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January 30, 2007

A Cunningham fix in California

Kara Dansky, the executive director of the Stanford Criminal Justice Center, sent this dispatch about a developing Cunningham fix in California:

Thought you might like to know about SB 40, which has gotten very little press here. Introduced by Senate Majority Leader Romero on Jan. 25, it would temporarily amend the DSL to give sentencing judges the discretion to impose any of the three base terms within the triad (the bill includes a sunset provision of Jan. 1, 2009).  Here's a link to the bill text.  It got through the Senate Public Safety Committee today.  Here's a little blurb about it in the Sacramento Bee, relegated to one of the back pages.  Finally, here's [a snippet of an] op-ed of mine that appeared in today's San Francisco Daily Journal, suggesting the temporary fix that appears in SB 40:

Senate Majority Leader Gloria Romero has introduced SB 110, which would create an independent, balanced, nonpartisan Sentencing Commission to take effect on Jan. 1 2008.  One of the Sentencing Commission's first tasks should be to devise and implement a coherent, transparent and fair sentencing system that complies with Cunningham and provides the proper amount of guided judicial discretion.

Perhaps, then, the thing for California to do in the short term is to take the approach most consistent with the sentencing policies we would like to implement in the long term.  Perhaps in the short term, the Legislature should amend Section 1170(b) to give judges the discretion to impose one of three base terms, include a sunset provision, and delegate to Romero's Sentencing Commission the responsibility of devising a long-term solution that protects public safety, is based on principles of fairness, justice and accountability, and satisfies state and federal constitutional mandates.

The ball, as the Supreme Court unambiguously announced, is in California's court.  It is no longer a question of whether sentencing reform is a good idea.  It is now simply a question of how we do it.

UPDATE:  Crime and Consequences has more on these legislative developments here.

January 30, 2007 at 08:46 PM | Permalink


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Over at C&C, Kent points to the crux of the change:

The key passage (and only substantive change) is this amendment to Penal Code § 1170(b):

When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime the choice of the appropriate term shall rest within the sound discretion of the court.

Doesn't this new system unnecessarily introduce arbitrariness into the system? I mean, if in Courtroom A you've got a lenient judge, and in Courtroom B there sits Judge Roy Bean, who gives life sentences for stealing bread, that's ridiculously unfair.

Certainly that's not the sentencing policy California "would like to implement in the long term," is it?

Posted by: rothmatisseko | Jan 30, 2007 9:16:54 PM

Sorry, strikeouts were stripped out by my copy-and-paste. The blackline version should have read:

When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime the choice of the appropriate term shall rest within the sound discretion of the court.

Also, my example was hyperbolic; I'm sure life imprisonment for stealing bread isn't one of the three possible terms (or does it, if it's the third strike?). Doesn't this bill make sentencing arbitrary, complete with a high appellate standard of deference to the sentencing decision?

Posted by: rothmatisseko | Jan 30, 2007 9:23:00 PM

Can this amendment be retroactive without being ex post facto?

rothmatisseko, weren't agrivating and mitigating circumsatances already arbitary becuse they were subject to interpretation? Though I think there was a sort of points system, what is or is not included could sometimes be subjective. Sentences probably will not change at all, will they?

Posted by: George | Jan 30, 2007 10:36:54 PM

Doug, why wouldn't the Cunningham fix not be a violation of principles of separation of powers? I see a big difference between a statute which says that the maximum sentence for Crime X is 16 years with a mandatory minimum of 8 years and a statute which says there are three possible punishments, 8, 12, and 16 years and the legislature is just going to leave it up to the judge to decide, in his unguided discretion, which one to choose.


Posted by: bruce cunningham | Jan 30, 2007 10:37:10 PM

George, the amendment does not purport to be retroactive. There is no "point system" in California.

Bruce, the original system had so little guidance for choice between the three terms that I doubt that is any separation of powers issue in the fix that wasn't present in the original system. Off hand, I don't recall it ever being attacked on that basis, and it has been around over 30 years.

Posted by: Kent Scheidegger | Jan 30, 2007 11:12:16 PM

Kent, thanks for the comments. I have been mounting a separation of powers challenge to North Carolina's "structureless sentencing system." on the grounds that the legislature has unconstitutionally delegated authority to set the parameters of punishment for crime to the judicial branch. Bruce

Posted by: bruce cunningham | Jan 31, 2007 7:51:49 AM

Many of the criminal defense attorneys in California are asking that a jury system be adopted to decide aggravating factors. They are concerned about the arbitrariness inherent in SB 40.

Posted by: Daniel | Jan 31, 2007 1:25:37 PM

Here it comes: the Bookerizing of California sentencing. A sentence unconstitutional under a mandatory scheme becomes completely OK under a "discretionary" scheme.

If this "fix" is enacted, it may last only until Rita and Claiborne come down from SCOTUS. A judge's "sound discretion" under the new PC 1170(b) will still be reviewable for abuse. And review for abuse of discretion has essentially the same Sixth Amendment implications as "reasonableness" review. If Rita and Claiborne radically revise how (or if) a sentence is reviewed for compliance with the Sixth, the decision will have implications for California (and more or less all the other states).

Posted by: CN | Jan 31, 2007 1:27:00 PM

@George: "Weren't agrivating and mitigating circumsatances already arbitary becuse they were subject to interpretation?"

As Kent said over at C&C, a greater source of arbitrariness was the fact that you could find an aggravator for anyone. Under this new system, the sentencing judge doesn't even have to make findings in aggravation; under this proposal the judge can pull a sentence out thin air. _Maybe_ you could find a hook for some sort of requirement that they justify the sentence (would that be "Bookerizing" the new system?), in the term "appropriate." And how does the "sound discretion" standard figure in? It's hard to show an abuse of discretion without any findings, isn't it?

I wouldn't argue that interpretation makes a standard arbitrary; that's just how the law works in general.

I'm out of my depth on this issue and obviously others are more up on the Blakely line of cases; perhaps our host would like to weigh in...?

Posted by: rothmatisseko | Jan 31, 2007 4:50:29 PM

Daniel, a state constitutional concern about the separation of powers is different from the Eighth Amendment concern about arbitrariness. Suppose the judiciary adopted a set of guidelines to guide the discretion of judges, eliminating the arbitrariness concern? Seems to me that does not solve the separation of powers concern. I just don't see how the legislature can abdicate its responsibility to set the limits of permissible punishment to the judiciary. Bruce

Posted by: bruce cunningham | Jan 31, 2007 9:34:01 PM

Bruce, Ams. 5 and 14 are better sources of authority than 8, outside of the capital context, for the proposition that the federal due process and equal protection clauses guard against arbitrary governmental action. Runyon v. McCrary, 427 U.S. at 204 (1976); Myers v. Ylst, 897 F.2d 417, 419 (9th Cir. 1990).

I'm sure there are state constitutional provisions as well.

Posted by: rothmatisseko | Feb 1, 2007 1:05:00 PM

Has anyone conducted a retroactivity analysis of Cunningham? Word is the California State Legislature is going to take the position that somehow Cunningham is not retro, and therefore no one will be released, habeas etc. notwithstanding...

Posted by: daniel | Feb 2, 2007 2:32:50 PM

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