Supreme Court Strikes Down California Sentencing Scheme:
The Supreme Court handed down its latest decision in the Apprendi/Blakely/Booker line of Sixth Amendment sentencing decisions. The Court's decision, Cunningham v. California, invalidated California's sentencing scheme on the ground that it was too much like the scheme invalidated in Blakely.

  Given the substitution of two Justices since the Booker case, perhaps the most interesting aspect of the decision is the vote line-up. The vote was 6-3, with the Apprendi Five in the majority (of course) joined by Chief Justice Roberts. Ginsburg wrote the majority opinion, and there were no concurrences. Justice Kennedy wrote a short dissent, joined by Justice Breyer, expressing his view that the Blakely Revolution remains a wrong turn and should be construed in a narrower way than the majority prefers. (AMK also cites the recent Blakely article authored by lawprofs Doug Berman and former AMK clerk Stephanos Bibas along the way). Justice Alito also dissented, joined by Kennedy and Breyer, and argued that California's sentencing scheme is indistiguishable from the non-mandatory guidelines approach permitted in Booker.
Hans Bader (mail):
The net effect of this decision is to make trials even more cumbersome and unmanageable.

That encourages overwhelmed courts and prosecutors to seek to circumvent the constitutional right to a jury trial entirely, by unpleasant devices, like extortionate plea bargains and delays in holding trials for those who insist upon them rather than pleading guilty to minor offenses.

In criminal procedure, the Supreme Court seems to strain at gnats while swallowing camels, as its Cunningham decision today shows.

On the one hand, its Cunningham decision allows manifestly guilty people to have their sentences overturned or radically reduced based on technicalities having nothing to do with guilt or innocence, merely because certain sentencing-related determinations were made by a judge rather than (as is less manageable) by a jury.

Yet, on the other hand, past Supreme Court decisions effectively allow prosecutors to extort guilty pleas from innocent defendants through mechanisms that circumvent rights to a jury trial.

For example, it has upheld the plea bargain, even though plea bargains are often used to present defendants with a Hobson's Choice: either plead guilty and receive a light sentence, or insist on your right to trial by jury and receive such an immensely longer sentence if you are erroneously convicted that it makes sense to plead guilty even if you are innocent.

Similarly, it has done nothing to stop prosecutors from holding people in jail for longer (pending jury trial for minor crimes) than they would actually be sentenced to if found guilty. When that happens, even a manifestly innocent defendant has a strong incentive to plead guilty.

Why does the Supreme Court's jurisprudence focus so much on overturning guilty defendants' convictions on technicalities, while permitting guilty pleas to be extorted from innocent defendants?

How can this make sense to anyone?

The plea bargain should be restricted to protect the innocent. And the whole Booker/Apprendi line of cases should be reversed so that the guilty cannot go free on a technicality.
1.22.2007 1:24pm
Daniel Chapman (mail):
So... your problem with plea bargains is that prosecutors are offering TOO GOOD of deals, thereby convincing innocent people to plead guilty rather than risk a false conviction by a jury? And to rectify that problem, you're suggesting that plea bargains should be limited how exactly? No deals under 75% of the maximum sentence? No deals whatsoever? How would either of these benefit criminal defendants or even the amorphous class of "innocent criminal defendants?"

I think your real problem is that the maximum PENALTIES are so high that they make plea deals look better in comparison. You should take that up with the legislature instead of pleading with the courts to fix it.
1.22.2007 1:35pm
Stephen C. Carlson (www):
It looks like the "Apprendi Five" is now up to six.
1.22.2007 1:40pm
Leighton Moore (mail):
Hans Bader:

I don't think your argument is sufficient. First, why couldn't the Court reform plea-bargaining without disturbing the Booker line of cases? Even if I agree that plea bargaining creates problems, and that these problems grow as jury trials become more onerous for the prosecution, I don't see why it follows that jury trials should be made less onerous for the prosecution, especially not in the specific way you contend. Second, you could make the same argument against the reasonable-doubt standard or the jury right generally: both make criminal trials more difficult to prove, and help create incentives to leverage a plea using over-charging, cutting shady deals with co-defendants and witnesses, etc. But I certainly wouldn't want to get rid of either one. Why get rid of their extension to sentence-enhancing facts, then?
1.22.2007 1:53pm
Hans Bader (mail):
The reasonable-doubt standard reduces the risk of false convictions.

The Apprendi/Booker line of cases doesn't, since judges are no less accurate than untrained laymen in determining guilt or innocence.

(Indeed, judges are probably more accurate on average, convicting fewer guilty people and acquitting fewer innocent ones -- the only exception to this rule might be in a few places, like New Jersey (where the Apprendi decision itself arose), where the judiciary is so ideologically kooky as to result in it wearing ideological blinders while deciding cases).
1.22.2007 2:05pm
Visitor Again:
I wonder whether this is a case of Roberts joining the majority for the sake of the court as an institution--an approach he urged during his recent interview--rather than pursuing his own views and producing another 5-4 split. That's meant as a question, not a statement.

That this case would lead to a U.S. Supreme Court reversal was obvious. The California Supreme Court should have known better. In fact, I think it did know better. It's amazing the lengths to which it will go to avoid inconveniencing the prosecution in criminal cases. It apparently hoped the U.S. Supreme Court would give it a pass in view of the number of cases a reversal would affect. The result the California Supreme Court reached is only supportable if one rejects the entire Apprendi line of cases. It was an unreasonable application of existing constitutional law.
1.22.2007 2:23pm
MikeC&F (mail):
Hans: You are making a lot of sense. This question is pure gold: "Why does the Supreme Court's jurisprudence focus so much on overturning guilty defendants' convictions on technicalities, while permitting guilty pleas to be extorted from innocent defendants?"

I think most people would say: If a person is charged with a crime, he must be guilty. So if the Supreme Court starting worrying about the trial tax, they'd just make it harder to put guilty people into prison. (Remember, the first principle of the criminal system most people hold is this: Everyone charged with a crime is guilty of something.)
1.22.2007 2:40pm
Leighton Moore (mail):
So, if the reasonable-doubt standard reduces the risk of false convictions, then what's the objection to extending it to all sentence-enhancing facts?

And if the problem with plea bargains is that prosecutors have too much power (and sometimes abuse it), then why eliminate a rule that gives some additional leverage to the defendant?

I agree with you that decisions by judges are probably as accurate as juries, and certainly more efficient. The jury right serves other interests, however. As Justice Scalia wrote of the jury system in Apprendi, trial by jury has never been efficient but it has always been free. It's the right to have someone other than a government employee decide your case.
1.22.2007 2:54pm
Dilan Esper (mail) (www):
If Roberts has now joined the Apprendi five, it may mean that they may be able to knock out the dumb compromise that was brokered in Booker and finally relegate, to the dustbin of history where it belongs, the product of Justice Breyer's service on the Junior Varsity Legislature and his arrogation of and supposed "expertise" at what is a clear jury function.

(Of course, Breyer has a clear conflict of interest given his role in creating the guidelines and should recuse himself from these cases to begin with. Maybe then we wouldn't have had to wait for a change in court personnel to secure the right of trial by jury instead of trial by supposed "sentencing experts".)
1.22.2007 3:00pm
Hans Bader (mail):
Oops! When I said above that "Indeed, judges are probably more accurate on average, convicting fewer guilty people and acquitting fewer innocent ones," I actually meant "convicting MORE guilty people and acquitting MORE innocent ones."
1.22.2007 3:10pm
Roger Schlafly (www):
Hans, no one is "overturning guilty defendants' convictions on technicalities". The case only overturns sentences that were based on allegations for which there was no jury conviction.
1.22.2007 3:20pm
Hans Bader (mail):
Leighton Moore asks, plausibly,

"if the reasonable-doubt standard reduces the risk of false convictions, then what's the objection to extending it to all sentence-enhancing facts?"

In practice, though, striking down sentencing guidelines administered by judges doesn't necessarily lead to juries making those sentencing determinations beyond a reasonable doubt (which would initially help the accused, although it would costly and difficult to manage in cases where a large array of sentencing factors would need to be applied).

Instead, it would likely result in what happened in Booker and Fanfan: an increase in judges' arbitrary power to increase or decrease the sentences, perhaps without having to make any factual findings at all to justify them.

(The traditional way that indeterminate sentencing applied did not require anyone -- judge or jury -- to make any particular findings to justify a harsh or lenient sentence. Sentencing guidelines reduced that arbitrary power somewhat by requiring that similarly situated defendants be treated alike, and achieved that by requiring judges to make specific factual findings to deviate upward of downward from the middle range of sentences. That promoted equality between similarly situated defendants and reduced judges' arbitrary power. Of course, those advances were to some extent offset by uncabined prosecutorial discretion).
1.22.2007 3:21pm
I was a moot court judge with an Apprendi problem. It went like this. The hypothetical statute provided a special enhanced sentence for someone who had x prior convictions and was determined by a judge (who was free under the hypothetical statute to consider all sorts of stuff not found by a jury) to be a danger to society (or some such phrase). The x prior convictions were conceded. The prosecution offered a few other instances of bad conduct. The hypothetical trial judge found the other instances of bad conduct NOT established, but, based SOLELY on the facts established in the trial and the conceded x prior convictions, found the defendant to be a danger to society and imposed an enhanced sentence. Did the "danger to society" question have to be decided by a jury when all the facts on which the judge's decision was based were either conceded (the x prior convictions) or found by the convicting jury? Was "danger to society" a fact that had to be found or a discretionary call, at least where it was not based on extra, judge-found facts?
1.22.2007 4:10pm
The issue seems to be whether someone convicted of a crime has a right to have a jury determine facts. Hans seems to be attacking the finding that the factual determination has to be "beyond a reasonable doubt." Why not have the standard for the jury be the same as was for the judge, i.e., preponderance of the evidence?

And, while we are at it, why not have juries decide all the matters and leave sentencing up to them, much like in the military?
1.22.2007 5:03pm
Bobbie (mail):
I'm shocked that some people think that Roberts doesn't entirely agree with the majority opinion he signed onto. I mean, in Roberts's world, deciding cases is just like calling balls and strikes. Are people saying that Roberts would call a ball a strike just to get along with his other umpires?
1.22.2007 7:09pm
Kovarsky (mail):
Why is everyone using Hans' email as an analytic starting point? First, he doesn't acknowledge that Apprendi isn't just about judge versus jury findings, but also about preponderance versus reasonable doubt standards of guilt. Second, his "understanding" of the decision ignores the remedial opinion in Booker, which plainly allows the same sentences to be imposed on the same quantum of proof as before; they're just not mandatory.
1.22.2007 7:30pm
Great news!!! The sky isn't falling. As a practical matter, defendants will not want the jurors who are deciding their guilt or innocence of the present offenses to be told of aggravating factors, factors which by definition will make them look bad to those same jurors. Thus, I predict that most defendants will waive jury on the aggravating factors.
I suppose defendants could seek to bifurcate their trials, with a second jury deciding the truth of aggravating factors. However, bifurcation would be at the court's discretion, and a judge isn't likely to grant the motion if, as is often the case, there'll be duplication of evidence.
1.22.2007 8:19pm
Visitor Again:
I suppose defendants could seek to bifurcate their trials, with a second jury deciding the truth of aggravating factors. However, bifurcation would be at the court's discretion, and a judge isn't likely to grant the motion if, as is often the case, there'll be duplication of evidence.

How about a bifurcated trial with the same jury deciding guilt and in a separate stage deciding the aggravating factors? That's the way it's done in death penalty cases.
1.22.2007 8:28pm
Ken Kukec (mail):

The most interesting aspect of today's Cunningham case -- at least for those who do not regularly practice criminal law in the state courts of California -- may be what it says about our new Chief Justice's skill in exercising his opinion-assigning authority.

The last time the Court addressed this area of law, in United States v. Booker, it took on the federal sentencing guidelines. That decision had two distinct holdings: The first struck down the mandatory application of the guidelines. The second held that the the guidelines could nevertheless be employed as "advisory." Four of the Justices from the majority in Part I constituted the dissent in Part II (since they wanted to strike down the guidelines in toto). All four Justices who dissented from Part I were in the majority in Part II (since they wanted to uphold the guidelines in their entirety). Justice Ginsburg was the swing vote. She controlled the outcome of both parts without writing an opinion in either.

In Cunningham, Roberts became the sixth vote to join the majority in the Booker/Blakley/Apprendi line of cases(replacing Rehnquist's vote with the dissent in each). Being in the majority, he retained authority to choose the author of the Court's opinion. By assigning the writing duties to Ginsburg -- the silent member of both Booker majorities -- he put it in the hands of the one Justice who was unlikely to rise to the bait (hell, the only Justice in the majority who wouldn't have jumped at the bait) dangled by the Kennedy/Alito dissents to reach out for hotly-contested questions of a national scope pertaining to the federal guidelines. (In footnotes 13 &15 of her opinion, Ginsberg disses Alito for jumping on these issues prematurely, without briefing or argument.)

In so doing, Roberts navigated the single course where he could remain sheltered, keeping his powder dry for the upcoming, bigger-bore arguments in two federal guidelines cases scheduled for later this term, Rita and Clairborne.

I don't know if Roberts plays poker. (He doesn't seem like the type, although the longer I've played, the less there seems to be a "type" -- or, put differently, the more "types" of poker players there seem to be.) If he is a player, Roberts has shown with today's case that he knows the art of the strategic check; in the upcoming guidelines' cases, we'll see how he fairs when he has to push in his chips.
1.22.2007 9:13pm
As they say here in NC, a grand jury would indict a ham sandwich if asked by a sitting DA. As this has been born out on the national pages, recently, I can only speculate, as a non-lawyer, that plea bargaining is ripe for abuse.
1.22.2007 9:47pm
M. Simon (mail) (www):

There are never enough snitches. Money is always scarce.

Thus the plea bargain.

Any way paying money for testimony is illegal. Paying with years of a man's life: encouraged.
1.23.2007 1:51am
hey (mail):
It is immensely disturbing to see the excercise of a right to contest the state's case lead to very punitive results. Far too many prosecutors are offended when anyone pleads not guilty. This is especially true in white-collar crime cases such as Arthur Andersen, Enron, KPMG tax shelters, etc which hinge on fairly complex evaluations of controlling statutes and precedents.

Thankfully many of these bad indictments &convictions are being overturned on appeal, or at the very least the sentences are. It is a serious danger that prosecutors have acted in such a manner. When the facts are not an issue, but rather the law is an issue, it is exceptionally dangerous to make disagreeing with the government punishable by decades in prison. As always, populist left-wing grandstanding damages society and destroys lives as its aim. One more reason to oppose such people everywhere at all times.
1.23.2007 4:18pm