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Sentencing Law and Policy
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Cunningham cert grant: taking stock and reading up

By Douglas Berman

Though the media is focused today on California’s struggles to kill Michael Morales (background here [and update here]), the much bigger news for California and nationwide sentencing practices is the Supreme Court’s cert grant in Cunningham (basics here).  The folks at Bloomberg News in this story appreciate one reason why Cunningham is so noteworthy: “The dispute may affect thousands of criminal cases around the country.”   I would say Cunningham definitely will impact tens of thousands of criminal cases (perhaps hundreds of thousands depending on how SCOTUS approaches what TalkLeft here calls “the quicksand of sentencing law”).

I have so much to say about Cunningham, but also lots of time to speak: argument in Cunningham won’t be until October and we will probably have to wait until at least this December or next January for a ruling from the Court.  I suppose I am glad SCOTUS will take it time with Cunningham since the case could possibly present an important turning point in the Court’s tortured Apprendi–Blakely–Booker jurisprudence and will certainly present a first opportunity for Chief Justice Roberts and Justice Alito to assess the reach and limits of the Sixth Amendment.

For now, I thought I should assemble background reading about Blakely in California and in other states.  The place to begin, in my view, is with the recent Federal Sentencing Reporter issue focused on the “State of Blakely in the States” (details here and available here).  Be sure to read the introductory article in the FSR issue by Steven Chanenson and Daniel Wilhelm, Evolution and Denial: State Sentencing after Blakely and Booker, if you want a short and effective primer on a long state Blakely story.

If you want to focus on just the story in California, you can check out the Cunningham cert papers that are available here from the FDAP, as well as the additional great California sentencing commentary that the FDAP has assembled here. 

And, for more coverage of California Blakely issues and beyond via blog posts, check out this sample: