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Federal Sentencing: Judicial Determination Of Facts Violates Sixth Amendment

Cunningham v. California

California’s Determinate Sentencing Law (which involved the judicial determination of facts) was in violation of the Sixth Amendment Right to Trial by Jury.

Cunningham v. California 127 S. Ct. 856

Decided: Jan 22 2007 Supreme Court of the United States

Issue: Under California’s determinate sentencing law (DSL), Petitioner Cunningham’s offense was punishable by one of three precise terms of imprisonment. These were a lower term sentence of 6 years, a middle term sentence of 12 years or an upper term sentence of 16 years. The DSL stipulated that the middle term sentence ought to apply unless there were “additional circumstances in aggravation”. At a post-trial sentencing hearing (and therefore without a jury), the judge found aggravating facts which justified imposition of the higher sentence. The issue was whether this judicial sentence-elevating fact finding violated a defendant’s right to trial by jury under the Sixth and Fourteenth Amendments.   

Holding: The DSL was unconstitutional. In effect, the upper sentence could not be imposed unless aggravating factors were found to exist. Any fact which exposes a defendant to a greater potential sentence must be found by a jury and must be proven beyond reasonable doubt. 

Facts: Petitioner Cunningham was tried and convicted of continuous sexual abuse of a child under the age of 14. The DSL stipulated that the lower, middle and upper terms for that offense were 6, 12 and 16 years respectively. At the post-trial sentencing hearing, the judge found evidence of six aggravating factors – including the vulnerability of the particular victim and the violent conduct of Cunningham. There was just one mitigating factor: the absence of prior convictions. The judge concluded that this mitigating point did not outweigh the aggravating factors and imposed the upper-level sentence.

At the California Court of Appeal, the sentence was affirmed. The California Supreme Court denied review on the basis that it had already deemed the DSL to be in line with the Sixth Amendment in an earlier case, People v Black 35 Cal 4th 1238, 29. The U.S. Supreme Court reversed this in a 6-3 decision.

Analysis: The Supreme Court had to consider the viability of California’s DSL in light of a line of cases stemming from the decision in Apprendi v. New Jersey (2000). In that case it was held that in order to uphold a defendant’s Sixth Amendment rights, any fact (with the exception of a prior conviction) that exposes a defendant to a sentence in excess of the relevant statutory maximum must be established by a jury (rather than a judge) and must be proven beyond reasonable doubt. In cases which followed on from Apprendi, the Supreme Court had invalidated various sentencing structures. Notably the Court held in the case of United States v Booker (2005), that facts triggering a sentence elevation under the Federal Sentencing Guidelines were a matter for jury determination. Similarly in Blakely v, Washington (2004), facts permitting a sentence in excess of the “standard range” under Washington’s Sentencing Reform Act were also deemed to be for the jury to decide.

The Court looked closely at the effects of the DSL. As Ginsburg notes in the lead judgment, it had been enacted in 1977 to replace a regime where courts tended to impose open-ended prison terms and then the parole board would determine the amount of time a felon would actually serve in prison. The DSL sought to promote uniform and proportionate punishment. Fixed lower, middle and upper terms were established. The “standard” sentence for a particular crime was effectively the middle one. The statute provided that the court “shall order the imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime”. The items to be considered in terms of mitigation and aggravation were drawn widely – including the trial record, probation officer’s record, statements submitted by the parties “and any further evidence introduced at the sentencing hearing”.

The Supreme Court took the view that the effect of the DSL was, in reality, to render the middle term the “statutory maximum”. The higher term could only be imposed if the aggravating factors were found to exist. The fundamental problem was that the existence of those aggravating factors were matters for the judge to consider, based upon a general review of the evidence. The Supreme Court took the view that this regime was therefore fundamentally similar to the systems that had been declared unconstitutional in Blakely and Booker. Indeed, the Court had noted that several states had already adopted their sentencing systems in the wake of that line of cases so that the jury could be called upon to decide on the specific factual points necessary for an elevated sentence to be imposed. The Supreme Court suggested that California make similar changes to its system to ensure compliance with defendants’ Sixth Amendment rights.