'The Question is Which is to Be Master - That's All': Cunningham, Claiborne, Rita and the Sixth Amendment Muddle

11 Pages Posted: 22 Feb 2007  

Frank O. Bowman III

University of Missouri School of Law

Abstract

Three things are clear from the Supreme Court's opinion in Cunningham v. California, in which the Court struck down California's sentencing law as violative of the Sixth Amendment, and from the briefs in the pending cases involving post-Booker federal sentencing, Claiborne v. United States and Rita v. United States. First, the Supreme Court has plunged Sixth Amendment sentencing law deep down the rabbit hole. Second, both the government and petitioners in Claiborne and Rita have adopted indefensible positions. Third, neither the parties nor the amici in Rita and Claiborne have offered the Court any real help in crafting a sensible rule for the resolution of these and future similar cases. This essay presents a critical analysis of the Cunningham opinion and the Claiborne-Rita briefs, followed by a few thoughts on how the Court might start to make some sense of the current muddle.

Keywords: Apprendi, Blakely, Booker, Claiborne, Rita, Sixth Amendment, sentencing, criminal law, sentencing law, sentencing guidelines, sentencing commission

JEL Classification: K14, K41, K42

Suggested Citation

Bowman III, Frank O., 'The Question is Which is to Be Master - That's All': Cunningham, Claiborne, Rita and the Sixth Amendment Muddle. Federal Sentencing Reporter, Vol. 19, 2007; University of Missouri-Columbia School of Law Legal Studies Research Paper No. 2007-03. Available at SSRN: https://ssrn.com/abstract=964055

Frank O. Bowman III (Contact Author)

University of Missouri School of Law ( email )

Missouri Avenue & Conley Avenue
Columbia, MO 65211
United States
573-882-2749 (Phone)

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