JUSTICES FIND CALIFORNIA'S SENTENCING LAW FLAWED

WASHINGTON -- The Supreme Court struck down part of California's
sentencing law Monday in a ruling that could give thousands of
recently convicted state prisoners a chance for a shorter sentence.

In a 6-3 decision, the high court said California's system is flawed
because it gives judges too much power to add extra years to a prison sentence.

The Constitution gives defendants a right to a trial by a jury, the
court said, and that includes the right to have jurors -- not a judge
acting alone -- decide all the "aggravating facts" that turn an
ordinary crime into one deserving of a long prison term.

While legal experts agreed that California's sentencing system would
have to be changed, they disagreed sharply on how many prisoners
might be able to win a new hearing.

Usually, the high court's rulings do not upset prior convictions and
sentences, unless the defendant's case is on appeal in the state courts.

Each year, more than 250,000 people are sent to prison for felonies
in California, according to state figures. About 15% of those cases
result in an "upper term" sentence, as defined by state law. Those
higher sentences were the subject of the ruling.

"This is going to be a tremendous mess for the courts to sort out,"
said Santa Clara law professor Gerald Uelmen, executive director of
the California Commission on the Fair Administration of Justice,
which is looking into the problem of wrongful convictions. Uelmen
said more than 30,000 cases per year for the past two or three years
might require a new sentencing hearing.

But other experts noted that about 90% of felony convictions arise
from plea bargains, not trials, and therefore would not be affected
by the ruling. That suggests that far fewer cases would be eligible
for resentencing.

"The Supreme Court has thrown us a hot potato," said California's
newly elected attorney general, Jerry Brown. "This will definitely
complicate matters for us." Although state lawyers had no precise
figures, Brown said, they believed a much smaller number of cases --
"maybe a thousand" -- would require new hearings.

Los Angeles District Atty. Steve Cooley also played down the impact
of the ruling.

"We anticipated this ruling.... It will have minimal impact in Los
Angeles County because the majority of our cases, 96%, are resolved
by case settlement," he said. "As soon as this issue came up in 2004,
we began taking the appropriate waivers from defendants to avoid any
sentencing issues."

He was referring to a high court ruling in 2004 that struck down a
similar sentencing system in Washington state. Since then, California
prosecutors and judges have been on notice of a possible
constitutional problem, even though the state Supreme Court later
gave its blessing to the state's sentencing law.

Monday's decision in Cunningham vs. California is the latest in a
series of rulings this decade in which the high court, though badly
divided, has sought to readjust the balance between judges and juries
when it comes to deciding prison sentences.

An odd coalition of liberal and conservative justices, led by John
Paul Stevens and Antonin Scalia, has moved to strike down sentences
that were imposed based on facts found by the trial judges, not the jury.

In a New Jersey case, for example, a defendant pleaded guilty to
firing a shot into his neighbor's house, a crime with a 10-year
maximum prison term. However, the judge sentenced the defendant,
Charles Apprendi, to 12 years in prison after finding this was a
racially motivated hate crime. In a 5-4 decision in 2000, the court
struck down the extra two years of prison time, saying the jury
should have decided whether the defendant had committed a hate crime.

Three years ago, in the case Blakely vs. Washington, the court went
further and said the jury-trial rule also applies when judges add
extra years to a sentence even if it does not go above the legal maximum.

That put California's system in the spotlight.

Before 1977, California law set a maximum prison term for each crime
and allowed judges and parole officials to decide how long a criminal
would stay behind bars. For some crimes, the prescribed sentence
ranged from probation to life in prison.

The sentencing reform law passed in 1977 sought to take some power
away from judges in the hopes that prison terms would be fairer. For
each crime, the new California law set a lower, middle and upper term.

The law also said the judge "shall order imposition of the middle
term," unless the judge decides certain "aggravating circumstances"
that call for the upper term.

Justice Ruth Bader Ginsburg, who wrote Monday's majority opinion,
pointed to this "shall order" mandate as the flaw that makes
California's system unconstitutional.

In the case before the court, John Cunningham, a former police
officer from Contra Costa County, was convicted by a jury of sexually
molesting his son over several years. The crime had a lower term of
six years, a middle term of 12 years and an upper term of 16 years.
During a sentencing hearing, the judge agreed with the prosecutor,
who said there were several "aggravating circumstances" -- including
that the crime was violent, that Cunningham had preyed upon a
vulnerable person and that he represented a danger to the community.
The judge sentenced Cunningham to the upper term, adding four years
to his prison time.

In California, "the middle term ... not the upper term, is the
relevant statutory maximum," Ginsburg said, and therefore, the extra
prison term violated the defendant's rights.

The case of Cunningham vs. California split the two latest Supreme
Court appointees. Chief Justice John G. Roberts Jr. joined the
Scalia-Stevens bloc to say California's system is flawed. Also
joining the ruling were Justices David H. Souter and Clarence Thomas.

Meanwhile, Justice Samuel A. Alito Jr. spoke for the dissenters. He
noted that the Supreme Court, with Ginsburg in the majority, had
upheld the federal sentencing system two years ago by concluding its
guidelines were advisory, not mandatory.

California's system is quite similar, he said.

"The California sentencing law that the court strikes down today is
indistinguishable in any constitutionally significant respect from
the advisory guideline scheme [in the federal system] that the court
approved" two years ago, Alito said. Justices Anthony M. Kennedy and
Stephen G. Breyer concurred.

In a separate dissent, Kennedy explained the difficulty of applying
the court's new rule.

Juries can decide some facts, such as whether a weapon was used or
whether a large quantity of drugs was involved, he said. California
law refers to these facts as "sentence enhancements," and jurors are
called upon to decide these facts.

But other facts are subjective. For example, did the defendant show
remorse or cooperate with the prosecutors?

"These are facts that should be taken into account at sentencing,"
but it makes sense for them to be "found by the judge," Kennedy wrote.

How should California fix this problem?

Ginsburg gave two contradictory suggestions.

The Legislature or the state Supreme Court could change the law and
"call upon the jury -- either at trial or a separate sentencing
proceeding -- to find any fact necessary to the imposition of an
elevated sentence," she wrote.

Or they could go in the opposite direction and "permit judges
genuinely to exercise broad discretion within a statutory range," she
said. For example, in the case of child abuse, the state could set
the maximum prison term of 16 years and allow the judge to decide on
the sentence within this range.

"The ball lies in California's court," said Ginsburg, noting that
other states have altered their sentencing systems.

In recent years, seven states have revised their laws to give juries
a greater role in deciding the facts that call for longer sentences.
At the same time, nine states moved the other direction and gave
judges more authority to set prison terms.

Former California Atty. Gen. John Van de Kamp, who practices law in
Los Angeles, said the ruling would heighten the debate over
sentencing, but he predicted the Legislature would insist on deciding
the outcome.

"Legislators will be loath to give up powers to a sentencing
commission," he said. "No one in the Legislature, barring a few,
wants to appear weak on criminality."

Regardless of how the system is changed, Gov. Arnold Schwarzenegger
said he was not in favor of shorter prison terms for serious crimes.

"I support longer sentences for criminals who deserve them," he said
in a statement. "As governor, I will work to ensure that this
decision will not be a threat to public safety."