A few minutes into the Supreme Court’s hearing Wednesday on a California criminal sentencing case, it already had become clear that the case is not really about a specific state sentencing law but is all about what is constitutionally “reasonable” in any system that gives a judge discretion to impose an enhanced prison term. And behind that question lies the future of the federal guidelines system in the wake of the Court’s 2005 ruling in Booker v. U.S. In fact, much of the hour’s argument in Cunningham v. California (05-6551) amounted to a seminar on Booker. The argument transcript is now available here (Doug Berman of Sentencing Law and Policy blog has this analysis of the oral argument.).
From the early point at which Chief Justice John G. Roberts, Jr., first brought up Booker, the Court danced around an issue that it has so far refused to take on directly — if a judge sentences a convicted individual anywhere within a range set by law, is that “reasonable,” and therefore constitutional? That is an issue that has preoccupied the lower federal courts as they have tried to figure out how to sentence under the “advisory” guideline system laid out in Booker, and at least two dozen of those cases have moved on to the Supreme Court. So far, the Court has simply let them stack up, taking no action on any of them. The Cunningham case, it appears, may be the reason.
That is a case in which the California Supreme Court sought to salvage its “determinate sentencing law” by reshaping it to satisfy what it thought Booker required when judges have the authority to enhance a sentence. Under that state law, a judge can push a sentence up into a higher term based on an “aggravating” fact that was not found by a jury in its verdict. In the case of John Cunningham, he was given a 16-year prison sentence for child sexual abuse after a judge bypassed the “norm” of a 12-year sentence because of six aggravating factors. Cunningham’s constitutional challenge was left unreviewed by the California Supreme Court, based upon a then-recent state precedent (People v. Black) finding it reasonable for a judge to pick the higher term in the range.
Chief Justice Roberts, who spoke up within the first three minutes of the argument, suggested that the California system as interpreted by the state court “looks like the federal system after Booker.” And, he suggested, that brought up the question of whether sentencing under such a system would be “reasonable” — an issue that Roberts noted that the Court had not yet confronted.
“How does [the California law] look to you under Booker,” the Chief asked Peter Gold, the San Francisco attorney representing Cunningham. Gold answered that what had saved the federal system was not that enhanced sentences would become reasonable, but that a mandatory system was made into an advisory system. A judge, the lawyer went on, still could not give an enhanced sentence based upon facts not found by the jury. Under the California system, he said, a judge has no choice but to pick the middle term specified by law — in Cunningham’s case, 12 years — unless the judge finds an additional fact. That added fact, he argued, must be found by a jury, or the system is invalid.
From there, the balance of the argument moved back and forth over what constitutes reasonableness within a guided-discretion system, and whether the California Supreme Court in its Black opinion had correctly interpreted what Booker allows, or forbids. “I don’t know what Black means,” said Justice Stephen G. Breyer, the Court’s most practiced analyst of sentencing issues (as a former member of the U.S. Sentencing Commission). At another point, Breyer suggested that the Calfiornia court was “Bookerizing” the state sentencing law, to make it “as close to Booker as we can make it.”
Cunningham’s lawyer spent considerable effort trying to convince the Court that California’s law was mandatory in nature — an argument, of course, that would make it more vulneable under Booker. But nearly every time he put stress on that point, he would be met by a Justice’s question either related to the reasonableness of the resulting sentences, or related to the federal guideline system.
For example, Justice Ruth Bader Ginsburg told Gold: “Why isn’t the middle sentence what a guideline would indicate? If a judge sentenced within the guideline, that would be presumptively valid. If the judge were to go outside, the judge would have to give a reason that would survive appellate review. The middle term is the equivalent of federal advisory guidelines.”
Ginsburg also wondered what “the least change” California would have to make to render it constitutional. Gold said that the law should be changed to read that the judge may impose the middle term. Justice Antonin Scalia chimed in: “”it could say that the middle term would always be reasonable.”
Deputy state attorney general Jeffrey M. Laurence of San Francisco opened his argument by suggesting that “the central lesson of Booker” was that, if the judge selects a reasonable sentence, “that would not invoke the Sixth Amendment jury trial right.” What California has done, in the wake of Booker, he indicated, was to impose reasonableness as a restraint on judge sentencing.
Justice Scalia promptly remarked: “The lower courts had found [after Booker] that if a sentence is within the guidelines, it is reasonable — we have not held that — but if they go beyond that, it is automatically unreasonable. That’s the California system: it is unreasonable unless you find an additional fact.”
Later, Laurence repeated a point that the California system allowed a judge to sentence to the upper term for “policy” reasons such as deterrence not related to the specific crime, and added: “What makes California’s law constitutional is a reasonableness requirement, just like Booker.” To that, Scalia brusquely retorted: “The California Supreme Court and the legislature would have been astounded to find that this is what they wrought.”
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