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