- The Washington Times - Monday, January 22, 2007

The Supreme Court yesterday in a 6-3 ruling struck down a 30-year-old California sentencing law that gave judges the discretion to determine whether some convicted criminals receive longer prison sentences than others.

The high court, in a majority opinion by Justice Ruth Bader Ginsburg, said California’s sentencing law violated a defendant’s constitutional right to a trial by jury by giving a judge the power to determine facts that could raise a convict’s sentence.

“Under the Sixth Amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence in excess of the relevant statutory maximum must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence,” Justice Ginsburg said.

Justice Ginsburg was joined by Chief Justice John G. Roberts Jr. and Justices John Paul Stevens, Antonin Scalia, David H. Souter and Clarence Thomas. Filing dissenting opinions were Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr.

The ruling was the latest in a series of decisions by the high court defining when judges or juries should make sentencing determinations. In 2004, the court struck down a Washington state law after ruling that any facts necessary to support a lengthier sentence had to be admitted by the defendant or proved to the jury. In 2005, it declared federal sentencing guidelines unconstitutional, making the guidelines advisory instead of mandatory.

California’s determinate sentencing law has been on the books since 1977, giving sentencing judges the leeway to impose one of three prison terms after a felony conviction, depending on factors that could either mitigate or aggravate the offense.

The case involved John Cunningham, a police officer convicted of sexually abusing his 10-year-old son, who was convicted of continuous sexual abuse of a child younger than 14.

California’s law allowed three precise terms: a lower-term sentence of six years, a middle-term sentence of 12 years or an upper-term sentence of 16 years. The trial judge had to sentence Cunningham to the 12-year middle term unless he found “circumstances in aggravation” established by a preponderance of the evidence.

Based on a post-trial sentencing hearing, the judge found six aggravating facts, including the particular vulnerability of the victim, and one mitigating fact, that Cunningham had no criminal record. Concluding that the aggravators outweighed the sole mitigator, the judge sentenced Cunningham to 16 years.

“This court has repeatedly held that, under the Sixth Amendment, 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,” Justice Ginsburg said.

But Justice Kennedy wrote that as dissenting opinions have suggested before, the Constitution “ought not to be interpreted to strike down all aspects of sentencing systems that grant judicial discretion with some legislative direction and control.”

“Judges and legislators must have the capacity to develop consistent standards, standards that individual juries empaneled for only a short time cannot elaborate in any permanent way,” he said in a dissenting opinion. “Judges and sentencing officials have a broad view and long-term commitment to correctional systems. Juries do not.”

He wrote that judicial officers and corrections professionals, under the guidance of the legislature, “should be encouraged to participate in an ongoing manner to improve the various sentencing schemes in our country.”

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