May 9, 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 at 09:39 AM | Permalink | Comments (0) | TrackBack


May 8, 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 at 05:21 PM | Permalink | Comments (1) | TrackBack


May 5, 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 at 06:09 PM | Permalink | Comments (2) | TrackBack


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 at 08:22 AM | Permalink | Comments (0) | TrackBack


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 at 03:00 PM | Permalink | Comments (0) | TrackBack


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 at 05:09 PM | Permalink | Comments (0) | TrackBack


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 at 06:03 PM | Permalink | Comments (2) | 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 at 10:15 AM | Permalink | Comments (2) | TrackBack