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February 9, 2007

The continuing Cunningham fallout

This AP article provides an update and additional details about the impact of the Supreme Court's Cunninghman decision in California.  Here are snippets:

California lawmakers are poised to vote on legislation to counter a U.S. Supreme Court ruling invalidating the state's criminal sentencing law.  Senate Majority Leader Gloria Romero, the proposal's chief architect, said SB40 is set to go before the state Senate on Tuesday. Her announcement Thursday came a day after the California Supreme Court also weighed into the dispute and urged lawmakers to respond to the Jan. 22 decision by the U.S. Supreme Court....

Romero's legislation gives judges the discretion to impose the lower, middle or upper terms, so the measure would not unconstitutionally increase sentences because no base term would exist....  "We think it's the most practical response," Romero, D-Los Angeles, said in an interview Thursday. "We have a patient that has been declared dead."

The bill, supported by California Attorney General Jerry Brown and Los Angeles County District Attorney Steve Cooley, faces an uncertain fate in the Assembly. Bill Maile, a spokesman for Gov. Arnold Schwarzenegger, said the Republican governor does not comment on pending legislation.

The California Supreme Court on Wednesday asked lawmakers to rewrite California's sentencing law and also agreed to deal with the 10,000 or so inmates who must be re-sentenced under the high court's decision. Romero said it was the job of the judiciary, not the Legislature, to deal with the flood of appeals for re-sentencing.

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February 9, 2007 at 06:58 AM | Permalink


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In the ABA Jorunal eReport, Stephanie Francis Ward has this article on the increased number of cases in which the Court granted certiorari during the month of January. In the ABA Litigation Update, John H. McDowell Jr. reports here on... [Read More]

Tracked on Feb 9, 2007 4:15:09 PM


I am curious about how significant Cunningham is for the nation as a whole.

Obviously the opinion significantly impacts our nation's most populous state, and strongly re-affirms the principles in Apprendi and Blakely. In that sense much can be gleaned from the opinion. But from my understanding, CA's system was unique and not modeled after elsewhere. The opinion might have had a large impact on federal sentencing, given the CA Court's rationale in Black. But federal practitioners are - aside from continuing to preserve the issues - for the most part basically doing what Ginsburg told us to do: wait for Claiborne/Rita. (Although, on a side note, I do believe Cunningham can be quite instructive in how the Court should (will?) answer the questions presented in those cases).

So I am wondering if there any reports that the reasoning in Cunningham has impacted states other than CA, or called other state Supreme Court holdings (that affirmed a particular sentencing scheme) into doubt? How has Cunningham effected practitioners in other states?

Can anyone help me to extinguish this curiosity?

Posted by: DEJ | Feb 9, 2007 11:23:23 AM

The only states that Cunningham affects are those that tried to dodge Blakely the first time around. Tennessee and New Mexico come to mind (particular TN, whose Sup. Ct. produced a People v. Black like opinion).

But most other states, like New Jersey, Colorado, Oregon, Minnesota, and North Carolina, didn't try to duck Blakely and made legislative and judicial changes to their guidelines (as detailed near the end of the majority op. in Cunningham). So the decision doesn't have any practical effect there.

Posted by: A | Feb 9, 2007 4:18:53 PM

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