August 31, 2011
"Is California’s Cunningham fix finally going to see the sun set?"
Lawyer and sentencing guru Mark Allenbaugh (firm website here) alerted me to an important developing issue in the revision and reform of California's sentencing law. At my request, Mark kindly wrote this post's title and this terrific guest-post on the topic:
In 2007, the U.S. Supreme Court in Cunningham v. California ruled that California’s three-tiered determinate sentencing scheme (known as the Determinate Sentencing Law or DSL) was unconstitutional per Apprendi v. New Jersey and Blakely v. Washington, ostensibly ending its 30-year reign. Like its far more robust federal counterpart, DSL has been met with constant criticism.
Under California’s DSL, the presumptive sentence was the so-called mid-term sentence. For example, if the three terms available were 16, 24 and 36 months (and this is generally how the terms are spread, i.e., over a definite period of years), the sentencing judge would have to sentence the offender to 24 months (which really means a prison term of 12 months, since California is a half-time state, i.e., one can get up to 50% good time credit unlike the pithy 15% at the federal level) unless the judge found certain factors in mitigation, which would allow for a sentence at the low term (16 months in this case) or factors in aggravation, which would allow a sentence at the high term — 36 months. Of course, this latter example was exactly the problem with California’s DSL, or so thought the U.S. Supreme Court — the presumptive mid-term sentence of 24 months really was the statutory maximum, which, since it could be raised to 36 months by judicial fact-finding, violated Apprendi.
Shortly after Cunningham the California legislature passed S.B. 40, which supposedly would provide a “Cunningham fix” by eliminating the mid-term presumption. The legislation simply provided that a judge had discretion to sentence to any of the three terms, thereby ostensibly making the high-term the statutory maximum term. Wisely, the legislature put a sunset provision into the 2007 law, which is now set to expire on January 1, 2012.
In light of the current financial crises effecting so many government institutions in the state (it was not that long ago when the “Governator” had to pay state employees with IOUs), coupled with the recent U.S. Supreme Court decision in Brown v. Plata upholding a federal three-judge panel’s order that California must significantly reduce its prison population, it is surprising that a new piece of legislation — S.B. 576 — that will, if passed, extend the Cunningham fix’s sunset provision to 2014, hasn’t received more attention. Just last week, on August 25, the bill was unanimously voted out of committee and may soon be on Governor Brown’s desk. Sources indicate that the bill could be on the Governor’s desk as early as the end of this week!
An easy way, it would seem, to begin addressing California’s prison over-crowding crisis would be to let the Cunningham fix die a dignified death. Making aggravating facts that must be proved to a jury to get the high-term obviously will make it more difficult to sentence offenders to the high-term, but will also ensure the due process rights that concerned the Supreme Court in Cunningham are met. What California needs is not clever sentencing legislation to do an end-run around due process, but, as even President Obama has championed through the Fair Sentencing Act, smarter sentencing schemes that do not result in over-crowded prisons, which breed a culture of recidivism.
Ironically, it was Governor Brown (aka “Governor Moonbeam” for the disco generation) who signed California’s DSL into law in 1977. He too has been a vocal critic of the DSL even while serving as the State’s Attorney General. Now once again in the Governor’s seat, if presented with the bill to sign into law by the legislature, and in consideration of the fiscal, legal and humanitarian realities facing California’s prison system, Governor Brown would be wise to heed the words of his former girlfriend Linda Ronstadt and say to the bill “You’re no good! You’re no good! You’re no good! Baby, you’re no good!”
August 31, 2011 at 02:28 PM | Permalink
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DSL and the Cunningham fix have been a human and financial disaster for California of almost incomprehensible breadth and scale. For god's sake, look at the horrific situation in which California now finds itself. Our sentencing laws and prison system are a national and international disgrace, a source of injustice, torture and corruption (eg., prison guards as drug mules for gangs) that is almost unimaginable, unless one can imagine Abu Ghraib times a hundred. And as an added bonus, DSL and the Cunningham fix are slowly bankrupting us, with the costs accelerating as we increasingly have to pay the expensive healthcare costs of aging prisoners.
Insanity is doing the same thing and expecting different results. Of all people, Governor Brown should be able to take a look at what has happened since 1977 and realize that we, as a state, would be truly insane to continue down this path. Look at what these policies have done to the very soul of California since 1977.
For example, one of Governor Brown's father's highest beliefs was in affordable public higher education. Well, since 1977, prisons have literally replaced higher education in the California budget. Quite literally the path we have been on since 1977 has been one of growth in our prisons and de-funding of our colleges and universities. Our path has been spending ever-increasing astronomical amounts of money on universities of crime by de-funding universities of higher education.
If that is the path that our legislators believe in and favor, then they should extend the Cunningham fix and DSL. If instead our legislators are honest enough to acknowledge an atrociously failed experiment when they see it, they should let DSL and the Cunningham fix die a dignified death so that the soul of California can come back to life.
Posted by: James | Aug 31, 2011 10:39:34 PM