After the jury has convicted a criminal defendant, should judges be able to increase or decrease the defendant’s sentence on the basis of facts not determined by the jury
A California state court convicted John Cunningham of sexual abuse of his son, and sentenced Cunningham to the maximum possible term under California’s Determinate Sentencing Law. Cunningham asserts that the judicial discretion exercised in his sentencing violated his Sixth and Fourteenth Amendment rights to trial by jury. California contends that its sentencing law comports with the requirements for sentencing statutes laid out by the Supreme Court in recent years. A decision for either side has the potential to change the amount of discretion that judges exercise when sentencing defendants.
Questions as Framed for the Court by the Parties
Whether California's Determinate Sentencing Law, by permitting judges to impose enhanced sentences based on their determination of facts not found by the jury or admitted by the defendant, violates the 6th and 14th amendments.
In 2001, a California jury convicted John Cunningham, a former police officer, of continuous sexual abuse of his minor son. People v. Cunningham, 2005 WL 880983 (Cal.App. 1 Dist. 2005). Pursuant to California’s Determinate Sentencing Law (“DSL”), which permits judges to weigh mitigating and aggravating factors in order to determine the appropriate sentence length, the judge found six aggravating factors including that “the crime involved great violence and the threat of great bodily harm,” “the victim was particularly vulnerable due to his age and dependence on appellant as his father and primary caretaker,” and “Appellant took advantage of a position of trust to commit the crime.” Id. at 7. Pursuant to Rule 4.423, the judge also found a single mitigating factor, the fact that Cunningham possessed no prior criminal convictions, which was a matter of judicial record and technically not judicial fact finding. Id. Because the aggravating factors outweighed the sole mitigating factor, the judge sentenced Cunningham to the upper term of sixteen years. Id. Cunningham contends that this sentencing procedure violates his Sixth Amendment right to a jury trial, because his sentence contradicts the Supreme Court’s holdings in its prior decisions about sentencing guidelines. Brief for Petitioner, at 10.
Cunningham bases his challenge of the California DSL on rights enumerated in the Federal Constitution. The Sixth Amendment to the Constitution provides that the accused in a Federal criminal case has a right to be tried by a jury of his or her peers. The Fourteenth Amendment provides that no state shall deprive any person of life, liberty, or property without due process of law. The Supreme Court, in Duncan v. Louisiana and Baldwin v. New York, decided that the Fourteenth Amendment “incorporated” the Sixth Amendment right to a jury trial into the Fourteenth Amendments guarantee of due process by the states, thereby giving state criminal defendants the same rights to a jury as Federal defendants. Duncan, 391 U.S. 145 (1968); Baldwin, 399 U.S. 66 (1970).
In recent years, the Supreme Court has examined the effect of the Sixth Amendment right to a jury trial on discretionary sentencing schemes. The role of the jury is to decide upon the factual truth of the assertions of the two sides. The importance of this “fact-finding” function of the jury led the Supreme Court to hold that any fact, other than the fact of a prior conviction, that could increase a defendant’s sentence above the statutory maximum must be submitted to the jury and found beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466 (2000). The Court in Apprendi was concerned that finding of facts by the judge, who need only decide that they are proved beyond a preponderance of the evidence, violated the defendant’s Sixth and Fourteenth Amendment rights. Id. In Blakely v. Washington, the Court expanded this holding, stating that any sentence exceeding the range imposed by the sentencing statute must be supported by facts either admitted by the defendant or found by the jury. 542 U.S. 296, 301 (2004). The next year, the Court partially struck down the Federal Sentencing Guidelines, holding that the Guidelines violated the right to be tried by a jury by mandating that the judge consider, for sentencing purposes, facts not found by the jury. United States v. Booker, 543 U.S. 220 (2005). The Court was clear, however, that determinate sentencing guidelines are not per se unconstitutional. Id.
The California Supreme Court upheld the DSL over a similar constitutional challenge in People v. Black. 35 Cal.4th 1238 (2004). In upholding the statute, the court stated that the statute’s upper term was the “statutory maximum” and therefore the judge’s use of facts not found by the jury did not violate Apprendior Blakely. Id. The court also distinguished the DSL from the statute in Blakely by noting that the list of aggravating factors was only illustrative instead of the Washington statute’s enumerated list. Id. The California Supreme Court’s interpretation of the DSL could be significant to the Supreme Court decision here because state high court interpretations of state statutes are generally held to be binding upon the Supreme Court. Garner v. Louisiana, 368 U.S. 157 (1961).
Thus, in this case the Supreme Court must decide if Cunningham’s Sixth and Fourteenth Amendment right to be tried by a jury was violated by the California Determinate Sentencing Law because it permitted the judge to consider facts that were not found by the jury.
The crux of Cunningham’s argument is that the California statute is very similar to the Washington statute that the Court struck down in Blakelyand the federal guidelines partially struck down in Booker. Petition for Certiorari at 4–5. Cunningham asserts that in the California system the middle of the three available sentences is the “statutory maximum.” Brief for Petitioner, at 11. The California statute allows the judge to deviate from this middle, or “presumptive,” sentence by finding aggravating factors by a preponderance of the evidence; this, Cunningham contends, is functionally identical to the statute at issue in Blakely. Id. In fact, the California statute flatly prohibits the judge from considering facts that are an element of the crime. Id. at 14. Therefore, the judge will frequently need to consider facts beyond those found by the jury when making a sentencing decision. Id. As such, the California DSL is also similar to the federal statute struck down in Bookeras both require the judge to make findings of facts beyond those of the jury. Id. at 17.
Cunningham also asserts that the California Supreme Court’s decision in Black was incorrect, because the important problem for Sixth Amendment purposes is not whether the sentence exceeded the statutory maximum, but rather whether the judge considered any information outside that found by the jury. Id. at 12-13. Additionally, the California court’s attempt to distinguish the DSL from the Blakely statute on the basis of the DSL’s advisory list of aggravating factors was misguided, because the only important issue is the judge’s consideration of facts not found by the jury. Id.
Thus, as the aggravating factors that increased Cunningham’s sentence were not found by the jury, Cunningham’s Sixth and Fourteenth Amendment right to a jury trial were violated when he was sentenced to the highest of the three possible terms. Id. at 12.
California argues that the California Supreme Court’s analysis in Black was correct and that the “upper term” sentence of 16 years is the relevant “statutory maximum.” Brief in Opposition to Petition for Writ of Certiorari at 3. The State contends that Blakely is only concerned with whether a judge exercises her discretion to impose a sentence above the statutory maximum. Id. The DSL does not allow the judge to exceed the highest sentencing term and does not, therefore, violate Blakely. Id.
The California Supreme Court’s decision in Black, California claims, makes clear that the middle sentencing term is not the “presumptive” value, but only illustrates a reasonableness constraint on an otherwise discretionary decision. Id. at 8–9. The DSL prohibits judges from imposing the upper term unless an aggravating factor is present. Cal. Penal Code § 1170(b). This prohibition was imposed because sentencing a defendant to the upper limit without an aggravating factor would be unreasonable. Brief in Opposition to Petition for Writ of Certiorari at 10. Therefore, the mandatory language in the DSL is simply a requirement that the judge’s sentencing decision be reasonable. Black, 35 Cal.4th at 1255.
Finally, California notes that neither Blakely nor Booker categorically prohibited judicial discretion in sentencing. Brief in Opposition to Petition for Writ of Certiorari at 5-6. Both cases, as well as the revised Federal Sentencing Guidelines that the Supreme Court suggested in Booker allow such discretion. Id. In fact, the California Supreme Court interpreted the DSL specifically to conform with those suggestions and that interpretation is controlling. Id. at 6–7. Thus, the amount of discretion of a California judge in sentencing a defendant is exactly equivalent to that of a Federal District Court judge under the post-Booker Federal Guidelines. Id. at 10. That level of discretion has been deemed “reasonable” by the Supreme Court in Booker. Id.
Therefore, California contends that Cunningham’s Sixth and Fourteenth Amendment rights were not violated, as the DSL complies with the Constitutional requirements that the Supreme Court set forth in Blakely and Booker. Id.
Cunningham v. California is the latest in a series of cases that take up the constitutionality of sentencing guidelines as they relate to the Sixth Amendment right to trial by jury. In the last six years, the United States Supreme Court has devoted considerable attention to the constitutionality of state and federal sentencing laws. In Apprendi v. New Jersey, the Court held that, in order for a judge to impose a sentence above the prescribed statutory maximum, all the facts used to support the enhanced sentence, except for the fact of prior convictions, must be found by the jury beyond a reasonable doubt. 530 U.S. 466, 469 (2000). In Blakely v. Washington, the Court considered a Washington state scheme that first established a maximum sentence for a class of crimes and then provided a “standard range” for particular crimes within that class. 542 US 296, 299 (2004). The Court held that the “standard range,” not the broader the maximum sentence, was the “statutory maximum” because it constituted the maximum sentence a judge could impose on the basis of facts found by the jury. Id. at 303. Most recently, in United States v. Booker, the Supreme Court followed its reasoning in Blakely and held that the Federal Sentencing Guidelines were unconstitutional to the extent that they required judges to increase a defendant’s sentence upon finding aggravating factors not found by the jury. Booker, 543 US 220, 233 (2005).
California adopted a determinate sentencing scheme in 1977. Brief for Petitioner at 3; see also Determinate Sentencing Law, Cal. Penal Code § 1170 (2005). Under the facts of this case, that sentencing scheme requires the judge to select a sentence from three set terms—six, twelve, or sixteen years—for an individual convicted of continuous sexual abuse of a child under the age of fourteen. Cal. Penal Code § 288.5(a) (2005). The DSL mandates the judge to impose the middle term unless, at the judge’s discretion, she finds certain aggravating and mitigating factors that justify choosing the lower or upper term. Cal Penal Code § 1170(B). Division IV of the California Court Rules enumerates a non-exhaustive and non-binding list of mitigating and aggravating factors that the judge may consider. Cal. Court Rules 4.421, 4.423.
Cunningham contends that the DSL is indistinguishable from either the Washington scheme in Blakely or the Federal Sentencing Guidelines in Booker. Brief for Petitioner, at 13. He argues that, because the DSL requires judges to impose the middle term unless they find aggravating factors, the middle term is the “presumptive sentence” or statutory maximum sentence for the offense. Id. at 11. Where the DSL also authorizes judges to impose the upper term on the basis of aggravating factors, Cunningham argues, it violates the Sixth Amendment just like the Washington statute in Blakely. Id. California, on the other hand, contends that the DSL is a discretionary law that permits judges to consider mitigating and aggravating factors, but does not require them to impose the upper term. Brief in Opposition to Petition for Writ of Certiorari at 8; see also Cal. Dept. of Justice Office of the Attorney General, Attorney General Lockyer Praises State Supreme Court Decision Upholding California Sentencing Law, June 20, 2005. California argues that the DSL is advisory like the post-Booker Guidelines, because the DSL enables a judge to use her discretion to consider reasonably related factors to impose a sentence already within the statutory range. Brief in Opposition to Petition for Writ of Certiorari at 3; see also Cal. Rules of Court, Rule 4.420 cmt. background (2004). Interestingly, in 2005, the California Supreme Court decided that the DSL did not suffer from the constitutional flaws identified in Blakely and Booker. People v. Black, 35 Cal.4th 1238 (2004).
Many practitioners hope that Cunningham will resolve Booker’s negative impact on sentencing uniformity. Uniformity was a key objective of both the Federal Sentencing Guidelines and California’s DSL. See Vikram David Amar, An Important Sentencing Ruling from the California Supreme Court: Despite the U.S. Supreme Court's Recent Sentencing Upheaval, California's System is Held to Be Valid, FindLaw Writ, June 24, 2005, (quoting the Cal. Supreme Ct.); see also Edward Lazarus, The Crucial Criminal Cases that Will Start the New Supreme Court Term: Testing the Federal Sentencing Guidelines’ Constitutionality, FindLaw Writ, Sept. 2, 2004. Yet, as the Department of Justice has pointed out, the post-Booker advisory approach to the Guidelines has produced vastly different sentences for similar crimes because of different judges’ use of aggravating and mitigating factors. United States Department of Justice, US v. Booker Fact Sheet (2006). To the extent that the DSL allows for judicial discretion within the confines of a statutory range, it could provide a happy medium between the Sixth Amendment concerns behind Blakely and Booker, and the current lack of uniformity.
If the Court finds in favor of Cunningham, however, there are other possible solutions. Although it would increase the amount of time and resources spent at trial, California could require juries to find all facts, including mitigating and aggravating factors for sentencing. See Bob Egelko, High Court to Assess Sentencing in State, San Francisco Chronicle, Feb. 27, 2006. Indeed, prosecutors have already begun requesting that juries find additional facts that judges may use in sentencing. Id. Alternately, California could presumptively impose the upper term and permit judges to exercise discretion in ordering sentences below the upper term, but within the specified term range. Id. Or, California could implement the approach taken with respect to the Federal Sentencing Guidelines after Booker and make the DSL advisory instead of mandatory. Id.
The right to trial by jury is a quintessential part of the American criminal justice system. The Supreme Court’s decision, in this case, will either weaken or strengthen the jury’s role in a criminal trial by deciding to what degree the judge may exercise independent fact-finding in sentencing defendants.Written by:
- Vikram David Amar, An Important Sentencing Ruling from the California Supreme Court: Despite the U.S. Supreme Court's Recent Sentencing Upheaval, California's System is Held to Be Valid, FindLaw Writ, June 24, 2005
- Cal. Dept. of Justice Office of the Attorney General, Attorney General Lockyer Praises State Supreme Court Decision Upholding California Sentencing Law, June 20, 2005.
- United States Department of Justice, US v. Booker Fact Sheet (2006).
- Bob Egelko, High Court to Assess Sentencing in State, San Francisco Chronicle, Feb. 27, 2006.
- First District Appellate Project, The ABC's of Preserving Apprendi-Blakely-Cunningham Claims Following the Cunningham Cert. Grant (2006).
- Edward Lazarus, The Crucial Criminal Cases that Will Start the New Supreme Court Term: Testing the Federal Sentencing Guidelines’ Constitutionality, FindLaw Writ, Sept. 2, 2004.
- Michael O’Hear, Cunningham: The Supreme Court's Next Sentencing Blockbuster?, Sentencing Law and Policy, May 5, 2006.