The latest SCOTUS opinion extending Apprendi even further was released today. The Cunningham opinion strikes down California’s determinate sentencing system that contained three tiers and required judicial fact finding to elevate the defendant from one tier to the next. The majority rejected Justice Kennedy’s suggestion (here) that there is a distinction between offender and offense findings. The majority also rejected the Alito/Breyer attempt (here) to save the California system.

I ask again, and how does the military’s capital punishment system survive all this? The only article on the subject (here at p. 71–click save as to download the Army Lawyer volume) does not convince me that the system survives, and even less so now that Cunningham has been decided. One of these days I’ll write the rebuttal article.

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