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The Supreme Court Invalidates California's "Determinate Sentencing" Law:
Part One in a Two-Part Series on Yet More Cases Involving Judicial Factfinding in Sentencing


Friday, Feb. 02, 2007

Last week, the Supreme Court handed down yet another in its growing list of Sixth Amendment cases involving - and invalidating - certain state and federal sentencing schemes. In these schemes, judges are empowered to find one or more facts, and the effect of this factfinding is to subject a defendant to a sentence or a sentencing range that is higher than he would have been subject to had the fact(s) not been found. The Court has deemed such schemes inconsistent with the Sixth Amendment's guarantee of trial by jury in criminal cases.

In this two-part series of columns, I will examine this decision, and its important implications for current and future doctrine -- including its likely impact on two additional related cases the Supreme Court is hearing on February 20.

The bombshell ruling last week was Cunningham v. California, and the latest casualty of the Court's Sixth Amendment approach was California's so-called determinate sentencing law.

The Way California's "Determinate" Sentencing Operated

For many years, many states used a system of "open-ended indeterminate" sentencing. That means that, once a person is convicted, a judge has broad discretion to select any sentence between two end points in the statutory range specified for a particular office (say, six years and sixteen years in prison) that she deems just.

California, however, moved away from such a system, for many crimes, about a generation ago -- as the Court in Cunningham explained. California opted, instead, for a scheme that requires the judge to choose among three -- and only three -- set points along the range. (The set points in the Cunningham case, where the defendant was convicted of continuous sexual abuse of a child, were 6, 12 and 16 years of imprisonment.)

The judge's choice among the set points, moreover, is not free: I

n a case like Cunningham's, the statute provides that a sentencing judge "shall order imposition of the middle term [among the three choices] unless there are circumstances in aggravation or mitigation of the crime." (Emphasis added.) This means that a judge has to find some factual basis for aggravation (that is, facts suggesting the crime or the defendant's culpability is worse than in the run-of-the-mill crime of this kind) before considering imposing the upper, rather than the middle, term.

Also, the California Rules of Court -- administrative rules promulgated by the judiciary -- provide that "[s]election of the upper term is justified only if, after consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation."

Finally, unless the sentencing judge chooses the middle term, she also must give reasons for her sentencing choice. According to the California Supreme Court: "The judge must state on the record the reasons for selecting the lower or upper term, including a concise statement of the ultimate facts which the court deemed to constitute aggravation or mitigation justifying the term selected." (Quotation marks omitted.)

In turn, the factors that can support a finding of aggravation include criteria on a list promulgated by the California Judicial Council, and published in the Rules of Court. This list of criteria mentions things like how violent the defendant was, whether he was out on parole at the time of the offense, whether he took advantage of a position of trust or confidence to commit the offense, and so on. (In Cunningham's case, the judge found the particular vulnerability of the victim to be an aggravating factor justifying a 16-year, rather than a 12-year, term.)

The Sixth Amendment Doctrine, and the Sixth Amendment Problem

In the Supreme Court's decision in Cunningham, Justice Ruth Bader Ginsburg wrote for a six-Justice majority finding that the California system, as described above, fell squarely within the admonition the Court has expressed in a number of cases beginning with Apprendi v. New Jersey: Under the Sixth Amendment, "[o]ther than the fact of prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."

In the Court's view, then, the jury trial right in the Sixth Amendment doesn't mean just that a person has the right to present his case to a jury. It means that a person has a right to have a jury -- not a judge -- make all the fact findings that are statutory prerequisites to the possible imposition of a higher sentence range (unless that person himself formally concedes some or all of those facts.)

In Blakely v. Washington, the Court applied this principle to strike down a Washington defendant's sentence for kidnapping. The sentence was 90 months, but under the Washington statute, it would have been no more than 53 months in the absence of a judicial finding of some fact of aggravation. In Blakely's case, a judge found that his kidnapping involved exceptional cruelty, and thus chose a longer sentence. Because Blakely could not have been sentenced to more than 53 months absent this additional, judicially-found fact, the Court held that his sentence violated the Sixth Amendment.

So too, the Court held a few years later in United States v. Booker, did the way the U.S. Sentencing Guidelines had been operating. Before Booker, federal sentencing was done pursuant to mandatory U.S. Sentencing Guidelines. In the federal Sentencing Reform Act of 1984, Congress established the U.S. Sentencing Commission, and directed it to promulgate such Guidelines, which were binding upon federal district court judges who issued sentences.

However, application of the Guidelines often requires just the type of fact findings that Blakely held are unconstitutional: sentence-lengthening judge-made fact findings. These judge-found facts (such as how much money was stolen, how many drugs were possessed, etc.), combined with facts found by the jury or implicit in the guilty plea, determined which Guidelines sentencing range (for example, 20-30 months) controlled each particular case.

The Supreme Court's solution in Booker was to invalidate the mandatory Guidelines regime. In lieu of mandatory Guidelines, the Court stated, the Guideline ranges would now operate as advisory only. U.S. district judges would still be required to calculate sentencing ranges based on jury and judge-made factual findings, but would no longer be bound to impose a sentence in that range.

Instead, the Court held, the district judge's sentence must simply fall between the minimum and maximum set out by Congress in the particular criminal statute, and should be upheld on appellate review so long as it is "reasonable."

The Court's Reasoning in Cunningham

That brings us to back to last week's decision in Cunningham, where the Court invalidated California's determinate sentencing scheme. The Court struck down California's scheme, in essence, because, in all material respects, it resembled the systems that were struck down in Blakely and Booker.

More specifically, under the California regime, the aggravating facts that authorize a judge to impose the upper term could be found by a judge rather than a jury. In addition, these facts needed to be proven only by a preponderance of evidence, not beyond a reasonable doubt. For these reasons, the Court held that Cunningham's sentence violated the Sixth Amendment.

Interestingly, the California Supreme Court had considered the very same question a few years ago, and upheld California's law. In so doing, the California high court had stressed the flexibility of the California scheme, pointing out, for example, that the statutory list of aggravating factors is not completely binding or exhaustive: The sentencing judge is also free to consider any "additional criteria reasonably related to the decision being made." In addition, under the determinate sentencing scheme, a judge had a lot of discretion not to elevate the sentence to the highest of the three points, even if he found facts of aggravation. Neither of these aspects of California's system, however, saved the scheme in the eyes of the U.S. Supreme Court.

Nor did the fact that California's move toward determinate sentencing was not seemingly motivated by a wish to take factfindings on factors that had historically been "elements" of the crime away from the jury, and give them to a judge. Instead, the aggravating facts a judge could find were the kinds of things judges had always taken into account (albeit perhaps less formally and openly) in sentencing.

The California Supreme Court also made another very interesting argument -one that was echoed and elaborated upon by Justice Alito's powerful dissent in Cunningham. The California court noted that the California scheme was, in practical operation, quite similar to the way the federal system functions after Booker - a method of operation the U.S. Supreme Court seemed to have blessed as perfectly constitutional.

To be more precise, currently, as noted above, federal trial judges are influenced (in an advisory capacity) but not bound by the sentencing Guideline ranges and subject to appellate review for "reasonableness." California's now-invalidated system, in comparison, looks quite similar.

In Part II of this series, I will explore this complicated and interesting argument concerning the analogy between California's invalidated law and current federal practice. I will also discuss more generally why Justice Alito's Cunningham dissent is an important contribution to this evolving area of the law.

And I will explore with particular attention what Justice Alito's dissent (and the majority's rejection of it) tells us about two other Sixth Amendment cases that are being argued to the Court this month - disputes that will give us further information on the meaning of Apprendi, Blakely and Booker. These upcoming cases focus specifically on whether the way "reasonableness" review by federal appellate courts has been practiced after Booker is really keeping faith with the Sixth Amendment values the Court has been trying to articulate and protect. Stay tuned.

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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