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Monday, January 22, 2007

Cunningham Blah blah

The opinion from the SCT has just been issued on its site, and Lyle Denniston over at SCOTUSBlog summarizes the 6-3 decision striking down California's determinate sentencing law (DSL) scheme. Here's the characterization of the holding from the syllabus: "In all material respects, California's DSL resembles the sentencing systems invalidated in Blakely and Booker. Following the reasoning in those cases, the middle term prescribed under California law, not the upper term, is the relevant statutory maximum. Because aggravating facts that authorize the upper term are found by the judge, and need only be established by a preponderance of the evidence, the DSL violates the rule of Apprendi."

As Doug notes with some early commentary, RBG writes for 6 (all but AMK, SA, and SB). This is interesting, because as you may recall, she was the one who flipped her vote between the group that wrote the merits majority and the group that wrote the remedial majority in Booker, without saying a word as to why. When I get through the opinion some more, I hope to be able to offer some thoughts on her thinking now. Ok, just skimmed the opinion and she doesn't reveal much about her own flip in Booker, but the opinion does reveal a confidence about the vitality of the Apprendi-Blakely line of cases and strongly resists any attempt to allow the Booker remedy to undercut the generative power of the Apprendi-Blakely line. Given that language, and Roberts signing up for it, here's my quick sense.

It is probably emphatically poor form to describe the outcome as predictable or a no-brainer when I didn't publicly say my thoughts on Cunningham earlier in the post-cert process. Still, I can't say I'm surprised at all about the outcome based on my recollection of the briefs.

This case was more important, to me at least, to see how Roberts and Alito would fare in Blakelyland, and now we have a better sense of it.

Roberts joined the majority for 6 and Alito wrote one of the dissents, which both Kennedy and Breyer joined. If we can extrapolate: Rehnquist and O'Connor both were part of the anti-Blakely crowd, and so now we have Roberts appearing to be a Blakely guy, and Alito decidedly not. Probably a good net positive development for fans of the Blakely rule, and those who like to see that legal outcomes in the SCT are not always predicted by party affiliation of the President who nominated them.

The Court is expected to hear two other Booker related cases this Term: "Claiborne v. United States, No. 06-5618 (cert. granted, Nov. 3, 2006); and Rita v. United States, No. 06-5754 (cert. granted, Nov. 3, 2006). In Claiborne, the Court will consider whether it is consistent with the advisory cast of the Guidelines system post-Booker to require that extraordinary circumstances attend a sentence varying substantially from the Guidelines. Rita includes the question whether is it consistent with Booker to accord a presumption of reasonableness to a within-Guidelines sentence."

Posted by Dan Markel on January 22, 2007 at 11:23 AM in Constitutional thoughts, Criminal Law, Dan Markel | Permalink

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» Early Responses to Cunningham from SCOTUSblog
The AP has this report on the decision, and William Branigin of the Washington Post has an article here. In the blogosphere, Doug Berman of Sentencing Law and Policy has several quick posts about the case here, Dan Markel at... [Read More]

Tracked on Jan 22, 2007 1:38:30 PM

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