Penalties Based on Facts Not Found by a Jury

Cunningham v. California

California’s Determinate Sentancing Law (DSL) allows the trial judge, not the jury, and by a preponderance of the evidence, to find the facts that expose a defendant to an elevated sentence. Cunningham was convicted of continuous sexual abuse of a child under 14, which carries a 6 to 12 year sentence, with an elevated sentence of 16 years if accompanied by aggravating factors. Interestingly, the Appellate Court upheld the determination after striking one aggravation element, on the basis that with only one mitigating element, only two aggravating elements were required for an elevated sentence. This case challenges that law under the Sixth Amendment right to a jury trial.

California’s scheme provided three tiers of sentencing, the greatest of which could only be imposed after finding “aggravating circumstances,” guided by a non-exhaustive list, defined to mean “facts” justifying the greatest prison term. Facts which are elements of the crime are excluded. That statutory enhancements (as opposed to aggravating circumstances) must be pleaded does not change the matter because “a fact underlying an enhancement … cannot be used to impose an upper term sentence and, on top of that, an enhanced term.”

In Aprendi v. New Jersey the Court declared that “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.” In Blakely v. Washington the Court held that such an extension, though outside the standard range, was within the maximum of that type of crime, because the “statutory maximum” means the maximum sentence a jury may impose “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” That is, not all the facts the jury could have found, but all the facts it did find. Additionally, Blakely allowed no refuge in the fact that the list of aggravating circumstances was non-exhaustive, because any additional factors were not authorized by the jury. United States v. Booker extended this rule to the federal government, while recognizing that if the federal guidelines were not binding the rule would not apply. In that case the court substituted a reasonableness requirement for the portion of the law making the federal sentencing guideline mandatory.

The California court upheld the law in the face of these precedents on the basis that, in effect, the law only allowed court to exercise the kind of discretion traditionally left to courts and judges, because it reduced penalties over the previous scheme, and because defendants had no right to believe they would not be subject to the maximum penalty. That the California court characterized the law as a reasonableness restraint, similar to that imposed on the federal law, does not save the California statute because “the reasonableness requirement Booker anticipated for the federal system operates withinthe Sixth amendment constraints … not as a substitute.” “Booker’s remedy … is not a recipe for rendering [the] Sixth Amendment case law toothless.” At this point California could simply allow judges to exercise “broad discretion,” and leave everything else in place.

Justices Kennedy and Breyer, dissenting, suggest distinguishing between those sentencing enhancements based on the crime and those based on the nature of the offender. Justice Kennedy also notes the irony that greater judicial discretion would violate the Sixth Amendment less. Judges are perfectly well positioned to take the long view on sentencing, and (as opposed to juries) are equipped to evaluate factors that do not bear on guilt.

Justices Alito, Kennedy, and Breyer argue, to a great extent, that the California law, by its terms and by construction, is essentially identical to the discretionary system in the federal courts; that nothing about a non-exhaustive list requires a judge to find “facts” before increasing a sentence; and that the reasonableness requirement permits the elevation of a minimum-offender to an intermediate sentence, on the basis of facts found by the judge.