UNION CURRENT CALL TO ACTION
Alerts! Ways you can fight for yourself and others today!
Stop SB 40
Say Goodbye to the 6th Amendment which guarantees every American the right to a trial by a jury of their peers if SB40 is signed by Governor Schwarzenegger. It gives unprecedented power to judges to sentence people based on facts not found by a jury. What it probably means is that all trials held in the next two years will need to be re-litigated. The cost of this bill is in the hundreds of millions of dollars which means that education and services will suffer.
I urge everyone to fax, call and email the Governor to stop this oppressive and unconstitutional bill as well as post out on the news sites at the Sacramento Bee and California Progress Report, the Los Angeles Daily News and others where the news articles about it can be read today. Judges will be able to impose sentences based on facts not found by a jury to be true for two years at least in response to the Supreme Court's ruling on Cunningham which should release thousands of inmates rotting in prison under unconstitutional sentences. It is not a sentencing fix at all
Rev. B. Cayenne Bird
The call to mail and fax the Governor objecting to SB 40 is in effect until he signs it or vetoes it, here is a sample letter, please write your version of it. We will also keep posting letters to editors until the decision is made. Only when we care enough to make incredible and consistent noise will others care. The Assembly and Senate voted to pass this unconstitutional bill, the decision now rests solely with the Governor.
Governor Arnold Schwarzenegger
March 28, 2007
Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
Dear Governor Schwarzenegger,
Please allow me to share my thoughts with you regarding SB40. I am staunchly opposed to this bill as it is simply side-stepping the Cunningham decision and I am asking you to veto this bill if it reaches your desk. This bill was hastily drafted to counter the Supreme Court's recent decision declaring California's sentencing law unconstitutional. Instead of requiring a jury to find facts that could be used to enhance a person's prison sentence, SB 40 gives the sole power to judges to sentence criminal defendants to maximum terms without requiring a jury to find sentencing factors. This was not the intent of the Supreme Court ruling and SB 40 not only undermines its intent but perpetuates the intent struck down in the Cunningham decision. I would like to include some facts for your consideration.
Senator Gloria Romero, who authored the bill, claims that requiring juries to decide additional facts would overburden our jury system. This is the job of a jury regardless of burden. However, in Kansas, requiring prosecutors to prove sentencing factors to a jury added only one hour to each trial, and California already uses the procedure when a person has a prior conviction, which also must decided by a jury. Seven of nine states facing this identical problem concluded that requiring a prosecutor to prove the sentencing factors to the jury was the better solution.
SB 40 will also unfairly and greatly affect minority defendants. There have been a large number of studies, both national and statewide, which have shown that Blacks and Latinos are more likely to receive maximum sentences than their Caucasian counterparts. Caucasian individuals sentenced to drug offenses serve an average of 27 months while Blacks serve an average of 46 months. Latino youth are 13 times more likely to be sentenced to a juvenile state facility than Whites, where they serve up to the maximum term. These inequities will only increase if SB 40 becomes law.
According to an Assembly Appropriations Committee report, California’s incarceration costs could rise dramatically if SB40 becomes law. Currently, 11% of the 54,000 people committed to prison each year receive maximum sentences. For every 1 percent increase, the state will pay an additional $2.6 million for the cost of housing these prisoners. If California were to have a 50% in its imprisonment rates, which is most likely if SB40 becomes law, the increased costs of incarceration would be $130 million annually. That money is certainly better spent in education rather than incarceration.
Lastly, I would like to ask what happened to the 6th Amendment right to a jury trial. If Judges are making the final determinations, then defendants are not having the benefit of a jury trial. There are few things more important than protecting our Constitution and its rights. If we allow laws to whittle away at the rights of our citizens because “the courts will be chaos” then it is guaranteed that the courts will indeed be chaos when this law is struck down as unconstitutional. Our founding fathers did not intend for us to pick and choose who would have Constitutional protection in America. Over the last number of years, most Judges have been out of control believing the notion that if a little is good, a lot is better, and therefore imposing the longest sentences allowed. This has contributed in great part to the overcrowding of our prisons. The punishment must fit the crime and in so many cases it no longer does. Our Judges are under the false belief that the longer the sentence they impose the better job they have done. Again, this is another contributing factor to the overcrowding problem you are struggling with. This kind of emotion has no place in our justice system and must stop.
Governor, you must not act hastily or emotionally to sign this bill that will affect thousands of people and increase the burden to taxpayers in the name of political expediency. The integrity and fairness of our justice system is at stake, especially in light of the fact that many legal experts have already concluded this law is unconstitutional. Thank you for taking time to read this.
This article by San Francisco Public Defender Jeff Adachi is followed by Sample letters to editors for you to write to the media throughout California. Seven to ten sentences maximum length or it won't get used unless you are a professional writer.
SB 40 Will Not "Fix" California's Sentencing Scheme and
By Jeff Adachi Public Defender of San Francisco
What is SB 40 and what does it do?
California's determinate sentencing laws provide three possible sentences: a lower, middle and maximum term. The judge may choose the maximum term if he or she finds certain sentencing factors true. Last January, the U.S. Supreme Court ruled that this procedure violated the Sixth Amendment because juries, not judges, had to decide the truth of sentencing factors used to increase a person's sentence. The Court offered two solutions: either have the jury decide the sentencing factors, or to adopt advisory guidelines recommending, but not requiring, a particular sentence.
SB was introduced as a two-year, quick fix, solution to this problem. However, instead of giving juries the power to decide sentencing factors, it instead proposes that judges be given the power to sentence a person without any jury findings or sentencing factors, so long as the judge states a "reason" supporting his or her decision.
Does SB "fix" California's problem?
No. SB 40 will be found unconstitutional because it allows a judge to sentence a person to a maximum term without finding any sentencing factors to be true or submitting these factors to a jury for its decision. Because California's system is not an "advisory guideline" that gives judges broad discretion to choose any sentence within a range, but instead requires judges to choose one of three fixed prison sentences, it does not qualify under the second solution provided by the Court.
How can I be certain that SB 40 will be found unconstitutional?
Very certain. The Supreme Court gave two examples of sentencing systems that would not violate the Sixth Amendment: Tennessee and Indiana. Both states changed their sentencing schemes to allow judges to sentence persons without a jury finding of sentencing factors where there was a wide range of possible sentences. SB 40 only gives a judge a choice between three fixed prison terms, and the Supreme Court has already said that "under California' system, judges are not free to exercise their discretion to select a specific
sentence within a defined range."
But what's the alternative if our sentencing system is unconstitutional?
Seven of nine states who have considered this question concluded that "the plead and prove" method, which requires sentencing factors to be proven to a jury, is the better choice than what SB 40 proposes. Under this method, the prosecutor includes any sentencing factors in the charging document, and if the defendant is found guilty, there is a brief trial where the jury decides the sentencing factors. The judge then imposes sentence using the factors determined by the jury.
Are there any other differences between "the plead and prove" method and SB 40?
Yes. Also, under the "plead and prove" method, sentencing factors must be proven beyond a reasonable doubt. Under SB 40, there is no standard of proof required. The judge must only state a "reason" for his or her sentencing choice.
Will letting juries decide sentencing factors overburden the system?
Senator Gloria. Romero, who authored SB 40, claims that requiring juries to decide additional facts would overburden the jury system. However, in Kansas, requiring prosecutors to prove sentencing factors to a jury added only one hour to each trial, and California already uses this procedure when a person has prior convictions, which also must be decided by a jury. Seven of nine states facing this identical problem concluded that requiring a prosecutor to prove the sentencing factors to the jury was the better solution.
What other negative effects will SB 40 have?
SB 40 will also unfairly and greatly affect minority defendants. There have been a large number of studies, both national and statewide, which have shown that Blacks and Latinos are more likely to receive maximum sentences than their Caucasian counterparts. Caucasian individuals sentenced to drug offenses serve an average of 27 months while Blacks serve an average of 46 months. Latino youth are 13 times more likely to be sentenced to a juvenile state facility than Whites, where they serve up to the maximum term. These inequities will be even greater if SB 40 becomes law.
What about the fiscal impact of SB 40?
According to an Assembly Appropriations Committee report, California's incarceration costs could rise dramatically if SB becomes law. Currently, 11 percent of the 54,000 people committed to prison each year receive maximum sentences, which would be affected by SB 40. For every 1 percent increase, the state will pay an additional $2.6 million in the cost of housing these prisoners. If California were to have a 50 percent increase in its imprisonment rates, which is likely the case if SB 40 passes, increased costs of incarceration would be $130 million annually.
If SB 40 isn't passed, will there be "chaos" in the Courts?
Because SB 40 will likely be found unconstitutional, SB 40 will create even greater havoc and chaos during the two years before it sunsets. As many as 10,000 cases will be directly affected and will have to be re-tried or re-sentenced when SB 40 is found unconstitutional.
If California adopts a "plead and prove method" it will be assured that the constitutionality of its sentencing system will be approved. This is because the US Supreme Court explicitly approved of this method in its decision.
Why is SB 40 a question of constitutional importance?
The right to a jury trial is one of the most fundamental rights in our country. Our founding fathers embodied it in the Sixth Amendment to the US Constitution. If judges are making the final determinations regarding sentencing, then citizens will be sentenced without the benefit of having a jury decide whether the sentencing factors are true. There are few things more important than protecting our Constitution.
Jeff Adachi is the Public Defender of San Francisco He was recently re-elected and is the only elected Public Defender in California. SB 40 goes to the Governor as of March 28, 2007 after being unanimously passed by both the Assembly and Senate. It is estimated that 10,000 new cases will have to be re-tried under this unconstitutional law.
Dr. B. Cayenne Bird March 26, 2007 at 09:24 AM This is Public Defender Jeff Adachi's third appeal to the legislature to save the 6th Amendment which is quietly slipping away from all Californians under this bill
The outcry from WE THE PEOPLE must be strong as this is on a fast track for a vote in the assembly. It may go back before the senate again because there were amendments to it, then on to the Governor
Not only are there 54,000 prisoners who were unconstitutionally sentenced over the past 30 years that SB40 affects, everyone who will be sentenced in the future, for at least two years will lose their right to have a jury finding the facts.
One never knows when they will be in the wrong place at the wrong time, or when someone they love will be pulled into the dysfunctional court system so fighting back is insurance. One thing that everyone always tells me when they come to the UNION with their lives devastated is "I never thought this could happen to me."
A full call to action with a sample letter, is located in my column at Americanchronicle.com There are also instructions on how to get to the video of Thursday's hearing posted there.
The California Progress Report publisher Frank Russo, whose legal ability as an attorney and cutting edge attentiveness to this battle has allowed Mr. Adachi and the UNION families be able to voice some opposition.
But the roar needs to be much louder from those of us who love liberty and revere the US Constitution. Please post here and fax, email and call Assemblymembers, Senators and the Governor to stand up for the 6th Amendment in opposing SB 40.
Here we are in a prison crisis, with inmates suffering and dying and the brakes are put on an important Supreme Ct. Ruling which enacted right away would ease the overcrowding? This is senseless. Why preserve the present state of chaos when there is an opportunity to give people back their stolen lives?
Everything is a battle and such has always been the case in America. This threat of even more oppression is as real as any historical battle ever fought for our Constitution. Please take action as caring starts with you, post here, see the hearing yourself on the California Channel and be sobered.
Thank you so much P.D. Jeff Adachi and Attorney Frank Russo for your fierce defense of the people's rights on this and all criminal justice issues.
Shirley Wetherwax March 26, 2007 at 09:28 AM Regarding SB 40.
Our forefathers fought for our constitutional rights. SB 40 threatens these rights by giving judges decisions that belong to the people, the jury. Are you willing to give up your Sixth Amendment rights? If this bill goes through our rights are gone. We need to protect our Constitutional Rights or our country will certainly fall apart. When the foundation of America, the Constitution means nothing, then we are doomed. One man, Jeff Adachi, stands firm on the issues of the Constitution and I salute him for standing up for our American standards and rights. Judges should not be allowed to make final decisions on sentencing.
Barbara Christie March 26, 2007 at 01:14 PM
I appreciate Mr. Adachi's clarification of the dire consequences of SB 40. On the surface, this bill can seem to be a quick and easy response to the U.S. Supreme Court's ruling that California's sentencing laws are unconstitutional. Looking a little deeper, this bill seems to assume that California can unilaterally declare its judges to be judge and jury -- exactly what the Supreme Court ruled it could not do! Now, looking even deeper, Mr. Adachi has researched the legal technicalities and precidents that bear on SB 40 and has shown us why it too will be found to be unconstitutional -- because to deny defendants jury findings on aggravating factors in fact denies their Sixth Amendment rights. Period. No doubt about it. This seemingly innocuous, little-publicized, pushed-through-the-process bill is a threat to every American who holds our Constitution dear. E-mail your senator and assemblymember, as well as the governor, today! Ask all your friends to do the same! To delay is to agree with the misguided and uninformed sponsors and supporters of this dangerous bill. Protect your Sixth Amendment rights!
Michael Westmoreland March 26, 2007 at 02:30 PM
The Attorney General's representatives are leading the legislators astray, just as they did when Prop 83 was on the table. Any legislator who votes Yes on SB 40 knowing that it is unconstitutional is a criminal and traitor to our country and deserves a sentence as harsh as the ones they so callously support on people who shouldn't be in prison in the first place. Would our legislators vote for a clear violation of the 6th Amendment? Apparently so
. The Democratic Party in Washington D.C. asked me for money today to support their work and I sent them full information on this outrageous bill. Our right to jury trials is worth defending as the judges in California are completely out of control. Why were they unconstitutionally sentencing people for 30 years and not getting called on it??? After Prop 83, it is clear to me that most of the legislators don't know what the hell is constitutional or unconstitutional. The AG is a disaster.
Sue Timpson March 26, 2007 at 03:37 PM
In my opinion SB 40 violates the constitution. If we let it pass without an outcry to our elected representative we will be continuing the erosion of our 6th amendment rights to a trial by jury of our peers. It is another one of theose laws that the State Legislature is trying to pass as a knee jerk response to something they don't like, just like they did with Prop 83. They did/do not take the time to think it through and really explore what the consequences will be. In both cases there will be a major monetary burden on the tax payer and a longer incarceration to a person who is due to be released.
Thank you Mr. Adachi for standing up and defending the rights of all of us.
Sue Timpson Sunnyvale, CA
Stephanie Gooding March 26, 2007 at 05:13 PM
I watched the hearing today held on March 22 in front of Appropriations where the bill was approved and now travels to the Assembly floor, another pass through the Senate and then to the Governor's desk. I could hardly believe my eyes and ears. Everybody on that Committee except for two people had their minds made up to vote for it before coming to the meeting.
You can see it at www.calchannel.com, click on webcasts, click on search archives, then enter 032207 as the date, Assembly, Committee, Appropriations, March and you can watch it down near the bottom of the list that comes up.
You can see that the whole problem is that the legislators are mad at the Supreme Court for calling them on unconstitutional sentencing and do not want to be bothered with retrials, nor do they want to spend the money.
They are not only very willing to violate everyone's rights to unlawfully incarcerate people who should not be in prison in the first place, but to spit in the face of the Supreme Court by sidestepping the ruling.
Every Californian and every American should be absolutely outraged at what is taking place here and the Attorney General BROWN who is responsible for a great deal of 54,000 men and women in prison on ridiculously harsh terms, along with the judges who participated, should all be tarred and feathered and put in stockades in front of the Capitol for all to see.
this is the most shocking thing I have ever witnessed in my life out of elected officials who are violating their sworn oath of office to uphold the US Constitution.
Notify everybody what is taking place here in your name.
Fred Lopez March 26, 2007 at 05:48 PM
SB40 was not what the people of California needed...shame on you Senator Romero for coming up with a quick fix solution and adding another Unconstitutional law to our books. I was really surprised to see this come from you.
I hope and pray that a Federal Judge puts a stop to this right away. California can not be allowed to Violate our 6th Amendment Right any more.
Governor Schwarzenegger, it's going to be up to you to veto this and have our legislators come up with the right solution, not a quick fix one that will be found unconstitutional.
Mr. Adachi, thank you very much for concern and not being afraid to stand up to these bullies in Legislation. You gave us a great explanation of how bad SB40 really is.
J Buchanan March 26, 2007 at 07:48 PM
The names of our elected officials who choose to give away our constitutional rights will be remembered. Judges acting on their own, should not have the power to impose upper terms simply because they are having a bad day. Absent of any findings by a jury. SB40 is now going to allow these unconstitutional practices to continue. Where will it end? It will only end when people like Mr. Adachi, have to courage to stand up and speak out. This system will not withstand against our Sixth Amendment.
The story on SB 40 and Mr. Adachi's courageous fight against it appears in all these places tonight. Their email addresses are all in the above media address block. Let's hope the word got out in time for the vote - thank you one and all you UNION writers and fighters, I am quite exhausted but seeing your noise will energize me for the rest of this battle. The 6th Amendment is worth it. 6500 people is our goal who will write, show up when called, recruit others to write and show up, raise money and get out the vote! When we can do that, the oppression will stop and not one minute before!
Rev. Dr. B. Cayenne Bird Director
P.O. Box 340371
Sacramento, Ca. 95834