Tuesday, October 10, 2006

Cunnigham v. California, a barometer for application of Apprendi to the military justice system?

Chances are that the application of Apprendi to the military justice system will not see the inside 450 E. Street N.W. any time soon. However, tomorrow's oral arguments and the Supreme Court's decision in Cunningham v. California may give hope to those that believe Apprendi raises doubts regarding the constitutionality of the courts-martial system--from what I can tell a very small group, indeed. The upshot of Cunningham is the question of whether aggravating factors in a sentencing scheme are limitations on sentencing discretion or elements of the offense entitled to traditional constitutional protections. California's determinate sentencing system resembles, in some respects, the military justice system's capital punishment rules (and, for that matter, the MCM's maximum punishment table) in that California law provides the judge with facts that authorize punishment above the recommended sentencing range and requires the judge to weigh the evidence to determine if those facts are present. More information can be found at SCOTUS Blog and the Supreme Court filings are available at the First District Appellate Project.

See http://www.scotusblog.com and http://www.fdap.org/blakely4.html#cunningham.

Posted by No Man


Jason Grover said...

CAAF has twice this year rejected Apprendi arguments. In United States v. Wade, No. 06-0068/MC, CAAF granted the petition on the issue of post-trial delay, but did not grant the Apprendi argument. And in United States v. Williams, No. 04-0219/MC, the Court did the same thing. Williams was originally filed by Mike Navarre but was returned to CCA as a United States v. Jenkins, 60 M.J. 27 (C.A.A.F. 2004) trailer case. It may be a good thing that CAAF has not taken these cases so the issue is still alive.

In a capital context, Apprendi issues have been repeated raised at NMCCA, but that court has yet to directly address it.

Mike "No Man" Navarre said...

Sadly the oral arguments in Cunningham focused almost exclusively on reasonableness and what is constitutionally reasonable. The case appears to be straying away from a barometer for military cases and becoming a torpedo for arguments about the constitutionality of federal sentences.