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January 31, 2007

Just what does Cunningham mean for Claiborne and Rita?

In my first read of the Supreme Court's Cunningham decision (essentials here), I made particular note of this line: "Booker's remedy for the Federal Guidelines, in short, is not a recipe for rendering our Sixth Amendment case law toothless."  As evidenced by my Boyd bemoaning (here and here) and my complaints about continued reliance on acquitted conduct (details here and here), I think most district courts and really all circuit courts applying Booker reasonableness review have essentially cooked up post-Booker doctrines that functionally produce a "recipe for rendering [the Court's] Sixth Amendment case law toothless."

For that reason, I read Cunningham as previewing big fireworks in Claiborne and Rita.  (That's why I initially speculated that the SG might want a GVR after reading Cunninham.)  But perhaps I am over-reading Cunningham, and so I ask informed readers: what do you think Cunningham means for Claiborne and Rita?

January 31, 2007 at 06:23 PM | Permalink


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I found that line very telling, especially as it went beyond what was strictly necessary to decide Cunningham. It seems to signal a concern that the Booker remedy, as applied, has indeed taken the teeth out of the Sixth Amendment.

It must be significant that the writer of that line is the very Justice whose flip-flop produced the Booker remedy in the first place.

Posted by: Marc Shepherd | Jan 31, 2007 6:43:56 PM

Pardon my ignorance, but isn't Cunningham basically just Ginsburg talking? I can see five justices overruling a mandatory federal guideline system, and California's system. But the justices who provided the votes for Cunningham and the first half of Booker might certainly not be predisposed to liven up the interpretation of Booker's remedy. Would Scalia or Thomas be in favor of increasing judicial flexibility in sentencing?

For the Booker remedy justices, first we don't really know yet where Roberts lies (consensus-building or true believer?). And second, I thought the Booker remedy was mainly designed to reconcile Booker with Congressional intent and policy interests. It was fashioned by justices who would have found no 6th Amendment violation at all. Why would those justices or their successors now vote to increase judicial freedom, (arguably)contrary to the SRA's intent?

I think the presumption of reasonableness for within-Guideline sentences may go, but I have a hard time believing the Court will try to force a magic pill down appellate court's throats when not many commentators have come up with a satisfying standard of review. If appellate courts want to retain the status quo, I don't know what the Court can do to stop them.

Posted by: R | Jan 31, 2007 7:04:39 PM

This may just be fleshing out what M. Shepard & Prof. Berman say above, I think.

If the quote from Ginsburg does signal her dissatisfaction with the Booker remedy, maybe she'll join the 4 justices in Booker who would've adopted the "Blakely-ized" Guidelines remedy. (Stevens, Souter, and Scalia join in Stevens's "remedial dissent," and Thomas's separate dissent agrees with Stevens's remedy but declines to join on other grounds). If she switches in Claiborne / Rita, recognizing that the Breyer Remedy has proven a "toothless" cure to the 6th Amendment problem, then there will be 5 justices who believe that the solution to the mandatory Guidelines' unconstitutionality is simply letting juries decide Guidelines facts that elevate the top of the otherwise applicable range.

Posted by: ycl | Jan 31, 2007 7:53:17 PM

That line was so pointed, and from such an important source (the silent Booker swing voter), that I can't believe that it meant nothing. And it was important to the result in Cunningham. The Cunningham dissenters' point was: this system works just like the post-Booker federal system. Which is probably true. The majority's response was - if this is what the post-Booker federal system looks like, then it is messed up and we're going to fix it.

The end result should be the following - the Guidelines are advisory in the truest sence. Figure out the Guidelines range, but then impose any sentence you want. However, in deciding what sentence you give, you have to follow the 6th A - don't consider acquitted conduct, or any other facts not proven BRD to the jury.

Posted by: A | Jan 31, 2007 9:46:05 PM

A- as long as you have the ability to consider non-sixth amendment protected reasons (such as policy considerations, deterence, future dangerousness etc.), then the maximum sentence for Apprendi purposes is the statutory maximum, and the judge can use any fact or hypotheses he wants to raise the sentence anywhere to the statutory maximum.
ycl- the mess that overturning the supreme court crafted Booker remedial opinion would result in, along with the tremendous embarressment to Justice Ginsburg, is sufficient to convince me that the Apprendi five will not vote to change the remedy. Don't forget, the Cunningham opinion left it up to states to choose their remedy, strongly implying thta California could choose an option other than the Kansas jury trial fix, although the opinion very strongly suggested that California take that route. As for CJ Roberts, even assuming him a true Apprendi believer, I believe his institutional concerns would lead him to impose stare decisis in a case of a Supreme Court legislative enactment whose overturning would make a mess in the federal court system.

Posted by: Jacob Berlove | Jan 31, 2007 11:39:22 PM

I entirely agree that Ginsburg is unlikely to write (or join) an "oops" opinion in Claiborne or Rita.

Besides the embarrassment factor, the Booker remedial opinion was a statutory interpretation. It said, "This is what we believe Congress would have done, had it known that mandatory guidelines were unconstitutional." The Justices rarely overrule a statutory interpretation case, because Congress itself could overrule it by passing a new law.

But the Court could very well rule for the defendants in Claiborne and Rita without overruling the Booker remedial opinion. Indeed, neither Claiborne nor Rita is calling for Booker to be overruled. Rather, both defendants are arguing that the lower courts have misinterpreted Booker.

Posted by: Marc Shepherd | Feb 1, 2007 7:51:25 AM

I agree with Marc. The court doesn't have to overrule any part of Booker to side with the defendants in the two cases. All they have to do is hold what they hinted at in Cunningham - that they never meant for post-Booker federal sentencing to look like it currently does.

Posted by: A | Feb 1, 2007 10:19:14 AM

Pardon my ignorance, but isn't Cunningham basically just Ginsburg talking?

No, because five other Justices joined it.

Posted by: Marc Shepherd | Feb 1, 2007 11:35:40 AM

I believe that the Booker remedial majority will hold. The question is whether they think the Guidelines are being treated as advisory in name only but mandatory in fact due to strict appellate review, which the Booker merits majority intimated would present a Sixth Amendment problem. I don't think the issue about measuring reasonableness with reference to the Guidelines range will trouble them too much. I don't think the presumption of reasonableness that attaches to within-range sentences will trouble them too much. I think the real action will be on the questions how much justification the district court must come up with to impose a non-Guidelines sentence and whether the circuits are treating upward variances and downward variance unequally.

Posted by: Booker fan | Feb 1, 2007 12:27:29 PM

I agree with "A," with some further explication: The Booker "remedy" will hold -- i.e., advisory Guidelines with reasonableness review -- but that the implementation of that that remedy will drastically change -- a district court cannot, generally speaking, support its sentence choice by resorting to non-jury found facts (except for a prior conviction). The only question for me is, why didn't the Booker remedial opinion keep the Guidelines mandatory but just bar judicial fact-finding. Ultimately, barring judicial factfinding is the only way a scheme can truly comport with the Sixth Amendment, at least to the extent there is ANY appellate review of sentence lengths.

Posted by: Aaron Katz | Feb 1, 2007 3:36:46 PM

An actual defendant's voice is rarely heard so please allow me to contribute. I was sentenced to 70 months (guildline range was 70-87). The jury's verdict authorized a sentence of 18-24 months. However, the judge pre-Booker enhanced my base offense level from 14-25 on judicially found facts (inc an obstruction of justice AFTER the trial) using a preponderance of the evidence instead of a jury's beyond a reasonable doubt standard. I requested and expected a jury trial. What I got instead was a bench trial. The 43 months extra in enhancement is a classic example of "Scalia's tail" wagging the dog "scenario". I was resentenced on January 13, 2006 (post Booker)to (you guessed it) the exact same 70 month sentence. "Presumptively Reasonable" is just word-play for "Mandatory". Justice Ginsburg never envisioned the Booker remedy to flow this way. And some would suggest that her 5th vote for the Booker remedy is the problem when the problem is with the Appellate Courts' interpretation of the remedy and the Districts' Courts' fear of stepping out of the box known as the guidlines. Many federal judges sitting today have NEVER known the power of having discretion so how can we expect them to use it? Rita/Claiborne is Ginsburg's golden opportunity to clean up this mess. I can hear Scalia now; "I told you so".

Posted by: P&R. Jenkins | Mar 20, 2007 10:03:53 AM

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