Determinate sentencing struck down

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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.

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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.

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David Ziemer can be reached by email.