The following argument preview was written by Scott Reents, who is a student in Stanford Law School’s Supreme Court Litigation Clinic. Disclosure: as a member of the Clinic, Scott assisted the National Association of Criminal Defense Lawyers in writing an amicus brief on behalf of petitioner.
On Wednesday, October 11, the Supreme Court will hear arguments in Cunningham v. California (No. 05-6551, documents here). Cunningham presents the question whether “California’s Determinate Sentencing Law, by permitting sentencing judges to impose enhanced sentences based on their determination of facts not found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments.†Cunningham follows Apprendi v. New Jersey, Blakely v. Washington, and Booker v. United States as the latest chapter in the Court’s consideration of the constitutionality of judicial fact-finding during the sentencing phase of criminal trials.
Peter Gold will argue on behalf of petitioner and Jeffrey M.K. Laurence, of the California Attorney General’s office, will argue on behalf of respondent.
Petitioner John Cunningham was convicted of continuous sexual abuse of a child. Under California’s Determinate Sentencing Law (DSL), the judge was directed to choose among either six, twelve or sixteen years’ imprisonment, based on an evaluation of any “circumstances in aggravation or mitigation.†The DSL provide a list of aggravating and mitigating factors, but also allow the judge to consider “additional criteria reasonably related to the decision being made.†Circumstances in aggravation or mitigation must be “established by a preponderance of the evidence.†Finally – and central to the issue in this case – the DSL directs a judge to “order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.â€
In petitioner’s case, the sentencing judge found that there were aggravating circumstances and further determined that they outweighed the mitigating circumstances. Consequently, the judge sentenced petitioner to the upper term of sixteen years.
Petitioner contends that the imposition of the upper term violated his right to a jury trial under the Sixth and Fourteenth Amendments because it was based on impermissible judicial fact-finding. According to Blakely, the jury trial right means that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.†Under California’s DSL, the maximum sentence that the judge could impose was the middle term of twelve years; the upper term required additional findings of fact. Therefore, petitioner’s sentence exceeded the maximum based on facts “proved to a jury beyond a reasonable doubt,†and its imposition violated his jury trial right.
California, as respondent, concedes that a judge may not impose a sentence that exceeds the maximum authorized by the facts proven to a jury. However, it claims that under the DSL, the “maximum authorized by the facts†was sixteen years, not twelve. It relies on the California Supreme Court’s holding in People v. Black that the lower, middle, and upper terms are all “legally authorized†sentences a judge may impose based solely on the jury verdict. The requirement that a judge impose the middle in the absence of aggravating or mitigating factors is not a “threshold requirement,†but rather a limitation on judge’s sentencing discretion.
According to respondent, the constitutionality of such a limitation is proven by comparison with the limitation present in the Federal Sentencing Guidelines as modified by the Court’s holding in Booker v. United States. Booker held the Guidelines to be unconstitutional and remedied them by making them “advisory.†This means that district court judges have the authority to impose any sentence within the range defined by the relevant statute, but subject to the requirement that they “consider†the now-advisory Guidelines. The remedy also provides that sentences are subject to review by appellate courts for “reasonableness.†Thus, even while district courts are no longer strictly bound by the Guidelines, departures from the guidelines – without judicial fact-finding justifying a departure – are likely to fail the test of “reasonableness.†Respondent’s argument, in sum, is that California’s requirement that judges only impose upper or lower sentences after weighing aggravating and mitigating circumstances goes no farther in requiring judicial fact-finding than does the “reasonableness†requirement in the post-Booker Federal Sentencing Guidelines.
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