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March 29, 2007

Cunningham fix litigation and other California problems

As detailed in this AP story, SB 40, the California bill that essentially seeks to Booker-ize California's sentencing structure in response to Cunningham "was sent to Gov. Arnold Schwarzenegger on Wednesday" after the state senate "approved the bill on a 32-2 vote without debate."  As I suggested here a few weeks ago, the "fix" of SB 40 seems likely to create more legal problems than it solves.  Let me explain:

1.  Since SB 40 functionally increases available sentences, defendants can (and some surely will) raise ex post facto challenges if prosecutors seek to invoke this "fix" at the sentencing of any crime committed before the fix becomes law.

2.  Since SB 40 has a Jan. 1, 2009, sunset provision, shrewd defendants convicted who fear long sentences might reasonable try to "play out the clock" once the law becomes applicable.  Though perhaps trial judges won't allow defendants to keep postponing sentencing dates, it seems unlikely that most appeals of SB 40 sentences will be complete before SB 40 is scheduled to sunset.  Will state appellate courts enforce a sunsetted law being challenged by a criminal defendants?  Should they?   Can they?

3.  In light of the Cunningham ruling and what could happen in Claiborne and Rita, it's quite possible that SB 40 will itself be found unconstitutional on the merits by lower California courts (or federal courts eventually).

I hope that the sponsors and supporters of SB 40 have thought through these litigation realities, though my own sense of California's sentencing history and legislative process does not give me great confidence.  Were I advising Governor Schwarzenegger, I would encourage him to veto SB 40 if only to spare lower courts the litigation mess (and to buy more time to see what happens in Claiborne and Rita).

But, as articles here and here highlight, litigation over sentencing rules is perhaps just a tiny concern for state policy-makers in light of broader correctional problems facing California.  Here are details from the Los Angeles Times:

Busloads of protesters fighting the construction of new penitentiaries swarmed the Capitol on Wednesday, while inside the statehouse, the simmering politics surrounding the prison overcrowding crisis boiled into full view.

The protesters attacked Gov. Arnold Schwarzenegger's plan to build 78,000 new prison and jail beds, saying that $11 billion worth of "bricks and mortar and debt" are no substitute for true reform. Instead, the demonstrators — some dressed in orange prison jumpsuits and standing in makeshift cells — said lawmakers could quickly thin the inmate population by releasing geriatric and incapacitated convicts and by sanctioning thousands of parole violators in their communities rather than in state lockups.

Meanwhile, political fireworks were flying over a decision by Senate Democrats to place a moratorium on bills that would lengthen criminal sentences and thereby exacerbate prison crowding.  The maneuver infuriated Republicans, but Sen. Gloria Romero (D-Los Angeles), chairwoman of the Senate Public Safety Committee, said it could not be "a business-as-usual year" in Sacramento given the overcrowding emergency.

March 29, 2007 at 05:00 PM | Permalink


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» Does the Legislative Cunningham-Fix Obviate the Need for Judicial Reformation? from Criminal Appeal
With SB 40, California sentencing reform bill, awaiting the governor's signature, it's time to re-think the question of whether the California Supreme Court should reform section 1170(b) of the Penal Code, as the Attorney General has been arguing in cases [Read More]

Tracked on Mar 30, 2007 3:28:24 PM



I disagree that California's fix is likely to create more problems than it solves. Regarding ex post facto, there is simply no problem unless the prosecution attempts to apply the fix to crimes that were committed prior to the fix. If not, no problem created. Will the Government use it? Sure. Will they lose? Maybe. Does that create more problems? Not any more than Cunningham itself.

Your "play out the clock" discussion fails to recognize that the vast, vast, majority of felonies in California only have a 1 year spread between the midterm and the maximum with only the maximum now unavailable without jury findings under Cunningham. That 1 year spread, reduced to 6 months based upon good behavior and work credits, means very little in the average case since few defendants actually are looking at the aggravated term that cannot be aggravated based upon prior convictions (no jury finding required). Most defendants want to go home, not fight constitutional battles, especially when they are in custody pending trial and the constitutional fight will be over after they have served the full "aggravated" sentence should they get one. Will appellate courts apply a law that has expired due to a sunset clause. You betcha, especially when it comes to affirming the exercise of judicial discretion. Should they? Is that a policy question?

Finally, sure the legislative fix could be held unconstitutional, but with the main complaint in Cunningham that the presumptive - i.e. authorized - sentence without further fact finding was the midterm and with the legislature changing the language to say that any term is authorized by the jury verdict; I think it is unlikely. There is simply no way this Supreme Court will turn sentencing into a full blown jury trial.

Posted by: David | Mar 30, 2007 1:21:02 AM

David, if so little turns on the aggravated term, why bother to have a fix? If prior convictions support the aggravated term, there's no problem; if other facts are key, then prosecutors should just get defendants to agree to the facts that support an aggravtaed term and thereby comply with Blakely-Cunningham.

Since you seem "in the know," how long does a typical serious/complicated crime in CA take to get from commission to sentencing? If the fix is only going to be prosepctive and if it takes many months for a typical serious/complicated crime to get to sentencing, then this sunsetting fix will only end up having an impact in a small set of cases.

Posted by: Doug B. | Mar 30, 2007 8:38:42 AM

Keep in mind I was talking about the majority of cases not a "typical serious/complicated" case as they are not the majority but rather the small minority. In fact we do get defendants to agree to facts that support an aggravated term or at least waive a jury trial on them. Why bother to have a fix? I would say it would be to restore the status quo rather than have 50+ counties each trying a different method. There is no procedure in state law for complying with Cunningham, but there will be many ideas. This, of course, would overload the Courts of Appeal and indigent counsel with more work that costs money or slows things down.

On the second remark, the length of the case should not be relevant since it is the number of cases committed in the period the fix is enacted not when they are sentenced. As far as the typical time for a serious case, impossible to say; there just are too many variables. But frankly the most serious cases often present themselves as multiple count cases. Multiple counts provides a myraid of ways of getting to an aggravated term without having to prove Cal. Rule of Court 4.414 factors to a jury. An example: since in most cases California gives a 2/3 discount off every felony after the first as far a maximum term, the court can simply aggravate the first felony and run one, and only one, of the other felony counts concurrent. This is permissible under state law and will lead to a higher sentence in most violent crimes than running the counts consecutively. Since the jury would have found the current counts true BRD, it satisfies Cunningham.

I would have to note, the rationale for the sunset is to give the legislature time to really research some more substantive changes which are likely coming due to concerns of a Federal takeover. I do not think that it is likely that they will just let it sunset with no action. Possible, but unlikely. Just look at the lopsisded votes on the fix.

Posted by: David | Mar 30, 2007 10:41:13 AM

David, I don't understand your statement "There is no procedure in state law for complying with Cunningham" In my opinion, no new procedure needs to be enacted to try newly created crimes recognized under Cunningham. Just use the procedure you have always used to try any crime.
I think a common misperception is that a state has to grant defendants the right to a jury trial to determine ags. I think that is unnecessary because the right to have a jury decide if a citizen is guilty of a crime is and "inalienable right" obtained by virtue of being born. I think that what happened in Cunningham is that the US Supreme Court said to California, "You may have thought you were enacting a sentencing statute, but you are wrong. What you did was create a whole new series of crimes, called Aggravated Larceny, Aggravated Kidnapping, Aggravated Robbery, .whatever. The fact that you called the statute a sentencing statute doesn't make any difference. "Our inquiry is one of effect, not form" And the effect of passing the sentencing law was to create new crimes, which under the sixth amendment must be tried to a jury.

Suppose the legislature passed a new law making it a crime to "trespass on somebody's website" or some such cybercrime. Would the legislature have to enact a new procedure to try that new crime. No. Just use the old procedure. I think the same notion applies to trying new aggravated crimes.
So all the prosecutor has to do is include the ag in the indictment, and try the case.

bruce cunningham

Posted by: bruce cunningham | Mar 31, 2007 10:58:24 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 2:15:01 AM

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