Sentencing and Its Discontents: Cunningham v. California and the “Unreasonable” Erosion of the Sixth Amendment Right to Trial by Jury and Determinate Sentencing Schemes

Katherine Georger, Sentencing and Its Discontents: Cunningham v. California and the “Unreasonable” Erosion of the Sixth Amendment Right to Trial by Jury and Determinate Sentencing Schemes, 43 Gonz. L. Rev. 701 (2008).

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I. Introduction

The Sixth Amendment to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.[1]

The United States Supreme Court’s decision in Cunningham v. California[2] is the latest in a series of cases that have found an individual’s Sixth Amendment right to a jury trial trumps mandatory sentencing guidelines.[3] In Cunningham, the Court struck down California’s mandatory sentencing guidelines which allowed a judge to augment a defendant’s sentence above the statutorily presumptive middle term based on additional findings of fact proven by a preponderance of evidence.[4]

Like prior precedent,[5] the Court in Cunningham adopted a supposed categorical “bright-line rule” of sentencing, which it claimed enhanced the role of the jury in the American criminal justice system.[6] Yet in reaching its holding, the Court overstated its case and neglected to consider broader practical effects. In particular, the Court misconstrued precedent and failed to consider the ramifications that its inconsistent holding will ultimately have on structuring future sentencing schemes. %CODE2%
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Section II of this Note will begin with an historical examination of the right to a jury trial in relation to state and federal sentencing schemes. In particular, this section traces the development of the Federal Sentencing Commission and various state determinate sentencing schemes. It concludes by examining three recent cases decided by the United States Supreme Court: Apprendi v. New Jersey, Blakely v. Washington, and United States v. Booker—which are central to the Cunningham decision.

Section III addresses the facts, procedural history, and majority and dissenting opinions in Cunningham. Section IV suggests that while the majority professed adherence to precedent, the practical effects of its decision cannot be reconciled with the remedial portion of Booker.[7] Furthermore, Section IV examines how the practical effects and policy implications of Cunningham will actually undercut the Court’s stated goal of enhancing the role of the jury in criminal sentencing.

II. Historical Background

A. Right to Trial by Jury and the Evolution of Sentencing Schemes

In 1968, the United States Supreme Court held in Duncan v. Louisiana[8] that the Sixth Amendment right to a trial by jury applied to the states via Fourteenth Amendment incorporation.[9] The Court noted: “the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power—a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges.”[10]

The Supreme Court further expanded the safeguards of the jury trial through its decision in In re Winship[11] holding that each element essential to a crime must be proven beyond a reasonable doubt.[12] The Court refined its Winship decision in Mullaney v. Wilbur,[13] holding the reasonable doubt standard applicable to both elements of the crime and sentencing factors.[14] In its Sixth Amendment analysis, the Court explained:

“[I]f Winship were limited to those facts that constitute a crime as defined by state law, a State could undermine many of the interests that decision sought to protect” just by redefining “the elements that constitut[ed] different crimes, characterizing them as factors that bear solely on the extent of punishment.”[15]

Traditionally, sentencing schemes were indeterminate and discretionary, with little concern for the Sixth Amendment right to trial by jury.[16] Judges were only loosely controlled by legislatively prescribed statutory punishments, and thus, largely left free to consider any kind of evidence or information at sentencing.[17] Nevertheless, criticisms of the discretionary system developed in the 1970s in response to the growth in sentencing disparities, attributed to the virtually limitless discretion of judges and parole boards.[18] Notably, the federal government, along with several states, including California,[19] adopted various forms of determinate sentencing schemes through the Sentencing Reform Act of 1984 (“SRA”).[20] These included variations of presumptive sentence ranges, or guidelines prescribed by sentencing commissions, using grid-like formulas to obtain “real offense sentencing” punishments.[21]

In Mistretta v. United States,[22] the Court upheld the Federal Sentencing Guidelines created and issued by the Sentencing Commission finding such an arrangement did not pose a separation of powers problem.[23] The Court applied similar treatment to state determinate sentencing schemes in McMillan v. Pennsylvania,[24] upholding a Pennsylvania mandatory minimum statute, which imposed a mandatory five-year imprisonment for specified felonies if the judge found by a preponderance of evidence that the defendant was in possession of a firearm at the time of the incident.[25] Distinguishing McMillan from both Winship and Mullaney, the Court held the statute “neither alter[ed] the maximum penalty for the crime committed nor creat[ed] a separate offense calling for a separate penalty.”[26] Instead, the statute simply reduced the trial judge’s discretion to administer a prescribed punishment within a particular statutory range absent the specific firearm possession finding.[27]

After McMillan, the Court shifted back toward the Winship and Mullaney interpretation applying constitutional principles to determinate sentencing schemes.[28] For example, in United States v. Gaudin, the Court held the Fourteenth Amendment’s requirement of “due process of law” and the Sixth Amendment’s right to a “speedy and public trial, by an impartial jury” guarantees a criminal defendant “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”[29]

Yet in Almendarez-Torres v. United States,[30] the Court held that because prior convictions had historically not been considered “offense elements” such factors did not need to be charged in the defendant’s indictment.[31] Nevertheless, the Almendarez-Torres holding had limited impact. In Jones v. United States,[32] the Court narrowed the Almendarez-Torres holding to recidivism only, rejecting “the broad proposition that any fact increasing the maximum permissible punishment may be determined by a judge by a preponderance.”[33]

Thus, to survive a Sixth Amendment challenge, “any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”[34] Furthermore, the Court in Jones narrowly construed the mandatory minimum scheme upheld in McMillan,[35] suggesting that the decision “might have been different” if the finding of fact “had exposed the defendant to a sentence beyond the maximum that the statute otherwise set without reference to that fact.”[36]

B. The Triple Threat to Determinate Sentencing: Apprendi, Blakely, and Booker

The United States Supreme Court’s more recent sentencing decisions have broadened the boundaries of the Sixth Amendment analysis. The Court has struck down various state[37] and federal[38] statutory sentencing laws for failing to comply with the Sixth Amendment right to trial by jury, substantially narrowing the scope of permissible sentencing schemes.

In Apprendi, a 5-4 decision, the United States Supreme Court held that “[o]ther than the fact of a 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.”[39] Writing for the majority, Justice Stevens, joined by Justices Scalia, Thomas, Souter, and Ginsburg, struck down New Jersey’s sentencing enhancement scheme for violating the Sixth Amendment right to a trial by jury because it allowed a judge to impose a higher sentence by a factual finding proved by a mere preponderance of the evidence.[40] The Court reasoned that the hate crime sentence enhancement for a weapons conviction should have been determined by a jury beyond a reasonable doubt because it constituted an “offense element.”[41]

The Court focused not on the form, but rather on the effect of whether “the required finding expose[d] the defendant to a greater punishment than that authorized by the jury’s guilty verdict?”[42] The Court noted that the relevant statutory maximum to which a judge was bound to exercise discretion was not the highest sentence of the statute, per se, but the highest sentence that could be imposed based on the jury’s verdict alone.[43] Thus, the sentence was unconstitutional because the enhancement was not considered by the jury and was only added after the judge’s subsequent findings based on a mere preponderance of evidence.[44]

Justice O’Connor’s dissent criticized the majority for its misapplication of historical principles and case law, noting that under previous indeterminate sentencing schemes “judges frequently made sentencing decisions on the basis of facts that they determined for themselves, on less than proof beyond a reasonable doubt.”[45] She expressed concern over the practical effect of the majority’s opinion on determinate sentencing schemes:

[I]t is ironic that the Court, in the name of constitutional rights meant to protect criminal defendants from the potentially arbitrary exercise of power by prosecutors and judges, appears to rest its decision on a principle that would render unconstitutional efforts by Congress and the state legislatures to place constraints on that very power in the sentencing context.[46]

Building on Apprendi, the Court in Blakely invalidated Washington State’s sentencing guidelines, which allowed a judge to impose an “exceptional sentence” above the statutory maximum by making findings of fact based on a preponderance of evidence.[47] In reaching its holding, the Court reaffirmed Apprendi’s supposed “bright-line rule,” adding the distinction that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”[48]

Additionally, the majority restated its commitment to limit tyrannical state power from overriding the power of the jury.[49] In particular, the majority highlighted that “[j]ust as suffrage ensures the people’s ultimate control in the legislative and executive branches, jury trial is meant to ensure their control in the judiciary.”[50] Notably, the Court made a key distinction that indeterminate sentencing schemes do not raise Sixth Amendment concerns because the “increase[d] judicial discretion . . . [is] not at the expense of the jury’s traditional function of finding the facts essential to lawful imposition of the penalty.”[51]

In her dissent, Justice O’Connor renewed her Apprendi criticism of the majority’s misguided constitutional attack on determinate sentencing schemes.[52] She argued for deference to state and federal legislative branches to develop sentencing guidelines, which would fulfill constitutional requirements and offer pragmatic solutions.[53] She cautioned the majority’s holding may result in the substitution of determinate schemes with indeterminate schemes, undoubtedly leading to dangerous, unchecked judicial discretion and greater disparity in sentencing.[54] In a follow-up case, Booker, the United States Supreme Court addressed the constitutionality of the Federal Sentencing Guidelines in the wake of Blakely.[55]

In that case, the Supreme Court addressed two issues: (1) whether the federal sentencing guidelines impermissibly conflicted with the Sixth Amendment right to a trial by jury by allowing a judge to impose a higher sentence based on additional facts; and (2) that if the Federal Sentencing Guidelines were ruled unconstitutional, whether they could be saved from dismemberment by eliminating language that made them mandatory.[56] Interestingly, the Booker court answered both questions in the affirmative, resulting in two separate, highly controversial and somewhat inconsistent 5-4 majority opinions, with Justice Ginsberg the decisive swing vote.[57]

As to the first question, Justice Stevens, joined by Justices Scalia, Thomas, Souter, and Ginsberg held the Federal Guidelines as applied in Booker violated the right to a jury trial by allowing a judge, by a mere preponderance of evidence, to make additional findings that the defendant was in possession of a larger quantity of drugs.[58] Justice Stevens reasoned that “just as in Blakely, ‘the jury’s verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.’”[59]

The majority explained its decision was motivated not by “Sixth Amendment formalism, but by the need to preserve Sixth Amendment substance.”[60] Specifically, the Court stated its decision was geared toward preserving the jury trial “in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime.”[61]

As to the second issue facing the court, Justice Breyer, joined by Chief Justice Rehnquist, and Justices O’Connor, Kennedy, and Ginsburg, held the Guidelines could be salvaged by eliminating mandatory language and interpreting a “reasonableness” standard for appellate review.[62] Justice Breyer explained that if the jury trial requirement was read into the SRA, such a system would diminish uniformity and punishment for “real conduct” by eliminating judicial determination of “post-verdict-acquired real-conduct information,”[63] and would simply shift the power to prosecutors “to decide, based on relevant information about the offense and the offender, which defendants merit heavier punishment.”[64] Justice Breyer reasoned that in removing the mandatory language, judges were free to impose sentences, whether they voluntarily elected to follow the Guidelines or not, and that appellate courts reviewing these sentences should uphold the sentence if it was “reasonable.”[65]

In sum, the Court’s decisions leading up to Cunningham held the Sixth Amendment right to jury trial requires that under determinate sentencing schemes imposition of any punishment above the statutory maximum must be found by the jury or admitted by the defendant, with the exception of prior offenses.[66] Furthermore, sentencing schemes mandating that judges make findings of additional facts to impose a sentence above the statutory maximum are unconstitutional.[67] Nonetheless, as long as sentencing guidelines are advisory and not mandatory, a judge has discretion to impose a sentence that varies from the guidelines as long as it is “reasonable.”[68]

III. The Cunningham Decision

A. Facts and Procedural Background

In 1999, John Doe, a ten-year-old boy, went to live with his biological father, John Cunningham, a long time police officer, after having behavioral problems while living with his mother and stepfather which led them to relinquish custody.[69] Shortly thereafter, Cunningham began sexually abusing Doe.[70] Late in 2000, Doe told his younger cousin about the abuse and his aunt, mother, and stepfather intervened by taking Doe from the home.[71] In January 2001, San Pablo Police separately interviewed Doe and Cunningham about the egregious sexual abuse.[72] Cunningham admitted to the abuse during the course of his interview.[73]

Based on the video interview, the grand jury indicted Cunningham on felony charges of continuous sexual abuse of a minor[74] under California Penal Code Section 288.5.[75] At trial, Cunningham testified in his own defense, denying the abuse and claiming Doe had fabricated the whole story, citing Doe’s history of behavioral problems.[76] Nevertheless, the jury convicted Cunningham of the charged offense.[77]

Pursuant to California’s determinate sentencing law (“DSL”), the offense carried a punishment of imprisonment ranging from a low term of six years, to a middle term of twelve years and an upper level of sixteen years.[78] The trial judge was required to implement the middle-term punishment “unless the judge found one or more additional facts in aggravation” or mitigation.[79]

In Cunningham’s post-trial sentencing hearing, the trial judge imposed the upper sixteen-year term, based on finding by a preponderance of evidence, six additional aggravating factors, including the victim’s vulnerability, violent nature of the conduct, and the potential danger to the community.[80] The judge concluded these additional facts outweighed the mitigating fact that Cunningham had no prior criminal record and justified imposition of the upward departure.[81]

Cunningham appealed his sentence on the ground that the DSL violated his Sixth Amendment right to a jury trial.[82] In the alternative, he disputed the factual finding of five of the six aggravating factors.[83] The California Court of Appeals affirmed both the conviction and the trial judge’s post-trial sentence determination “concluding that [the trial judge] properly relied on at least two aggravating facts.”[84]

The California Supreme Court declined to review the case,[85] explaining that its decision in People v. Black,[86] decided nine days earlier and finding the DSL survived a Sixth Amendment challenge was binding.[87]

Cunningham petitioned the United States Supreme Court for a writ of certiorari.[88] On February 21, 2006 the Court accepted the case for review to resolve the issue of whether California’s sentencing scheme comported with the Sixth and Fourteenth Amendment right to trial by jury.[89]

B. Majority Opinion: Justice Ginsberg

Justice Ginsburg, the only member to join both Booker majority opinions,[90] wrote Cunningham’s 6-3 majority opinion, striking down California’s sentencing scheme.[91] The majority held: “Because the DSL allocates to judges sole authority to find facts permitting the imposition of an upper term sentence, the system violates the Sixth Amendment.”[92]

First, the majority examined the DSL, noting that its adoption in 1977 was an effort to control the “open-ended prison terms” of the previous indeterminate sentencing scheme[93] and that for Cunningham’s offense and most other offenses, the system imposed one of three punishments.[94] The Court noted that the statute mandated the imposition of the middle term of twelve years as the presumptive punishment “unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation.”[95] In particular, the Court emphasized that “circumstances in aggravation” meant “facts which justify the imposition of the upper prison term,”[96] and that pursuant to the statute such facts “shall be established by a preponderance of the evidence.”[97]

The Court next examined precedent, relying primarily on Apprendi, Blakely, and Booker and restated its previous holding that “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.”[98] The Court concluded the California Supreme Court in Black improperly decided the upper term was the relevant statutory maximum pursuant to Apprendi’s “bright-line rule.”[99] Although the California system allowed for judicial discretion to decide facts to enhance a sentence, the “jury[] verdict alone [did] not authorize the sentence” and, therefore, violated the Sixth Amendment right to trial by jury.[100]

Furthermore, the Court rejected the argument that the California system complied with the advisory scheme envisioned by the majority in Booker.[101] Specifically, the Court found that the fixed “sentencing triads” of the DSL require “[f]actfinding to elevate a sentence from 12 to 16 years,” which was clearly 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.”[102] The Court noted the California sentencing scheme “resemble[d] pre-Booker federal sentencing”[103] and that similar to Booker, “the constitutional issues . . . would have been avoided entirely if [the legislature] had omitted . . . the provisions that make the Guidelines binding.”[104]

Finally, the majority rejected the California Supreme Court’s “attempted . . . rescue [of] the DSL’s judicial factfinding authority by typing it simply [as] a reasonableness constraint, equivalent to the constraint[s] operative in the federal system post-Booker.”[105] Stating “[r]easonableness . . . is not . . . the touchstone of Sixth Amendment analysis,” the majority concluded that “Booker anticipated [that] the federal system operates within the Sixth Amendment constraints delineated in our precedent, not as a substitute for those constraints.”[106]

Therefore, the United States Supreme Court concluded Cunningham’s sentence violated the Sixth Amendment because: (1) the sixteen year sentence went beyond the twelve year “statutory maximum” allowed by the jury verdict; (2) the statutory language impermissibly mandated judicial fact-finding to justify upward departures; and (3) even though the upward departure was “reasonable,” such a finding was “not a recipe for rendering our Sixth Amendment case law toothless.”[107]

C. Dissenting Opinion: Justice Kennedy

Justice Kennedy, in a dissenting opinion joined by Justice Breyer, criticized the majority’s “wooden, unyielding insistence on expanding the Apprendi doctrine”[108] and offered his own plan that would remedy the “widespread harm to the criminal justice system and the corrections process.”[109] In particular, Justice Kennedy stated the Court should make a distinction between “sentencing enhancements” related to the offense and those related to the offender.[110] The former would fall under the Apprendi rule, consistent with the special fact-finding role of juries, and would “likely . . . be a central part of the prosecution’s case.”[111] The latter factors would include examination of a defendant’s prior convictions and other character assessments more appropriate for judges to consider based on their knowledge and expertise in sentencing.[112] He explained that such a distinction would preserve the collaborative efforts between judges and legislators to develop uniformity in sentencing, while also preserving the traditional fact-finding role of the jury embodied in the Sixth Amendment.[113]

D. Dissenting Opinion: Justice Alito

The Court’s newest member, Justice Alito, authored a separate dissent that criticized the majority on the grounds that the California DSL complied with the Booker advisory guidelines and therefore comported with the Sixth Amendment jury trial requirements.[114] His dissent explained that in both the California DSL and post-Booker schemes, the trial judge had broad discretion to “find some factor to justify a sentence above the minimum that could be imposed based solely on the jury’s verdict,” so long as the discretionary sentence was “reasonable.”[115]

Justice Alito’s opinion rejected the majority’s narrow reading that the California DSL was unconstitutional solely because it required a judge to make factual findings, explaining that the Court has never concluded “that all factual findings that affect a defendant’s sentence must be made by a jury.”[116] He explained that under both indeterminate and determinate sentencing schemes “judges made federal determinations about the nature of the offense and the offender and determined the sentence accordingly,” the only notable difference referring to the level of formalism and precision in stating the grounds for such facts.[117]

It was not clear to Justice Alito that the California statute even required the trial court to make a specific finding of fact, but rather seemed to allow policy considerations “like punishment, deterrence, restitution, and uniformity” to guide sentencing departures.[118] Justice Alito noted that “[p]olicy considerations like these have always been outside the province of the jury and do not implicate the Sixth Amendment concerns expressed in Apprendi.”[119]

Justice Alito rebuked the majority for failing to take account of the remedial decision in Booker and for its overemphasis of the Blakely decision.[120] From his perspective, Blakely had to be read in light of Booker, which suggested that the imposition of a higher sentence beyond the “statutory maximum” can be based on “findings of fact made by a judge and not by the jury” subject to a reasonableness standard of review.[121] Therefore, because the factors provided by the California statutory scheme were not exhaustive[122] and explicitly required that the discretion be exercised reasonably,[123] it constitutionally comported with the Sixth Amendment as interpreted in Booker.[124]

IV. Analysis

The Cunningham decision continues the United States Supreme Court’s previous line of cases,[125] striking down yet another determinate sentencing scheme for violating the Sixth Amendment right to trial by jury.[126] Nevertheless, in reaching its decision, the Cunningham majority misapplied the remedial portion of Booker,[127] undermined legislative efforts to achieve uniformity in sentencing, and paradoxically enhanced judicial discretion at the expense of jury determination.[128] Thus, the practical result of Cunningham is actually a reduction of jury trial input. This reinforces the conclusion that the invalidation of determinate sentencing schemes has less to do with increasing jury power per se and rather, reflects the conflicting structural and institutional balance of power considerations informing the ideological perspectives of the Court’s individual members.[129]

A. Justice Alito’s Booker-Smarts

The Cunningham majority maintained its commitment to jury power and professed that the Sixth Amendment right to trial by jury has not been rendered “toothless” in light of Booker’s remedy.[130] Yet it failed to articulate how Booker’s remedial “reasonableness” standard and Mistretta’s affirmation of sentencing guideline schemes could be read consistently with the Cunningham decision which struck down California’s triad determinate sentencing scheme.[131]

In the majority, Justice Ginsberg refused to address the issue of “reasonableness” review that she endorsed in the remedial opinion in Booker: “[i]t is comforting but, beside the point, that California’s system requires judge-determined DSL sentences to be reasonable,”[132] chiding Justice Alito and the California Supreme Court in Black for erroneously concluding that “reasonableness . . . [is] the touchstone of Sixth Amendment analysis.”[133] Instead, Justice Ginsberg broadly stated that “[t]he reasonableness requirement Booker anticipated for the federal system operates within the Sixth Amendment constraints delineated in our precedent, not as a substitute for those constraints.”[134]

Contrary to Justice Ginsberg’s statement, “[i]t is comforting, but beside the point, that California’s system requires judge-determined DSL sentences to be reasonable,”[135] reasonableness is in actuality a very relevant point. It is Justice Alito’s dissent that correctly concluded that the majority’s holding in Cunningham cannot logically be read in light of the reasonableness standard in Booker.[136] His dissent aptly questioned the majority’s position that findings of fact cannot be determined by the judge.[137]

According to the remedial holding of Booker, the reasonableness standard of review appears to permit a judge to make a finding of fact that deviates from the advisory guidelines so long as the discretionary departure is reasonable and “consistent with the requirements and guidelines contained in statutes and court rules.”[138] Because the California scheme included a requirement that the sentencing departure be “reasonable,” it met the constitutional requirements of Booker.[139] Thus, unless the majority overruled Mistretta and Booker, its Cunningham decision cannot be read as consistent with these decisions.[140]

B. The Majority’s Murky “Bright-Line Test”

In recent years, the United States Supreme Court has appeared committed to affirming Sixth Amendment right to trial by jury principles in sentencing cases, striking down several determinate sentencing schemes which it found to have unconstitutionally trampled jury power.[141] In achieving this end, the Court has constructed a “bright-line test” which strikes down schemes that allow judges seeking to impose upward departures the authority to make factual findings by a mere preponderance of the evidence[142] while at the same time upholding indeterminate schemes that give full discretion to judges to determine appropriate sentences.[143]

The Court’s “bright-line test”—if it was ever “bright”[144]—has become murky in light of the Booker and Cunningham decisions.[145] Leaving the “reasonableness” confusion of Booker aside, all members of the Booker Court in both decisions agreed on one point: the Federal Sentencing Guidelines were constitutional if they were read as merely advisory.[146] This seems to suggest that a judge could make factual determinations above the statutory maximum based on advisory considerations, akin to how an indeterminate system operates.[147] Similarly, the California scheme, like the post-Booker advisory scheme, permitted but did not mandate that a judge make upward sentencing departures based on a variety of factual and policy considerations.[148]

Yet the Cunningham majority elected to formalistically emphasize one small component of the California statute, the portion that made the presumptive sentence the middle term.[149] The majority prematurely concluded that because imposition of the higher end term based on a judge’s finding violated the Apprendi and Blakely “bright-line rule,” it was therefore an unconstitutional encroachment on the jury’s factual determination.[150] This erroneous conclusion fails to factor in Booker’s dual opinions, holding that reasonable sentences under the now advisory Sentencing Guidelines are constitutional.[151]

In particular, the Cunningham majority does not consider how the presumptive middle term in California’s sentencing law operates within California’s broader statutory scheme. Notably, the scheme allows for, but does not mandate a judge to make factual findings.[152] Furthermore, the majority’s narrow interpretation fails to account for legislative intent; specifically, the middle term presumption was designed to provide guidance and uniformity to sentencing rather than to tie the hands of the sentencing judge.[153] While the majority’s holding that Booker “reasonableness” does not apply in light of the mandatory language of California’s sentencing scheme,[154] it seems illogical why additional factual determinations in one scheme are permissive (indeterminate) but in another violate the Sixth Amendment (guided advisory).[155]

This inconsistency is perhaps best explained by analyzing the ideological leanings of the members of the Court.[156] For example, consider Justice Stevens’ concerns that determinative sentencing schemes pose an abuse of legislative power, dangerously undermining the independent decision-making function of the jury institution as a whole.[157] While Justice Scalia finds determinate schemes undermine the democratic legitimacy of the jury trial and form an intractable “slippery slope down to lawlessness, with no meaningful limits on judicial discretion.”[158] Alternatively, the dissent includes Justice Alito, a former prosecutor,[159] and Justice Breyer, a chief architect of the Federal Guidelines,[160] whose perspectives are shaped by the practical applications of determinate schemes as mitigating disparity and facilitating greater accountability.[161]

The Cunningham majority’s murky reading of Booker suggests that the ideological inclinations of the individual Court members underlie its collective decision making on determinate schemes. Notably, three justices in the Cunningham majority authored dissenting opinions in Booker’s remedial decision, finding that the reasonableness standard was unworkable.[162] Thus, for all intents and purposes, the Cunningham majority has rendered Booker’s reasonableness review “toothless” by failing to demonstrate how Booker’s two majority positions can be reconciled with Apprendi’s and Blakely’s “bright-line” formalism.[163]

C. Justice Kennedy’s Pragmatic Solution

Justice Kennedy’s dissenting opinion offers an interesting solution to the Court’s complicated sentencing mess by providing a functional compromise to ensure jury determinations of crimes are followed, judicial resources are efficiently used, and certain forms of determinate sentencing schemes remain operable.[164] Justice Kennedy’s dissent criticizes the majority opinion and the entire line of Apprendi cases for being too formalistic and out of touch with the realities of the criminal justice system and for undercutting legislative efforts to “use a system based on guided discretion.”[165] His proposed solution would have sentences enhanced based on facts related to the offense and determined by the jury, consistent with Apprendi, and sentences augmented by technical facts and considerations related to the offender left to the determination of judicial professionals, guided by the legislature.[166]

This proposal leaves a “principled division of labor”[167] that corrects the majority’s fact debacle highlighted in Justice Alito’s dissent.[168] Specifically, it: (1) protects the Sixth Amendment fact-finding function of juries, pursuant to Apprendi and Blakely; (2) allows judges to use discretion to implement “reasonable” departures consistent with Booker; and (3) allows the legislature to prescribe broad sentencing policies and oversight.[169]

Without this compromised position, the alternative solutions are too severe, especially in light of the majority’s erosion of Booker’s “reasonableness” scheme. The legislature would have the option to implement a bifurcated jury system[170] which is plagued by problems of inefficiency and backlog.[171] Yet the more likely alternative is a replacement of determinate sentencing with a form of indeterminate sentencing.[172] This second alternative could be achieved through one of two ways. The legislature could increase the presumptive sentence to the highest sentence available, which allows reductions in sentences by factual determinations based on an advisory determinate sentencing scheme and a reasonableness standard of review.[173] Or in the alternative, a complete abolition of determinate sentencing schemes altogether with a reversion back to purely discretionary indeterminate schemes, which the Court has held does not implicate Sixth Amendment protections.[174]

On the other hand, Justice Kennedy’s sentencing solution seems to hold the most potential for a viable solution to the sentencing guideline debacle. By focusing on “offender facts,” it is in agreement with Apprendi, which held that prior convictions were not facts that had to be determined by a jury in rendering upper-term sentencing departures.[175] It also leaves intact the Mistretta decision upholding the basic framework of the sentencing guidelines, and thereby maintains legislative efforts to implement guided schemes to curb unfettered judicial discretion and bring uniformity to sentencing.[176]

In addition, the offender/offense distinction can be read in line with the remedial decision in Booker, especially because the consideration of “offender facts” would be advisory and imposition of upward departures could be reviewed to ensure they were “reasonable.”[177] Furthermore, this distinction does not infringe the Sixth Amendment jury trial requirement and better preserves an individual’s Sixth Amendment right.[178] This is because consideration of offender facts by a jury: (1) are most likely prohibited by particular rules of evidence;[179] (2) are possibly highly prejudicial if not omitted;[180] and (3) could cause the jury to make improper inferences and award such facts higher probative value than is otherwise warranted.[181] Arguably, an offender is better off having a professional, neutral decisionmaker determine the nuanced issues of offender factors rather than by the highly emotional, snap judgment of a jury.[182]

Unfortunately, the Cunningham majority forecloses Justice Kennedy’s pragmatic solution. In a footnote, Justice Ginsberg states simply that “Apprendi itself . . . leaves no room for the bifurcated approach Justice Kennedy proposes,” and highlights Apprendi’s “bright-line rule” that any fact that elevates the punishment above the statutory maximum must be determined beyond a reasonable doubt by the jury.[183]

D. Cunningham’s Policy Implications

Ultimately, the Cunningham majority fails to consider the practical ramifications of its decision. The majority professes to enhance Sixth Amendment jury determinations, holding that requiring a beyond a reasonable doubt standard provides juries with greater leverage and protects the individual offender from unilateral judicial decisions.[184] Yet the Court forces Congress and state legislators to replace determinate sentencing schemes with indeterminate schemes, with the practical effect of undercutting guided schemes and consequently enhancing judicial discretion at the expense of jury determination.[185]

Although the majority states that indeterminate sentencing schemes are not necessarily apt to follow Cunningham, this is the logical outgrowth. For example, a sensible response to the majority’s statement that Booker reasonableness is to be read within Sixth Amendment constraints introduces the option of a bifurcated sentencing trial, yet this solution holds little chance of widespread implementation.[186] Adopted by states including Kansas[187] and Washington,[188] such a system cannot function properly in highly populated states like California where the high volume of cases and limited judicial resources cannot accommodate a widespread jury-sentencing system.[189] Despite the fact most criminal cases are decided by plea agreements and never make it to trial,[190] a separate sentencing system would still not be feasible in California because it is a system already plagued by funding constraints.[191]

Instead, Cunningham reinforces that in order to comport with Sixth Amendment requirements, indeterminate systems that do not call into question Sixth Amendment considerations must be adopted.[192] Thus, the net effect of Cunningham is to give judges greater discretion, creating a “right to ‘sentence by judicial discretion’” rather than safeguarding the Sixth Amendment right to “trial by jury.”[193]

California’s legislative efforts in the months following Cunningham confirm this conclusion.[194] The California legislature passed legislation empowering trial judges to depart from the middle-tier sentence. [195] At their discretion, judges may now impose any one of the triad sentences without having to assert specific factual findings to support the departure.[196] Thus, the practical effect of Cunningham is to take away from sentencing schemes important democratic checks and political accountability by the legislature, while opening the door to relatively unrestrained, discretionary decisions.[197]

V. Conclusion

Cunningham v. California maintains the Court’s formalistic commitment to the Sixth Amendment right to trial by jury and its general attack on determinate sentencing schemes.[198] Yet as a consequence of its Sixth Amendment analysis, the Cunningham Court ironically provided for a minimized jury role, compelling legislatures to adopt indeterminate schemes [199] in order to comport with the Court’s Sixth Amendment cases.[200] Whether this is a desirable result is not altogether clear.[201] What is clear is that in light of Cunningham, solutions like those offered by Justice Kennedy, which take into account collaborative efforts involved in the sentencing process, appear the best recourse to salvage determinate sentencing schemes and ensures that juries retain their traditional fact-finding role in criminal trials.

Additionally, the Court’s failure to address California’s sentencing scheme, which had appeared to explicitly comply with post-Booker principles, throws the practical application of Booker’s remedial decision into serious doubt.[202] Nailing down Booker’s reasonableness standard of review is vital for understanding and formulating future sentencing schemes because regardless of the sentencing system adopted, it has the potential to serve as a substantive mechanism to mitigate judicial discretion.[203] But if Cunningham is any indication, the Court appears prepared to render the seemingly anomalous and inconsistent decisions in Booker obsolete, ostensibly under the guise of reaffirming Sixth Amendment trial by jury principles.

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*. J.D. candidate, Gonzaga University School of Law, expected May 2009. Special thanks to my family and friends for their continued support and encouragement. Thanks to the editors and staff of the Gonzaga Law Review for their hard work preparing this note for publication.

[1]. U.S Const. amend. VI.

[2]. 127 S. Ct. 856 (2007).

[3]. See United States v. Booker, 543 U.S. 220, 243-44 (2005) (Stevens, J.); Blakely v. Washington, 542 U.S. 296, 305 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

[4]. Cunningham, 127 S. Ct. at 870-71.

[5]. See cases cited supra note 3.

[6]. Cunningham, 127 S. Ct. at 869.

[7]. See Booker, 543 U.S. at 265 (Breyer, J.).

[8]. 391 U.S. 145 (1968).

[9]. Id. at 156; see also Jason Ferguson, Note, Apprendi v. New Jersey: Should Any Factual Determination Authorizing an Increase in a Criminal Defendant’s Sentence Be Proven to a Jury Beyond a Reasonable Doubt?, 52 Mercer L. Rev. 1531, 1534 (2001) (examining the historical developments of the United States Supreme Court’s jury trial jurisprudence).

[10]. Duncan, 391 U.S. at 156.

[11]. 397 U.S. 358 (1970).

[12]. Id. at 364.

[13]. 421 U.S. 684 (1975).

[14]. Id. at 699 n.24; see also id. at 686-87, 703-04 (striking down a Maine homicide statute, which presumed “malice aforethought” unless the defendant sufficiently rebutted this presumption).

[15]. Almendarez-Torres v. United States, 523 U.S. 224, 240 (1998) (alteration in original) (quoting Mullaney, 421 U.S. at 698).

[16]. See Williams v. New York, 337 U.S. 241, 247-48 & n.10 (1949).

[17]. Id. at 246-48.

[18]. Kristina Walter, Booker and our Brave New World: The Tension Among the Federal Sentencing Guidelines, Judicial Discretion, and a Defendant’s Constitutional Right to Trial by Jury, 53 Clev. St. L. Rev. 657, 660 (2005-2006).

[19]. See generally Cal. Penal Code § 1170 (West 2004); see also People v. Black, 113 P.3d 534, 537 (Cal. 2006).

[20]. See Sentencing Reform Act of 1984, 18 U.S.C. §§ 3551-3742 (2000).

[21]. See generally Walter, supra note 18, at 660-63.

[22]. 488 U.S. 361 (1989).

[23]. Id. at 412. But see id. at 427 (Scalia, J., dissenting) (arguing that empowering the Commission “as a sort of junior-varsity Congress” to render sentencing guidelines was an improper delegation of legislative lawmaking power with dangerous separation of powers implications).

[24]. 477 U.S. 79 (1986).

[25]. Id. at 81-82.

[26]. Id. at 87-88.

[27]. Id.

[28]. See, e.g., United States v. Gaudin, 515 U.S. 506, 514, 522-23 (1995) (rejecting the government’s argument that the element of “materiality” was properly decided by a judge rather than a jury because even in cases of mixed fact and law, “the jury’s constitutional responsibility is not merely to determine facts, but to apply the law to those facts and draw the ultimate conclusion of guilt or innocence”).

[29]. Id. at 510.

[30]. 523 U.S. 224 (1998)

[31]. Id. at 230, 239. But see id. at 249 (Scalia, J., dissenting) (arguing that because the underlying crime included a prior conviction as an element of the crime it needed to be included in the indictment in order to pass constitutional muster).

[32]. 526 U.S. 227 (1999) (invalidating portions of a carjacking statute that imposed a heightened sentence upon a finding of “serious bodily injury”).

[33]. Id. at 249 n.10.

[34]. Id. at 243 n.6.

[35]. Id. at 242 (distinguishing McMillan on grounds that the mandatory minimum sentence found by a preponderance of the evidence was appropriate because the sentence fell within the guidelines).

[36]. Id. (citing McMillan v. Pennsylvania, 477 U.S. 79, 88 (1986)).

[37]. See Blakely v. Washington, 542 U.S. 296, 305 (2004); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

[38]. United States v. Booker, 543 U.S. 220, 243-44 (2005) (Stevens, J.).

[39]. Apprendi, 530 U.S. at 490.

[40]. Id. at 468, 491-92.

[41]. Id. at 495.

[42]. Id. at 494.

[43]. Id. at 490.

[44]. Id. at 491-92.

[45]. Id. at 545 (O’Connor, J., dissenting) (quoting Gerard E. Lynch, Towards a Model Penal Code, Second (Federal?): The Challenge of the Special Part, 2 Buff. Crim. L. Rev. 297, 320 (1998)).

[46]. Id. at 550.

[47]. Blakely v. Washington, 542 U.S. 296, 303-05 (2004).

[48]. Id. at 303-04.

[49]. Id. at 313-14.

[50]. Id. at 306.

[51]. Id. at 309.

[52]. Id. at 314 (O’Connor, J., dissenting).

[53]. Id. at 322 (observing that determinate sentencing schemes, like the one the majority struck down, adequately protected individual liberty interests because of “a built-in political check to prevent lawmakers from shifting the prosecution for crimes to the penalty phase”).

[54]. Id.

[55]. United States v. Booker, 543 U.S. 220, 226-27 (2005) (Stevens, J.).

[56]. Id. at 229.

[57]. See id. at 244 (Stevens, J.); id. at 265 (Breyer, J.).

[58]. Id. at 227, 243-44 (Stevens, J.).

[59]. Id. at 235 (quoting Blakely, 542 U.S. at 305).

[60]. Id. at 237.

[61]. Id.

[62]. See id. at 258-59 (Breyer, J.) (explaining the Court’s excision of the mandatory language of the SRA and removal of the de novo standard of review for sentencing departures).

[63]. Id. at 256.

[64]. Id. at 256-57.

[65]. Id. at 261.

[66]. See id. at 244 (Stevens, J.) (citing Blakely v. Washington, 542 U.S. 296, 313 (2004)).

[67]. See Blakely, 542 U.S. at 303-04.

[68]. See Booker, 543 U.S. at 261.

[69]. See Joint Appendix, Cunningham v. California, 127 S. Ct. 856 (2007) (No. 05-6551), 2006 WL 1288031, at *22, 27-28.

[70]. Id. at *28.

[71]. Id. at *28-29.

[72]. Id. at *29.

[73]. Id. at *29-30.

[74]. Id. at *2-3.

[75]. Cal. Penal Code § 288.5(a) (West 2008) (criminalizing the act of continuous sexual abuse of a minor child under the age of fourteen).

[76]. Joint Appendix, supra note 69, at *30.

[77]. Id. at *4.

[78]. Cunningham v. California, 127 S. Ct. 856, 860 (2007).

[79]. Id. at 860-61.

[80]. Id.

[81]. Id.

[82]. Id. at 861 n.2.

[83]. Id.

[84]. Id. at 861 & n.2.

[85]. Id. at 861.

[86]. 113 P.3d 534 (Cal. 2005), abrogated by Cunningham, 127 S. Ct. 856.

[87]. Cunningham, 127 S. Ct. at 861 (citing Black, 113 P.3d at 536).

[88]. Petition for Writ of Certiorari, Cunningham v. California, 127 S. Ct. 856 (2007) (No. 05-6551) 2005 WL 3785203.

[89]. Order granting Petition for Writ of Certiorari, United States Supreme Court Docket, Cunningham v. California, 127 S. Ct. 856 (No. 05-6551).

[90]. United States v. Booker, 543 U.S. 220, 226, 244 (2005) (Stevens, J.) (Justice Ginsburg joining the majority holding that the United States Sentencing Guidelines violate the Sixth Amendment because “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts 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”); see also id. at 244-45, 261 (Breyer, J.) (Justice Ginsburg joining the remedial majority severing mandatory language of the SRA making the guidelines advisory and imposing a “reasonableness” standard).

[91]. Cunningham, 127 S. Ct. at 870.

[92]. Id.

[93]. Id. at 861.

[94]. Id. (citing Cal. Penal Code § 288.5(a) (West 1999)) (stating that the punishment shall be one of the three prescribed terms); see also People v. Black, 113 P.3d 534, 538 (Cal. 2005).

[95]. Id. at 861-62 (citing Cal. Penal Code § 1170(b) (West 2004)) (explaining that aggravation and mitigation factors should be determined based on examination of such things as pre-sentence reports and statements made by the victim and accused).

[96]. Id. at 862 & n.4 (citing Cal. Ct. R. 4.405(4)) (noting that the Judicial Council is empowered by the California State Constitution “to adopt rules for court administration, practice and procedure,” and has implemented rules pursuant to the DSL “guiding the sentencing judge’s decision” in whether to deviate from the presumptive middle term).

[97]. Id. at 862 & n.6 (emphasis added) (citing Cal. Ct. R. 4.420(b), 4.420(e)) (“The [sentencing] judge must provide a statement of reasons . . . only when a lower or upper term sentence is imposed.”).

[98]. Id. at 863-64.

[99]. Id. at 869.

[100]. Id. (citing Blakely v. Washington, 542 U.S. 296, 305 & n.8 (2004)).

[101]. Id. at 870.

[102]. Id.

[103]. Id. at 866 n.10.

[104]. Id. at 866 (quoting United States v. Booker, 543 U.S. 220, 233 (2005) (Stevens, J.)).

[105]. Id. at 870 (citing People v. Black, 113 P.3d 534, 548 (Cal. 2005)).

[106]. Id.

[107]. Id.

[108]. Id. at 872 (Kennedy, J., dissenting).

[109]. Id.

[110]. Id.

[111]. Id. at 872-73.

[112]. Id.

[113]. Id.

[114]. Id. at 873 (Alito, J., dissenting).

[115]. Id.

[116]. Id. at 873-74 (emphasis added) (citing United States v. Booker, 543 U.S. 220, 233 (2005) (Stevens, J.); Blakely v. Washington, 542 U.S. 296, 305 (2004); Apprendi v. New Jersey, 530 U.S. 466, 481 (2000)); see also id. at 874 n.1 (“‘Fully discretionary sentencing . . . was the system [that was] in place when the Sixth Amendment was adopted’ and that ‘prevailed in the federal courts from the Founding until enactment of the Sentencing Reform Act of 1984 . . . without anyone ever suggesting a conflict with the Sixth Amendment.” (quoting Michael W. McConnell, The Booker Mess, 83 Denver U. L. Rev. 665, 679 (2006)).

[117]. Id. at 875.

[118]. Id. at 879 (“For one thing, it is not at all clear that a California court must find some case-specific, adjudicative ‘fact’ (as opposed to identifying a relevant policy consideration) before imposing an upper term sentence.”).

[119]. Id.

[120]. Id. at 880.

[121]. Id. at 880-81.

[122]. Id. at 877.

[123]. Id. at 878.

[124]. Id. at 881.

[125]. See United States v. Booker, 543 U.S. 220, 235 (2005) (Stevens, J.); Blakely v. Washington, 542 U.S. 296, 305 (2004); Apprendi v. New Jersey, 530 U.S. 466, 492 (2000).

[126]. See Cunningham, 127 S. Ct. at 871.

[127]. Booker, 543 U.S. at 248-49 (Breyer, J.).

[128]. See Benjamin J. Priester, The Canine Metaphor and the Future of Sentencing Reform: Dogs, Tails, and the Constitutional Law of Wagging, 60 Smu L. Rev. 209, 225-26 (2007) (explaining that the Court’s recent Sixth Amendment cases “reduces legislative and prosecutorial power, but it does not shift that power to the trial jury—it shifts that power to the sentencing judge”).

[129]. Id.; see also Douglas A. Berman, Conceptualizing Booker, 38 Ariz. St. L.J. 387, 409 (2006) (explaining that “[b]y continuing to cite Williams favorably [which permissively allows indeterminate sentencing] and by continuing to endorse judicial fact-finding at sentencing if but only when that fact-finding is not subject to structured rules, the Court seems almost to invite turning the jury trial right into a ‘mere procedural formality’”).

[130]. Cunningham, 127 S. Ct. at 870.

[131]. See Frank O. Bowman, III, “The Question is Which is to be Master—That’s All”: Cunningham, Claiborne, Rita, and the Sixth Amendment Muddle, 19 Fed. Sent’g Rep. 155, 157-58 (2007).

[132]. Cunningham, 127 S. Ct. at 870.

[133]. Id. at 870 & n.15.

[134]. Id. at 870.

[135]. Id.

[136]. Id. at 880 (Alito, J., dissenting).

[137]. See id. at 875 (explaining that in post-Booker sentencing schemes “it seems clear that this regime permits—and, indeed, requires—sentencing judges to make factual findings and to base their sentences on those findings”); see also Michael W. McConnell, The Booker Mess, 83 Denver U. L. Rev. 665, 679-80 (2006) (explaining how the Booker Court left open the possibility for judicial factual determination in advisory sentencing schemes).

[138]. See Cunningham, 127 S. Ct. at 878 (Alito, J., dissenting) (quoting People v. Black, 113 P.3d 534, 545 (Cal. 2006)).

[139]. Id.

[140]. See Bowman, supra note 131, at 158 (arguing that in a post-Booker system upper-level sentences “cannot legally be imposed in the absence of a post-conviction judicial finding of fact” and therefore the “post-Booker Guidelines violate the ‘bright-line rule’ proclaimed in Blakely and embraced by the Cunningham majority” because they rest on additional findings of fact that are considered “reasonable”).

[141]. See Booker, 543 U.S. at 235 (Stevens, J.); Blakely v. Washington, 542 U.S. 296, 305 (2004); Apprendi v. New Jersey, 530 U.S. 466, 491-92 (2000).

[142]. Cunningham, 127 S. Ct. at 868.

[143]. Id. at 866.

[144]. See People v. Black, 113 P.3d 534, 547 (Cal. 2006) (criticizing the Court’s line of precedent for complicating sentencing decisions).

[145]. Cunningham, 127 S. Ct. at 880 (Alito, J., dissenting) (disapproving of the majority’s downplaying of the Booker reasonableness standard, which had seemed to suggest that factual finding made by the sentencing judge were permissive).

[146]. Booker, 543 U.S. at 233 (Stevens, J.) (noting that “everyone agrees that the constitutional issues presented by these cases would have been avoided entirely if Congress had omitted from the SRA the provisions that make the Guidelines binding on district judges”).

[147]. See McConnell, supra note 137, at 677-78.

[148]. Black, 113 P.3d at 544 (noting that “[a]lthough [section 1170(b)] is worded in mandatory language [making the presumptive sentence the middle twelve-year term], the requirement that an aggravating factor exist is merely a requirement that the decision to impose the upper term be reasonable”).

[149]. Cal. Penal Code § 1170(b) (West 2004) (stating that the sentencing court “shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation”).

[150]. See Cunningham, 127 S. Ct. at 869.

[151]. Id. at 879-80 (Alito, J., dissenting).

[152]. Black, 113 P.3d at 543-44.

[153]. Id. at 544-45 (noting the California Legislature’s goals for consistency in sentencing provided judges with a broad range of possible sentencing considerations and how the determinate sentencing triads provided greater notice and thus, protected the right to jury trial better than the formerly indeterminate system).

[154]. Cunningham, 127 S. Ct. at 870.

[155]. See Priester, supra note 128, at 222 (explaining how the Blakely-Booker decisions have produced intra and inter-jurisdictional disparities in sentencing); see also McConnell, supra note 137, at 677 (“The jury verdict is no more consequential after Booker than it was before, but now the district judge can thumb his nose (within the bounds of reasonableness) at Congress’s determination regarding the appropriate sentence for offenses of that type and circumstance.”).

[156]. See, e.g., Blakely v. Washington, 542 U.S. 296, 327 (2004) (Kennedy, J., dissenting) (reprimanding the majority for striking down Washington State’s sentencing scheme enacted by “democratically elected legislators” based on questionable reasons of “a faintly disguised distrust of judges and their purported usurpation of the jury’s function in criminal trials”).

[157]. See United States v. Booker, 543 U.S. 220, 238-39 (2005) (Stevens, J.) (explaining that the purpose of the Sixth Amendment was “[t]o guard against a spirit of oppression and tyranny on the part of rulers” (quoting Apprendi v. New Jersey, 530 U.S. 466, 477 (2000))).

[158]. Douglas A. Berman & Stephanos Bibas, Making Sentencing Sensible, 4 Ohio St. J. Crim. L. 37, 62 (2006).

[159]. See Samuel A. Alito Jr., What Role Should Individual Sentencing Judges Play in the Guideline Development Process?, 1 Fed. Sent’g Rep. 372, 372 (1989) (a former United States Attorney for the District of New Jersey opining that judicial sentencing opinions justifying sentencing decisions would help eliminate many “bugs” of the Guidelines).

[160]. See Stephen Breyer, The Federal Sentencing Guidelines and the Key Compromises on Which They Rest, 17 Hofstra L. Rev. 1, 4 (1988) (explaining that the dual purposes of the Guidelines are to promote “honesty in sentencing” and reduce “‘unjustifiably wide’ sentencing disparity”).

[161]. See id. at 4-5; see also The Next Page in Federal Sentencing, Legal Times, Aug. 28, 1989, at 19 (Samuel Alito, Jr., U.S. Attorney, District of New Jersey) (discussing the impact and potential reforms created by the Guidelines).

[162]. See Booker, 543 U.S. at 312 (Scalia, J., dissenting) (explaining that the reasonableness standard “will produce a discordant symphony of different standards, varying from court to court and judge to judge, giving the lie to the remedial majority’s sanguine claim that ‘no feature’ of its avant-garde Guidelines system will ‘ten[d] to hinder’ the avoidance of ‘excessive sentencing disparities’”) (alteration in original); id. at 295 (Stevens, J., dissenting) (examining legislative history to conclude: “Congress refused to accept the discretionary system that the Court implausibly deems most consistent with congressional intent.”); id. at 313 (Thomas, J., dissenting) (criticizing the majority for its conversion of the Guidelines from “a mandatory system to a discretionary one”).

[163]. See Bowman, supra note 131, at 158 (arguing that the “reasonableness” review envisioned in Booker’s remedy requires a judge to make a factual justification for an upward departure to constitute a “reasonable” sentence; thus, the upper-end sentences “cannot legally be imposed in the absence of a post-conviction judicial finding of fact”).

[164]. See Cunningham v. California, 127 S. Ct. 856, 872 (2007). (Kennedy, J., dissenting).

[165]. Id. at 872-73.

[166]. Id.

[167]. Berman & Bibas, supra note 158, at 39, 56 (explaining that the “offense/offender distinction, in addition to being suggested by the text of the Constitution, reflects juries’ and judges’ distinctive institutional competences”).

[168]. See Cunningham, 127 S. Ct. at 875 (Alito, J., dissenting) (explaining that in all sentencing schemes, even those pre-dating sentencing guidelines, factual determinations by judges were standard practice but that under indeterminate schemes factual determinations were “relatively informal and imprecise” and prone to judicial abuse of discretion without remedy).

[169]. See Berman & Bibas, supra note 158, at 38-40 (explaining that “formalistic constitutional doctrines alone cannot effectively promote jury involvement or prompt sound legislative responses” and advocating the adoption of real solutions that address the nuances of sentencing).

[170]. See Walter, supra note 18, at 679-81 (explaining the bifurcated system as operated in Kansas is inefficient, complex, and a distortion of the sentencing process by “remov[ing] the judge from sentencing”).

[171]. See Kevin R. Reitz, The New Sentencing Conundrum: Policy and Constitutional Law at Cross-Purposes, 105 Colum. L. Rev. 1082, 1109-12 (2005) (noting how prosecutors and judges may still impose aggravated sentences and bypass the jury by strategically seeking consecutive sentences).

[172]. See United States v. Booker, 543 U.S. 220, 233 (2005) (Stevens, J.) (explaining that a completely discretionary system does not implicate the Sixth Amendment).

[173]. See Walter, supra note 18, at 676-77 (describing that such a scheme bypasses the jury in favor of judge determination because under such a system of mandatory minimums, “no matter how much [the judge] increases a defendant’s sentence, the penalty will not exceed the statutory maximum”).

[174]. See Reitz, supra note 171, at 1096, 1119 (examining how “schizophrenic” the Court’s recent holdings have been that have struck down determinate sentencing as unconstitutional but have held indeterminate schemes do not implicate the same Sixth Amendment considerations).

[175]. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

[176]. See Berman & Bibas, supra note 158, at 69 (explaining that voluntary guidelines serve as “mental anchors or benchmarks” and that over time judges harmonize their individual sentencing to a roughly equalized outcome).

[177]. See Booker, 543 U.S. at 233 (Stevens, J.), 261 (Breyer, J.).

[178]. See Berman & Bibas, supra note 158, at 55 (noting that while a jury brings a certain “democratic legitimacy” to the trial phase, at the sentencing phase, a judge is the better actor to impose complex considerations related to sentencing).

[179]. See, e.g., Fed. R. Evid. 404(b) (“Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.”).

[180]. Fed. R. Evid. 403 (“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . .”).

[181]. See Berman & Bibas, supra note 158, at 69 (explaining that evidence of offender facts “could readily prejudice how the jury, an inexperienced decision-maker, views the defendant”).

[182]. Id.

[183]. Cunningham, 127 S. Ct. at 869 n.14 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)).

[184]. See id. at 869.

[185]. See McConnell, supra note 137, at 677 (noting that “now the district judge can thumb his nose (within the bounds of reasonableness) at Congress’s determination regarding the appropriate sentence for offenses of that type and circumstance”).

[186]. See Walter, supra note 18, at 681-83.

[187]. Id. at 679-80.

[188]. See Wash. Rev. Code Ann. §§ 9.94A.535, .537 (West 2007).

[189]. See Reitz, supra note 171, at 1112 (explaining that the bifurcated option is preferable “[p]rovided the costs of the . . . fix are not high”).

[190]. See United States v. Booker, 543 U.S. 220, 276-77 (2005) (Stevens, J., dissenting) (noting “only a tiny fraction of federal prosecutions ever go to trial” and that consistent with Blakely “[w]hen a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial fact-finding” (alteration in original) (quoting Blakely v. Washington, 542 U.S. 296, 310 (2004))).

[191]. See John Pomfret, California’s Crisis In Prison Systems A Threat to Public: Longer Sentences and Less Emphasis on Rehabilitation Create Problems, Wash. Post, June 11, 2006, at A3; see also Reitz, supra note 171, at 1112-14 (acknowledging that while most criminal cases are resolved through plea bargains, implementation of a bifurcated system or another alternative would only be appropriate if it was cost efficient and would further the legislature’s efforts to reduce prison populations and prioritize scarce resources).

[192]. See Booker, 543 U.S. at 233 (Stevens, J.).

[193]. McConnell, supra note 137, at 677.

[194]. See generally Andy Furillo, Schwarzenegger Signs New Sentencing Bill, Sacramento Bee, Mar. 30, 2007, available at http://www.sacbee.com/111/v-print/story/146903.html.

[195]. 2007 Cal. Legis. Serv. 93 (West) (S.B. 40) (codified as amended at Cal. Penal Code § 1170(b) (West 2008) (removes the presumptive middle term and allows for unfettered judicial discretion in application of any of the three sentencing terms). But see Frank D. Russo, California Assembly Passes Stop Gap Measure on Sentencing in Criminal Cases, Cal. Progress Rep., Mar. 27, 2007, http://www.californiaprogressreport.com/2007/03/california_asse_10.html (explaining that the law’s January 1, 2009 sunset provision means the bill is temporary, pending efforts to formulate a state sentencing commission).

[196]. Id.

[197]. See Blakely v. Washington, 542 U.S. 296, 321-23 (2004) (O’Connor, J., dissenting ) (explaining that the majority’s holding “does and will continue to produce results that disserve the very principles the majority purports to vindicate,” namely the erosion of political checks).

[198]. See Booker, 543 U.S. at 235 (Stevens, J.); Blakely, 542 U.S. at 305; Apprendi v. New Jersey, 530 U.S. 466, 491-92 (2000).

[199]. See Blakely, 542 U.S. at 327 (Kennedy, J., dissenting) (“[T]he case here implicates not just the collective wisdom of legislators on the other side of the continuing dialogue over fair sentencing, but also the interest of the States to serve as laboratories for innovation and experiment.”).

[200]. See Booker, 543 U.S. at 226-27; Blakely, 542 U.S. at 305-06; Apprendi, 530 U.S. at 490. See generally Priester, supra note 128, at 221-24 (discussing how the Court’s formalism will create both intra and inter-jurisdictional inconsistencies in sentencing).

[201]. See Douglas A. Berman, Claiborne and Rita—Booker Clean-up or Continued Confusion?, 19 Fed. Sent’g Rep. 151, 153 (explaining that in the federal system, determinate sentencing Guidelines may have “undermined, rather than enhanced, the goal of greater sentencing consistency”). But see McConnell, supra note 137, at 675-76 (illustrating that the adoption of an advisory sentencing scheme in the federal system has had the effect of “produc[ing] a greater degree of regional non-uniformity in sentencing practices”).

[202]. See Cunningham v. California, 127 S. Ct. 856, 880 (2007) (Alito, J., dissenting).

[203]. See Bowman, supra note 131, at 156 (distinguishing between pure indeterminate schemes where there is no check on discretion and systems employing a “reasonableness” standard of review, noting that the latter provides greater oversight over the judge’s choice).

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