News Release

Supreme Court Reaffirms Right to Trial By Jury

California’s Determinate Sentencing Scheme Held Unconstitutional  

Washington, DC (January 22, 2007) – Today the U.S. Supreme Court issued another important decision on the right of a defendant to be sentenced only on the facts proven at trial. The case, Cunningham v. California, No. 05-6551, is the latest in a long line of truth in sentencing cases beginning with Apprendi v. New Jersey (2000) and crystallized in Blakely v. Washington (2004). The National Association of Criminal Defense Lawyers filed an amicus curiae (“friend of the court”) brief in the case.

Martin S. Pinales, President of the National Association of Criminal Defense Lawyers, issued the following statement today praising the Supreme Court''s decision:

“We’re pleased that the Court has again reaffirmed NACDL's long-held position that facts that substantially increase a defendant's sentence should be found by a jury beyond a reasonable doubt. Other states have managed to modify their sentencing schemes in accordance with this principle. As Justice Stevens observed during oral argument, when he cited our brief, today’s decision should not impose an unreasonable burden upon the California system. Adding perhaps an extra hour to a four-day trial is a small price to pay to ensure against unjust punishment.”

NACDL's amicus curiae brief was prepared by Prof. Jeffrey L. Fisher, Stanford Law School, with Pamela S. Karlan, Thomas C. Goldstein and Amy Howe on brief. Jeff Fisher argued Blakely v. Washington.

To view or download the brief, click here.

The opinion in Cunningham v. California is on the U.S. Supreme Court’s Web site at:  

Oral argument excerpt, 10/11/2007, transcript at 47-49:

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JUSTICE STEVENS: On that question, may I ask, on that subject, may I ask you this question: Have you read the brief filed by the National Association, the amicus brief filed by the National Association of Defense Lawyers, which has a long discussion of the practical consequences in other states and in California?


JUSTICE STEVENS: And which I find, to be honest to you, rather persuasive on the fact it's not such a big deal as we thought it might be. And I'd like you to have an opportunity to tell me whether there's something in that brief that is not accurate.

MR. LAURENCE: Well, Your Honor, it would certainly be a big deal to California. But more importantly, if this court were to say that a reasonableness constraint reinvokes the Sixth Amendment, you would be basically throwing into doubt the way Booker has reformed the federal system as well, because

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JUSTICE STEVENS: They say, if I remember it correctly, the impact in a four day trial would normally be an extra hour for the jury, that that's about the burden on the system. Of course, 90 some percent of your cases are pleaded out by guilty, so it's not the major thing that we originally thought it might be. Do you think, just across the board, are they fairly accurate in their description of what happened in other states as far as you''re advised?

MR. LAURENCE: As far as the other states go, yes, Your Honor. I believe the impact on California would be a requirement of a secondary trial after the main trial. It would also impose the burden of trying to identify whatever aggravating circumstances or whatever relevant considerations have to take place in a particular case, which can be a multitude of things. In California law essentially anything can, anything can justify an upper term sentence. Only when there's absolutely nothing, not a scintilla of justification, that an upper term becomes unreasonable and therefore reversed. 


NACDL Communications Department

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal legal system.