LUKE BURBANK, host:
The Supreme Court ruled today that a California sentencing law is unconstitutional. The judges ruled that only juries, not judges, are allowed to find facts that could lead to tougher criminal sentences.
Joining us now is Doug Berman, an expert on criminal sentencing. He is a professor at the Moritz College of Law at the Ohio State University and runs the sentencing law and policy blog. Thanks for joining us.
Professor DOUG BERMAN (Moritz College of Law, Ohio State University): Thank you.
BURBANK: So this case in California was about a former police officer, a guy named John Cunningham. He was convicted originally of sexually abusing his son. What else can you tell us about this case?
Prof. BERMAN: Well, I can tell you that it really had very little to do with the facts. And so it's not clear that the court was really engaged with or concerned with the specifics of this crime. They were looking much more in depth at the entire structure of how California sentencing law works.
BURBANK: Yeah. What happened? The idea is that the judge made a decision about how stringent the sentence would be, I guess.
Prof. BERMAN: Yes, that's right. The judge - after there was a conviction at trial, the judge made a number of findings about how severe this sexual offense was and increased the defendant's sentence on that basis.
And that immediately tapped into a recent jurisprudence on the Supreme Court about whether the Sixth Amendment - which guarantees the right to a jury trial - permits judges to make certain findings to increase a defendant's sentence.
BURBANK: Right. So if you have the right to a jury trial, you should also have the right to have that jury decide if you're in a sort of special sentencing category, I guess.
Prof. BERMAN: That's correct. And that's really what the court has sort of come around to. If there's a particular fact that allows an enhanced sentence, that fact has to be found by a jury beyond reasonable doubt. It's insufficient for a judge at sentencing to simply find that fact as part of the sentencing proceeding.
BURBANK: So I was kind of interested to read the divide in the justices who sort of, you know, was in favor of this and who wasn't. It didn't seem to be the usual suspects. How did this break down?
Prof. BERMAN: Well, part of the reality of this entire line of jurisprudence is you get some unusual coalitions between the traditional conservatives and liberals. In addition to the folks who you think would be defending - supporting defendants' rights, Justices Stevens, Ginsburg and Souter, who are traditionally quite liberal on a variety of criminal justice issues. Joining that group over the last decade has been purportedly the most conservative justices - Justices Thomas and Scalia - because they see broader structural issues in ensuring that juries rather than judges are integral to these decision making that affect sentences.
And what I found especially interesting now is this was the first case in which the new justices - Chief Justice Roberts and Justice Alito - and it split the two of them, who are often thought to be sort of, you know, relatively conservative, obviously appointed by the same president.
Justice Roberts joined the majority, whereas Justice Alito actually wrote the chief dissent, which garnered the votes of Justice Breyer and Justice Kennedy.
BURBANK: So this is happening in the Supreme Court. What does this translate to in a place like here in California for prisoners who are doing time? Are they going to be letting a bunch of people out early? Are they going to be changing sentences?
Prof. BERMAN: Unlikely letting a bunch of people out early. One of the things the court did last year was that when there is this kind of constitutional problem, it's still subject to harmless error analysis.
So if the facts were very, very clear that - and it's obvious that a jury would have decided the issue the same way a judge did. All of the cases that have already been decided can sort of stay pat.
And so in a lot of settings in which these issues have come up, judges will have to relook at some sentences. And if there's a true dispute over the facts, it's possible that there might be a new trial or some sort of new proceeding surrounding the sentencing.
What's most interesting is going forward, how the California legislature, which is busy trying to figure out sentencing reform for other issues, will cope with this decision as they think about how they may be reforming what is a somewhat dysfunctional California sentencing and corrections system.
BURBANK: Well, we'll be watching to see what happens with that. Doug Berman, a professor at Moritz College of Law at the Ohio State University, thanks for joining us.
Prof. BERMAN: Thank you for having me.
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