« Lots of great new stuff at SSRN | Main | Fascinating reasonableness case from the Third Circuit »

April 5, 2007

A view from the California sentencing trenches

Following my request for information from folks working in California about the implementation and application of SB 40 (basics here and here), I received a thoughtful note from a probation officer (who has allowed me to share his insights here):

By way of introduction, I have been a probation officer in a small rural Northern California County (pop <100,000) for over 15 years. In that time I have written hundreds of sentencing reports, including death penalty cases and others with sentences of well over 100 years.  I have a considerable amount experience in California sentencing laws.  As a result, I am somewhat bemused by all the uproar over SB40.

What people are seemingly forgetting is that the vast majority of cases end up with a plea bargain. When this happens the defendants are explicitly told what the maximum penalty can be, prior to the court accepting their plea of guilt. They are allowed to present evidence in their behalf at the sentencing hearing, although very few actually do.  Most of the time their attorneys just make a half-hearted argument.  But the point is, even before Cunningham and SB40; defendants knew exactly what they were looking at when they entered a plea.  Much of the time they waive that right as part of the plea....

There has been a suggestion that our system is racially prejudiced. I wonder if in this day and age it is more economically prejudiced than racially prejudiced.  Those with enough money can afford the best lawyers and often get a much better deal.  I would like someone to do a study on how economics relates to sentencing. To quote an old cartoon, "Everyone is innocent until proven broke."

April 5, 2007 at 11:22 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference A view from the California sentencing trenches:


I agree that economics is an important factor. It starts at initial appearance the poor (many recidivists are poor) are detained in jail and are represented by a public defender who in most jurisdictions has an immense case load. Most such instances result in a plea bargain (an automatic guilty plea). The social, medical and psychological factors that control how susceptible the person is to addiction to alcohol/drugs are also important.

Posted by: John Neff | Apr 5, 2007 1:53:56 PM

I have constantly harped on the fact that the “system” is economically prejudiced, but the parole officer misunderstands the problem.

Poor people generally have access to public defenders. A good PD system is essentially a large law firm devoted to doing one thing – representing criminal defendants. It has training, review, and career tracks (though some PDs detest doing management-related things). They have access to investigators, research materials, and an ***load of “human experience. Just think, most PDs work within shouting distance of the entire institutional knowledge of a given court. Therefore, they probably have the best defense in a procedural sense.

Finally, while they may have high caseloads, a PD can theoretically refuse additional cases if they can’t adequately represent someone. A private attorney could – or should, too, but since they are bound by a need to pay bills or make money, rather than by institutional demands, the consequences are much more immediate and real.

Middle-class people that are not eligible for PDs, have to make due with whatever lawyer they can afford. Moreover, most middle-class people don’t really know a “good” lawyer from a bad one. They are probably selecting a lawyer from the yellow pages.

“Rich” people (say with unlimited funds) might have access to whatever lawyer they want, and they might even be able to tell the difference between lawyers, but even a an ex-prosecutor at a large firm is at a disadvantage. He is not continuously in court and trying cases the way Public Defenders are.

Instead, the baises in sentencing, as I argued in this post come about because rich and middle-class people simply do things that society values more. They lead more socially-agreeable lives. They go to school. They participate in charitable work. Poor people are usually poor because they didn’t go to school. They are not in a position to do charitable works. And, they probably come from messed-up homes. It is a stretch to argue that their conduct is that society values.

(The post again: http://appellate.typepad.com/appellate/2007/01/public_defender.html )

Finally, it may be that at sentencing a non-lawyer can’t tell what arguments are being made for the record in a half-hearted manner. Just like cops try to get people to waive their Miranda rights by giving them in a half-hearted manner, some lawyer try to invite error by making some arguments in a half-hearted manner. Or, the attorneys might be making an argument on the basis of an extant or expected change or split in authority.

Posted by: S.cotus | Apr 5, 2007 4:33:25 PM

"some lawyer try to invite error by making some arguments in a half-hearted manner"

That'll never get you error! Even if trial counsel leaves out, say, the federal basis for an objection, that's won't get you error but rather merely a waived objection.

Posted by: rothmatisseko | Apr 6, 2007 12:06:49 AM

in other words, a half-hearted effort is hardly ever ineffective assistance. And if you try and trick the judge by giving him what you think may be enough to make the "correct" ruling, but are hiding the ball at the same time, well guess what the appellate courts are going to see your argument the same way as the trial judge.

A lot of the time even an unsympathetic judge is the best audience for your arguments.

Posted by: rothmatisseko | Apr 6, 2007 12:09:45 AM

Rothmatisseko, I am not saying that it is a good strategy. However, some lawyers will bury their “real” argument inside some seemingly “half-hearted arguments.” They know that the judge would never buy their real argument, anyway. But they need to get it on record.

Posted by: S.cotus | Apr 6, 2007 7:10:46 AM

I suppose a PD could turn down a case because they are overloaded but in our county a common reason for turning down a case is conflict of interest. We have a very small PD staff and sometimes the apple does not fall very far from the tree. I do agree that our PDs do a good job within their limitations.

Posted by: John Neff | Apr 6, 2007 9:33:03 AM

S.cotus -

I generally share your praise for public defender offices. But the probation officer may not "misunderstand the problem," as you say.

There are several Northern Cal. counties that don't have PD offices; instead, the county contracts with a private low bidder to provide the public defense. In at least one county the contract is held by single individual who sub-contracts with a bunch of solo practitioners, who don't have supervisors or colleagues down the hall. So I wouldn't say the defendant with appointed counsel in such a county always has the "best defense."

Posted by: Jonathan Soglin | Apr 6, 2007 11:27:44 AM

Jonathan, I guess it is unclear as to what sort of PDs there are here. Where I started practicing, even in “rural” areas, PDs from the “big” agency would represent everyone, (in case of a conflict, PDs from the “smaller” big agency would represent people, and contractors with the 2d agency would represent the remainder). I was thinking of drawing up a chart of the plusses and minuses of different PD models. So far, I have identified 6 different models.

1. Agency: appointed head PD (some appointed by executive, some by judiciary)
2. Agency: elected PD
3. Non-profit contracted law firm (a.k.a. Bronx Defenders but maybe this should be distinguished from situations where there are multiple smaller contracts awarded)
4. Contracted for-profit law firm
5. appointment from list
6. Part of command structure (i.e. JAG)
7. Mix of 3 and 5 (e.g. Texas)

John, If a PD were to turn something down it would obviously be a decision taken on an institutional level that wouldn’t be made lightly. It would probably take the form of a couple public statements by the head PD, followed by certain conditional motions to withdraw. I think this is what happened in New Orleans recently.

Posted by: S.cotus | Apr 6, 2007 9:06:27 PM

I was denied relief under Cunningham due to non retroactivity. Calif 4/3 case is final after review has run its timly course.

Posted by: | May 20, 2007 1:18:46 PM

I was denied relief under Cunningham due to non retroactivity. Calif 4/3 case is final after review has run its timly course.

Posted by: | May 20, 2007 1:18:46 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB