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Recent Developments in a Defendant’s 6th Amendment Right to Trial by Jury

Beginning with Apprendi v. New Jersey and continuing through Cunningham v. California, the United States Supreme Court has been refining a defendant’s 6th Amendment right to trial by jury. Each opinion in the string has increased a defendant’s right to have facts used to increase his sentence established by a jury, beyond a reasonable doubt.

The Court ruled in Apprendi, that “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.”

In Cunningham, the defendant was convicted of continuous sexual abuse of a child under 14. Under California’s “determinate sentencing law” (DSL), the judge could impose one of three terms of imprisonment: a lower term of 6 years, a middle term of 12 years, or an upper term of 16 years. The DSL required the judge to sentence Cunningham to the 12-year middle term unless he found one or more additional “circumstances in aggravation.” Court rules allowed the judge to determine facts establishing circumstances in aggravation by a preponderance of the evidence. The judge found six aggravating factors and one mitigating factor. Concluding that the aggravating factors greatly outweighed the mitigating factor, he sentenced Cunningham to the 16-year upper term.

California argued that the defendant was sentenced to the statutory maximum, and therefore, Apprendi did not apply. In Blakely v. Washington and United States v. Booker, the Court ruled that a statutory maximum sentence was limited by facts determined by a jury. Where a judge would need to find additional facts to impose a particular sentence, that sentence is beyond the statutory maximum. Because the California DSL obliged the judge to sentence Cunningham to the 12-year middle term unless he found aggravating circumstances, the statutory maximum under the DSL is the 12-year term.

Apprendi and its progeny require a judge to submit any additional fact, for setting sentence beyond the statutory maximum, to a jury to be established beyond a reasonable doubt. Several states, following Apprendi, have chosen to permit judges to “exercise broad discretion…within a statutory range,” which “encounters no Sixth Amendment shoal.” The Court stated that California could follow the path taken by its sister states or otherwise alter its system according to its string of 6th Amendment decisions.

The court has granted review on two further cases, regarding federal sentencing guidelines, to be argued this term: Claiborne v. United States and Rita v. United States.


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