Determinate sentencing struck down by U.S. Supreme Court.

• Author: Ziemer, David

Byline: David Ziemer

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...