Cunningham v. California: Who’s Covered and Who’s Not?

By Kent Russell – 2007  Image courtesy

On January 22, 2007, the U.S. Supreme Court decided Cunningham v. California, __ S.Ct. __, 2007 WL 135687 (No. 05-6551), holding that California’s determinate sentencing law, which allows CA judges to impose upper-term sentences (i.e., the highest of the three possible sentences which can be imposed for any given offense) on the basis of factors found by the judge rather than by the jury, is unconstitutional. The purpose of this commentary is to concisely explain to prisoners whether or not they have a chance for getting any sentencing relief under Cunningham.

First off, it must be said that Cunningham is still so new that the California Supreme Court has not yet provided any guidance at all as to how this case will actually be interpreted in practice. Also, it’s at least possible that California may set up a procedure to enable prisoners to get Cunningham sentencing relief without having to go to court to get it. In the meantime, though, prisoners who are trying to decide whether or not they are covered by Cunningham should consider the following:

Because Cunningham applies only to California’s sentencing laws, it does not cover prisoners sentenced in other states.

Cunningham only applies where the upper term was based on findings made by the judge rather than by the jury, and where the prisoner was given a specific sentence to the highest of the three possible terms. Therefore, for example, it will not apply to indeterminate sentences such as those for murder (15 to life, 25 to life, etc.); to sentencing enhancements based on facts found by the jury (such as the 20 or 25 years tacked on for using or firing a gun during the crime); or to sentences where the judge imposed the lower or middle term.

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PLN Settles Censorship Suit Against Texas County Jail for $175,000

By Prison Legal News

In December 2013, Prison Legal News settled a federal lawsuit against Upshur County, Texas that alleged unconstitutional censorship when PLN’s publications were rejected by jail officials. The suit, filed in October 2012, named the county, Sheriff Anthony Betterton and Sheriff’s Lt. Jill McCauley as defendants.

According to the complaint, the Upshur County jail’s inmate handbook contained “no written criteria explaining when a publication will be rejected,” and the jail’s mail policy did “not provide a sender any notice or explanation when a book is censored.”

PLN mailed copies of its monthly publication to prisoners at the jail, as well as letters, renewal notices, brochures and copies of a book titled Protecting Your Health and Safety. The jail rejected approximately 90 of PLN’s publications over a one-year period, stamping them “No Newspaper,” “Unauthorized Mail,” “Not Approved” or “Refused.” The jail also rejected legal mail sent to prisoners by PLN’s attorneys. No notice was provided regarding this censorship, and PLN was not afforded an opportunity to appeal the rejection of its publications.

“The purpose of jail is to hold the criminally accused for trial, not to punish them,” said Lance Weber, general counsel for the Human Rights Defense Center (HRDC), PLN’s non-profit parent organization. “Depriving pretrial detainees too poor to afford bail – who are presumed innocent – of access to information that could assist them in enforcing their rights is inexcusable.”

On September 30, 2013, the district court granted PLN’s motion for a preliminary injunction, finding “The evidence suggests that at least some of PLN’s correspondence with prisoners has been withheld from its intended recipients, depriving Plaintiff of its First Amendment rights without due process of law.”

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