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A Quick Fix for Sentencing

By Megan Kinneyn | Jun. 2, 2007

Law Office Management

Jun. 2, 2007

A Quick Fix for Sentencing

The Legistlature takes fast action after the U.S. Supreme Court holds that California's determinate-sentencing process is unconstitutional. By Peter Blumberg

By Peter Blumberg
      Edited by Thomas Brom & Martin Lasden
      Multiple-choice terms keep discretion with judges.
      It sounded like a major victory for the defense bar: The U.S. Supreme Court ruled in January that California's sentencing process violates the Sixth and Fourteenth amendments by letting judges rather than juries determine whether aggravating and mitigating factors should affect punishment. (Cunningham v. California, 127 S. Ct. 856 (2007).)
      But within three weeks, the state Senate passed an urgent measure that preserves much of the status quo. Senate Bill 40, written by Senator Gloria Romero (D-Los Angeles), sailed through the Legislature and was signed by Gov. Arnold Schwarzenegger in late March. Its provisions are intended as a temporary fix: The legislative intent is "to maintain stability in California's criminal justice system while the criminal justice and sentencing structures in California sentencing are being reviewed"; the measure will expire on January 1, 2009.
      The legislative patch amends Penal Code section 1170 to give judges greater flexibility to choose among three specified prison terms?lower, middle, and upper?for a particular offense. The solution gives judges broad discretion within a statutory range of terms, presumably steering clear of the constitutional shoals encountered in Cunningham.
      In its opinion, the Supreme Court suggested two options that California might pursue to salvage its determinate-sentencing system. The first would be to call upon the jury?either at trial or in separate sentencing hearings?to consider any evidence that might trigger an upper-level prison term. The second approach, reflected in SB 40, leaves sentencing to the judge's discretion so long as any prison term is based on a jury's findings of fact.
      The law's temporary status gives prosecutors and public defenders almost two years to see how well the revised system works. As some in the defense bar see it, the question of whether a defendant is better off with a judge or a jury depends on the venue. Urban defendants might expect more sympathy from juries; rural defendants might think that a judge is less likely to throw the book at them. These regional differences among opponents of SB 40 accounted for the speed of its passage.
      But Barry Melton, president of the California Public Defenders Association, says he's not in a position to generalize about the changes' effects. "We have to defend our clients one at a time," he says. "Challenges will come in individual cases, and they could come anywhere in the state."
      At least one public defender, Jeff Adachi of San Francisco, warns that defendants may be worse off under the revised system?especially ethnic minorities who already tend to get stiffer sentences than whites.
      "It is a well-known fact in our jurisdiction that some judges sentence defendants to aggravated terms while others do not, and that the luck of the draw often determines one's fate," Adachi wrote in opposition to SB 40. The disparities will be even greater, he continued, "once judges are given complete discretion to sentence."
      The new law does away with the presumption that the middle term is appropriate, absent extenuating circumstances. Judges will no longer be required to discuss in detail how they justify departures from the middle, Adachi notes. All the court must do now, he says, is "state the reasons for its sentence choice."
      Prior to Cunningham, approximately 15 percent of all defendants in cases with one count got upper-term sentences, and Melton says he doesn't expect that figure to change much under the new law. "The weighing of circumstances in aggravation or mitigation has never been a numeric calculation," he says. "There's always been an element of discretion involved. It's inherently somewhat subjective, and always has been."

Megan Kinneyn

Daily Journal Staff Writer

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