SB40 Is Not a Prison Sentencing Fix Kill this Bill Now!
Dr. B. Cayenne Bird

Dr. B. Cayenne Bird is an ordained minister and a 37-year veteran op-ed journalist and publisher. She volunteers her time as founder and director of United for No Injustice, Oppression or Neglect UNION. The UNION is active in prison reform and criminal justice issues. She is a mother and grandmother and focuses on human rights and restorative justice. She is also the host of television series "Cayenne Common Sense" and publishes a daily online newsletter to subscribers.

March 21, 2007

SB40, a destructive bill that will cost hundreds of millions of dollars will go before the Assembly Appropriations Committee tomorrow morning, March 22, at 9 am sharp, Room 4202, Sacramento Capitol. Not very many people are aware of it and legislators are moving rapidly to get it approved before much opposition can mount. About 6,000 prisoners are currently incarcerated who were denied their sixth amendment rights to a trial and sentenced based on facts found by a jury. Attached to them through family ties are at least 60,000 Californians, many of them poor and educated minorities. Most won't even know that their loved one had an opportunity for justice due to a recent Supreme Court Case that ruled our sentencing laws to be unconstitutional.

These 60,000 Californians will probably not know that there was hope that the legislature would do the right thing and reform the conveyor belt sentencing laws that are overflowing the prisons. If the families were educated enough to understand their role in the process, they would surely be there tomorrow in Sacramento to stand up for their sons and daughters, grandchildren, wives and husbands rotting away under unconstitutional sentences It would be inconceivable to these families that elected officials could be so mean spirited as to propose a bill such as SB40 that would condemn their loved one to further suffering in California's mismanaged prisons based on facts that the jury didn't find. The Supreme Court ruling was a rare ray of hope to everyone whose lives have been devastated under this harshness. SB40 will dash that hope if it is passed. Is it any wonder that California has the highest suicide rate in the nation when every chance for relief is knocked down by our public servants?

At a cost of $43,000 per year to incarcerate a prisoner which is probably not including millions in related costs such as running the State Personnel Board, training the guards at McGee Academy, millions in lawsuit payouts and running the large staff of attorneys working for the Attorney General's office (I could go on), the legislators are also being too rough on the taxpayers. 

$ 43,000 per year x approximately 6,000 currently incarcerated under unconstitutional terms is at least $258,000,000 per year. That kind of money could build schools or give the elderly, blind and disabled back the dental care that Arnold took from them when he was elected and more. Admittedly, it is difficult to measure just how much we are overpaying since some of the terms will fluctuate, but it is clearly a large amount, at least $4.3 per million per hundred prisoners.

The destruction of families and building of the bureaucracy is something that the Republican party has claimed to oppose in the past and many of them are speaking out against investing another $11 billion into building more prisons. After watching the Republican politicians vote against almost every criminal justice reform proposed for the past decade, it is good to see them finally wanting deeper reforms. Some of the sentencing bills required a 2/3 vote which meant that at least some Republicans had to vote in favor of them, but it never happened. Both parties are to blame for SB40 which will probably be ruled as unconstitutional after it predictably results in a lawsuit. Why the rush? Such an expensive proposal deserves more debate and scrutiny by the taxpayers in my opinion.

No one can restore the wasted years of lives of the 6,000 men and women currently incarcerated or make up for the suffering of their families, who are nothing less than unseen crime victims. SB40 gives judges the right to impose the harshest sentences based on their opinion alone, not the facts as a jury would decide, which is exactly what the Supreme Court was concerned about when it made the ruling. Senator Romero is worried that it will cause chaos in the courts she says. 

The system needs some tremendous shaking up and the sooner the better. Does she think that chaos doesn't exist now for Pete's sake? It is nothing but corruption, cronyism and chaos with little justice taking place. That is why we have murder taking place in the streets. There is little or no justice in the courts so people take the law into their own hands. How absurd to think that delaying justice would cause too great a strain on a system that shouldn't have so many people in it in the first place.

On behalf of those families who do not know what is about to hit them, I urge the Assembly members to KILL THIS BILL in the name of justice as the human toll of this one is immeasurable. It disrespects our Constitution's Sixth Amendment, kicks the Supreme Court in the teeth, helps to expand the bureaucracy and gives even more power to judges at a time when they need to be called into more accountability. The cost is more than any American should have to pay. 

People who already voiced an objection to SB40 to the public safety committee will need to do it again and focus on the cost of it as the appropriations committee is another step in the process. The public safety committee voted yes for it, 5-2 with only Mark Leno and Fiona Ma appropriately voting NO.

The word around the Capitol is that most people don't like this bill but they're going along with the in-crowd and planning to vote yes for it anyway. This is because most of them don't actually know anyone in prison, or really care about how much suffering is taking place there. They assume the families are too uneducated to vote or recall them for their bad decisions, so this might pass with almost no opposition.

What a shame that would be with so many people hurt. What you can do to help is email your objection, even if you already did one before to 

or better yet fax it to the Appropriations Committee at (916) 319-2181

If you can be at the Capitol, Room 4202 at 9 am sharp to show that some of the voters do know what they're up to here with this one, please do attend. Parking is as dysfunctional as the government, so you need to arrive at 8 am to get parked and get up there on time. 10th Street and L is the nearest cross street, there are parking garage around. The Greyhound Bus Station is a few blocks away within easy walking distance

Nobody can do your share of the objecting for you. Obviously the legislators aren't serious about prison reform or accountability of judges would be at the top of their list. I do want to mention that this is first time in a decade that our UNION has opposed any of Senator Romero's bills and I hope that it is simply a mistake that she is taking this route to respond to the Supreme Court Ruling. Not nearly enough noise has been raised over Judicial abuse from the families affected, so it is possible that she has no idea of the depth of corruption taking place at that level. But it should be an important part of the present reform, so this is the time that you make yourself heard as silence is consent.

Jeff Adachi, the Public Defender of San Francisco, the only one elected in California, will be there tomorrow. He deserves so many thanks and I hope people will show up to support him at 9 am sharp. His letter of objection contains the legal points and I concur. It appears below. Take action to KILL THIS BILL

Rev. B. Cayenne Bird, Director
United for No Injustice, Oppression or Neglect

Letter from Jeff Adachi: 

March 20, 2007

Assemblymember Mark Leno
Chair, Assembly Appropriations Committee
State Capitol Building
Sacramento, California 95814

RE: SB 40 (as amended 3/8/07) - OPPOSE

Dear Chair/Assemblymember Leno, 

As the elected Public Defender of the City and County of San Francisco, I strongly urge you to oppose Senate Bill 40 (Romero). SB 40 was drafted to address the Supreme Court’s decision in Cunningham v. California, 127 S. Ct. 856 (2007). Unfortunately, SB 40 will increase the short and long term costs of operating the California Department of Corrections and Rehabilitation. If this bill is enacted into law, I believe Californians will see an increase of at least $193.5 million in the state’s budget for corrections in the next two years if SB 40 becomes law. 

California’s Determinate Sentencing Law (DSL), held unconstitutional by Cunningham, restricts judicial discretion by requiring judges to impose the presumptive middle term of a statutorily defined triad of sentences, unless the judge finds aggregating or mitigating factors. DSL is ‘determinate’ because it specifies three fixed sentence terms rather than allowing discretionary parole release; it is ‘presumptive’ because it specifies that the middle term should be imposed unless aggravating or mitigating circumstances are found. SB 40 proposes to change DSL by allowing judges to choose any of the three sentences allowed under a DSL statute provided a reason is given for this choice. SB 40 p.3; proposed amendment to Penal Code Section 1170(3)(b). Thus, SB 40 would eliminate the presumptive element of DSL. 

Nationwide research demonstrates that presumptive sentence structures are effective at reducing the growth of prison populations. The highly esteemed Vera Institute of Justice recently conducted a comprehensive survey of state level sentencing and corrections polities implemented between 1975 and 2002 and assessed the impacts of sentencing policies on incarceration rates during that period. It concluded that “states with presumptive determinate guidelines systems are associated with lower growth in prison populations” while “advisory determinate guidelines systems are associated with higher growth in prison populations.” Stemler and Rengifo, Of Fragmentation and Ferment, The Impact of State Sentencing Policies on Incarceration Rates (August, 2005). Because SB 40 eliminates the presumptive structure of DSL and fails to restrain judicial discretion with any sort of advisory structure, the Vera Institute study indicates that SB 40 will cause overall growth of California’s prison population. 

Before adopting SB 40 the Appropriations Committee should look to the impact that sentencing policy choices resulting in increased prison populations in several other states. The failings of North Carolina’s Fair Sentencing Act (FSA) are illustrative. Like California’s DSL, North Carolina’s FSA established a triad of sentences and a presumption for the middle sentence. Unlike California’s DSL, the presumptive sentences in FSA “had no real power to control the sentences that judges selected, so long as they remained within the existing statutory maximum and minimum.” Wright, Counting the Cost of Sentencing in North Carolina, 29 Crime & Justice 39, 45 (2002). The judge could depart from the presumptive sentence duration so long as written reasons for the departure were given. N.C. Gen. Stat. sec 15A-1340.4. 

The resulting rapid growth of North Carolina’s prison population under the FSA should be a warning to California legislators. Under a non-presumptive system akin to the discretionary sentencing proposed by SB 40, North Carolina experienced a 53% growth in the number of aggravated sentences imposed over 10 years. Clarke, Felony Sentencing in North Carolina (1987). Studies later conducted with the benefit of hindsight concluded that replacing presumptive guidelines with judicial discretion caused the spike in prison population: “judges treated most cases as aggravated cases, and their sentences drifted away from the presumptive level.” Wright, at 46. The California Congress has an example in North Carolina of the overcrowding effects of implementing a sentencing scheme with no presumptive restraint on the duration of sentences imposed.

Using North Carolina’s experiment with non-presumptive sentencing as a model, Californians can expect SB 40 to result in a corrections budget increased by at least $193.5 million dollars over the next 2 years. These rising costs will be caused by an increase in the number of aggravated sentences imposed. In 2006, California judges imposed 10,000 aggravated sentences. Of these aggravated sentences, 6,000 were sentenced after trial or probation violation hearing rather than after a plea. SB 40 affects only the number of aggravated sentences imposed after trial or probation violation. The empirical data gathered in North Carolina indicates that SB 40 can result in 53% more aggravated sentences imposed. With per prisoner yearly costs of $43,000, the Appropriations Committee must consider whether the reasonably expected cost, $193.5

Million over the next two years, is justified by the benefit of a hastily constructed “temporary fix.” 

The sharp spike in prison populations and attendant costs likely to result from SB 40 are also consistent with empirical research from Washington. Addressing the U.S. Supreme Court’s invalidation of its sentencing laws in Blakley, the Washington’s Sentencing Guidelines Commission concluded that over the 14 years the state had used presumptive sentencing its prison population had increased by 61%, while the growth would have been 138% under advisory sentencing. Report of the Sentencing Guidelines Commission: Discretion under the Sentencing Reform Act and the Impact of Blakely v. Washington, at 16 (December, 2005). Applying Washington’s findings to SB 40, California could expect a 77% increase in prisoners serving maximum terms over the next 2 years costing the state over $200 million. 

Many states have made the wise choice of avoiding increased prison populations that invariably result from the abandonment of presumptive sentencing structures. In addition to North Carolina and Washington, Kansas, Minnesota, Oregon and Tennessee have addressed the unconstitutional judicial fact finding within their sentencing statutes by creating procedures for jury determination of aggravating circumstances rather than implementing the shift to judicial discretion found in SB 40. 

Of the two remedies to California’s constitutional quandary suggested in Cunningham, the most cost efficient solution is to retain the existing presumptive structure of DSL and simply require jury fact finding of aggravating circumstances. The vast majority of criminal cases are resolved by plea and would be unaffected by a shift to jury fact finding of aggravators. In sharp contrast, the vast majority of plead cases will be affected by the shift towards aggravated sentences that results from advisory sentencing. 

In those few cases that do go to trial, experience suggests that increased costs associated with jury fact finding of aggravators will be minimal. The trial “(possibly bifurcated) will be only minimally lengthened because the aggravator will be so closely connected with the current offense that proof does not require any new witnesses (e.g., victim vulnerability or use of a weapon) or because the aggravator is quickly proved with prison records (e.g., “on parole” or “numerous prior convictions”). Estimates from other states are one additional hour to litigate sentencing facts.” David Rabin, on the Feasibility of Jury Fact Finding on Aggravators, available at http:// Indeed, Washington assessed the increases in court time resulting from its shift to jury determination of aggravating facts at an average of only 2 hours per trial. Fiscal Note of SB 5477, at 3. 

In addition to the jump in prison population almost certain to result from SB 40, several other long-term costs should be weighed. Increasing inmate populations will exacerbate the overcrowding of California’s prisons. Prisoners in North Carolina successfully challenged the overcrowding that resulted from its abandonment of a presumptive sentencing structure as cruel and unusual punishment in violation of the Eighth Amendment, initiating federal oversight of prison reforms. Small v. Martin, No. 85-987- CRT, E.D.N.C., April 3, 1989). Pressured to effectuate prison reforms quickly, North Carolina was forced to release the vast majority of prisoners on misdemeanor or low level felony charges. Wright, at 52. Thus, the stability of the criminal justice system as a whole, and its deterrent effect in particular, are compromised by SB 40.

Beyond purely monetary considerations, I also urge the Assembly Appropriations Committee to oppose SB 40 due to the devastating effects that increased judicial discretion will have on minority defendants in the criminal justice system. Racial bias continues to riddle the American criminal justice system. The Boston Globe explains that racial bias in the criminal justice system, even if somewhat hidden and surreptitious, is a very real part of the process. California is no exception. Three quarters of men in prison are racial minorities: 38% are Latino, 29% are African American and 6% are of another race or ethnicity. The Public Policy Institute of California concluded that, “Adult African American men are seven times as likely as white men and 4.5 times as likely as Latino men to be incarcerated.” The Sentencing Project frames the reality for black men in America stating, “One of every three black males born today can expect to go to prison if current trends continue.” 

The chasm that separates the treatment between minority and white defendants has been thoroughly documented by agencies both tracking and widely publicizing a variety of criminal justice problems. The Human Rights Watch Report, “Racial Disparities in the Criminal Justice System,” found that when sentenced for drug offenses in state court, whites serve an average of 27 months while blacks serve an average of 46 months. Thus blacks and other minorities are more likely to receive aggravated sentences than their white counterparts. Racial disparities in the criminal justice system have become such the norm that would-be startling statistics regarding sentencing disparities between white defendants and minority defendants are oft times quickly passed over without a second glance. The ambivalence towards these disturbing trends by California leaders will only deplete the confidence of that all Californians vest in the criminal justice system. The Appropriations Committee should not pass legislation that has great potential for reinforcing racial disparities without first investigating the potential impact it will have on minority defendants.

Wide discretion leads to wide disparity. For over a decade academics have concluded less constrained judicial decision-making may lead to unjustifiable reliance on unstated biases in determining a defendant’s sentence. At least two legal scholars Albonetti (1991), and Steffensmeier et al. (1998) have described how judges, when equipped with limited information for assessing a defendant's criminal propensity, may act on their own preconceptions. Consequently, those defendants who possess undesirable extralegal characteristics such as lower social and economic status are sentenced more harshly. In conjunction with these finding, there is also evidence that suggests that minorities receive more severe sentences when they possess attributes that reinforce court actors' stereotypes of more dangerous offenders, such as being male and unemployed; in the same study employment status had no bearing on conviction for white men. “Evidence of harsher outcomes for African American and Hispanic defendants in general (relative to white Anglo defendants) has been offered by several scholars including Albonetti (1991, 1997), Holmes and Daudistel (1984), LaFree (1985), Kramer and Steffensmeier (1993), Myers and Talarico (1987), Nelson (1992), Spohn (1990), Steffensmeier and Demuth (2000), Steffensmeier et al. (1998), and Zatz (1985), among others.” 

In light of strong evidence showing that racial bias saturates the American criminal justice system from state to state to the detriment of minority defendants, the Appropriations Committee cannot ignore the strong probability that SB 40 will result in minority defendants receiving the highest sentence more often than white defendants without a sufficiently justifiable “reason”.

I implore the Appropriates Committee to reject SB 40 for its failure to provide an explicit standard of review that would narrow the “reason” judges may choose the aggravated sentence over the middle or lowest sentence. I strongly believe that SB 40 will prove to be financially devastating to California and will undermine the credibility of the criminal justice system in the eyes of minority defendants, and Californians generally. In the flurry following the Supreme Court’s decision in Cunningham, we understand the need for a quick resolution. However, it is also imperative that the state of California chooses that resolution wisely and with great care.

Very truly yours,

Jeff Adachi
Public Defender

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