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SB 40 Sentencing Law Call to Action 2

SB 40 More Articles and Credits 3

 

 

SB 40 Worsens the Prison Crisis because it empowers judges to sentence on facts not found by a jury in violation of the 6th Amendment.

Update: SB 40 was signed into law by Gov. Arnold Schwarzenegger on March 30, 2007 in spite of it's unconstitutionality. The Senate and Assembly passed it unanimously in spite of our strong opposition. To see the votes click here:

The Assembly Approved SB 40 on March 26, based on the faulty advice of the Attorney General Jerry Brown in spite of the testimony of San Francisco Public Defender Jeff Adachi, California Attorneys for Criminal Justice and the Public Defenders Association.

 

The one person to testify at the hearing who was not an attorney was UNION Director Rev. B. Cayenne Bird speaking as the prison reformer. The hearing should be viewed by everyone concerned about prison reform and respect for the US Constitution in general, every California Citizen needs to witness it.

A video of the hearing is online at www.calchannel.com, click on webcasts, click on search archives, enter date 032207, select committee, Assembly then enter Appropriations.

 

It will come up on a list of links, Appropriations committee hearing 3/22/07. The hearing is only 35 jam-packed minutes long but what it portrays is an attitude that the State lawmakers do not want to re-try the 54,000 people unconstitutionally sentenced to prison.

The Assembly has sidestepped the Supreme Court ruling on Cunningham for a period and given unprecendented power to judges.

Now it goes to the Senate for a vote and then to the Governor.

In spite of an oath to uphold the US Constitution, the legislators are expected to pass this bill on the faulty advice of attorneys representing Jerry Brown, the new Attorney General who has already lost credibility with the mishandling of Prop 83 with most thinking people.

And so it is recorded that the people of the UNION tried to save the 6th Amendment right to a jury trial during this period in as fierce a fight as they could muster on short notice and with little funds.

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SF Public Defender Cautions Lawmakers on Sentencing Bill- San Francisco Chronicle

Sentencing Bill Worsens Prison Crisis by Jeff Adachi - San Francisco Examiner

SENTENCING BILL WORSENS CALIFORNIA’S STATE PRISON CRISIS- California Progress Report

Switch for Guard's Union - Sacramento Bee

Justice Alito's Dissent in Cunningham v. California: How Can Someone So Wrong, Be So Right?  By VIKRAM DAVID AMAR AND AARON RAPPAPORT 

Court Ruling Spotlights Calif. Prisons  By DAVID KRAVETS AP

 

Chronicle Logo

SACRAMENTO
S.F. public defender cautions lawmakers on sentencing bill
Matthew Yi, Chronicle Sacramento Bureau

Friday, March 23, 2007

(03-23) 04:00 PDT Sacramento -- For the second time in two weeks, San Francisco Public Defender Jeff Adachi warned lawmakers Thursday that legislation seeking to address the U.S. Supreme Court's rebuke of California's 30-year-old criminal sentencing scheme would vest too much power with judges. 

Adachi has emerged as a persistent critic of the legislation, which lawmakers are working to pass as a temporary solution to the high court's ruling that state sentencing laws are unconstitutional. Without the legislation, judges won't know how to sentence convicted defendants and cases may have to be retried, proponents of the bill say. 

"Our courts are in a state of chaos," said Sen. Gloria Romero, D-Los Angeles, the author of SB40. "The point of SB40 is to maintain stability. Make no doubt about it ... from county to county, judges are wondering, 'What do we do?' " 

Romero said the current system has been found to violate the right to a jury trial by giving judges the authority to add years to a prison term based on facts that they -- not a jury -- determine. 

Her bill attempts to satisfy the court's concerns by changing current law to give judges discretion to pick any of three possible terms spelled out in the penal code without requiring any factual finding. 

But Adachi told the Assembly Appropriations Committee that solution is fraught with danger and could cost California taxpayers more to incarcerate inmates. 

"That's the fundamental question. Do you give complete power to a judge to decide the appropriateness of a sentence or do you have some criteria that they should follow? My fear is that if you give complete power to judges, there is the probability of abuse," he said Thursday after the Assembly Appropriations Committee voted 14-1 to approve the bill. Committee Chairman Mark Leno, D-San Francisco, was the lone dissenter. 

Adachi was in Sacramento last week as well, making his case in the Assembly's Public Safety Committee, which passed the measure in a 5-2 vote. 

The 1977 California law that the Supreme Court struck down in January was originally designed to promote more consistent sentences by eliminating parole boards' authority to set sentences and give the power to the judges instead. The judges would be given a choice of three sentences for each crime, a longer term if the bench believes there were aggravating factors and shorter term if there were mitigating factors. 

The case before the Supreme Court was a trial involving a former Richmond police officer who was found guilty of sexually abusing his son. Under state law, he was punishable by six, 12 or 16 years in prison. 

The judge in the case chose the longest term after finding that the boy was particularly vulnerable, and that the defendant was a danger to the society because he had committed the crime with great violence. Those issues had not been submitted to the jury. 

The Supreme Court on Jan. 22 ruled that it is unconstitutional for judges to give the longer sentence based on evidence not presented in the jury trial. 

Adachi argued that studies have shown that giving such discretion to judges would lead to not only inconsistent sentences, but longer terms. He estimates the longer terms would cost California taxpayers nearly $200 million to house the inmates in an already overcrowded prison system. 

Romero said Adachi's numbers are exaggerated, pointing to the Assembly Appropriations Committee's own estimate, which is $13 million. Besides, the senator said, she has added a new provision in the bill that would require the Department of Corrections to track whether defendants are really getting longer sentences. By the time the measure expires at the end of next year, lawmakers will be able to have enough data to see if SB40 worked appropriately 

The state Assembly is expected to vote on SB40 on Monday before returning the revised legislation to the Senate later in the week. 

E-mail Matthew Yi at  myi@sfchronicle.com



Examiner Logo

Commentary 
Sentencing bill worsens prison crisis

Filephoto
(AP file photo)
Jeff Adachi argues a bill being considered in the state Senate will not decrease incarceration costs to taxpayers and will hit minorities hardest. Jeff Adachi, The Examiner
Mar 23, 2007 3:00 AM (7 hrs ago)

 

SAN FRANCISCO - When the United States Supreme Court recently declared California’s sentencing laws unconstitutional, it gave California legislators a golden opportunity to address its prison crisis, which has forced Gov. Arnold Schwarzenegger to send prisoners out of state and to seek $11 billion to build more prisons. Instead, the Legislature is moving quickly to pass a bill that will increase the number of state prisoners and raise the cost of incarcerating prisoners by millions of dollars. 
 

Last January, the Supreme Court ruled that a jury must decide any sentencing factor used to sentence a person to a maximum term. The Court said the Legislature could cure this problem by requiring prosecutors to prove sentencing factors at trial or by giving a judge the power to sentence within a range of possible sentences. 

At the request of Los Angeles prosecutors, state Sen. Gloria Romero adopted the second approach in introducing Senate bill 40. This bill gives judges complete power to sentence criminal defendants to maximum terms without requiring a jury to find any sentencing factors. SB 40 is now before the Assembly Appropriations Committee and will take effect immediately if passed. 

At first glance, SB 40 looks like a good old law-and-order solution: Why not give maximum sentences to convicted felons? But SB 40 is a wolf in sheep’s clothing. By making it easier for judges to increase sentences, it will vastly increase the length of sentences and, therefore, the cost of incarcerating prisoners. A recent study by the Vera Institute of Justice of prisons in all states over the past 25 years found that sentencing systems similar to SB 40 “are associated with higher growth in prison populations,” with some states experiencing a 50-61 percent increase in their imprisonment rates. 

According to an Assembly Appropriations Committee report, California’s incarceration costs could rise dramatically if SB becomes law. Currently, 11 percent of the 54,000 people committed to prison each year receive maximum sentences, that would be affected by SB 40. For every 1 percent increase, the state will pay an additional $2.6 million in the cost of housing these prisoners. Thus, if California experiences a 50 percent increase in its imprisonment rates, this would increase incarceration costs by $130 million annually. 

SB 40 will also unfairly impact ethnic minorities. Numerous studies, both national and statewide, have shown that African-American and Latinos are more likely to receive maximum sentences than their white counterparts. Whites sentenced to drug offenses serve an average of 27 months while blacks serve an average of 46 months. Latino youth are 13 times more likely to be sentenced to a juvenile state facility than whites, where they serve up to the maximum term. These inequities will be even greater if SB 40 becomes law. 

State Sen. Romero has argued that SB40 is needed “to avoid chaos” in California’s criminal justice system. But her claim is seriously undercut by the fact that less than 2 percent of cases go to a jury trial. Criminal cases resolved by plea bargain are unaffected by the Supreme Court’s decision, since a person who pleads guilty waives these protections. 

Sen. Romero also claims that requiring juries to decide additional facts would overburden the jury system. However, in Kansas, requiring prosecutors to prove sentencing factors to a jury added only one hour to each trial, and California already uses this procedure when a person has prior convictions, which also must be decided by a jury. 

Seven of nine states facing this identical problem concluded that requiring a prosecutor to prove the sentencing factors to the jury was the better solution. Despite this evidence, SB-40 passed this week in the Assembly Public Safety committee by a vote of 5-2. 

And there’s a real risk that SB 40 may be later found unconstitutional. According to Stanford constitutional law professor Jeffrey Fisher, SB 40’s solution works only when judges are given a wide sentencing range, which is not true of California’s current sentencing scheme. This could require that hundreds of cases be retried. 

The Legislature should not act hastily to make a decision that will affect thousands of people and increase the burden to taxpayers in the name of political expediency. The integrity and fairness of our justice system is at stake.

Jeff Adachi is the public defender of San Francisco.
 

Examiner 



March 23, 2007 - Newsletter

UNION members:

I would like for everyone to see the short but lethal Appropriations hearing today while I nurse my migraine headache over what happened there.  We lost  but the vote seemed to have been decided in advance. 

Please try and follow with it as best you can, notice the sell out of some of the public defenders siding in with the Attorney General and District Attorney, notice the emphasis on preserving the system as it is, the belief that the judges can be totally trusted to be the judge and the jury with only "guidance" as the possible consequence which we know will never happen. 

Use the slider with your mouse to move it over to where Senator Romero starts to testify as the opening of the meeting room is about seven minutes and you don't need to waste time with that part. 

This is how you get to see the video

go to  www.calchannel.com

click on archive
 

enter today's date like this  32207 

select type of hearing - Committee hearing 

Appropriations 

click submit and it will come up in a link on a list - Appropriations Committee Hearing 3/22/07 

Get out your kleenex and cry for the prisoners who should be released.  SB40 is fast-tracked to go to the Assembly Floor as soon as Monday then to the Governor's desk before opposition mounts. 

I was the last person to testify, the only one who is not a seasoned lawyer, not easy presentations to follow but I gave it my best shot.  I just don't understand how Senator Romero can possibly believe that the judges should be empowered even moreso than they are now, that anyone is following the "rules of law." 

Where did our years of noise-making go off the rails that the judges should be defended to the point that they can act as juries in what I believe is a full violation of the 6th Amendment? How can the legislators not know of judicial misconduct by now?  But it is clear that they are operating under the full assumption that everybody going to prison is guilty and that the judges are all fair and following the rules of law.  They admit there are sentencing problems but the trust they put into these crazy judges made me throw up in the parking garage when I went back to my car, how could they could be so far off base with this assumption? 

Didn't we make enough noise on judicial corruption and harshness?  Apparently not! 

This is the full list of people who will be voting on this bill as soon as Monday.

 www.assembly.ca.gov

click on member directory 

There cannot be too much faxing and phoning taking place.  We have all these problems due to silence, lack of complaining, they interpret that as consent to the bill. 

The case that Public Defender Jeff Adachi made of at least $195 million in costs was not doubted but money is no object when it comes to this legislature's desire to preserve the status quo. 

The items I mentioned are additional costs above and beyond the $195 million, but they can only be taken in general context because nobody knows. 

The legislators don't want the courts to be bothered with re-trying cases.  So we lost this round as the all-call they're going by "it's not perfect but it is better than nothing" and they're upset with the Supreme Court for making the ruling at all. 

What do you think we should do to deliver the message to the Assembly that is a bad bill and that the judges should not be further empowered to act as the jury and deal out the harsh upper terms?  Two years may be the blink of an eye to them, but it is a long time for people rotting in prison who shouldn't be there at all. 

Mr. Adachi and the California Association for Criminal Justice were fantastic, their arguments precise and clear. 

Note the comments by Solorio, who is the new chair of the public safety committee, totally pro attorney general and judicial council. We need to check his donations from law enforcement labor unions.  It is unnerving that he is in such an important position as many bills were killed at the public safety level in the past and rightly so! 

This is the power structure folks.  It's shocking how there can be such a chasm between what they think is the truth and what is actually the truth. 

Tell me what you see here in the video. 

 There was no media presence, this appears to be over the journalists'  heads and again that blind trust that public servants can be trusted to uphold the Constitution is prevailing.  It takes quite a bit to stun me, but the impact of this bill is a worsened prison crisis, the Supreme Court ruling is sidestepped entirely, expansion of the prison industry will be necessary which seems just fine with the legislature, dollars taken from education and human services to pay for it, and the worst part of all - YOU will be paying for all this injustice to continue with your tax dollars. 

What do you think we should do about this?  We must move very rapidly now. 

Let's put our heads together.  Our side is asleep and we need to wake people up to the full impact and cost of what is taking place in our name, with our tax dollars. 

Focus.  The Sixth Amendment which guarantees jury trials is worth it. At a time when judges should be called into accountability,  they are being given even more power.  Just sending email is not a campaign.  Snooze you lose and 54,000 people lose even more years of their lives who shouldn't be in prison in the first place, not to mention all the new ones coming in.

If every judge was like Judge Henderson, this wouldn't be outrageous but that is not the case.  If they're so trustworthy and intelligent, why did the judges violate the Constitution for 30 years straight until the Supreme Court had to step in?  hmmm? 

Rev. Cayenne Bird

P.S.  If you can't attend a call to action, the idea is that you send someone in your place, not to ignore the call.  When we need numbers or support for something this important, people should be on standby alert ready to go, even if you don't understand it, when I call for back up, it's important that you show you are an intelligent mobilization of voters.  This is why denying rights to prisoners and their families is like taking candy from babies, our side is considered weak and stupid. 

Please find a senior, a student, someone in your family to attend these rare calls to action or continue not to have a voice as the situation of oppression worsens because we don't make enough noise or show enough muscle.  Most advocates wouldn't spend five minutes working with people who don't show up or send someone, every prisoner group has this problem and it is what keeps us down.  Just sitting in the courtroom is often action enough to show our numbers.  This isn't a situation where it is possible for other people are going to fight your battles for you without your back up and presence once in awhile.  You should always be ready to go in an emergency, that means you have ten people lined up to pile into the car should I call you. Mr. Adachi could have been doing a million other things rather than fighting for you today and so could I, it's respectful to show up or send someone if you want people to care about you in the future.   Your enemies have no problem doing this. That is the only reason in the world why they're in power and your interests are not represented properly.  Mr. Adachi brings serious power to our side and if we have a rally, I want everyone to back that up.  Do you read me?  Drowning swimmers that won't paddle and kick can't be saved by anyone!

The Commitment letter is here, you have a role in fighting for yourself that is more than just sending email once in awhile.  We are all unpaid volunteers with challenges and full commitments elsewhere so it takes many of us working to get this lobby work done.

http://www.1union1.com/com.html


March 20, 2007. 18 comments. Topic: Prison Reform 

SENTENCING BILL WORSENS CALIFORNIA’S STATE PRISON CRISIS

Jeff Adachi
By Jeff Adachi 
Public Defender of San Francisco

When the United States Supreme Court recently declared California’s sentencing laws unconstitutional, it gave California legislators a golden opportunity to address its prison crisis, which has forced the governor to send prisoners out of state and to seek $11 billion to build more prisons. Instead, the legislature is moving quickly to pass a bill that will increase the number of state prisoners and raise the cost of incarcerating prisoners by millions of dollars.

Last January, the Supreme Court ruled that a jury must decide any sentencing factor used to sentence a person to a maximum term. The Court said that the legislature could cure this problem by requiring prosecutors to prove sentencing factors at trial or by giving a judge the power to sentence within a range of possible sentences.

At the request of Los Angeles prosecutors, Senator Gloria Romero adopted the second approach in introducing Senate Bill 40 (SB 40). This bill gives judges complete power to sentence criminal defendants to maximum terms without requiring a jury to find any sentencing factors. SB 40 is now before the Assembly Appropriations Committee, and will take effect immediately if passed.

According to an Assembly Appropriations report released today, California’s incarceration costs could rise dramatically if SB becomes law. Currently, 11 percent of the 54,000 people committed to prison each year receive maximum sentences that would be affected by SB 40. For every 1 percent increase, the state will pay an additional $2.6 million in the cost of housing these prisoners. Thus, if California experiences a 50 percent increase in its imprisonment rates of prisoners receiving the maximum term, this would increase incarceration costs by $130 million annually.

SB 40 will also unfairly impact ethnic minorities. Numerous studies, both national and statewide, have shown that African-American and Latinos are more likely to receive maximum sentence than their white counterparts. Whites sentenced to drug offenses serve an average of 27 months while blacks serve an average of 46 months. (Human Rights Watch Report, Racial Disparities in the Criminal Justice System) and Latino youth are 13 times more likely to be sentenced to a juvenile state facility than whites, where they serve up to the maximum term. (Justice for Some: Differential Treatment of Minority Youth in the Juvenile Justice System). These inequities will be even greater if SB 40 becomes law. 

Senator Romero argues that SB40 is needed “to avoid chaos” in California’s criminal justice system. But her claim is seriously undercut by the fact that less than 2 percent of cases go to a jury trial. Criminal cases resolved by plea bargain are unaffected by the Supreme Court’s decision, since a person who pleads guilty waives these protections. 

Senator Romero also claims that requiring juries to decide additional facts would overburden the jury system. However, in Kansas, requiring prosecutors to prove sentencing factors to a jury added only one hour to each trial, and California already uses this procedure when a person has prior convictions, which also must be decided by a jury.

Seven of nine states facing this identical problem concluded that requiring a prosecutor to prove the sentencing factors to the jury was the better solution. Despite this evidence, SB-40 passed this week in the Assembly Public Safety committee by a vote of 5-2, with nay votes cast by San Francisco members Mark Leno and Fiona Ma. 

And there’s a real risk that SB 40 may be later found unconstitutional. According to Stanford constitutional law professor Jeffrey Fisher, SB 40’s solution works only when judges are given a wide sentencing range, which is not true of California’s current sentencing scheme. This could require that hundreds of cases be retried. 

The legislature should not act hastily to make a decision that will affect thousands of people and increase the burden to taxpayers in the name of political expediency. The integrity and fairness of our justice system is at stake.

Jeff Adachi is the Public Defender of San Francisco He was recently re-elected and is the only elected Public Defender in California. SB 40 goes to the Assembly Appropriations Committee for vote on March 22, 2007.



 

Comments
Dr. B. Cayenne Bird March 20, 2007 at 07:21 AM

Our citizen's group of 6,000 doctors, teachers, nurses, social workers, members of the clergy, many with a loved one in their immediate families incarcerated, oppose SB40. There should be no goal set by state legislators to sidestep the recent Supreme Court ruling even if it means flooding the courts to right the unconstitutional sentencing of American citizens rotting away in California's mismanaged and over-crowded prisons. 

Those 2% of cases that went to a jury trial which are affected need to considered as soon as possible. The prisoners are someone's father, mother, grand child, wife or husband and too many families have been destroyed in "the name of justice"

Legislators shouldn't just "go along" with unconstitutional sentencing or a bill such as SB40 that hasn't been fully discussed and considered by the taxpayers who will rob hundreds of millions of dollars from needed services such as education, services for the poor, blind, elderly and disabled.

I appreciate Public Defender Jeff Adachi having the courage to step up and speak out, and we thank Mark Leno and Fiona Ma for doing the right thing by voting NO on SB40.

The Appropriations hearing is this THURSDAY, MARCH 22, 2007 9 a.m. or Upon call of the Chair -Room 4202, Sacramento Capitol, 10th and L Streets, people need to be there to stand up for themselves before this gets passed on a slam-dunk with too little opposition.

Also email  mark.leno@assembly.ca.gov  to voice opposition. It isn't wise to assume email substitutes attendance at these hearings. If we snooze and say nothing, we lose because silence is consent. We need to show up and support Jeff Adachi's wisdom and courage and oppose this bad bill. No one can give unconstitutionally sentenced prisoners back the years they deteroriated in prison because some bureaucrat didn't want to be inconvenienced with retrials.

My email is  rightor1@yahoo.com  if you want to help stand up against SB40, time is of the essence as this vote will be taken on Thursday.

These are the people who will be making this critical decision that will impact many lives that deserve to be saved. Some have taken large and/or frequent donations from law enforcement labor unions and will be oblivious to your pleas for justice as they are in office to serve law enforcement's employment interests and not the people. But every American deserves a fair trial and no judge should have the power to expand sentencing on "facts" that were not found by a jury to be beyond a reasonable doubt. Sentencing reform is a critical part of prison reform and we, the people, must stand up at this time and oppose SB40

California State Assembly Committee on Appropriations Mark Leno, Chair Phone: (916) 319-2013 

Mimi Walters, Vice Chair Phone: 916) 319-2073 
Committee phone (916) 319-2081 

Committee Members Committee Members District Phone E-mail Mark Leno, Chair Dem-13 (916) 319-2013 

 Assemblymember.leno@assembly.ca.gov  Mimi Walters, Vice Chair Rep-73 916) 319-2073 

 Assemblymember.walters@assembly.ca.gov
Anna M. Caballero Dem-28 (916) 319-2028 

 Assemblymember.Caballero@assembly.ca.gov

Mike Davis Dem-48 (916) 319-2048 

 Assemblymember.Davis@assembly.ca.gov
Mark DeSaulnier Dem-11 (916) 319-2011 

 Assemblymember.DeSaulnier@assembly.ca.gov
Bill Emmerson Rep-63 (916) 319-2063 

 Assemblymember.emmerson@assembly.ca.gov
Jared Huffman Dem-6 (916) 319-2006 

 Assemblymember.Huffman@assembly.ca.gov
Betty Karnette Dem-54 (916) 319-2054 

 Assemblymember.Karnette@assembly.ca.gov
Paul Krekorian Dem-43 (916) 319-2043

 Assemblymember.Krekorian@assembly.ca.gov

Doug La Malfa Rep-2 (916) 319-2002 

 Assemblymember.lamalfa@assembly.ca.gov
Ted W. Lieu Dem-53 (916) 319-2053 

 Assemblymember.Lieu@assembly.ca.gov
Fiona Ma Dem-12 (916) 319-2012 
 Assemblymember.Ma@assembly.ca.gov

Alan Nakanishi Rep-10 (916) 319-2010 
 

 Assemblymember.nakanishi@assembly.ca.gov

Pedro Nava Dem-35 (916) 319-2035 
 Assemblymember.nava@assembly.ca.gov

Sharon Runner Rep-36 (916) 319-2036 
 Assemblywoman.Runner@assembly.ca.gov

Jose Solorio Dem-69 (916) 319-2069 
 Assemblymember.solorio@assembly.ca.gov


Angelina Chavez Espudo March 20, 2007 at 01:20 PM

I oppose SB40. This is wrong! Our prisons are overcrowded because there are too many people in there for petty stuff. People have drug problems and get no rehabilitation while incarcerated, nor due they get an education. In California prisoners are taken so far away from where there families are that they never get to see their loved ones and especially their children. The people that are really paying here are the children and the families of people incarcerated and moving them to another State only makes matters worse. We taxpayers still have to pay for them to be housed in other states and then it's really impossible for them to have their families visit, which is very important to rehabilitating these PEOPLE. I strongly oppose this bill and what really upsets me is that Gloria Romero, someone I really had a lot of respect of on other issues she represented is pushing for this bill. I will no longer support Gloria Romero because I think this is a huge mistake.

Sincerely,
Angelina Espudo
Wife of an Inmate


C Leonard March 20, 2007 at 02:12 PM

Senator Romero argues that SB40 is needed “to avoid chaos” in California’s criminal justice system.

There is already "chaos" within California's criminal justice system-and our prisons reflect this "chaos". 

Shame on California lawmakers for trying to pass off a bill thats supposedly "effective". 

The time has long, long passed for prison reform-lets stop wasting time and money with ineffective bills like SB40-we need action, not more bills.


B. Cayenne Bird March 20, 2007 at 02:51 PM
Senator Romero has done a great deal for prison reform and this is the first time in a decade, through scores of bills, the UNION finds it necessary to oppose a bill that she has sponsored. We perhaps did communicate strongly enough about judicial and prosecutorial misconduct and corruption with the letters to editors that we all wrote every week. 

The time to do that is now, but let us not forget that the 3 million people attached to a state prisoner haven't been getting out the vote and putting their own candidates into office. We are grateful for all that Senator Romero has done in the past, is even doing this session with several bills that she's sponsored and hopefully will do in the future. Sometimes it is necessary to disagree but it can be done with appreciation for all the hard work invested. What we have here is perhaps a failure to communicate. 

Legislators aren't psychic, they only know what appears in the papers, if you weren't making noise about what happened in court, it is likely she doesn't see your viewpoint. Now's your chance to be heard in full appreciation of all the good work in the past Romero has done.


Michael Westmoreland March 20, 2007 at 03:07 PM

I am sure we did NOT communicate strongly enough to be heard on judicial and prosecutorial misconduct. A lot more people out there need to learn to stand up for themselves by writing simple letters to editors and getting out the vote for people who are aware of our issues. If that isn't happening, we are partly to blame as the state runs by large, funded, groups.

The Appropriations Committee fax number is
916-319-2181

Power of numbers organized in a big voting group is the only way we are ever going to have a voice. Legislators should be aware that families in our UNION now have 28 lawsuits filed over wrongful deaths and abuses, violation of ADA requirements and more on the way.

Unconstitutional can easily result in lawsuits


Stephanie Gooding March 20, 2007 at 03:36 PM

Anything the legislators agreed on this fast is downright scary, if there is a choice behind what prosecutors will support and what public defenders support, I'm going with the advocates for the people every time. This is an emergency because this is the last committee before it goes to the Assembly for a vote.

We can't make enough noise today and tomorrow about this violation of the 6th and 14th Amendments - not to mention the cruel and unusual punishment happening to kids who need their fathers and mothers at home.


Nora Weber March 20, 2007 at 06:33 PM

California will lose again as soon as another case hits the U.S. Supreme Court. You can run but you can't hide and California Judges and the legislators have been hiding forever trying not to change the sentencing laws. 

Everyone who votes YES on SB40 should be ASHAMED OF THEMSELVES. The crocked politicians can get away with murder.

Just let some poor person who can't afford all the high priced attorneys and they will sit in prison until they rot with one charge stacked on top of another charge. I can't wait until the prison system totally bankrupts this State. Then let's see who pays their fancy salaries in Sacramento. 

Remember their names and don't vote for them in the next election. 


Nora Weber March 20, 2007 at 06:34 PM

California will lose again as soon as another case hits the U.S. Supreme Court. You can run but you can't hide and California Judges and the legislators have been hiding forever trying not to change the sentencing laws. 

Everyone who votes YES on SB40 should be ASHAMED OF THEMSELVES. The crocked politicians can get away with murder.

Just let some poor person who can't afford all the high priced attorneys and they will sit in prison until they rot with one charge stacked on top of another charge. I can't wait until the prison system totally bankrupts this State. Then let's see who pays their fancy salaries in Sacramento. 

Remember their names and don't vote for them in the next election. 


Christine March 20, 2007 at 08:13 PM

The Constitution is dead in California with a bunch of fascists in charge, trying to deny people their 6th and 14th amendment rights. Say NO to SB40 - these are real people impacted here. We don't want to pay to punish sick people. Education is a better investment. Follow the money trail on how these slimy politicians vote.

The voters who are hurt outnumber all the ones using human beings as fodder for Bush' canons or the prison slavery business.

Not in my name and not with my tax dollars. Stop whoring up my constitution and my government with your special interests. We can vote people out who have no respect for the Constitutional rights of people.


Christine March 20, 2007 at 08:22 PM

If you posted an objection when this went to the public safety committee a week or so ago, it is important that you send them again to the appropriations committee.

It's a different step in the process, it goes through one committee at a time as it makes it way to the Assembly floor unless it gets killed because it will cost $130 million a year minimum

Leno is now the chair of Appropriations but look at who's on that committee, a lot of CCPOA's funded legislators. 

Even Republicans can see that not only is SB40 probably unconstitutional but it will expand the government, destroy more families and cost more than it's worth.

What the hell is going on here?


Sue TIMPSON March 20, 2007 at 09:17 PM
IT'S REALLY SIMPLE VOTE NO ON SB 40


Leah March 20, 2007 at 09:53 PM

I am staunchly opposed to this bill as it is simply side-stepping the Cunningham decision. This bill was hastily drafted to counter the Supreme Court's recent decision declaring California's sentencing law unconstitutional. Instead of requiring a jury to find facts that could be used to enhance a person's prison sentence, SB 40 gives the sole power to judges. This was not the intent of the Supreme Court ruling and SB 40 undermines its intent. Furthermore, this was not the intent of the determinate sentencing laws, and this law would fail to address the fundamental problems in California's penal system. It will also create greater injustice in sentencing, especially in the case of minority and poor defendants who cannot afford quality representation and must rely on the over worked public defenders to represent them. The legislature should not act in haste to make a decision that will affect thousands of lives and further threaten the efforts towards sentencing reform. It is a ridiculous waste of money to fund a law that is unconstitutional. Put those same dollars into education where there is chance to provide what is necessary so we can keep our people out of prison.


Donna March 21, 2007 at 07:40 AM

SB 40 allows judges to impose the high term without making factual findings.This is wrong. Why with all the talk about a sentancing committee....now an about face. 
SB 40 is counter -productive to sentancing reform. I challege this bill,and hold this vote tally as evidence....of how careless law makers are.Romero....Sorry but you are out to lunch. 
This will impower Judges to be in no subjection what -so-ever/might as well say_____ you,you have no rights. I would like to get a list of all the inmates who have been convicted to 25yrs to life in prison for stealing a pair of pants and a shirt.......SB 40 is more of the same BS......and works against fair sentancing reform. No wonder prisons are over-flowing..politicians caused over-crowding...by pressing Judges to give harsh sentances...Now they throw any form of restraint of Judges to the wind.....Why? Because they don't want to spend a dime to re-sentance fairly those who have been sentanced unfairly. Who cares about justice? 

This is the lazy way out...throwing the most important issue out..fair sentancing. Romero is out of line with the basic principles of the Consitution-this is outrageous. Sitting on there thumbs-then come up with this bum Bill SB 40. Everyone has rights,and no senator has the right to take them away for convienence_CA.officials are not doing their job,and the quick lame fix is wrong Romero. 


J Buchanan March 21, 2007 at 08:26 AM

I strongly oppose SB40. 

Defendents are denied their Federal Constitutional Protected right to have all facts legally essential to their sentence be determined by a jury and beyond a reasonable doubt.

Under Penal Code section 1170, when an offense is punishable by three possible terms,when the middle term is imposed, no further justification is needed.

In our case, the judge acting on his own imposed the upper term because "the defendent accepted no responsibility for his actions" (In other words, he pleaded innocent) And was given the upper term because of this. 
Absent of the findings by his jury.
SB40 is now going to allow these unconstitutional sentencing practices. This system will not withstand against our Sixth Amendment precedent.

I urge you to vote NO on SB40!


Peggy Pinkins March 21, 2007 at 01:22 PM

I must be missing something here. I thought the big deal in CA was the overcrowding and unsafe prison conditions to staff and inmates. Now, SB 40 is going to put more inmates in jail for a longer time. I thought we as Californians were supposed to be working with our Governor to fix the prison system. This bill is not going to help at all. If the Supreme Court found that the present sentencing system is broken, and we have the right to a trial by jury, how is giving the judges sole discretion at sentencing going to fix this problem. If the Constitution states, trial by jury, it means just that; not giving judges more power. California can not build enough prisons to put all the people they plan on locking up and throwing away the keys. I heard that a proposal is circulating to continue with the sentencing the way it is but only have inmates do 35% of their time instead of 50% for non-violent crimes.This will alleviate some of the overcrowding, but giving inmates more time is not the answer. 



MAK March 21, 2007 at 02:07 PM
Dear Editor-

OPPOSE SB40- It is absolutely numbing to see the disrespect occuring to our Constitution our Fore Fathers intended for this great nation!! We must pull America back together and quit this political tug-of-war which also disrespects and robs the people -remember "We The People"?- of its voice. And how about humanity? This bill appears to be a quick bandage not in the favor of "whats right" or "fairness" but political agenda at the costs of lives. Granted, a criminal should be punished-but should the severity of penalty be at the hands of a Judge that has a personal vendeta for a situation or having a bad day?
Inform and let the people that pay have a say!! The tax-payer.........

No on SB40 Mak


Barbara Christie March 21, 2007 at 02:40 PM
In effect, Senate Bill 40 will sanction the unconstitutional action of any judge who increases a defendant’s sentence without a jury's finding that the evidence allowing the increased sentence is true. This bill will allow unscrupulous judges to prevent prisoners who qualify for shorter sentences from receiving them, and it will increase the incidence of disproportionate sentencing of ethnic minorities and poor people. It will also jeopardize current efforts toward true sentencing reform in California.

The majority of citizens do not want judges to have sole sentencing power; jury findings on aggravated circumstances are part of the justice equation. The last chance stop this faulty bill will be tomorrow morning, Thursday, March 22, 2007, when the Appropriations Committee meets in the State Capitol, Room 4202. If you agree that judges should not be able to give a sentence based on aggravated circumstances without jury findings, make your voice heard: Call Appropriations Committee and Assembly members or better yet, if possible, show up on Thursday.


Diane Cook March 21, 2007 at 08:34 PM
Vote No! We need prison reform not politicians wasting money on bad ideas. SB40 is a bad idea.



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Switch for guards union
The state's correctional officers join with some of their historical adversaries, including the ACLU, to push for sentencing changes
By Andy Furillo - Bee Capitol Bureau
Published 12:00 am PST Thursday, February 15, 2007
The state correctional officers union has forged an alliance with some of its longtime adversaries to propose key sentencing changes that represent a departure from the labor group's pro-incarceration positions of the past.

One proposal being pushed by the California Correctional Peace Officers Association would reserve prison space for "violent and habitual offenders" only. The union also is calling for a sentencing commission to set prison term guidelines that could be changed only if both chambers of the Legislature agree.

Representatives of the American Civil Liberties Union and the Oakland-based Center for Juvenile and Criminal Justice joined the CCPOA on a union-convened committee that developed the proposals. For years, those groups have contested the CCPOA's historic support for the state's "three-strikes" law and tough revocation policies for parolees, both of which have helped jam-pack the state prison system.

"I think the guards union has come around on the current conditions," said Dan Macallair, executive director of the Oakland group and member of the committee. "There's been a recognition that there have got to be some changes."

Along with the sentencing proposals, the CCPOA also is focused on a lawsuit it filed in conjunction with another new ally, the Service Employees International Union Local 1000, to fight the Department of Corrections and Rehabilitation's efforts to transfer as many as 7,000 inmates to private, out-of-state prisons. A hearing on the suit is scheduled for Friday in Sacramento Superior Court.

Although the transfers would seemingly relieve some of the population pressure building in the prison system, the CCPOA and SEIU 1000 argue that the use of the private contractors violates civil service protections in the state constitution.

Fighting the transfers and pushing for a correctional overhaul, said CCPOA Vice President Chuck Alexander, is all part of the same package for the union.

"No, I can't let them sit by and violate the constitution as a matter of convenience," Alexander said of the transfers. "But the bigger picture is that it won't fix anything, unless it's part of a systemic change, and thus far, it hasn't been shown to us that this is part of any systemic change."

Deputy Attorney General Vickie Whitney, who is defending the transfers, said they are urgent and temporary and therefore legal under state civil service law.

Scott Kernan, the corrections agency's director of adult institutions, said the transfers would buy the state as much as two years' time before it would run out of emergency bed space. He said the transfers also would reduce inmate releases at the county level that currently number 18,000 every month.

"It's a matter of balance," Kernan said.

Gov. Arnold Schwarzenegger set the transfers in motion on Oct. 4 by declaring a prison overcrowding emergency. The state is housing nearly 172,000 inmates in space designed for about half that many. Schwarzenegger has since proposed a $10.9 billion bond construction plan that would add 83,000 beds to prisons, county jails and juvenile detention facilities but take years to complete.

At California State Prison, Solano, the third-most crowded in the state with 6,024 inmates packed to 231 percent of the institution's designed capacity, the feeling among some staff members is that the transfers won't do much to ease their workload.

"They're only creating vacancies that they're going to fill -- which they will fill," said Dirci Alarcon, 55, one of two officers working in a dorm built for 200 inmates but now housing 348 of them. "We're taking 'em in by the busloads."

In Alarcon's dorm, inmate Claude Banks, 40, is sleeping in the middle of a triple-stacked bunk. He can't sit up in it without banging his head.

"It's like living in a coffin," Banks said.

While opposing the transfers falls in line with the CCPOA's long-standing agenda of contesting any move that threatens its membership base, the sentencing proposals represent a departure from the group's historic support for promoting maximum incarceration.

Alexander said the union is even thinking about filing friend-of-the-court papers in support of legal motions by inmates-rights lawyers to put a cap on the state's prison population. U.S. District Court Judge Lawrence Karlton in Sacramento has threatened to take steps toward imposing a cap if the state doesn't get a handle on its inmate population by June.

"If something isn't done and we lose a prison, our members bear the brunt of that," Alexander said, referring to major prison riots of the past at Attica, N.Y.; Lucasville, Ohio; and Santa Fe, N.M.

Early drafts of the CCPOA sentencing proposals have drawn some opposition from some members of the committee the union selected.

"It amounts to a way to reduce sentences in a wholesale fashion, without any serious public accountability," said John Lovell, a lobbyist for the California Police Chiefs Association.

Alexander said the committee hopes to sharpen the language on its proposals by the end of the month, then search for a lawmaker to carry them in a bill.

In the meantime, the union's immediate goal is to fight the transfers.

"The administration is trying to sweep the issue under the rug," said Alexander, the union vice president. "We're going to force them to pick up the rug and sweep the whole floor."
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You can post at the bottom of this article
 

http://www.sacbee. com/111/story/ 123794.html
 

Phumps at 2:54 AM PST Thursday, February 15, 2007 wrote:

Inmates.

I'm a bit skeptical whenever I hear that the CCPOA wants to do something that makes sense. My suspicious nature tells me that there's a fly in the ointment there somewhere. However, for the moment I will give them the benefit of the doubt. I'll reserve judgement until this scenario unfolds a bit more. 
For the present, I will say right on. Changes are coming anyway but it's heartening to see that the CCPOA is taking positive steps in the right direction. Hopefully others will follow their lead and real changes will take place. God knows, they are sorely needed...

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lexvil at 6:42 AM PST Thursday, February 15, 2007 wrote:

a very responsible position

it is way beyond time that CCPOA comes to grips with the reality that we can't lock up everyone forever, now if only the public can get over the knee-jerk reaction of thinking we can. there is now little separation of punishment between minor crimes and capitol crimes, once everyone going into the system is looking at life what incentive can you offer to keep them in line? a rational person with no hope is the most dangerous of all. there may be no solution to the crime problem but without trying something else we'll never know, what we have been doing doesn't work and to continue the same old thing hoping for a different outcome is the definition of insanity. can the public be cured? or will we continue to cut off our legs because our feet itch?

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agentbell at 6:46 AM PST Thursday, February 15, 2007 wrote:

Switch for Guards

This is typical CCPOA Politics. Normally I would applaud CCPOA'S efforts. But I have seen CCPOA hunker down with many an ally. Normally it is just a stunt to further their own agenda. CCPOA will get my support when they actually start to ally with the State of California Department of Corrections. When they actually sit and openly discuss options to bring some immediate relief to this problem with the Agency that signs their paychecks, I would then say they are sincere in their efforts. Until that happens they are only in it for themselves.. ...

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Brandywineleathers at 7:51 AM PST Thursday, February 15, 2007 wrote:

I tend to agree---

that the higher ups at the CCPOA are reading the handwriting on the wall. In order to keep the power that they enjoy they must conform to the pressures at this time or they will lose all control. Maybe, just maybe when these "reforms" actually materialize they will see that it was the right thing to do. For now, whatever their motive, it is a step in the right direction. We all get set in our ways and don't like change. But things never stay the same. Change is good but can be uncomfortable at first....

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zzyzx_exit at 8:10 AM PST Thursday, February 15, 2007 wrote:

More Smoke and Mirrors?

Not the guards union or any other union is ever going to take a position that ultimately does not further their dues paying base and self serving position. I must however agree with the guards union that moving a few thousand inmates out of state will not relieve overcrowding. Los Angeles County Sheriff Lee Baca, ended contract with the state to house up to 1300 parole violators just a few months ago. That means the CDC (R does not apply) must absorb these 1300 (average daily count) parole violators. The system is so dysfunctional that anything less than adopting the recommendations of The Little Hoover Commission will be futile. I foresee the federal courts capping the population, but what good is that without real reform to lower the recidivism rate? The type of sentencing commission that the guards union proposes is unworkable. The legislature seldom agrees on anything. What works? See The Little Hoover Commission report for what does and what does not work.
 

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jlbuchanan at 8:36 AM PST Thursday, February 15, 2007 wrote:

Last Ditch Effort to Save Their Jobs
 
 

Sounds like it's an effort to try to save their jobs. I don't buy that anyone cares about the plight or suffering of the overcrowded inmates. 
 

When the families finally organize enough citizens and expose the truth, maybe then it will bring about change. 
 

These families have suffered too much for too long at the hands of the guards. 
I have been a teacher for 29 years, I have done everything to ensure that I am the best ciiizen possible, I have never even had a traffic ticket, yet when I go to visit my son, who should not be in prison, I am treated like a criminal. 
When inmates have been beaten, or are sick, their family members are denied information. This is wrong....... ....Maybe things will change when the feds take over.

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man007 at 9:02 AM PST Thursday, February 15, 2007 wrote:
 
 

Desperation is one most powerful motivators to accept the truth of really. The State is in a desperate situation and some where the blind eyes will see.

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JOGUARD at 9:15 AM PST Thursday, February 15, 2007 wrote:

I don't believe it !

I can't believe it! You people think that CCPOA is the Judge and Jury? It's YOU, the voting public who passed all the laws involving incarceration, now it's CCPOA's duty to help the Administration bail out of a problem that they, (Yeah you Arnold!) have created by not being responsible when it comes to population increases.
Remember folks, this problem didn't happen over-nite.

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Insightful_genius at 9:17 AM PST Thursday, February 15, 2007 wrote:

CCPOA isn't mending fences with it's greatest adversary yet

The families that have filed 27 lawsuits, most for wrongful deaths, which make up the pressure group United for No Injustice, Oppression or Neglect haven't gotten any relief. They are still being treated with derision and disrespect whenever they visit the prisons, as though they are criminals instead of the crime victims that they actually are, but it might be dawning on them that not all are too uneducated to organize a voting group. After reports of four prison guards beating an inmate at Salinas Valley Prison so severe it sent him to the hospital, the UNION families called in the Mexican Consulate to witness his injuries. Our own US news reporters can't get in so they had to go to another country for help. When CCPOA and CDC have turned over a new leaf, the first to realize it will be the families of the UNION - and what great adversaries they are with 350 guards, wardens, administrators and doctors now sued and under subpoena and more on the way. The fight back machine grows

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rocketman at 9:29 AM PST Thursday, February 15, 2007 wrote:

People passed the laws but ccpoa funded the campaign

The comment that people passed the laws fails to recoginize the massive contributions from the guards to defeat the reform effort on the three strikes issue. So no matter who first passed the laws the guards union heavily bankrolled the opposition to correct the problem and yes.. Arnold was on the wrong side of that issue.
 


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Justice Alito's Dissent in Cunningham v. California: How Can Someone So Wrong, Be So Right? 
By VIKRAM DAVID AMAR AND AARON RAPPAPORT 
---- 
Friday, Feb. 16, 2007

A few weeks ago, the Supreme Court issued perhaps the biggest decision of the Term to date: Cunningham v. California. There, the Court held that California's current criminal sentencing system violates a defendant's Sixth Amendment rights. 

As discussed in Part One of this series, the Court's ruling seemed to be a straightforward application of a rule developed in Apprendi v. New Jersey and several subsequent cases - namely, that a judge may not impose a sentence above the statutory "maximum" based on his or her own fact-finding. For purposes of this rule, the statutory maximum is defined as the highest sentence that the defendant could lawfully receive based solely on the jury's verdict or the defendant's guilty plea (that is, without any additional fact-finding by the judge). 
 
 

California's system violated this rule, since it permitted judges to exceed the presumptive sentence set by the legislature based on their own finding of aggravating factors, rather than on account of facts found by a jury beyond a reasonable doubt. 

One of the most interesting features of Cunningham was Justice Alito's intricate dissenting opinion, which was also joined by Justices Kennedy and Breyer. As one of Justice Alito's first opinions in this controversial area of criminal constitutional law - and one of his most prominent opinions to date more generally -- his writing deserves careful study. 

Particularly interesting is how his dissent highlights and explores one of the great puzzles emerging from this line of cases: When, and why, does the exercise of judicial discretion at sentencing violate the Sixth Amendment?

The Puzzle of Judicial Discretion: When Is It Constitutional, and Why?

In Apprendi and later cases, the Supreme Court criticized so-called "determinate" sentencing schemes (described in detail in the earlier column in this series) that allow judges to use their discretion to find facts that then trigger enhanced sentences or sentence ranges. 

The puzzle is that, at the same time, the Court has upheld a purely advisory federal guidelines scheme, a system that actually increases the discretion of judges over sentencing. Moreover, the Justices uniformly agree that "indeterminate" sentencing schemes, where trial courts have virtually unreviewable leeway to set sentences within a broad range, are constitutional. So which is it? Is judicial discretion good, or bad?

As Justice Alito recognizes in his Cunningham dissent, the "bright-line rule" set forth in Apprendi was intended to identify when judicial discretion is acceptable. However, Alito argues that the line is not quite as bright as the majority in Cunningham suggests, and certainly not dispositive in assessing whether the California sentencing system is constitutional. Alito advances two arguments in support of this claim:

Column continues below ? 

First, Alito argues that the Apprendi rule is sharply limited. It applies, he says, only when judges increase sentences beyond the maximum based on specific "fact-finding." (Emphasis added.) According to Alito, the California system allows judges to exceed the maximum based on other criteria besides fact-finding, such as their own policy judgments about whether a higher sentence for particular categories of crimes is needed to serve a valid purpose of punishment (such as deterrence). This added judicial discretion, Alito implies, saves the California system, rendering it constitutional. 

Alito's argument faces serious problems. Perhaps most importantly, his reading of state law is questionable. The Cunningham majority did not agree with his view that judges in California have unlimited discretion to increase sentences above the maximum. Rather, they held that California law permits enhanced sentences only after judicial fact-finding has occurred.

Moreover, even if Alito's interpretation of state law had been accepted by the majority, his argument still might falter. Notably, Alito never explained why the possibility that judges can sentence above the maximum based on their own policy judgments - as opposed to their own fact-findings -- makes the system constitutional (and fairer for the defendant). One might think, for example, that if the Court's concern in this line of cases is about the dangers of judicial discretion, Alito's reading of state law would not necessarily solve the constitutional problem.

Is the Supreme Court's Booker Precedent Incoherent?

Alito's second point deserves closer attention. He argues that "[e]ven if California did require that a sentencing court find some aggravating 'fact' before imposing the upper term sentence, that would not make this case constitutionally distinguishable" from what the Supreme Court upheld as constitutionally permissible in United States v. Booker. 

In Booker, the Court struck down the federal sentencing guidelines system under the Apprendi rule. But at the same time, in its remedial order, the Court allowed the guidelines to remain as an "advisory" system of rules. Alito suggests that this remedial order effectively limits the Apprendi rule, since an advisory system necessarily allows judges to impose sentences above the "maximum" based on the judges' own fact-finding. 

How so? Alito suggests that the key here is to realize that sentences imposed under the advisory system are still to be reviewed by appellate courts for "reasonableness." Alito argues that appellate reasonableness review means that for each offense, there is a sentence which "represents the [most] onerous sentence that [could] be regarded as reasonable in light of the bare statutory elements found by the jury." 

On Alito's view, any higher sentence is not per se illegal, but it would have to be justified in order to be held reasonable on appeal. Booker's remedial order "necessarily anticipates that the imposition of sentences above this level may be conditioned upon findings of fact made by the judge and not the jury." As Alito puts the point, "if reasonableness review is more than just an empty exercise, there inevitably will be some sentences that, absent any judge-found aggravating fact, will be unreasonable." 

Presto! Booker's remedial portion thus suggests that judges can, in fact, justify sentences above the "maximum" based on their own fact-finding! 

Alito's argument here is not free from problems. At most, his argument simply highlights a possible inconsistency between the two parts of the Court's Booker opinion: the substantive portion that strikes down the binding guidelines (for violating the Apprendi rule), and the remedial portion that upholds the advisory guidelines (even though they appear to transgress the same rule). Some dissenters to the remedial portion of Booker themselves highlighted this same tension. But this potential inconsistency does not mean that the Apprendi rule should be discarded; it could be taken to mean simply that the Court was wrong in its remedial order to validate the advisory sentencing guidelines.

In any event, Alito is far too quick to assume an inconsistency exists between the substantive and remedial portions of the Booker opinion. A reconciliation might be possible - and this potential reconciliation, as we will explain, raises further questions about Alito's arguments in support of the California sentencing scheme.

The Error of Justice Alito's Ways

Justice Alito's claim that the two parts of the Booker opinion are inconsistent ignores some potentially salient distinctions between the binding guideline regime struck down in Booker's substantive opinion and the advisory system validated in the Court's remedial order: 

One distinction concerns the way that a verdict is translated into a specific sentencing outcome. Under binding guidelines, the verdict generate a determinative sentencing range based on formal, explicit, publicly-articulated sentencing rules prescribed in advance by a legislative body. As a result, in a binding guideline system, it is obvious when judicial fact-finding leads to an increase in the sentence beyond the maximum determined solely by the verdict. 

In contrast, under an advisory guideline system, the sentencing range associated with a verdict remains obscured (at least, until the appellate courts develop formal sentencing dispositions that define categories of reasonableness for different offenses). Under an advisory system, therefore, the effect of judicial fact-finding is much less overt, and possibly less troubling for that reason. 

According to this distinction, the Apprendi rule should properly apply only to maximum sentences defined as the highest sentence that can be imposed without further judicial fact- finding conducted pursuant to explicit, formal and publicly ascertainable sentencing rules.

Such a reformulation (or clarification) of the Apprendi rule would explain why the binding federal guideline system was unconstitutional: because it allowed judicial fact-finding to exceed the maximum, under this definition. 

It would also explain why the advisory system is constitutional. Since that system does not at this time contain any formal sentencing rules to establish a maximum sentence, the judicial fact- finding does not transgress the constitutional rule. Of course, if the appellate courts, in the future, formalize explicit rules to determine the maximum "reasonable" sentence for an offense, the advisory system might ultimately face similar problems. But that seems a long time away.

The problem with this reconceptualization of the Apprendi rationale is that the reason we would want to make a distinction between formal, overt and publicly-ascertainable judge-found facts, on the one hand, and informal, under-the-radar judicial fact-finding, on the other, is far from obvious. While the effect of judicial discretion is no doubt obscured in an advisory system, it continues to operate sub silentio. If judicial discretion is problematic, the exercise of that discretion perhaps ought to be problematic whether its effect is clearly visible or not. 

Public ignorance of what the courts are doing shouldn't make judicial fact-finding constitutionally acceptable, should it?

Is the Problem Too Much Legislative Prescription? A Distinction With Strong Explanatory Power

But perhaps there is another distinction that could serve to reconcile the two parts of the Booker opinion. Maybe the problem with the prior, binding guidelines was not their public openness, but rather the institutional role played by the legislature or U.S. Sentencing Commission in formulating the standards. 

In the previous, binding system, these two institutions determined the maximum sentence that could be imposed based solely on the verdict, and determined which facts should be taken into account to deviate from this maximum. 

By contrast, in the current advisory guideline system, the judiciary makes these ultimate determinations. As a result, one could reconcile the two parts of Booker by clarifying that the maximum sentence, for Apprendi purposes, means the most severe sentence that the legislature or commission determines can be imposed based on the fact of conviction (or based on facts stipulated by the defendant in a plea agreement). 

This reformulation would explain why (as the Court held) a binding guidelines system violates the Constitution, but an advisory guidelines system does not: A binding guideline system (such as the prior federal sentencing system) would violate Apprendi because - and to the extent that -- it allows the judiciary to increase the sentence beyond the maximum sentence established by the legislature or Commission, pursuant to facts the legislature or Commission has prescribed as important. 

By contrast, an advisory guideline system survives constitutional review, because the legislature and the commission haven't determined the maximum sentence that can be imposed based solely on the verdict. As a result, the advisory system doesn't have a maximum sentence at all (short of the ultimate statutory maximum). Nor has the legislature tried to identify all the additional facts a judge must weigh in ultimately rendering a sentence.

Why the Distinction Is Not Only Explanatory, But Logically Defensible

This approach does a good job of explaining why binding guidelines are unconstitutional and advisory guidelines are lawful, and so it offers a plausible way to reconcile the two parts of the Booker opinion. But does this distinction make any sense? 

Perhaps it does. The distinction is premised on the view that the defendant's liberty interests are threatened when a legislature (or Commission ) attempts to determine the effect of a specific fact on the defendant's ultimate sentence. The danger, as recent history suggests, is that the legislature will opt for long sentences based upon facts of questionable reliability. 

To counteract that danger, the Apprendi rule says that any time the legislature (or Commission) gives a specific fact a weight, that fact must be submitted to the jury and proved beyond a reasonable doubt. 

By contrast, judicial discretion over sentencing does not seem to pose a similar danger, perhaps because of an assumption that the judiciary will in general be more sympathetic to the liberty interests of the defendant. Thus, the rule suggests a certain way to understand the Apprendi line of cases. These cases represent a distrust of legislative (and Commission) power in the sentencing realm, not a distrust of judicial discretion per se.

Though this might be a profitable way to harmonize the two parts of the Booker opinion, the approach does not necessarily support California's sentencing scheme reviewed in Cunningham. Rather, the reformulated Apprendi rule suggests that Cunningham may have, in fact, been correctly decided. 

After all, under California law, the middle term was deemed by the legislature to be the presumptively reasonable sentence. As such, it represents the "maximum" sentence under the reformulated rule. By allowing judges to sentence above the legislatively-identified maximum pursuant to their own fact-finding - some of which facts, at least, were themselves listed by the legislature as relevant -- the system might still implicate at least to some extent the constitutional rule. (Since only some of the aggravating facts on which a judge could rely were legislatively-identified, however, an argument can be made that the California scheme should have been less troubling to the Court than the laws struck down in the earlier cases in this line.)

Maybe Justice Alito Is Right, As to His Bottom Line, After All

Whether our various (re)formulations of the rule in Apprendi justify the Court's actions in this line of cases might depend on what the federal and state legislatures choose to do after their chosen determinate sentencing scheme is called into constitutional question. 

To the extent that legislatures respond by giving more power to juries, or by moving towards indeterminate sentencing regimes that give judges more discretion, perhaps the end results will redound to the benefit of criminal defendants whose interests are supposedly being vindicated by the Sixth Amendment doctrine.

But to the extent that the legislatures respond to the judicial invalidation of sentencing schemes by imposing tougher sentences on offenders, or by creating legislative presumptions in favor of harsher sentences (with judges being empowered to find facts only to reduce, rather than increase, the punishments), the Court's rulings in the Apprendi line of cases might backfire.

These possibilities are underscored by two potential responses to the Cunningham decision itself - one hypothetical, and the other currently under legislative consideration:

First, consider a hypothetical. What if, as our colleague Michael Dorf has suggested, California were to keep its scheme of allowing three possible sentencing options - say, 16, 12 or 6 years -- for a given offense. Instead of establishing the middle term as the presumptive sentence, suppose the legislature set the presumption at 16 years, rather than 12. Under this scheme, unless and until the trial judge finds one or more specified facts of mitigation (and perhaps mitigation could include a finding of no legislatively identified aggravating facts), then the judge must choose 16 years. But if such mitigation (or lack of aggravation) is found by the court, the judge could reduce the sentence to 12 or 6 years.

Such a system would be similar to the one struck down by the Court in Cunningham, but also presumably immune from the Court's rationale for invalidation. Such a response by the legislature would presumably be worse for defendants, and yet it would seem to pass constitutional muster.

Or consider a proposal that is in fact somewhat likely to pass the California legislature soon: Senate Bill 40 (SB40) would amend the sentencing rules to give the court complete discretion to choose which of the three sentencing points it prefers. That change would avoid any plausible constitutional concerns by eliminating the legislative presumption in favor of any of the three terms at all. In effect, it would result in a discretionary sentencing scheme with three possible sentencing options.

In all likelihood, this change, too, would seem to make it easier (that is, easier than under the law that the Court struck down in Cunningham) for a judge to impose the higher term. Before, the sentencing judge needed to identify some fact to justify the higher term. Under SB40, it's not clear the court needs to do so. 

This simply highlights the potential unwisdom of striking down the California system on the basis that it violates the defendant's Sixth Amendment rights. How can the defendant's Sixth Amendment rights be promoted by a piece of legislation that makes it easier to sentence to a higher term? 

Thus, even under our various theoretical clarifications or reconceptualizations of the Apprendi line, the Court might not be reaching results that vindicate the values about which it cares, and, at a minimum, has a lot more explaining to do. 

Justice Alito in dissent is certainly justified in his seeming frustration with the Court's failure (to date) to make clear to the world what this doctrinal line is really all about.

--------------------------------------------------------------------------------

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher. Aaron Rappaport is a professor of law at the University of California, Hastings College of the Law in San Francisco. He is a 1991 graduate of Yale Law School, and a former clerk to now-Justice Stephen Breyer on the U.S. Court of Appeals. Prior to teaching, Professor Rappaport served as counsel to the Senate Judiciary Committee and to the Federal Communications Commission, and was an Assistant Director on the National Economic Council. Between 1996 and 2005, Professor Rappaport was also an editor of the Federal Sentencing Reporter, a leading journal on sentencing law. 


Court Ruling Spotlights Calif. Prisons 
January 23rd, 2007 @ 1:34am
By DAVID KRAVETS 
Associated Press Writer
 

SAN FRANCISCO (AP) - The U.S. Supreme Court's decision striking down California's criminal sentencing rules may cause disruptions, but it could be a blessing in disguise as the state grapples with severely overcrowded prisons.

The high court made clear Monday that juries, not judges, must determine facts that justify harsher prison sentences. That means about 10,000 of 173,000 California inmates are eligible for reduced terms.

The 6-3 decision comes as federal courts in Sacramento, Oakland and San Francisco are considering ordering a reduction in the number of prisoners who are being warehoused in what inmate advocates say are deplorable and unconstitutional conditions.

The state prison system is 70 percent over capacity, and Monday's decision forces California's government to re-examine its sentencing rules, which are the strictest in the nation. Some inmates, under the three strikes law, are serving life terms for petty crimes, such as shoplifting.

"It does raise the salience and importance of the way sentences are handed out and what those sentences are," Attorney General Jerry Brown said of the justices' ruling. "It certainly is calling attention to the issue of sentencing, and that might well move higher up on the legislative scale the priority of sentencing reform."

Senate Majority Leader Gloria Romero said "this is a perfect opportunity to launch that discussion. For all intents and purposes, the Supreme Court is telling us we have to do it anyway."

Romero said the court's decision _ in the case Cunningham v. California _ makes it more urgent for lawmakers to adopt a bill she proposed last week creating a sentencing commission to review sentences and make changes.

The case concerned Richmond police officer John Cunningham, who was sentenced to the maximum 16 years imprisonment for sexually abusing his son. State law instructs judges to sentence inmates to the middle of three options _ in this case, 12 years _ unless factors that did not go before the jury exist to justify a shorter or longer prison term.

The justices said such a sentencing scheme violates defendants' rights to be tried before a jury.

Cunningham got the maximum because the sentencing judge said there were several aggravating circumstances to the crime, including the defendant threatening the victim to try to make him recant.

In defending its law, the state warned that its criminal justice system would be burdened by having to re-sentence thousands of inmates. There were just under a quarter-million felony convictions in the state in 2005.

"This moves sentencing reform to the front burner in California," said Gerald Uelmen, executive director of the California Commission on the Fair Administration of Justice.

The state could increase jurors' roles by expanding the use of two-step trials in which a jury first determines guilt, then settles on a sentence.

Another option for the state would be to scrap its Determinate Sentencing Law, which was enacted in part to bring uniformity to sentences.

Nine other states, including Illinois and Texas, urged the court in vain to uphold the California law.

Assemblyman Todd Spitzer said both legislative chambers should convene a conference committee "to deal with prison overcrowding." Failing to act makes it more likely the federal courts will order the release of prisoners, Spitzer said.

Gov. Arnold Schwarzenegger said any changes would be handled with care: "I support longer sentences for criminals who deserve them," he said. "As governor, I will work to ensure that this decision will not be a threat to public safety."

___

On the Net:

Supreme Court:  http://www.supremecourtus.gov


Jan 22, 2007 7:14 am US/Pacific

Supreme Court Strikes Down Calif. Sentencing Law

(AP) WASHINGTON The Supreme Court struck down California's sentencing law Monday, reaffirming limits on judges' discretion and presaging shorter sentences for thousands of state prisoners.

The 6-3 ruling in Cunningham v. California effectively shaves four years off the 16-year sentence of former police officer John Cunningham, who was convicted of sexually abusing his son.

It's the latest in a series of high court rulings over the past seven years that limit judges' discretion in sentencing defendants. The court has held repeatedly that a judge may not increase a defendant's sentence based on factors that were not determined by a jury.

"This court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by the jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence," Justice Ruth Bader Ginsburg wrote for the court.

Several states have changed their sentencing laws to require prosecutors to prove to a jury aggravating factors that could lead to longer sentences.

California had argued that a 2005 state Supreme Court decision interpreting the state's Determinate Sentencing Law effectively brought the state into compliance with the U.S. high court's rulings. The law instructs judges to sentence inmates to the middle of three options, unless factors exist that justify the shorter or longer prison term.

The state warned that its criminal justice system would be burdened by having to re-sentence thousands of inmates.

Rather than prescribing a way to fix the law, Ginsburg said, "The ball lies in California's court."

Justice Samuel Alito said in dissent that California's law "is indistinguishable in any constitutionally significant respect" from the federal sentencing guidelines that have been approved by the Supreme Court.

There were just under a quarter-million felony convictions in the state in 2005. Data from the 1980s cited by the California Supreme Court suggests that roughly 15 percent of cases involving just one felony count result in sentences in which a judge, not a jury, finds an aggravating factor to justify the additional punishment.

But Peter Gold, Cunningham's lawyer, told the court that in many cases the standard term and longer option differ by just a year. In practical terms, many of those who might be affected by Wednesday's ruling might already have finished serving their time in prison.

Several justices suggested during oral argument in October that the state could tweak the law, rather than overhaul it, to remove constitutional violations.

Nine other states, including Illinois and Texas, urged the court to uphold the California law.

Cunningham, a former Richmond, Calif., police officer, was convicted of sexually abusing his 10-year-old son after the boy moved in with Cunningham and his girlfriend.

The case is Cunningham v. California, 05-6551. 



SF Gate Logo
 

State's criminal sentencing system unconstitutional, Supreme Court rules 
- Bob Egelko, Chronicle Staff Writer
Monday, January 22, 2007 
 

California's sentencing law violates the right to a jury trial because it allows judges to add years to a prison term based on their own fact-finding, the U.S. Supreme Court ruled Monday in a case that will force the state to re-examine basic questions of crime and punishment. 

The 6-3 ruling could take four years off the 16-year sentence of a convicted child molester from Contra Costa County who challenged the law, and it could shorten the terms of several thousand other prisoners who were given maximum sentences by judges. 

It also requires the state to change its sentencing law while it struggles to contain the soaring costs of an overcrowded prison system. 

"This is an opportunity to take an in-depth look at how things are functioning,'' said new Attorney General Jerry Brown, who as governor signed the 1977 law that the court struck down. "In the meantime, there will be a significant number of cases that will have to be retried." 

The 1977 law was designed to promote uniform sentences -- equal times for equal crimes -- by eliminating parole boards' authority to set terms for most prisoners. Instead, the law gave judges the power to choose among three sentences for each crime. 

The case before the Supreme Court was brought by John Cunningham of San Pablo, a former Richmond police officer who was convicted of sexually abusing his son from December 1999 to October 2000. The boy, who turned 10 during that period, said his father had molested him two or three times a week, sometimes accompanied by threats or beatings. 

Cunningham insisted he was innocent, saying his son had a history of lying. His convictions are final, however, and the ruling concerned only his sentence. 

Under California law, Cunningham's crime -- continuous sexual abuse of a child -- was punishable by six, 12 or 16 years in prison. The law required the judge to choose the middle term unless facts about the defendant or the crime justified the longer or shorter term. Those facts were determined by the judge after the jury conviction. 

The judge in Cunningham's case imposed the maximum sentence after finding that the boy had been particularly vulnerable and that Cunningham had committed the crime with great violence and posed a danger to society. None of those issues had been submitted to the jury. 

The pre-1977 law set a much broader range of sentences -- one to 15 years, for example, or 10 years to life -- and let the parole board decide when a prisoner was ready for release. The law was attacked from both the political right, which said board members were being duped into premature paroles, and the left, which said sentences were prolonged arbitrarily or for political reasons. 

The 1977 law has made sentences more predictable. But the state prison population, then just over 20,000, now totals 172,000, while the crime rate has changed little. 

Monday's ruling followed Supreme Court decisions in 2004 and 2005 that overturned sentencing laws in other states as well as the federal sentencing rules. In those cases, the court found that the law improperly subjected a defendant to a longer term based on a judge's assessment of the facts. 

The California law, "by placing sentence-elevating fact-finding within the judge's province, violates a defendant's right to trial by jury,'' Justice Ruth Bader Ginsburg said in the majority opinion, which rejected a 2005 state Supreme Court ruling upholding the law. 

Although a jury must find a defendant guilty beyond a reasonable doubt, Ginsburg noted, a California judge can increase the standard sentence based on facts that the judge finds more likely than not to be true. 

Dissenting Justice Samuel Alito said the state law allowed a judge to choose a reasonable sentence within the range established by the Legislature, similar to the system that the Supreme Court imposed when it struck down the federal sentencing law in 2005. Justices Anthony Kennedy and Stephen Breyer joined his dissent. 

The court did not order specific changes in the law, saying that was up to state legislators. Defense lawyers generally favor the option that many states adopted after court rulings: allowing a jury to decide all facts affecting sentences. 

The uniformity promoted by the 1977 law "can still be achieved. You just have to add one procedural protection for defendants,'' said Jeffrey Fisher, a Stanford law professor who filed arguments with the court on behalf of the National Association of Criminal Defense Lawyers. 

But David LaBahn, executive director of the California District Attorneys Association, said prosecutors prefer an approach that would eliminate the current requirement that judges in most cases choose the middle of the three sentences. Judges would then have free rein to select any of the three options without invading the domain of the jury, whose verdict would have made all three choices available, he said. 

Fisher countered that such a system would make sentencing less predictable. 

Brown said he would like to increase the authority of the parole board, and perhaps judges, to tailor prison terms. 

"We need greater individualization of sentences because some inmates require more punishment than others,'' the attorney general said.

With prison costs contributing heavily to the state's budget deficit, both Gov. Arnold Schwarzenegger and state Sen. Gloria Romero, D-Los Angeles, the Senate majority leader, have proposed commissions to advise legislators on sentencing. 

Romero said Monday that the ruling made the creation of an independent commission more urgent. Schwarzenegger issued a statement saying he would "work to ensure that this decision will not be a threat to public safety.'' 

About 15 percent of the felons sentenced to prison in California receive longer terms, according to state statistics. But only a small percentage of those -- which no one could estimate Monday -- will be affected by the ruling. Most state inmates were sentenced under plea agreements under which they agreed to the prison term and waived the right to appeal even if the sentencing law were later overturned. 

The remainder can seek resentencing to middle terms. They include Cunningham, whose term would be reduced to 12 years. 

Those reductions would not be automatic, however. In Cunningham's case, Deputy District Attorney John Cope of Contra Costa County said he would ask the sentencing judge to convene a new jury to find facts that would justify the 16-year term. 

But Cunningham's lawyer, Peter Gold, said such a hearing would amount to retrying the case. LaBahn of the district attorneys association said such hearings might violate the constitutional ban on double jeopardy. 

The case is Cunningham vs. California, 05-6551. 
 

How they voted 
How the U.S. Supreme Court voted Monday in a 6-3 ruling striking down California's sentencing law: 

Majority: Ruth Bader Ginsburg, John Paul Stevens, Antonin Scalia, David Souter, Clarence Thomas, Chief Justice John Roberts. 

Dissent: Samuel Alito, Anthony Kennedy, Stephen Breyer. 

E-mail Bob Egelko at  begelko@sfchronicle.com



Law.com Image

Supreme Court's Striking Down of Calif. Sentencing Law Could Mean Shorter Prison Sentences
Mark Sherman
The Associated Press
01-22-2007

The U.S. Supreme Court struck down California's sentencing law Monday, reaffirming limits on judges' discretion and presaging shorter sentences for thousands of state prisoners. 

The 6-3 ruling effectively shaves four years off the 16-year sentence of former police officer John Cunningham, who was convicted of sexually abusing his son. 

It is the latest in a series of high court rulings over the past seven years that limit judges' discretion in sentencing defendants. The Court has held repeatedly that a judge may not increase a defendant's sentence based on factors that were not determined by a jury. 

"This court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by the jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence," Justice Ruth Bader Ginsburg wrote for the Court, referring to an article in the U.S. Constitution. 

Several states have changed their sentencing laws to require prosecutors to prove to a jury aggravating factors that could lead to longer sentences. 

California had argued that a 2005 state Supreme Court decision interpreting the state's Determinate Sentencing Law effectively brought the state into compliance with the U.S. high court's rulings. The law instructs judges to sentence inmates to the middle of three options, unless factors exist that justify the shorter or longer prison term. 

The state warned that its criminal justice system would be burdened by having to re-sentence thousands of inmates. 

Rather than prescribing a way to fix the law, Ginsburg said, "The ball lies in California's court." 

Justice Samuel Alito said in dissent that California's law "is indistinguishable in any constitutionally significant respect" from the federal sentencing guidelines that have been approved by the Supreme Court. 

There were just under a quarter-million felony convictions in the state in 2005. Data from the 1980s cited by the California Supreme Court suggests that roughly 15 percent of cases involving just one felony count result in sentences in which a judge, not a jury, finds an aggravating factor to justify the additional punishment. 

But Peter Gold, Cunningham's lawyer, told the Court that in many cases the standard term and longer option differ by just a year. In practical terms, many of those who might be affected by the ruling might already have finished serving their time in prison. 

Several justices suggested during oral argument in October that the state could tweak the law, rather than overhaul it, to remove constitutional violations. 

Nine other states urged the Court to uphold the California law. 



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Correcting justice
Doing time for every crime has led to California's overcrowded prisons. Now, many people believe it's time to try a different approach.
By Roger K. Warren - 
Published 12:00 am PST Sunday, January 21, 2007

There is no responsibility that judges take more seriously than sentencing criminal offenders. The principal purpose of government and the rule of law is to ensure public safety and security. It is to judges that the authority and responsibility to sentence those whose crimes undermine public safety is entrusted. Serious crimes result in unspeakable injury and loss to the victims most directly affected, and threaten the entire community. The stakes for the offender and for the offender's family are equally high. Judges are never more mindful of how grave a responsibility it is to act as a single judge on behalf of an entire community than when carrying out their sentencing responsibilities.

Criminal cases dominate the workload of California judges, who sentence more than 135,000 felony offenders a year. The hardest cases are not those of the most violent or dangerous criminals, or the sexual predators. Those offenders belong in prison and constitute only about 10 percent of the cases. Cases where the law mandates a prison sentence under circumstances that a judge considers unjust are hard, but they are also rare. For many judges the most difficult and frustrating aspect of handling felony cases is dealing with the crushing volume of repeat offenders, most charged with nonviolent crimes, who constitute the vast majority of felony cases. Year after year, California judges sentence repeat offenders to jail and probation, and finally prison, with little hope for success in changing an offenders' future criminal behavior. Over time, many judges grow increasingly cynical and discouraged. Every day, judges see that our current sentencing policies aren't working and question whether there isn't a better way.

California's sentencing policies aren't working because, more than any other state, California relies overwhelmingly on incarceration as the answer to every crime rather than invest in meaningful adult probation services and effective community corrections programs to reduce crime. We need to put the concept of "corrections" back into the corrections profession.

California has the highest recidivism rates in the country and, as a result, the most overcrowded prisons. About half of those sentenced to prison every year are nonviolent offenders previously sentenced to prison but never for a violent crime.

Although criminal records of California prisoners reflect no greater violence than inmates in other states, their records are longer and California inmates are more likely to have been on parole when they committed a new offense. Two thirds of parolees are returned to prison within three years -- twice the national average. Eighty-eight percent of those parolees are returned because of new criminal activity.

As California criminologist Joan Petersilia observed, "California epitomizes revolving-door justice in the United States."

In California, basic sentencing reform is long overdue. In recommending a plan for prison reform, Gov. Arnold Schwarzenegger noted that thousands of low-level offenders in California today are serving prison sentences with little opportunity for rehabilitation and that implementation of an effective strategy to reduce prison overcrowding and offender recidivism will require a partnership between state and local corrections agencies. His most recent proposal to address the state's prison overcrowding crisis calls for bipartisan cooperation to achieve essential sentencing reforms and reduce California's high recidivism rates. He has outlined a promising, but still incomplete, vision of the path to true prison reform and improved public safety for the citizens of California.

The governor's principal sentencing reform proposal is to create a California sentencing commission. California is indeed out of step with state-of-the-art sentencing structures across the country in failing to have a bipartisan, professional and independent sentencing commission. In 20 other states sentencing commissions are responsible for reviewing proposed sentencing legislation, making population and financial projections, conducting research, coordinating the collection and dissemination of relevant data and making recommendations to policy-making bodies. Sentencing commissions ensure that policy makers have accurate and credible data needed to make well-informed decisions.

Commendably, the governor's proposal budgets $50 million this year and $100 million in following years to improve adult probation services for youthful offenders. But the governor's proposals to reduce recidivism still focus on prison inmates and parolees, and do very little to promote the development and funding of local corrections programs to reduce recidivism among more of the 35,000 offenders sentenced to prison every year for nonviolent offenses. In the long run, the most cost-effective way to slow prison growth and improve public safety is to develop effective community corrections and treatment programs that reduce recidivism -- especially among nonviolent offenders -- before offenders are imprisoned.

Unlike many other states, California provides almost no support for the provision of rehabilitation services to offenders in communities where they and their families live. It is one of only two states where adult probation services are primarily a local responsibility. As a result, adult probation services are drastically underfunded; more than half of the 300,000 adult offenders on probation are not actively supervised. The state has yet to act upon the recommendation made by the bipartisan Little Hoover Commission more than 15 years ago to implement community corrections programs. The California State Sheriffs' Association and California State Association of Counties also have called for implementation of such programs.

Thirty years ago, when California's current sentencing policies were written, there was a great deal of skepticism about whether rehabilitation really works. But today there is a voluminous body of rigorous research that has proven that well-implemented treatment programs targeting appropriate offenders do work and reduce offender recidivism by 10 to 20 percent. The same research also proves that without treatment incarceration does not work to reduce recidivism (beyond the period of incarceration) and in fact increases the likelihood of recidivism.

Unlike California, many other states, including Arizona, Oregon and Washington, are already committed to these evidence-based practices to reduce recidivism. Arizona courts use offender risk assessment tools in sentencing. Oregon courts require sentencing judges to consider the likely impact of potential sentences on reducing offenders' future criminal conduct. The Oregon Legislature has required the state's criminal justice agencies to collect and share sentencing data to determine the effect of various sentences on offenders' future criminal conduct. The state's Legislature also required that 50 percent of funding provided for corrections programs in 2007 be spent on evidence-based programs and 75 percent of the funding in 2009.

Facing the need to construct new prisons, the Washington Legislature called for a study of the existence of any evidence-based corrections alternatives. The study identified a number of evidence-based programs that reduce recidivism by up to 20 percent and found that implementation of the evidence-based options would reduce Washington's crime rates, avoid future prison construction and save taxpayers $2 billion.

Evidence-based community corrections programs promote public safety by reducing recidivism by known offenders and by freeing prison bed space for long-term imprisonment of more dangerous and serious offenders. They allow offenders to be in the work force and pay restitution to the victims of their crimes. They are not soft on crime. They target offenders who present a high risk of reoffense but not violent, dangerous or the most serious criminals for whom long-term incarceration is clearly more appropriate. In addition to providing services to reduce recidivism, the programs can control the risk of offender misbehavior through, for example, local incarceration, intensive supervision, electronic monitoring, day or evening reporting responsibility, testing and surveillance.

For many of these offenders a community treatment program with behavioral controls is a tougher and more effective sentence than imprisonment. For many offenders the responsibility to change their own anti-social behaviors is a lot tougher than doing time. Most nonviolent offenders don't serve long prison sentences anyway. Nonviolent offenders in California serve a median of less than 10 months in prison before being paroled.

Sentencing reforms now enjoy broad public support. Although public safety is a top public concern, the public believes in rehabilitation and doesn't see punishment and rehabilitation as either/or propositions. When asked in a recent nationwide survey by the National Center for State Courts whether they think that once offenders turn to crime, very little can be done to turn them into productive, law-abiding citizens or that under the right conditions many offenders can turn their lives around, almost 80 percent of 1,502 people surveyed say that people can turn their lives around. Eighty-eight percent believe that rehabilitation and treatment programs should often or sometimes be used as alternatives to prison. Seventy-seven percent say they would prefer to see their tax dollars spent on programs to help offenders find jobs or get treatment rather than on building more prisons. The public favors a balanced approach to public safety: an approach that is tough, especially on the most violent, dangerous or threatening offenders, but that also encourages less serious offenders to turn their lives around.

The Little Hoover Commission, which over the past 15 years has published a number of reports on California's correctional system, is planning this week to release its latest report on opportunities for sentencing reform. The commission's report may further guide California along the path that the governor has outlined and may provide a more complete vision of prison reform and improved public safety for the citizens of California.



Fresno Bee Logo

Good luck softening prison sentencesBy Dan Walters / The Bee's capitol bureau01/07/07 05:48:30

When Gov. Schwarzenegger launched his newest prison reform program with a bipartisan covey of legislators last month, he and they wanted to talk mostly about building more prisons and cutting recidivism through job training, substance abuse counseling and so forth.
The reporters who attended the press conference were more interested in the third aspect of the governor's approach — the creation of a sentencing commission to study the terms being meted out for various offenses and recommend changes aimed at easing the prison system's dangerous overcrowding. Schwarzenegger characterized it as seeking parole and sentencing policies "so that we can continue to be tough on criminals but at the same time be prudent with our money."

The third aspect is, from a political standpoint, the third rail, because any proposals to change the state's recent history of imposing ever-harsher sentences will create backlash.

Republicans, including those who stood with Schwarzenegger on Dec.21, would likely oppose any softening of sentences; one of them, Sen. George Runner, is fresh off a successful ballot measure campaign to make life harsher for sex offenders. And Democrats from conservative or even moderate districts would be reluctant to embrace any scheme that put fewer felons behind bars for fear of being branded soft on crime.

Even Schwarzenegger might be leery. When asked whether he was open to changing the state's landmark "three strikes and you're out" law that puts repeat offenders behind bars for longer terms, Schwarzenegger replied: "I don't want to tamper with the three-strike system."

If there is one ever-present fear among California politicians, it is to do something that allows even one felon to be freed and then have him commit some heinous crime.

Remember when Massachusetts Gov. Michael Dukakis was hammered during his 1988 bid for the presidency over the crime committed by a felon named Willie Horton? The fear led former Gov. Gray Davis to flatly refuse to parole anyone convicted of homicide, no matter what the mitigating circumstances.

So who would support any sentencing reform that included even the remotest chance that someone who otherwise would be locked up would be allowed to roam free and commit a crime? The potential backlash from sentencing reform, as fate would have it, was implied in the reaction to a San Francisco homicide that occurred exactly one day after the prison reform press conference.

San Francisco police officer Bryan Tuvera was shot to death by a man who had escaped from a minimum-security camp for nonviolent inmates two years earlier, leading to howls of protest from cops and prosecutors.

There is no political benefit to softening sentencing laws, no matter how it's couched. By and large, voters want felons locked up as long as possible, even if they are also somewhat unwilling to build enough prison cells to house them all adequately. And that sentiment is bolstered by political propaganda and campaign cash from those with an interest in keeping as many felons locked up as possible. 

Dan Walters writes for The Bee's Capitol bureau. E-mail:  dwalters@sacbee.com ; mail: P.O. Box 15779, Sacramento, CA 95852. 



Sacbee Logo

Editorial: Time to consider sentencing reform in prisons
California needs a sentencing commission to give a thorough look at current laws

Published 12:00 am PST Sunday, November 26, 2006

The stars seem to be aligning for California to establish an independent, professional commission to put some order in the state's chaotic system of prison sentences.

First, it's been 30 years since California moved away from a discretionary system of judicial sentencing to its opposite: a rigid system of mandatory punishments prescribed by the Legislature. It's time to evaluate that shift and consider changes.

Today, judges in California have little flexibility. Sentences in some cases are unduly long. Too many of the state's sentencing guidelines are too complex and spread throughout the Penal Code, making them difficult to understand and apply. There is widespread recognition that the current system does nothing to encourage good inmate behavior in prison or provide incentives for inmates to prepare for life on the outside.

Second, intense attention in recent years to single, high-profile violent crimes has brought about "drive-by" penalty escalations without attention to their effect on public safety, recidivism and cost. It's obvious now that ad hoc action to create more and longer sentences for all sorts of offenses isn't working.

Third, California prisons are overcrowded. Judge Roger K. Warren, a 20-year veteran of Sacramento County trial courts, told the Little Hoover Commission in August, "The principal underlying reason why California prisons are overcrowded, cost a lot and result in high levels of recidivism at the expense of public safety, is that judges are sentencing too many nonviolent offenders to prison, and sentencing some of them to too long a term." Why? Such sentences are required by California's rigid sentencing laws. So prisons designed for 80,000 to 85,000 violent, repeat offenders serving long terms are overcrowded with 170,000 prisoners because lower-level, nonviolent offenders serving sentences of a year or less increasingly have been shifted to state prisons.

Fourth, prison costs are escalating, crowding out spending on other priorities, particularly higher education. The corrections budget took 4.3 percent of the state's general fund in 1985-1986. Since then, its share of the budget has doubled. Last year corrections consumed 8.8 percent of the general fund.

Most important, Gov. Arnold Schwarzenegger is looking for areas of common ground with legislators to achieve real accomplishments. Key judges, correctional officials, criminal justice experts and legislators support change. Creating a sentencing commission is doable and, if the experience of other states is a guide, can be quite successful.

As Kara Dansky of the Stanford Criminal Justice Center told the Little Hoover Commission, sentencing commissions have been "the most successful modern governmental institution to prevent or cure the kind of correctional crisis that California now faces."

Between now and the opening of the legislative session in January, the governor and the Legislature should examine the experience of other states and craft a sentencing commission that fits California's unique needs.

It may be too much to hope for a new age of convergence around prison reform, but consensus is building around some worthwhile solutions. A sentencing commission is one.



OC Register Logo

Wednesday, August 16, 2006

Thinking outside the cellblock

Without sentencing reform, the governor and the Legislature only tinker with the prison problem.

The Orange County Register

The special session Gov. Schwarzenegger called to deal with prison overcrowding got off to a decent start Monday, but not because of anything the governor proposed. The Assembly, by a decisive 60-1 vote, passed a bill making it easier for the media to gain access to individual prisoners for interviews. Access was restricted in the early 1990s and governors including Pete Wilson, Gray Davis and Gov. Schwarzenegger have all vetoed bills to open it a bit. 

Applauding the Assembly's action is not the same as declaring it a keystone to reform, nor is it to deny that there are serious concerns about glamorizing criminals. But there is just a chance that better access to prisons by people in the news media might expose more problems and create a climate in which accountability becomes more possible.

Not that many of the problems are exactly unknown.

In recent years the state controller's office, the state inspector general, two federal court judges and special masters they have appointed, and an independent commission headed by former Gov. George Deukmejian have all issued scathing reports. The medical care system is in such a shambles it has been taken over by a federal judge.

In a nutshell, the prison guards union has too much influence on both personnel and policy matters, and a "code of silence" reigns that encourages covering up abuses of prisoners by guards.

And the cost to taxpayers keeps rising – about 170,000 inmates at $35,000 per year. 

The situation has become so difficult that two heads of the Department of Corrections and Rehabilitation (renaming the department is the most significant reform to date) have resigned in frustration within months of one another.

Last month Gov. Schwarzenegger declared a special session, announcing that his major proposal would be to build two new prisons. On Monday acting corrections and rehabilitation head James Tilton announced that the two new facilities the governor seeks will be medical facilities for prisoners rather than prisons as such.A facility for long-term care for prisoners and one to handle mental health problems would each take 5,000 prisoners out of the general prison population.

It's not a bad short-term approach (though building new facilities will no doubt take several years), but it's a little like applying a Band-Aid to a wound that's gushing blood.

The context in which to consider prison reform is that since 1980 California's prison population has increased fivefold and about 20 prisons have been built. Improving conditions inside the prisons is important. So is establishing rehabilitation programs and putting management of the prisons firmly in management's hands, not those of the prison guards union. But without sentencing reform, including reconsideration of laws criminalizing certain drugs, the state's prison population – already among the highest in the world on a per capita basis – will continue to grow, and problems associated with that growth will continue to fester.
 

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