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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 at 05:44 PM | Permalink


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I predict the Court will hold that California's determinate sentencing law (as interpreted by the California Supreme Court in Black) is constitutional.

The Court will find that the California Supreme Court in Black "Bookerized" California's DSL, by essentially rewriting Penal Code section 1170(b) (i.e., by reading the word "shall" to mean "may").

Thus, the "statutory maximum" (for Apprendi/Blakely analysis) under California's DSL is the "upper" term.

I believe the Court can resolve the case in that manner without deciding if there is a so-called "reasonableness" requirement before a California judge can depart upward from the "middle" term (i.e., the presumptively "reasonable" sentence) to the "upper" term. In this manner, the Court can avoid deciding what factors should govern "reasonableness" review.

Posted by: Paul | Oct 12, 2006 6:32:45 PM

I don't have a prediction, but I don't expect a DIG. The case squarely presents the issue they agreed to decide.

I thought the state's attorney got the tougher questions, so I'll predict there are at least five votes to reverse.

Posted by: Marc Shepherd | Oct 12, 2006 8:56:08 PM

The Court seems clearly inclined to strike down California's scheme as well as the schemes in several other jurisdiction. The transcript seems to indicate, at least at first blush, that the Court wants to send a clearer message on Booker to federal courts & the only real question seems to be how broad will the dicta be.

I agree, a DIGer is highly unlikely.

- k

Posted by: kar | Oct 12, 2006 9:16:16 PM

Doug, my prediction is a vote of 6-2-1 in favor of Cunningham, with the Blakely Five plus Kennedy in the majority, Chief Justice Roberts and Justice Alito dissenting on the grounds that the California Supreme Court Bookerized the statute, and Justice Breyer dissenting and asking for a remand to the California Supreme Court for clarification.

Justice Kennedy writes the opinion, with plenty of nice things to say about the California Supreme Court, but finally saying that under the jury verdict alone the defendant could not have received a sentence higher than the middle term.

Bruce Cunningham

Posted by: bruce cunnningham | Oct 12, 2006 10:06:50 PM


As you can see the Tennessee Gomez case is just “hanging fire” awaiting Cunningham to be decided. I now have a related case in the SCOTUS myself on a trailing co-defendant. My colleagues in Tennessee are sending several more up as well so as to preserve the issue. After reviewing the Cunningham briefs ( and argument) and the excellent Amicus it is clear that Gomez is identical to Cunningham. I predict a narrow ruling in Cunningham only because they can say “this is just like Blakely and Booker didn’t change anything.” They reverse and Gomez gets remanded in light of Cunningham. “Reasonableness is NOT the issue in Cunningham although it makes for good banter in the arguments. Cunningham ends up as just a “herding-in” of several errant states. To paraphrase the Senator: “In six months nobody will remember Cunningham’s name.” ( except the California and Tennessee Supreme Courts which will have to fashion remedies for their now unconstitutional sentencing structures; it will take a year or so to sort that out) So much for my forecasting.

Posted by: david raybin | Oct 14, 2006 12:12:53 AM

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