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Monday, January 22, 2007

Cunningham: California's DSL Struck Down

In Cunningham v. California, No. 06-6551 (Jan. 22, 2007), the Supreme Court held that California’s determinate sentencing law (DSL) violates the rule of Apprendi, because it authorizes a judge to enhance a sentence based on aggravating facts found by the judge, not the jury. California’s DSL provides for a middle term and upper term sentence, with the middle term being applicable unless a judge found aggravating facts, in which case the judge was authorized to impose the upper term.

The Court noted that, like the sentencing schemes it had previously struck down, California’s DSL authorized judges to increase sentences based on findings of facts by judges.

The Court rejected the argument that the upper term of a possible sentence, not the middle term, should be viewed as the maximum for constitutional purposes. The Court noted that the jury’s verdict alone would not authorize a sentence above the middle term.

The Court also rejected the argument that California’s DSL survived scrutiny because it preserved jury fact finding for some enhancements. The Court noted that Apprendi established a "bright line rule."

The Court also rejected the attempt to equate California’s DSL with the post-Booker advisory regime of the Federal Sentencing Guidelines. The Court found that the upper limit provision of California’s DSL was not a "reasonableness constraint." Further, the reasonableness constraint is not a substitute for Sixth Amendment constraints, but a requirement for the federal system to operate within constitutional constraints: "Booker’s remedy for the Federal Guidelines, in short, is not a recipe for rendering this Court’s Sixth Amendment case law toothless." The majority noted that two pending federal cases, Claiborne and Rita, [discussed here] will address the federal reasonableness standard created by Booker. The only dissenters were Justices Kennedy, Breyer and Alito. Chief Justice Roberts joined the majority decision; together with Justice Ginsburg, and the four Booker-remedial dissenters, they formed a new and stronger majority on Apprendi-Blakely jurisprudence that may foretell a different path than originally appeared post-Booker.