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January 23, 2007

More reactions to and analysis of Cunningham

For a lot more reaction and insight on Cunningham, check out all the media pieces that Howard Bashman has assembled here.  In addition, my terrific OSU colleague Alan Michaels sent me a lengthy e-mail with a seven-point dissection of aspects of Cunningham.  He has permitted me to post his full e-mail (which can be downloaded below).  For a taste, here is one of his thought-provoking points:

The Court was at least reasonably tough here in not allowing a state to do an end run around the Court's earlier decisions by federalism-tinged arguments about construing their own law. This issue would seem to arise in at least a couple of other Crim. cases this term --- totally outside the Apprendi line --- including Smith and Panetti. It will be interesting to see if this toughness carries over to other areas or if its presence becomes dependent on the issue in question.

Download michaels_on_cunningham.doc

MORE:  Another colleague, Kate Stith from Yale, has chimed in with an additional comment about a notable aspect of Justice Alito's dissent:

Download stith_on_cunningham_dissent.rtf

January 23, 2007 at 01:28 PM | Permalink


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Alan's point 7 is the best, IMHO:

Thanks to the defendant's jury trial right, a sentencing scheme is OK, so long as the judge can raise the defendant's sentence solely on the basis of the judge's (reasonable) personal judgments. A topsy-turvey world if ever there was one.

Posted by: Kent Scheidegger | Jan 23, 2007 1:36:17 PM

As opposed to a system in which a judge is forced to raise the defendant's sentence on the basis of "facts" that the jury has rejected? Six of one, half a dozen...

Posted by: Anon | Jan 23, 2007 2:32:20 PM

How does this apply to indetermenent sentencing and a judge sentencing a defendant to more than the minimum sentence but less than the maximum? I am a student.

Posted by: m | Jan 23, 2007 3:57:36 PM

M, if it's true indeterminate sentencing, where the range is 0-20 and the judge can do whatever s/he wants without any additional factfinding, it doesn't apply at all.

Posted by: Anon | Jan 23, 2007 5:10:05 PM

Anon. I asked RW the same ques. Don't know if I will get an answer so I will pose the same ques to you.

RW. Thanks for Answering. Simply Ques. Still confused. Again. Federal - Bank Robbery- Satutory max 20 yrs. Sentence: Guidelines-5 yrs -ponderance of evidence-10 yrs. Is the stat.max based on guideline of 5 yrs or can the judge sentence up to the 20 yrs statutory max. Which one is correct - Any time over 5 yrs or any time over 20 years would be a 6th amend violation based on Apprendi.

Hope I am clear - Layperson - Thanks

Posted by: Welch | Jan 23, 2007 9:08:55 PM

Welch, your question should have a simple answer - under the pre-Booker federal guidelines and Apprendi, Ring, Blakely, Booker, and Cunningham, any time over 5 years would be a 6th A violation. The wrinkle is with the Booker "remedy" section and the "advisory" guidelines, under which (at least for now), I believe only a sentence of over 20 years would violate the 6th A.

Posted by: Anon | Jan 23, 2007 10:47:14 PM

Anon: I was afraid so. Thanks for confiming.

Posted by: Welch | Jan 23, 2007 10:53:20 PM

Anon. Ps. I guess what was so confusing was:

Any 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. The statutory maximum for
Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant

Thanks again for clearing that up.

Posted by: Welch | Jan 23, 2007 10:58:45 PM

At the moment I am a stay at home mom of a 20 month old, though my last employment was a clerkship with Judge O'Scannlain.

I am wondering if anyone else was bothered by Judge Alito's argument prefaced on reasonableness review. What he seemed to be saying in footnote 11 was that if reasonableness review has any meaning, then it must review something. Therefore, "there inevitably must be some sentences that, absent any judge-found aggravating fact, will be unreasonable" Hence, there is no meaningful 6th Amendment difference between the DSL and the post-Booker advisory guidelines. "Under both, a sentencing judge operating under a reasonableness constraint must find facts beyond the jury's verdict in order to justify the imposition of at least some sentences at the high end of the statutory range."

But, is it true that under Booker, post-Apprendi/Blakely, that all sentences in the now advisory Federal Guidelines must be possible for a judge to impose? Perhaps some of the federal guidelines sentences simply could not be imposed post-Booker because they could only be justified by additional fact-finding by the judge, yet such fact-finding would fly in the face of the Apprendi line of cases. So, Alito's line of argument does not seem to me to prove the point - perhaps those sentences are now simply not imposable, even though on the books, and would not survive a combined reasonableness/6 th Amendment review.

People reading this post should not misplace my policy preference - I would prefer that judges have at their disposal the ability to find additional facts and impose sentences accordingly. I just wonder whether Alito is trying to prove too much out of Booker, much as admire the attempt to do so.

Posted by: Lori Meyer | Jan 24, 2007 11:17:17 AM


(I posted something similar below, but it seems responsive to your point, so allow me to repeat myself.)

I think Alito's reasoning can be described in this syllogism:

(1) the Booker Remedial Opinion must describe a system that is consistent with the Sixth Amendment as construed, in Blakely and in the Booker Constitutional Opinion;

(2) the California system is functionally indistinguishable from the system described in/created by the Booker Remedial Opinion;

(3) hence, the California system must be constitutional.

The majority's response is to dispute proposition (2). Your point -- and I think there's something to it -- is that actually it may be proposition (1) that's flawed. Given the current state of the law, I think it was fair for Alito to make the assumption embedded in (1), but the real contribution of his dissent may well be to illustrate the deep(ening) tension between the Booker Remedial Opinion and the holding of Blakely (and now Cunningham). But only Justice Ginsburg knows for sure. I hope we'll know more when Rita and Claiborne are decided.

Posted by: Brian | Jan 24, 2007 12:44:58 PM

It has been a busy week. Brian, I agree with your syllogism of Alito's reasoning. And you have extracted what I see as an underlying problem with step (1) - Alito reads the Booker remedial system to be, in its entirety, consistent with the Sixth Amendment; hence, there must be a way consistent with the Sixth Amendment and reasonableness review to subject a defendent to each and every possible sentence. My alternative reading would have the remedial system consistent with the Sixth Amendment because it is advisory and whatever sentences within the system that might violate the Sixth Amendment can be ignored because as advisory the Court needn't (in fact, lawfully can't) impose them. But the advisory nature of the system means that as a whole the system can satisfy the Sixth Amendment, even if some of the individual advisory sentences could never be meted out without violating Apprendi, et al. This is because a court is not required to ever use those sentences.

As you say, it will be interesting to see what happens down the pike. Since all of the circuit courts have oked use of a preponderence of the evidence standard at sentencing, the plot is pretty thick.

Thanks for your feedback.


Posted by: Lori Meyer | Jan 27, 2007 9:47:24 PM

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