Cunningham V. California - Dissenting Opinion

Dissenting Opinion

Justice Alito saw no difference between the DSL and the post-Booker sentencing scheme in place for the federal courts. "Both sentencing schemes grant trial judges considerable discretion in sentencing; both subject the exercise of that discretion to appellate review for "reasonableness;" and both—the California law explicitly, and the federal scheme implicitly—require a sentencing judge to find some factor to justify a sentence above the minimum that could be imposed based solely on the jury's verdict." If the post-Booker scheme had won the approval of a majority of the Court, why should the DSL not also garner such a majority?

Alito pointed out that all members of the Court agreed that the indeterminate sentencing scheme in place for federal crimes would satisfy the Blakely rule, and that a purely advisory Guidelines system would do so as well. The characteristic that persuaded a majority of the Court to approve the current federal sentencing scheme, consisting of sentencing guidelines ranges from which trial judges were permitted to depart, was the fact that all sentences were subject to appellate review for "reasonableness." All of these systems require trial judges to make factual findings on some level of generality. Under the Federal Sentencing Guidelines, these findings were somewhat specific; under the indeterminate sentencing scheme, they were not. Yet in both schemes the judge makes findings that allow them to impose an appropriate sentence.

Similarly, the DSL afforded California trial judges sentencing discretion with respect to the "general objectives of sentencing," which included protecting society, punishment, encouraging the defendant to lead a law-abiding life, deterring the defendant from committing other crimes and deterring others from committing crimes at all, incapacitating the defendant during his incarceration, providing restitution to victims, and promoting uniformity in overall sentences. The sentencing decisions of California trial judges, just as those of federal trial judges, were subject to review for "reasonableness."

In light of these similarities, Alito concluded that the majority's reasoning was flawed. A California trial judge's decision to impose a high-term sentence was not necessarily a fact-based decision; it could be entirely policy-based, and policy-based decisions have always been left to judges. Because the decision to impose a high-term sentence was not based on facts, the Apprendi rule did not apply to it. Even if they were, Alito felt that "reasonableness" review was a sufficient constraint on the power of trial judges to choose sentences within prescribed ranges. Some sentences, after all, will be found to be unreasonable, and hence unconstitutional, because they will not be sufficiently supported by appropriate facts. If the remedial majority in Booker approved this scheme for the federal system, it should also pass constitutional muster when used in California.