« Quick reading list for a long weekend | Main | CNN with additional coverage of Genarlow Wilson case »

February 17, 2007

More strong analysis of Cunningham opinions

Vik Amar, writing this time with his colleague Aaron Rappaport, has at FindLaw this great second commentary on Cunningham.  The first one (available here) was entitled "The Supreme Court Invalidates California's 'Determinate Sentencing' Law."   This second piece has the title, "Justice Alito's Dissent in Cunningham v. California: How Can Someone So Wrong, Be So Right?" and here is its set up:

One of the most interesting features of Cunningham was Justice Alito's intricate dissenting opinion, which was also joined by Justices Kennedy and Breyer.  As one of Justice Alito's first opinions in this controversial area of criminal constitutional law — and one of his most prominent opinions to date more generally — his writing deserves careful study. Particularly interesting is how his dissent highlights and explores one of the great puzzles emerging from this line of cases: When, and why, does the exercise of judicial discretion at sentencing violate the Sixth Amendment?

February 17, 2007 at 09:25 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference More strong analysis of Cunningham opinions:


I would like to offer a response to the question posed of "When and , why, does the exercise of judicial discretion at sentencing violate the Sixth Amendment?" that is not intended to be as flip as it sounds. The answer, I believe, is "It doesn't."

As I believe Justice Thomas concurring in Apprendi and Justice Scalia concurring in Ring make clear , Apprendi et al. is not about SENTENCING. As Thomas says in his opening line, it is about "what is a crime?" Likewise, Justice Scalia chides Justice Breyer in Ring by saying that "the unfortunate fact" (for Breyer's eighth amendment position) is "today's decision has nothing to do with jury sentencing."

The Sixth Amendment applies only to people who are "accused" of committing a crime being subjected a "criminal prosecution." Once the jury says that a person actually DID IT, and is therefore no longer accused but now is convicted, the jury's role is over. It is then up to a judge to sentence the convicted defendant to a term not to exceed the maximum allowed for the "crime the state actually seeks to punish." (Scalia for the majority in Blakely)

So, as long as the judge stays within the sentencing bounds set by the legislature for the crime for which the defendant was convicted, there is no problem with the exercise of judicial discretion. If the defendant is either EXPOSED TO or RECEIVES a sentence greater than that allowed by the legislature for the crime the jury convicted him of, then he has been convicted of a different, and greater, crime by the judge, in violation of the Sixth Amendment.

bruce cunningham

Posted by: bruce cunningham | Feb 17, 2007 11:44:46 AM

I sent an earlier post but it doesn't appear. I made a slip of the tongue and said that a judge must sentence within the range allowed for the crime the state actually sought to punish. I meant within the range allowed by the crime the jury convicted the defendant of. Sorry

Posted by: bruce cunningham | Feb 17, 2007 2:06:22 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB