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Let the jury judge

A molester's sentence is overturned because jurors were not given a chance to decide all the facts.

January 23, 2007

THE U.S. SUPREME COURT on Monday overturned the 16-year prison sentence of a former California police officer convicted of molesting his 10-year-old son. Much as Californians may resent this ruling, which comes in a heinous case and could potentially trigger challenges to thousands of sentences, we should have seen it coming.

In theory, there's a neat division of labor between judges and juries in criminal trials. Juries decide whether a defendant did the crime; judges decide whether the defendant will do the time, and how much.

In reality, judges over the years have engaged in some serious fact-finding of their own in deciding how much punishment to mete out -- too much fact-finding, in the view of the 21st century Supreme Court. In a series of decisions beginning in 2000, the high court has ruled that any fact connected to a crime that leads to a higher sentence "must be submitted to a jury and proved beyond a reasonable doubt."

John Cunningham of Contra Costa County, who won his appeal Monday, received 16 rather than the prescribed 12 years in prison because of aggravating factors, including the "great violence" of his conduct. Those findings were made not by a jury but by a judge, as provided for in California's 1977 Uniform Determinate Sentencing Act. Writing for the court, Justice Ruth Bader Ginsburg reasoned that because California law "authorizes the judge, not the jury, to find the facts permitting an upper-term sentence, the system cannot withstand measurement against our 6th Amendment precedent."

In their last major pronouncement in this area in 2005, the justices, while striking down mandatory federal sentencing rules, said that such guidelines could nevertheless remain on the books if they were used as an "advisory" resource for judges. But on Monday, six of nine justices rejected the argument that the rules that produced Cunningham's higher sentence fell into that same flexible category.

Like its previous recent decisions on judicial sentencing, the ruling leaves both legislatures and judges considerable leeway. Legislatures can still establish minimum and maximum sentences, and judges (if state law allows) can choose a particular sentence based on characteristics of the perpetrator, including previous convictions.

But it is clearer than ever that if sentencing depends on the particular facts of the crime, then it is up to the jury, not the judge, to make that call.

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