tortured Apprendi-Blakely-Booker jurisprudence and will certainly present a first opportunity for Chief Justice Roberts and Justice Alito to assess the reach and limits of the Sixth Amendment.

For now, I thought I should assemble background reading about Blakely in California and in other states.  The place to begin, in my view, is with the recent Federal Sentencing Reporter issue focused on the "State of Blakely in the States" (details here and available here).  Be sure to read the introductory article in the FSR issue by Steven Chanenson and Daniel Wilhelm, Evolution and Denial: State Sentencing after Blakely and Booker, if you want a short and effective primer on a long state Blakely story.

If you want to focus on just the story in California, you can check out the Cunningham cert papers that are available here from the FDAP, as well as the additional great California sentencing commentary that the FDAP has assembled here

And, for more coverage of California Blakely issues and beyond via blog posts, check out this sample:

February 21, 2006 in Cunningham coverage | Permalink | Comments (3) | TrackBack

SCOTUS grants cert in California Blakely case

As detailed in this post over at SCOTUSblog, the Supreme Court this morning granted cert in one of the California Blakely cases.  As Lyle Denniston details:

[T]he Court will return to the issue of judges' power to impose sentences based on facts not found by a jury.  The issue is whether California's determinate sentencing law is invalid because the judge may impose sentences based on fact findings by the bench. The case is Cunningham v. California (05-6551).

Though this cert. grant will surely be eclipsed by the Court's decision to consider the constitutionality of the federal Partial-Birth Abortion Ban Act of 2003, this is still very big news for sentencing and Blakely fans.   My understanding is that Cunningham will not be heard until next October.

[UPDATE: It now seems certain that we will have all summer to ruminate over Cunningham and that Californians will probably have to wait until at least this December or next January — a full two-and-a-half years after Blakely was decided — to know if they have a constitutional sentencing system.]

Some related prior posts:

February 21, 2006 in Cunningham coverage | Permalink | Comments (2) | TrackBack