An Important Sentencing Ruling from the California Supreme Court:
Despite the U.S. Supreme Court's Recent Sentencing Upheaval, California's System is Held to Be Valid

By VIKRAM DAVID AMAR
Friday, Jun. 24, 2005

In the face of challenges based on Blakely and Booker, the California Supreme Court upheld the state's sentencing regime. Its opinion reaching this conclusion illustrates just how tricky all these rulings are, and how finely the lines to resolve disputes in this area must be drawn. And indeed, the California ruling may turn out to be quite controversial, for reasons I will explain.

Some Background on Blakely and Booker: Their Interpretation of the Jury Trial Right

The Sixth Amendment establishes the right to a jury trial in criminal cases. As I explained in a previous column, in Blakely, the Court said that under the Sixth Amendment, any fact that, as a matter of law, will increase a criminal defendant's sentence range under a statutory scheme must be presented to a jury and proven to the jury's satisfaction beyond a reasonable doubt. (The fact is deemed to extend the sentence range if the factual finding increases the range beyond what the range could have been in the absence of that fact. Also, here's one exception to the rule: The fact that the defendant was previously convicted need not be found by a jury, as it is a matter of court record.)

Applying this principle, the Court in Blakely (a spousal kidnapping case) struck down a Washington state law. The law had permitted a judge to impose an exceptional sentence -- one beyond the statutory range otherwise applicable -- if the judge found a substantial and compelling reason justifying an exceptional sentence. And the trial judge had sentenced Mr. Blakely to just such an exceptional sentence, on the ground that he had committed the kidnapping with "deliberate cruelty," which was one of the grounds that the Washington statute listed as a basis for departure from the ordinary range in domestic violence crimes.

Under Washington law, the finding of deliberate cruelty had the effect of increasing the statutory range for which Mr. Blakely was eligible. Thus, the Court held that that fact had to be found by a jury beyond a reasonable doubt, not by a judge.

In Booker, the Court applied the Blakely holding to the federal sentencing guidelines. Under the federal guidelines, as written, a federal sentencing judge was constrained to sentence each federal criminal defendant to a term within a particular sentencing range indicated by the guidelines -- unless the judge found certain enumerated aggravating facts. (Depending upon the crime committed, these aggravating facts might include a finding that the defendant lied under oath, or defrauded the victims of a certain amount of money, or possessed a certain amount of drugs, and so on.)

Under the Guidelines, if, but only if, a judge made any such findings of aggravating facts, the rule was that he could (and should) "depart upwardly" from the otherwise applicable sentencing range, and impose on the defendant a sentence in a higher range.

In Blakely, a state legislature's statutes were at issue. But in Booker, the federal sentencing guideline categories and upward departure considerations were all determined by a quasi-judicial/quasi-executive body - the Federal Sentencing Commission. Based on this difference, the federal government argued that the federal sentencing scheme was distinguishable from the invalidated Washington statutory regime, and therefore should be upheld as valid.

But in Booker, the Supreme Court, in a complicated and fractured ruling, rejected this distinction. Accordingly, it struck down the mandatory federal sentencing guideline scheme.

The Court then went on to hold that nevertheless, the federal guideline categories and factors could -- and should -- still be considered by federal judges who are sentencing federal defendants within the broad statutory ranges on the books. But the Court also stressed that these guideline categories and factors would not be binding on the sentencing judges. Instead, they would be advisory.

Moreover, the Court added, sentencing judges would now have their decisions about how high a sentence to choose, within the broad statutory range, subject to review by higher courts only for "reasonableness."

The "Determinate" California Criminal Sentencing Scheme at Issue in Black

That brings us to Black -- the California decision that was recently rendered. The case, which involved the sexual abuse of children -- was potentially tricky because California's scheme did not quite resemble either Washington State's or the federal government's.

For much of the Twentieth Century, many jurisdictions used what is called an "open-ended indeterminate" judicial sentencing scheme. Under such a scheme, a judge may select, as punishment for a particular offense, any sentence between two end points (say, six years and sixteen years in prison) that she thinks is fair and just.

But in California, the legislature has, for many crimes, replaced open-ended indeterminate sentencing with a scheme that requires the judge to choose among three -- and only three -- set points along the range. (In Black's case, the set points were 6, 12 and 16 years' imprisonment.)

Although the judge still must make a choice, because the choice is limited to three options California refers to this as "determinate" sentencing. The law embodying this approach has been around for about twenty-five years.

It was enacted because the legislature believed that "the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offenses as determined by the Legislature to be imposed by the court with specified discretion." As the California Supreme Court explained, the "determinate sentencing scheme seeks to achieve greater uniformity in sentencing by providing a limited range of sentencing options for each offense [that is, three choices rather than an infinite number along a range]."

(The California law does allow for explicit upward departures to permit sentences higher than the highest of the three set points. But such departures can occur only if a jury finds certain unusual facts beyond a reasonable doubt (or a defendant admits those facts and thereby waives his jury trial right as to them) - so this aspect of the law was not challenged in Blakely and Booker.

In the absence of such exceptional jury findings, the judge must simply pick one of the three terms within the statutory range.)

Although the judge must pick one of three sentencing terms, her choice among them is not free: the statute provides that a judge "shall order imposition of the middle term [among the three choices] unless there are circumstances in aggravation or mitigation of the crime." (Emphasis added.) This means that a judge has to find some factual basis for aggravation before considering the upper, rather than the middle, term. Also, the California Rules of Court - administrative rules promulgated by the judiciary - provide that "[s]election of the upper term is justified only if, after consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation."

In addition, unless the sentencing judge chooses the middle term, she also must give reasons for her sentencing choice. According to the California Supreme Court: "The judge must state on the record the 'reasons for selecting the lower or upper term,' including a 'concise statement of the ultimate facts which the court deemed to constitute aggravation or mitigation justifying the term selected.'"

The factors that can support a finding of aggravation (which might in turn support choosing the highest of the three sentence choices) include criteria on a list promulgated by the California Judicial Council and published in the Rules of Court. These criteria include how violent the defendant was, whether he was out on parole at the time of the offense, whether he took advantage of a position of trust or confidence to commit the offense, and so on.

However -- and this fact turned out to be important to the California Supreme Court - this list is not completely binding or exhaustive. The judge is also free to consider any "additional criteria reasonably related to the decision being made."

Mr. Black's Arguments and the California Court's Response

The defendant in Black focused on the fact that -- under the statute and implementing rules -- a judge is required to impose the middle term unless she (not a jury) makes a judicial determination of aggravation.

For this reason, the defendant argued, this scheme gives to judges precisely the same kind of power that was held unconstitutional in Blakely and Booker: the power to make factual determinations the effect of which will be to subject the defendant to a higher sentence (the upper term) than he would have received, absent the finding.

The California Supreme Court acknowledged that Mr. Black's argument does have some "support" in the "mandatory language" of the statute -- which limits the judge to the middle term unless aggravation is found. Yet it nonetheless rejected his claim.

The California Court's Logic, and the Problems with that Logic

First, the California Supreme Court pointed out that, in Booker, the U.S. Supreme Court said that what it had had in mind when it decided Blakely was a particular, noxious practice: The government's practice of taking facts that could be, or once used to be, elements of crimes away from jury decisionmaking, and instead giving them to judges.

That practice, the California court explained, was not implicated in the Black case: None of the aggravating factors that a judge could find to justify picking the highest term, in the range under the California law, involved the kind of things that historically had been found by juries as elements of the crime.

That's true enough. But it seems to me that it was largely true in Booker as well. And there, the U.S. Supreme Court nonetheless struck down the federal sentencing guidelines.

The federal sentencing guidelines gave facts to judges to find. But they were not, in general, facts of the kind usually given to juries. Instead, they were more akin to the kinds of facts judges had always implicitly found in implementing "indeterminate" (that is, open-ended) sentencing schemes.

Thus, the sentencing guidelines did not seem to be an illicit effort by Congress to take away from juries the kind of factual findings that had previously been given explicitly to juries to make. So Black cannot be distinguished from Booker very easily on this ground.

Could another possible distinction between Black and Booker work, though? One might try to point to the fact that the federal sentencing guidelines were promulgated by a quasi-executive/quasi-judicial branch, whereas the Judicial Council in California may be thought of as more quintessentially judicial. But this distinction doesn't work very well, either.

Indeed, this kind of distinction was rejected in Booker itself. There, the U.S. Supreme Court explained that, for these purposes, it doesn't matter which government agency has limited the sentencing judge to a particular range unless he makes additional findings; what matters is that the sentencing judge is so limited under the law.

The Court thus made clear that any removal of these limits - any increases in the judge's sentencing authority - must derive from jury findings.

A Possible Way to Harmonize All the Cases?

So is there any way to distinguish Black from Booker (and Blakely)?

One might be somewhat plausible. Under the California law at issue in Black, the judge's discretion to impose, or not impose, the higher term seems broad. In contrast, this kind of judicial sentencing power was not so flexible under the pre-Booker federal sentencing guidelines.

As the U.S. Supreme Court noted in Booker, a federal judge's power not to impose the higher sentence indicated by the guidelines, once the judge had found certain facts, was extremely limited. (The Booker Court also noted that in Blakely, a judge's power not to enforce the higher sentence range, once he found aggravating facts, was similarly constrained.)

By contrast, the California law seems to be more of a one-way ratchet: Judicial findings of aggravation are necessary to permit the judge to choose the higher rather than the middle term, but such findings do not obligate him to do so. Even if he has made these findings, he is always free to choose whatever sentence he thinks is "reasonable" among the three choices.

Our Harmonizing Solution Highlights Tensions Within U.S. Supreme Court Precedent

One might argue that this is thus a way to harmonize Black with Blakely and Booker. But this argument does highlight some of the internal tension in the language of the both Blakely and Booker rulings themselves.

On one hand, as just pointed out, the Court in Booker did seem to find quite relevant that the federal judges had limited discretion not to apply the higher sentence ranges once judicial facts were found. Indeed, Justice Stevens said for the Court in Booker: "[If] the ability of the district judge to depart from the Guidelines means that she is bound only by the statutory maximum . . . there would be no [constitutional] problem."

But on the other hand, and just one page later, the Court in Booker said that this whole line of cases is a response to a recent legislative trend involving the "significance of facts selected by legislatures that . . . authorized, or even mandated, heavier sentences. . . ." (Emphasis added.) Similarly, in Blakely, the Court said there is a Sixth Amendment problem when "the judge's authority to impose an enhanced sentence depends upon a specified fact, . . . one of several facts, . . . or any aggravating fact [because in all three instances. . . ] it remains the case that the jury's verdict alone does not authorize the sentence." (Emphasis added.)

Notice that in all these phrases, the Court speaks of the judge's authority - not his or her obligation - as being the problem. And this makes some sense: If the point of these cases is simply to make sure that a jury has found the facts which the government has indicated beforehand are necessary preconditions for a particular range of punishment, then perhaps it shouldn't matter so much whether judges have the power to be lenient, and not exercise the sentencing power he has been given.

This brings us to one of the central questions raised by this line of cases, though: Don't judges implicitly find facts when they implement indeterminate, open-ended, sentencing schemes?

As I explained above, such schemes say to the judge: "Just pick any point along the sentence spectrum you think is just, without explanation." But certainly judges still have reasons for the points they pick - reasons very likely to come from fact findings judge silently make while considering the case.

And yet, the U. S. Supreme Court continues to say such "indeterminate" schemes are perfectly permissible.

All that leads to another (and related) key question: If judges do find facts in an "indeterminate" sentencing scheme, why should it matter whether such judicial fact-finding is more explicit and structured, as is the case in a "determinate" sentencing scheme?

I have no easy answer to this central question. But the results of the U.S. Supreme Court cases do seem to indicate that the Court views two kinds of facts as different from each other: The facts identified by the government publicly, beforehand, and generally (as in a statute or in guidelines) as necessary to justify a particular sentence range; and the facts a judge might find implicitly as a basis for her own decision to pick a point within that range.

Perhaps Black would have been a different, and easier, case if the California legislature and Judicial Council did not specify the content of any aggravating factors for the trial judge to find. They could, instead, have simply told the trial judge to reasonably consider, in deciding which of the three sentences to impose, the notion of aggravation (or mitigation).

Such a hypothetical alternative sentencing scheme would be hard to distinguish from the indeterminate scheme that everyone assumes is permissible. But once government starts to write down specific factors, the finding of which necessarily authorize (even though they don't dictate) higher possible sentences, it gets more difficult, I think, to easily escape the Blakely/Booker line of cases.

It will be quite interesting to see whether the U.S. Supreme Court feels the need to accept review in yet another one of these cases, assuming Mr. Black files a petition for that Court's review.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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