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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


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Today's cert. grant shows just how much is on the line in Washington v. Recuenco . . .


Posted by: Steve | Feb 21, 2006 6:27:00 PM

Doug, thanks for all the material on Cunningham v Cal. Cunningham could not have received the sentence he received without judicial factfinding of at least one "aggravating factor." To me, it seems like a clear violation of Blakely.

The State's attempt to wiggle out of the vise grip of the Sixth Amendment is reminiscent , to me, of Judge Mannheimer's attempt in Alaska in Carlson to recharacterize a "legally essential fact" as some sort of "explanation of reasonableness of a judicial discretionary decision." (Paul and Randall, I think Cunningham will decide Carlson)

I think California is going through the "second stage of grief" (or whatever stage it is). They have moved from shock to denial. North Carolina is now in the acceptance and accomodation stage, and you know what, it is not that bad. Folks are adjusting and it is no longer heresy to suggest that, as the Founders intended, only juries should convict defendants of crimes and that anything that is a "legally essential fact" supporting the level of punishment to which the defendant is exposed is an element of a substantive crime.

Bruce Cunningham (no relation)

Posted by: Bruce Cunningham | Feb 22, 2006 5:45:00 AM

Great article, thanks for sharing!

Posted by: Hamed Elbarki | May 12, 2008 11:15:34 AM

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