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January 22, 2007

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)).

January 22, 2007 at 10:35 AM | Permalink


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Footnote 13 in the majority op. declines to address Booker reasonableness and basically says "wait for Rita and Claiborne," and criticizes Justice Alito for opening that can o' worms in his dissent.

Posted by: anonymous | Jan 22, 2007 10:59:37 AM

Fn 15 does the same thing.

It looks like Apprendi is here to stay, at least for now.

Posted by: anonymous | Jan 22, 2007 11:02:08 AM

Three cheers for Prof. Berman on getting his article cities by the SCOTUS.

Hip Hip Horray!
Hip Hip Horray!
Hip Hip Horray!

Now get back to work!

Posted by: S.cotus | Jan 22, 2007 11:14:02 AM

I never should have switched to Lexis. The opinion isn't available there yet, and its not on the Supreme Court cite yet. I'll be relieving my anger at this on some unfortunate Lexis sales rep.

Posted by: rob | Jan 22, 2007 11:17:09 AM

Of course, the majority squarely rejects any such distinction in note 14:

Justice Kennedy urges a distinction between facts concerning the offense, where Apprendi would apply, and facts concerning the offender, where it would not. Post, at 1-2 (dissenting opinion). Apprendi itself, however, leaves no room for the bifurcated approach Justice Kennedy proposes. See 530 U. S., at 490 (“ [A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (emphasis added)).

Posted by: Anon | Jan 22, 2007 11:37:14 AM

Congrats to you and Prof. Bibas (a former Kennedy clerk) to your citation by Kennedy. I started reading the dissent and thought, I wonder if he'll cite to Berman & Bibas's body of work? I've read so much about this distinction on SL&P... and lo and behold, there it was!

Compared to the other "booker fixes" out there, the offence/offender distinction seems to make the most sense (historically and practically). I wish more of the Court would get on the bandwagon.

Posted by: (Former) District Clerk Battling Booker | Jan 22, 2007 12:00:19 PM

^^^ I agree about the attractiveness of the distinction, as long as it can be drawn clearly, consistently, and equitably (which is of course easier said than done). I think such a system proves a nice compromise and gives effect to both the Sixth Amendment and judicial discretion.

Posted by: SPD | Jan 22, 2007 12:05:41 PM

No doubt this is made clear in the Berman/Bibas article, but how does relevant conduct fare in the offense/offender dichotomy?

Posted by: Brian | Jan 22, 2007 12:54:17 PM

Cunningham, Chainsaw’s or whiteout?

The Supremes in Cunningham did not merely adjust a technical or statutory plank of the California DSL laws, it said “Jury”. Like the great Red Beckman Grand Jury afficionado says “Power is based in the hands of juries, the judge is but a referee”. Our courts have been dominated by three players in the court room game. Defense Attorneys, prosecutors and judges. 97% of all California defendant’s never reach beyond this regime.

California’s Plea Bargain paradise is in trouble. Last Monday a prosecutor could waive a threat of 10 years in hotel California or offer a 3 year half time plea and taking into consideration it’s just a overworked PD between you and upper term in San Quentin....were do I sign. But if a mid term (were Cunningham says ) max. were on the table the 10 year club is gone barring true agravating circumstances any” Jury” could find, this keeps the really bad guys on notice and the not so bad guys mid term. Now, Deal or no deal takes a real meaning.

According to California jurist prudence, Juries don’t proactivly participate in “Real” decision making. Juries are supposed to sit in waiting rooms room hours only to be begrudgingly marched into the box, obstecably to hear case s only to be inspected and rejected like so much produce. Cunningham is going to put in play the jury system like never before.

I believe Justice Ginsberg in hitting the “C” note in the A,B,C (Apprendi, Blackly, Cunningham) she is sending a indelible message th prosecutors and judges that the game is over. Slow the prosecution production line down and really put defendants on trial, a real trial.

I take Cunningham to mean to California DSL is simple. “ A judge is just a referee.” its up to the jury to digest the facts and mete out the punishment within some lose guidance from the legislators. As to plea Bargains and its retroactivity, I say if it is unconstitutional today, barring any recent changes to the 6th amendment I didn’t catch, yes it is retro up to the point of a valid Claim of Relief provable and material to the Petitioner. Parolees will shave time off there parole period by the extended time served of the upper term sentencing and some prisoners will get a year or two off, some will walk. Needless to say count on a 10 to 15 thousand Cunningham style Habeas petitions made from the inside this year.

Plea’s made with a upper term threat / Joint suspended will also fall to the Cunningham axe as being a “sentencing scheme made by the court” now Explicitly barred. Justice Ginsberg explicitly stated “Scheme” that would be any deviation from middle term sentencing determined by the court by ANY process not involving the facts found by a jury..period.

Folks, Cunningham’s not a chainsaw, it’s a full regime change.

Ron C.
In the California Supreme Court on Habeas w/ a Cunningham Defense.

Posted by: Ron Conrad | Jan 25, 2007 2:30:51 PM

The California State Senate Public Safety Committee will vote this morning on the first bill introduced in response to Cunningham.
SB 40 places the sentencing decision exclusively in the hands of a judge. The author of the bill claims that as long as California's triad (low, mid and high) are considered "ranges" then the judge can make the decisio (booker) The bill does not provide sentencing guidelines..

Criminal Defense attorney

Posted by: Ignacio Hernandez | Jan 30, 2007 11:17:22 AM

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