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.
Frank O. Bowman III, "The Question Is Which Is To Be Master-That's All": Cunningham, Clairorne, Rita, And The Sixth Amendment Muddle, 19 Fed. Sent. R. 155 (2007)