Say NO to SB40 - A sidestep that takes away prisoners' hope
Dr. B. Cayenne Bird
March 11, 2007
I can't remember any time in the past decade when I have disagreed with a bill brought forward by Senator Gloria Romero who has done so much for prison reform. But the day has arrived when I must voice strong opposition to her proposed bill SB40 which has already passed the Senate and now goes to the Assembly Public Safety Committee.
It's on a fast-track for approval so we must all move rapidly to let her know that if such a sidestep to the recent Supreme Court ruling re Cunningham is passed, it will take all hope from thousands of prisoners who qualify for shorter sentences.
There are many reasons to oppose it in my opinion but to keep it simple and legal, I have included a letter from Jeff Adachi, Public Defender who has found even more reasons than the fact that it is blatantly unconstitutional to oppose it.
from Jeff Adachi, Public Defender:
PLEASE JOIN PUBLIC DEFENDER JEFF ADACHI IN OPPOSING SB 40
On Tuesday, March 13, 2007, 9:00am at Room 126 in the State Capitol, the Assembly Public Safety Committee will be hearing SB 40, which drastically changes the determinate sentencing law and gives judges power to sentence criminal defendants to aggravated terms without any jury findings. SB 40 was introduced in response to the US Supreme Court's recent decision in Cunningham, where the Supreme Court ruled that California's determinate sentencing law was unconstitutional because it allowed a judge to increase a person's sentence without a jury's finding that the fact relied upon in increasing the sentence was true.
Public Defender Jeff Adachi believes that this bill will increase gaps in disproportionate sentencing of ethnic minorities and poor people and will undermine current attempts to reform the penal and correctional system. Please join Public Defender Jeff Adachi in opposing this bill. If you are unable to attend the hearing, please send an email to the following email address:
Jose Solorio, Chair Assembly Committee on Public Safety
State Capitol Building
1020 N. Street, Room 111
Sacramento, CA 95814 FAX 916-319-3745
email: assemblymember.solorio@assembly.ca.gov
A sample email is attached below along with Mr. Adachi's letter explaining his reasons for opposing SB 40.
To contact Public Defender Jeff Adachi, please call Angela Auyong at 415-553-1677 or angela.auyong@sfgov.org. Thank you!
SAMPLE LETTER OR EMAIL Please send to:
Assemblyman Jose Solorio, Chair Assembly Committee on Public Safety State Capitol Building Sacramento, California 95814
Re: Opposition to SB 40 Amending Penal to Code to Give Judges Complete Discretion to Sentence Criminal Defendants
Dear Assemblyman Solorio,
I am writing to express my strong opposition to SB 40, which will be heard before your committee on March 13 at 9:00am. This bill was hastily drafted to counter the Supreme Court's recent decision declaring California's sentencing law unconstitutional. Â Instead of requiring a jury to find factors that could be used to enhance a person's prison sentence, SB 40 gives the sole power to judges. This was not the intent of the determinate sentencing laws, and fails to address the fundamental problems inherent in California's penal system. It will also create greater inequities in sentencing, particularly concerning minorities and poor people who do not have access to adequate legal representation. The assembly should not act in haste to make a decision that will affect thousands of lives and further threaten the efforts towards penal reform. Â I respectfully ask that you vote against SB 40. Please do not hesitate to contact me if you have any questions. Thank you.
LETTER BY PUBLIC DEFENDER JEFF ADACHI:
Office of the Public Defender
Jeff Adachi
City and County of San Francisco
Public Defender
Teresa Caffese Chief Attorney
555 Seventh Street
San Francisco, California 94103-4709
415.553.1671
fax: 415.553.9810
March 6, 2007
Assemblyman Jose Solorio, Chair Assembly Committee on Public Safety State Capitol Building Sacramento, California 95814
Re: Opposition to SB 40 Amending Penal to Code to Give Judges Complete Discretion to Sentence Criminal Defendants
Dear Assemblyman Solorio,
As the elected Public Defender of San Francisco, I am writing to express my strong opposition to SB 40, which would give judges unbridled discretion to sentence criminal defendants to prison terms. Â While I agree that there are serious problems in our criminal justice system, SB 40 is not the quick fix it has been purported to be. Instead, I believe it will increase gaps in disproportionate sentencing of ethnic minorities and poor people, and further undermine California's attempt to reform its penal and correctional system.
SB 40 was hastily drafted to address the Supreme Court's decision in Cunningham, where the court held that California's determinate sentencing law was unconstitutional because it allowed a judge to impose a sentence above the statutory maximum based on a fact, other than prior conviction, not found by a jury or admitted by the defendant.
By giving the judge the discretion to impose an aggravated term without any express findings by a jury, it attempts to side-step Cunningham by taking any findings from the jury and instead giving it solely to a judge.
SB 40 will create even wider disparities in sentencing, since sentences meted out by judges will lack any uniform standards, in abrogation of the spirit and purpose of the determinate sentencing laws drafted over 30 years ago. Â 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. This will be even more true once judges are given complete discretion to sentence, unrestrained by the factors which judges had to find prior to Cunningham before sentencing a criminal defendant to an aggravated term.
Disproportionate sentencing of ethnic minorities has long been a problem in California and around the nation. When sentenced for drug offenses in state court, whites serve an average of 27 months while blacks an average of 46 months. (Human Rights Watch Report, Racial Disparities in the Criminal Justice System.) Thus, blacks and other minorities are more likely to receive aggravated sentences than their white counterparts. Â In youth crime cases, Latino youth are 13 times more likely to be sentenced to a juvenile state facility than whites, where, in California, they may serve the maximum term of confinement. (Justice for Some: Differential Treatment of Minority Youth in the Juvenile Justice System). These gross inequities will be even greater if SB 40 becomes law.
It is alleged that SB40 is needed to maintain stability in California's criminal justice system. This is simply untrue. Because 98% of the criminal cases statewide are resolved by plea, dismissal or a non-jury disposition, the bulk of criminal cases are unaffected by Cunningham, since a person may voluntarily agree to receive the aggravated prison term as part of a plea disposition, provided they waive any Cunningham issues. This waiver is now standard for any case in which a plea to an aggravated term is contemplated.
As for cases that proceed to trial, the correct (and constitutional) procedure is for the prosecutor to include the aggravated facts in the criminal complaint and then request a bifurcated jury trial on this issue. This is the procedure currently used in cases involving a prior conviction. A defendant, of course, could choose to waive this procedure and instead admit facts upon which his sentence could be enhanced. As the Supreme Court noted in Cunningham, several States have modified their systems . . . by calling upon the jury either at trial or in a separate sentencing proceeding to find any fact necessary to the imposing of an elevated sentence. The Court further observed California already employs juries in this manner to determine statutory sentencing enhancement. This procedure would fully comport with Cunningham and would not add any burden to the trial process. If the prosecutor elected not to allege the aggravating factors, or decided not to seek a jury trial on these issues, then the highest state prison sentence a person could receive is the middle term.
While the SB 40 seizes on Cunningham's suggestion that some states have permitted judges to exercise broad discretion within a statutory range, this cannot be said of California's current sentencing law. The California's determinate sentencing laws provide for three possible fixed sentences and do not provide wide discretion within a sentencing range, which was true of California's previous indeterminate sentencing law. A judge does not have genuine authority to sentence within a range, and instead must sentence according to the statutory sentences set forth in the statute. By passing SB 40, the legislature will take a huge risk that SB 40 is later found to be unconstitutional and in violation of the Cunningham mandate.
In conclusion, the legislature should not act in haste to make a decision that will affect thousands of lives and further threaten the efforts towards penal reform. I respectfully ask that you vote against SB 40. Please do not hesitate to contact me direct at (415) 553-9520 if you have any questions. Thank you.
Very truly yours,
Jeff Adachi Public Defender
cc: Senator Gloria Romero, senator.romero@sen.ca.gov
Senator Romero has been a heroine in prison reform but her eyes obviously need to be opened to the corruption and lack of accountability of judges. The conveyor belt laws such as Prop 83 Jessica's, Three Strikes and others were designed with the intention of keeping the prisons stocked with fresh inmates. This builds the bureaucracy and destroys families. There are no statistics anywhere that prisons, jails, harsh laws do one thing to deter the mentally ill from acting out their illness or to deter crime at all.
With 50 Conservative Judges in power, you know that law enforcement is favored in every case ruling that they make, regardless of the defendant's guilt or innocence. A part of relieving the current prison crisis must include changes in the sentencing and parole laws.
SB40, in the opinion of many legal experts, including law school professors and attorneys in our UNION deserves a "NO" vote. I hope that you can be there on Tuesday to voice an objection in person. No one can give the people suffering unconstitutional sentencing due to the corruption in California's system back the lost years of their lives. Please go out to the news sites and post comments voicing your objection to SB40 and write letters to editors as well. Be noisy! Lives are at stake! Will be have colleges or prisons for our young people who are fodder for the human bondage industry?
Rev. B. Cayenne Bird
It's on a fast-track for approval so we must all move rapidly to let her know that if such a sidestep to the recent Supreme Court ruling re Cunningham is passed, it will take all hope from thousands of prisoners who qualify for shorter sentences.
There are many reasons to oppose it in my opinion but to keep it simple and legal, I have included a letter from Jeff Adachi, Public Defender who has found even more reasons than the fact that it is blatantly unconstitutional to oppose it.
from Jeff Adachi, Public Defender:
PLEASE JOIN PUBLIC DEFENDER JEFF ADACHI IN OPPOSING SB 40
On Tuesday, March 13, 2007, 9:00am at Room 126 in the State Capitol, the Assembly Public Safety Committee will be hearing SB 40, which drastically changes the determinate sentencing law and gives judges power to sentence criminal defendants to aggravated terms without any jury findings. SB 40 was introduced in response to the US Supreme Court's recent decision in Cunningham, where the Supreme Court ruled that California's determinate sentencing law was unconstitutional because it allowed a judge to increase a person's sentence without a jury's finding that the fact relied upon in increasing the sentence was true.
Public Defender Jeff Adachi believes that this bill will increase gaps in disproportionate sentencing of ethnic minorities and poor people and will undermine current attempts to reform the penal and correctional system. Please join Public Defender Jeff Adachi in opposing this bill. If you are unable to attend the hearing, please send an email to the following email address:
Jose Solorio, Chair Assembly Committee on Public Safety
State Capitol Building
1020 N. Street, Room 111
Sacramento, CA 95814 FAX 916-319-3745
email: assemblymember.solorio@assembly.ca.gov
A sample email is attached below along with Mr. Adachi's letter explaining his reasons for opposing SB 40.
To contact Public Defender Jeff Adachi, please call Angela Auyong at 415-553-1677 or angela.auyong@sfgov.org. Thank you!
SAMPLE LETTER OR EMAIL Please send to:
Assemblyman Jose Solorio, Chair Assembly Committee on Public Safety State Capitol Building Sacramento, California 95814
Re: Opposition to SB 40 Amending Penal to Code to Give Judges Complete Discretion to Sentence Criminal Defendants
Dear Assemblyman Solorio,
I am writing to express my strong opposition to SB 40, which will be heard before your committee on March 13 at 9:00am. This bill was hastily drafted to counter the Supreme Court's recent decision declaring California's sentencing law unconstitutional. Â Instead of requiring a jury to find factors that could be used to enhance a person's prison sentence, SB 40 gives the sole power to judges. This was not the intent of the determinate sentencing laws, and fails to address the fundamental problems inherent in California's penal system. It will also create greater inequities in sentencing, particularly concerning minorities and poor people who do not have access to adequate legal representation. The assembly should not act in haste to make a decision that will affect thousands of lives and further threaten the efforts towards penal reform. Â I respectfully ask that you vote against SB 40. Please do not hesitate to contact me if you have any questions. Thank you.
LETTER BY PUBLIC DEFENDER JEFF ADACHI:
Office of the Public Defender
Jeff Adachi
City and County of San Francisco
Public Defender
Teresa Caffese Chief Attorney
555 Seventh Street
San Francisco, California 94103-4709
415.553.1671
fax: 415.553.9810
March 6, 2007
Assemblyman Jose Solorio, Chair Assembly Committee on Public Safety State Capitol Building Sacramento, California 95814
Re: Opposition to SB 40 Amending Penal to Code to Give Judges Complete Discretion to Sentence Criminal Defendants
Dear Assemblyman Solorio,
As the elected Public Defender of San Francisco, I am writing to express my strong opposition to SB 40, which would give judges unbridled discretion to sentence criminal defendants to prison terms. Â While I agree that there are serious problems in our criminal justice system, SB 40 is not the quick fix it has been purported to be. Instead, I believe it will increase gaps in disproportionate sentencing of ethnic minorities and poor people, and further undermine California's attempt to reform its penal and correctional system.
SB 40 was hastily drafted to address the Supreme Court's decision in Cunningham, where the court held that California's determinate sentencing law was unconstitutional because it allowed a judge to impose a sentence above the statutory maximum based on a fact, other than prior conviction, not found by a jury or admitted by the defendant.
By giving the judge the discretion to impose an aggravated term without any express findings by a jury, it attempts to side-step Cunningham by taking any findings from the jury and instead giving it solely to a judge.
SB 40 will create even wider disparities in sentencing, since sentences meted out by judges will lack any uniform standards, in abrogation of the spirit and purpose of the determinate sentencing laws drafted over 30 years ago. Â 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. This will be even more true once judges are given complete discretion to sentence, unrestrained by the factors which judges had to find prior to Cunningham before sentencing a criminal defendant to an aggravated term.
Disproportionate sentencing of ethnic minorities has long been a problem in California and around the nation. When sentenced for drug offenses in state court, whites serve an average of 27 months while blacks an average of 46 months. (Human Rights Watch Report, Racial Disparities in the Criminal Justice System.) Thus, blacks and other minorities are more likely to receive aggravated sentences than their white counterparts. Â In youth crime cases, Latino youth are 13 times more likely to be sentenced to a juvenile state facility than whites, where, in California, they may serve the maximum term of confinement. (Justice for Some: Differential Treatment of Minority Youth in the Juvenile Justice System). These gross inequities will be even greater if SB 40 becomes law.
It is alleged that SB40 is needed to maintain stability in California's criminal justice system. This is simply untrue. Because 98% of the criminal cases statewide are resolved by plea, dismissal or a non-jury disposition, the bulk of criminal cases are unaffected by Cunningham, since a person may voluntarily agree to receive the aggravated prison term as part of a plea disposition, provided they waive any Cunningham issues. This waiver is now standard for any case in which a plea to an aggravated term is contemplated.
As for cases that proceed to trial, the correct (and constitutional) procedure is for the prosecutor to include the aggravated facts in the criminal complaint and then request a bifurcated jury trial on this issue. This is the procedure currently used in cases involving a prior conviction. A defendant, of course, could choose to waive this procedure and instead admit facts upon which his sentence could be enhanced. As the Supreme Court noted in Cunningham, several States have modified their systems . . . by calling upon the jury either at trial or in a separate sentencing proceeding to find any fact necessary to the imposing of an elevated sentence. The Court further observed California already employs juries in this manner to determine statutory sentencing enhancement. This procedure would fully comport with Cunningham and would not add any burden to the trial process. If the prosecutor elected not to allege the aggravating factors, or decided not to seek a jury trial on these issues, then the highest state prison sentence a person could receive is the middle term.
While the SB 40 seizes on Cunningham's suggestion that some states have permitted judges to exercise broad discretion within a statutory range, this cannot be said of California's current sentencing law. The California's determinate sentencing laws provide for three possible fixed sentences and do not provide wide discretion within a sentencing range, which was true of California's previous indeterminate sentencing law. A judge does not have genuine authority to sentence within a range, and instead must sentence according to the statutory sentences set forth in the statute. By passing SB 40, the legislature will take a huge risk that SB 40 is later found to be unconstitutional and in violation of the Cunningham mandate.
In conclusion, the legislature should not act in haste to make a decision that will affect thousands of lives and further threaten the efforts towards penal reform. I respectfully ask that you vote against SB 40. Please do not hesitate to contact me direct at (415) 553-9520 if you have any questions. Thank you.
Very truly yours,
Jeff Adachi Public Defender
cc: Senator Gloria Romero, senator.romero@sen.ca.gov
Senator Romero has been a heroine in prison reform but her eyes obviously need to be opened to the corruption and lack of accountability of judges. The conveyor belt laws such as Prop 83 Jessica's, Three Strikes and others were designed with the intention of keeping the prisons stocked with fresh inmates. This builds the bureaucracy and destroys families. There are no statistics anywhere that prisons, jails, harsh laws do one thing to deter the mentally ill from acting out their illness or to deter crime at all.
With 50 Conservative Judges in power, you know that law enforcement is favored in every case ruling that they make, regardless of the defendant's guilt or innocence. A part of relieving the current prison crisis must include changes in the sentencing and parole laws.
SB40, in the opinion of many legal experts, including law school professors and attorneys in our UNION deserves a "NO" vote. I hope that you can be there on Tuesday to voice an objection in person. No one can give the people suffering unconstitutional sentencing due to the corruption in California's system back the lost years of their lives. Please go out to the news sites and post comments voicing your objection to SB40 and write letters to editors as well. Be noisy! Lives are at stake! Will be have colleges or prisons for our young people who are fodder for the human bondage industry?
Rev. B. Cayenne Bird
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