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March 14, 2007

Cunningham fix moves forward in California

As detailed in this Sacramento Bee article, a propsed statutory fix in response to Cunningham is moving forward in California's legislature:

A bill to stabilize California's criminal sentencing system that was knocked for a loop by a recent U.S. Supreme Court decision passed the Assembly Public Safety Committee on a 5-2 vote Tuesday. Senate Bill 40 cleared the panel, which in the past has killed controversial criminal justice bills, after members heard from its author, state Sen. Gloria Romero, D-Los Angeles, and prosecutors representing her home county that the alternative to its passage would mean "chaos" in the courts.

"I understand the reluctance and the concern of some, but reluctance and concern translates into courts functioning in a state of disarray and justice not being served," Romero said in an interview after the hearing. "I do feel confident that (the full Assembly) will understand that the stakes are too high to sit on our thumbs and do nothing." 

The bill was prompted by the Supreme Court's ruling on Jan. 22 that California's determinate sentencing law, in place since 1977, violated the Constitution.  The state's sentencing structure allows judges to impose terms from a range of three options. But the high court struck down the so-called "triad," saying that judges, in imposing the toughest of the three terms, were not submitting to the jury the factual underpinnings of their decisions.  SB 40, written in response to the ruling, would give judges the discretion to pick any of the three terms in the range of options without having to make any factual findings.  The bill also contains a Jan. 1, 2009, sunset provision.

Romero's bill sailed through the Senate on a 36-1 vote last month, but it ran into a rumble Tuesday, due in large part to opposition expressed by San Francisco Public Defender Jeff Adachi. Adachi said the bill as written would give judges too much discretion, with the lack of uniformity from jurisdiction to jurisdiction likely to result in sentencing disparities.  Adachi said ethnic minorities and the poor are likely to face disproportionately stiffer sentences under the terms of SB 40. Instead of SB 40, Adachi told the committee he favors a system in which prosecutors would be required to conduct a second mini-trial to determine the length of the defendant's sentence after obtaining the conviction. The San Francisco public defender called Tuesday's vote "extremely unwise." "The reason we have such bad criminal justice policy in California is because people do what's politically expedient and not what's right," Adachi said afterward. "At least they should have studied what the alternatives were."

Because of the sunset provision in SB40 and the possible constitutional dimension to the Supreme Court's pending decision in Claiborne and Rita, I actually think SB40 might actually create more chaos than it will solve.  But California's sentencing and correction system is so messy right now, it's not clear exactly how any Cunningham response would help or hurt California sentencing.

March 14, 2007 at 07:42 AM | Permalink


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Tracked on Mar 14, 2007 6:17:51 PM


I am curious as to what facts Adachi is citing to come to the conclusion that poor and ethnic minorities are likely to face disproportionately stiffer sentences under the terms of SB 40. In the Recorder (3/13/07), he apparently suggested it was because most California judges are white. Who is the bigot there?

What I do know is that jury determinations of aggravators, not the actual sentence but the facts that justify judicial imposition of the highest term, will not make any difference other than slow the process.

Regardless, Adachi is apparently asking for jury sentencing not just factual finding of aggravators. As a California prosecutor, jury sentencing on a case by case basis is fine with me since the jury is not facing a large docket with an incentive to move cases along. I think most jurors would be shocked to see actual cases of revolving door defendants who have been in and out of jail for their entire adult lives. Imagine those same jurors for their next jury service.

In my county I can say that SB40 would simply permit the courts to go back to the pre-Blakely/Cunningham of doing business. Only over time would judges truly embrace purely discretionary setencing within the range. Even then, it would be hard to agree that such decisions would be widly different that a jury.

Posted by: David | Mar 14, 2007 10:37:06 AM

An increase in sentencing disparity is generally the result of any effort to fix Blakely problems, because that very misguided decision struck at the heart of legislative reforms that were designed specifically to reduce disparity. In the case of California, however, I think Mr. Adachi's fears are unfounded. The fact-finding that Cunningham found was problematic and SB 40 would eliminate was not a genuine restraint on discretion. Any fact that may legitimately be considered aggravating is sufficient to make the upper term available, and there are few, if any, real people or real crimes that do not have at least one.

Posted by: Kent Scheidegger | Mar 14, 2007 11:01:05 AM

Has any state that Blakelized its sentencing guidelines actually experienced the kind of delays that "David" is concerned about? Kansas has been doing it for years, no problem. Minnesota and Washington did it immediately after Blakely, as far as I know no problem.

Let's be honest. Prosecutors like David and Kent want advisory guidelines because they make it easier for judges to give longer sentences. Defense attorneys want sentencing juries because they make it harder for judges to give longer sentences. No one is unbiased, but at least the defense side gets what the 6th A is supposed to be about.

Posted by: Anon | Mar 14, 2007 3:34:08 PM


I didn't actually express "concern" about the slowed process, I just stated that it would do so. Also, I was perfectly satisfied with the system prior to Cunningham, so to state that I want "advisory guidelines" - California does not have guidelines anyway - is wrong. Finally, I thought what was clear in my post was that I think jury sentencing, as advocated by Adachi, will lead to longer sentences for defendants, not shorter. In other words, I believe in the 6th Amendment, but be careful what you ask for, you might get it.

Posted by: David | Mar 14, 2007 7:18:09 PM

Here in Tennessee we have lived under every possible combination, including REAL jury sentencing. Total "free fall" discretion results in astronomical sentences. There is hardly an incentive anywhere ot lower sentences until you have an overcrowding crisis. This SB40 will be WONDERFUL...for about two years and then you will have hell to pay.

Posted by: David Raybin | Mar 14, 2007 11:30:33 PM

Having listened to Adachi's prepared testimony at the Assembly Committee hearing (I may not have heard all of his answers to questions), I'm not sure the Bee and Recorder articles accurately stated all of his points. First, it does not appear that he's advocating sentencing-by-jury. Instead, like all the "plead and prove" advocates, he seems to be recommending jury-fact-finding on aggravators coupled with judicial sentencing. Second, on the issue of race, Adachi cited a Rand Corp. study showing that a black defendant is likely to receive a longer sentence than a white defendant convicted of the same offense. He also cited statistics showing that white judges are less likely to give long prison sentence to white defendants and both black and white judges likely to give longer sentences to black defendants.

Now for my own thoughts. Jury-fact-finding on aggravators is actually quite feasible and wouldn't add much cost or time. The vast vast majority of cases are resolved by plea and those cases would not be made any longer or more complicated by adopting a system with jury fact-finding on aggravators. In the few cases going to trial, many defendants will admit prior conviction aggravators (just as they already do in connection with prior conviction enhancements). In cases with no admission, the trial (possibly bifurcated) will be only minimally lengthened because the aggravator will be so closely connected with the current offense that proof does not require any new witnesses (e.g. victim vulnerability or use of a weapon) or because the aggravator is quickly proved with prison records (e.g. "on parole" or "numerous prior convictions") Estimates from other states are one additional hour to litigate sentencing facts.

Posted by: Jonathan Soglin | Mar 15, 2007 1:32:58 AM

Thousands of people are rotting in California's prison who were unconstitutionally sentenced so that Republican politicians could build a tough-on-crime platform. The human bondage industry has destroyed hundreds of thousands of families and drive our bureaucracy into nothing less than a police state. These are real people impacted by such rulings, many of them innocent, over-charged and often over-sentenced.

They have children, many of them, and mothers, prison sucks the life out of people and never has been, nor will it ever be a solution to crime. You cannot punish the sickness out of people in that manner.

California has the highest suicide rate in the country due to the rampant injustice in our courts and abuses in our prisons. The legislature cannot pretend to be working on reducing the over-crowding problem and pass SB40 which takes away all hope.

If you were here living this nightmare, it would make more sense to you. Please keep on discussing it as mothers and wives, sons and daughters, grandparents are watching your column.

If there are people with a conscience in your readership, I hope they will pen letters to editors to the news sites in opposition to SB40.

I saw arguments against it at Findlaw.com as well. Prosecutors and judges have gone too far out here and I don't see how all this isn't going to end in violence. Three million potential voters attached to a CA state prisoner alone, not including those in federal prisons, juvenile halls or jails. There is a loud rumble that the lawmakers purchased by law enforcement labor unions, judges, prosecutors and the punisher crowd had better be listening to...

Blessings to the real advocates for the people.

Posted by: Rev. B. Cayenne Bird | Mar 16, 2007 5:32:54 AM

Most of the voters are older white males in America. What we have in California is a gang of judges and prosecutors, attorneys who have gone from Republicans to Fascists. I am white myself but this is ridiculous. It turned into a slavery business under Pete Wilson and Dan Lungren and people just rode the gravy train.


Judiciary heavily white and male, report shows
Statewide study finds even bigger disparity among attorneys
Bob Egelko, Chronicle Staff Writer

Saturday, March 3, 2007

Nearly three-quarters of California's judges are men and almost as many are white, a new report shows -- but the state's bench is apparently more racially diverse than its bar.

The first survey of judges by gender, race and ethnicity was released by the state Judicial Council this week as part of a bill approved last year that allowed Gov. Arnold Schwarzenegger to appoint 50 new judges.

Minority legal groups and Democratic leaders have criticized Schwarzenegger for the racial and ethnic makeup of his judicial appointments, 6.5 percent of whom have been Latino and 3.5 percent African American. Last month he named a black woman, San Diego County prosecutor Sharon Majors-Lewis, as his judicial appointments secretary, the first woman and first minority to hold that post.

"He's indicated that he's willing to address the problem," said Gary Farwell, president of the California Association of Black Lawyers.

Farwell said Friday that the new judicial report reaffirms that "the bench isn't diverse enough ... that some changes need to be made."

The survey found that 72.9 percent of the state's 1,598 judges were men. That proportion is roughly the same on both Superior Courts and state appellate courts. Three of the seven state Supreme Court justices are women.

A total of 70.1 percent of the judges described themselves as white, 4.4 percent black, 6.3 percent Latino, 4.4 percent Asian and 4.4 percent more than one race. An additional 9.9 percent did not respond, and the rest were other races or ethnicities.

On the Supreme Court, one of the seven justices is Latino, one is Asian and one, Justice Joyce Kennard, is half Asian and half white.

Christopher Arriola, a Santa Clara County prosecutor who is judicial projects director for California La Raza Lawyers, said the percentage of white judges is probably higher because most of those who did not respond were from Orange and Riverside counties, where a large majority of the judges are white. A State Bar report in May, which included information from minority bar associations as well as judges, counted just over 17 percent of the state's judiciary as nonwhite.

"The governor needs to appoint more minorities, particularly more Latinos, to the bench if we're going to have a judiciary that reflects the diversity of California and therefore has the confidence of the people of California," Arriola said. He said he was encouraged by Majors-Lewis' appointment as Schwarzenegger's chief screener of prospective judges.

Schwarzenegger issued a statement Friday saying he has focused on "expanding the pool of minority judicial candidates, which is the key to making our bench more diverse." Minorities made up 31 percent of the total applicants to his office for judicial appointments last year, the governor said.

Figures from the State Bar indicate that recruiting more nonwhite and female candidates for judge from the ranks of California's 210,000 lawyers could be a challenge. The bar's latest survey found that 66 percent of lawyers in the state were men and 84.4 percent were white. African Americans made up 1.7 percent, Latinos 3.8 percent, and Asians and Pacific Islanders 5.3 percent, with mixed races and others accounting for the rest.

By contrast, California's population is about 46 percent white, 32 percent Latino, 12 percent Asian and 8 percent black.

Farwell said one reason California lawyers are less racially diverse than judges is that Proposition 209, the 1996 initiative that banned racial preferences and affirmative action in public education, employment and contracting, has reduced black and Latino enrollment in University of California law schools.

The post-Prop. 209 reduction in black graduates from UC law schools may have been reflected in a decline of African American lawyers from 2.4 percent of the state's total in 2001 to 1.7 percent in 2006, the period covered by the State Bar report. The number of white attorneys increased from 83 percent to 84.4 percent despite a decline of whites in the general population.

E-mail Bob Egelko at begelko@sfchronicle.com.

Posted by: Rev. B. Cayenne Bird | Mar 16, 2007 8:37:03 PM

This is published in today's California Progress Report, an op-ed by Jeff Adachi where he names sources and explains further


Posted by: Rev. B. Cayenne Bird | Mar 20, 2007 5:57:15 PM

In my column today at American Chronicle

http://www.americanchronicle.com/articles/viewArticle.asp?articleID=22554 Jeff Adachi goes into greater detail about the legal aspects of SB40, down beneath my comments. Well worth reading

Posted by: Rev. B. Cayenne Bird | Mar 21, 2007 8:03:34 PM

Adachi makes a 3rd Appeal to the legislators with a more precise legal description of why SB 40 is unconstitutional


this is a link to my column which gives you instructions on how to watch Thursday's short hearing and a sample letter with talking points.


The vote from the Assembly floor is coming up any day, it may pass by the Senate again since there were amendments and then on to the Governor. Will the 6th Amendment survive this attack which sidesteps Cunningham?

Posted by: Rev. B. Cayenne Bird | Mar 26, 2007 2:09:23 PM

SB40 has a two year sunset. If SB40 sunsets and a new Cunningham friendly bill replaces it, the defendant sentenced today will have no Federal right to challange his previously lawfull max term sentence in conformance with the new bill. AEDPA limits Habeas petitions to one year after final appeals That alone makes SB40 DOA. Nice try Gloria.

Posted by: ron | Apr 2, 2007 1:58:11 AM

In regards to the statement that "minority legal groups and Democratic leaders have criticized Schwarzenegger for the racial and ethnic makeup of his judicial appointments, 6.5 percent of whom have been Latino and 3.5 percent African American. Last month he named a black woman, San Diego County prosecutor Sharon Majors-Lewis, as his judicial appointments secretary, the first woman and first minority to hold that post."

Wow - what a great way to run the judicial system - criticize Schwarzenegger for the ethnic makeup of our society, and force him to appoint black female judges with Community College level educations. Judge Sharon Majors-Lewis studied at a law school located behind our local Panda Express and Jack in the Box restaurants. To put someone like this into power, just because the statistics are "wrong," does not make any sense. What's next? Will Arnold appoint a high-school grad with a criminal record, just to satisfy "affirmative action"? This whole thing is sick and needs to be reviewed. How someone like judge sharon majors-lewis, who made it into the California Judicial system while having an elementary grasp of the English language, is beyond me.

Posted by: ADAM | Mar 31, 2015 1:58:17 AM

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