San Francisco Public Defender Jeff Adachi's reaction to the signing of SB 40 into law


by Jeff Adachi


Jeff Adachi Image


Although I am disappointed by Governor Schwarzenegger’s decision to sign SB 40, I can’t say that I am surprised.  SB 40 is the same kind of misguided effort that has driven California’s prison system right into the ground.  Before being elected in 2003, Governor Schwarzenegger promised to make prison reform a top priority and “correct” corrections.  We expected him to make the problem better not worse.  Yet four years later, there are more people in prison than ever, our bankrupt prison “health” system is in federal receivership, and the recidivism rate remains at 70% while rehabilitation programs are, for the most part, non-existent.  The efforts to reform the California Youth Authority, other than to change its name, have failed.  Instead of being the leader in corrections, as California was 40 years ago, we are the laughingstock of the nation.  And now the Governor has signed a law that will give judges more power to imprison people for longer sentences without any accountability.  Go figure!

The state’s correctional system is like the rich old miser who clings onto his belief that the more gold coins he has, the better off he will be.  He neglects his family, his friends, his community, and becomes even more obsessed with his greed for power and money.  In California, we are collecting people in our prisons, instead of gold coins, and we have become blind in our desire to lock people up. 

SB 40 does not make our sentencing system “constitutional.”  Our founding fathers fought hard to ensure that the right to a jury trial was part of our Constitution.  They were not comfortable with giving all of the power to the judiciary, and instead chose to vest that power in the people.  SB 40’s proponent, Senator Gloria Romero, argued that requiring jury trials to determine sentencing factors would be too much of a burden on our jury system.  This sort of reasoning could be used to justify eliminating jury trials altogether.  The jury system was created to guard against corruption in our judiciary.  By giving judged unbridled power to sentence defendants to maximum terms, the legislature is violating this basic constitutional guarantee.

I believe that SB 40 will ultimately be found to be unconstitutional.  But it is now up to public defenders and defense attorneys to challenge SB 40 in the courts.  The most obvious argument is that SB 40 violates the Sixth Amendment by depriving a person of his right to have sentencing factors decided by a jury.  By requiring judges to cite “reasons,” SB 40 usurps the jury’s function, renames “sentencing factors” as “reasons”, and allows a judge sentence a person to a maximum term without any jury findings.  Unlike Tennessee or Indiana, both cited by the Supreme Court in footnote 18 in Cunningham as examples of jurisdictions whose sentencing systems comply with the Sixth Amendment, California’s triad sentencing system does not provide a sufficient range of sentencing options to allow a judge “genuine authority” to sentence among a range of sentences.  This distinction will be the likely basis for constitutional challenges to SB 40 in the months ahead.  Finally, we should argue that SB 40 is not retroactive, and that cases occurring prior to SB 40’s effective date are unaffected.

We must be diligent in objecting when SB 40 is misused.  SB 40 was amended to require that corrections reports the number of maximum sentences meted out by judges every six months.  We must monitor these numbers to ferret out and expose judges who are abuse their power under SB 40, so we can cite them as examples when SB 40 sunsets on January 1, 2009.

We must also go beyond these monitoring requirements and examine the sentencing disparities of ethnic minorities.  We should demand that the legislature’s sentencing report also include breakdowns of ethnic minorities – particularly Blacks and Latinos ---
sentenced to maximum terms compared to non-minorities. 

Most importantly, we must remain resolved and committed to continuing the fight for prison and legislative reform.  We have come too far to allow this movement to be muted or hijacked by those who are invested in the perpetuation and continuation of the current dysfunctional system.

As in any battle, there have been many bright lights along the way.  I want to thank Dr. Cayenne Bird, who has been tireless in her efforts to oppose SB 40 and fight for true prison reform.  I also want to thank the many people of United for No Injustice, Oppression or Neglect (UNION) and the California Attorneys for Criminal Justice who stepped forward to oppose SB 40, taking time from their lives and families to write letters, attend hearings and express their sentiments.  And finally, I would like to thank those legislators who, although few in number, were giants in their resolve to stop a bill that they understood was not in the best interests of Californians: Assemblymembers Mark Leno, Sandre Swanson, Loni Hancock, Chuck Devore and Fiona Ma who had the courage to vote “no,” and Senators Tom McClintock and Carole Migden, who voted “no” in the Senate.

 The battle continues!

Jeff Adachi
March 29, 2007