Determinate
sentencing struck down
California’s
sentencing scheme violates right to jury
By
David Ziemer
david.ziemer@wislawjournal.com
Jan.
29, 2007
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What
the court held
Case:
Cunningham v. California, No. 05-6551
Issue:
Does a determinate sentencing scheme in which the judge
makes findings regarding aggravating factors in imposing
sentence violate the Sixth Amendment right to a jury?
Holding:
Yes. An “upper-level” sentence based on judicial factfinding
violates the right to a jury.
|
A
state sentencing scheme that places sentence-elevating factors
within the judge’s pro-vince violates the Sixth Amendment
right to a jury, the U.S. Supreme Court held on Jan. 22.
John
Cunningham was tried and convicted in California state court of
continuous sexual abuse of a child under the age of 14. Under
the state’s determinate sentencing law (DSL), the offense
is punishable by imprisonment for a lower term sentence of 6 years,
a middle-term sentence of 12 years, or an upper-term sentence
of 16 years. No sentence in between those terms is permissible.
The
DSL obliged the trial court to sentence Cunningham to 12 years
unless it found one or more additional facts in aggravation. At
a post-trial sentencing hearing, the trial court found by a preponderance
of the evidence six aggravating circumstances, and only one mitigating
circumstance.
Accordingly,
the court imposed the upper term — 16-years imprisonment.
The
state court of appeals affirmed, and the state Supreme Court denied
review. Nine days earlier, however, it held that the sentencing
scheme was constitutional, notwithstanding the U.S. Supreme Court‘s
decision in U.S. v. Booker, 543 U.S. 220 (2005). People v. Black,
113 P. 3d 534 (Cal. 2005).
The
U.S. Supreme Court granted review, and reversed, in a decision
by Justice Ruth Bader Ginsburg. Justice Anthony M. Kennedy wrote
a dissent joined by Justice Stephen G. Breyer, and Justice Samuel
A. Alito, Jr., wrote a dissent joined by Justices Kennedy and
Breyer.
After
a lengthy review of its prior Sixth Amendment jurisprudence, the
majority held that California’s sentencing scheme was not
comparable to the post-Booker advisory federal guidelines.
The
court first found that, because aggravating circumstances authorizing
an upper term sentence depend on facts found solely by the judge,
the middle term prescribed in the statues, rather than the upper
term, is the “relevant statutory maximum.”
The
California Supreme Court had concluded that the facts the court
finds under the DSL are the types traditionally incident to judges’
selection of appropriate sentences, and therefore, the upper term
is the relevant maximum.
The
U.S. Supreme Court disagreed, however, observing, “We cautioned
in Blakely … that broad discretion to decide what facts may
support an enhanced sentence, or to determine whether an enhanced
sentence is warranted in any particular case, does not shield
a sentencing system from the force of our decisions. If the jury’s
verdict alone does not authorize the sentence, if, instead, the
judge must find an additional fact to impose the longer term,
the Sixth Amendment requirement is not satisfied.”
Rejecting
the California Supreme Court’s comparison of the DSL to the
post-Booker federal system, the court noted that the DSL only
allows three fixed sentences, with no range between them. The
court wrote, “[The judge’s] instruction was to select
12 years, nothing less and nothing more, unless he found facts
allowing the imposition of a sentence of 6 or 16 years. Factfinding
to elevate a sentence from 12 to 16 years, our decisions make
plain, falls within the province of the jury employing a beyond-a-reasonable-doubt
standard, not the bailiwick of a judge determining where the preponderance
of the evidence lies.”
Because
the DSL gave judges sole authority to find fact permitting the
imposition of an upper term sentence, the court held that the
system violates the Sixth Amendment, and reversed.
The
Dissents
Justice
Kennedy wrote a dissent, joined by Justice Breyer, reasserting
that the Apprendi line of cases is incorrect.
As
an alternative reason, however, the dissent suggested that Apprendi
be limited to sentencing enhancements based on the nature of the
offense, but not include characteristics of the offender, such
as cooperation with law enforcement, remorse, or other aspects
of the defendant‘s history concerning his background.
The
dissenters argued, “The line between offense and offender
would not always be clear, but in most instances the nature of
the offense is defined in a manner that ensures the problem of
categories would not be difficult. Apprendi suffers from a similar
line-drawing problem between facts that must be considered by
the jury and other considerations that a judge can take into account.
The main part of the Apprendi holding could be retained with far
less systemic disruption.”
Justices
Kennedy and Breyer also joined a separate dissent penned by Justice
Alito, which argued, “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.”
Alito
wrote, “the post-Booker system permits a defendant to obtain
appellate review of the reasonableness of a sentence, and a sentence
that the sentencing court justifies solely on the basis of an
erroneous finding of fact can hardly be regarded as reasonable.
Thus, under the post-Booker system, there will be cases —
and, in all likelihood, a good many cases — in which the
question whether a defendant will be required to serve a greater
or lesser sentence depends on whether a court of appeals sustains
a finding of fact made by the sentencing judge.”
Finding
that “Booker’s reasonableness review necessarily anticipates
that the imposition of sentences above this level may be conditioned
upon findings of fact made by a judge and not by the jury,”
Alito concluded that California’s scheme must be upheld,
unless the Court is willing to overrule the remedial decision
in Booker.
Click here for
Case Analysis.
David
Ziemer can be reached by email.
