Prison Crisis Deepens as SB40 Tramples the 6th Amendment
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 25, 2007

I must have a thousand emails asking me what happened to SB40 during the Assembly Appropriations Committee hearing on March 22, 2007.

You can watch it for yourself on the California Channel, the statewide television network that covers many of the hearings. The first seven minutes are of the meeting room, so use your slider to skip that part, it's about 35 jam-packed minutes long.

I strongly advise you to tune in and to share this with others because every American should witness many of our legislators' total disregard for the 6th Amendment of the US Constitution. Go to, click on Webcast, click on search archives, select Assembly, select Committee, enter the date like this 032207, select March and then submit, it will come up as a link on the bottom of the page.

As you can see, San Francisco Public Defender Jeff Adachi fought hard with an excellent presentation, the California Attorneys for Criminal Justice tried to stop this terrible bill and I was there as well, the last person to testify before Senator Romero's closing remarks.

I have been advised that the bill that gives judges even more power to sentence without facts found by a jury to be true will go to the Assembly floor for a vote as soon as this Monday, it may make another round for a Senate vote since parts of it were amended. Then it goes to the Governor's desk for a signature. 

The legislature should give a proposal this important more time and consideration but that is clearly not going to happen.

What can you do to help stop this threat?

Bombard your Assemblymember and Senator with emails, faxes and phone calls. Their contact information is here: 

The Governor needs to hear from thousands of people as he is very certain that the public would be showing up to these hearings if they gave a hoot. Silence is a very definite action that is a form of consent and there has been too much silence from our side. 

Contact the Governor:

Governor's Office
Governor Arnold Schwarzenegger
State Capitol Building
Sacramento, CA 95814
Phone: 916-445-2841
Fax: 916-445-4633

To send an Email please visit: 

You will note that during the hearing, comments are made to empower the judges as if they can be fully trusted to substitute a jury.

It appears that the public outcry over judicial corruption, over-sentencing and abuse hasn't been loud enough. For heaven's sake, if these judges are so bright, why did the Supreme Court find that they have been unconstitutionally sentencing people for 30 years! Why didn't they find that themselves? And why did they cooperate with the conveyor belt laws to overfill the prisons to a crisis level? 

Trust the judges to substitute a jury's findings? Our forefathers would spin in their graves if they could have been at this hearing and heard these remarks.

I am not one to urge contacting politicians under normal circumstances because a good majority of them were put into office by law enforcement labor unions and their votes are purchased by them, so they have pre-formed opinions that you can't sway. But in this case where we have 35 new faces in the legislature, let us give them the benefit of the doubt and not be a part of the dysfunction by failing to communicate.

In my opinion there should be a new trial for everyone who falls under the unconstitutional sentencing but we are going to have to fight for it, as the hearing will reveal, the legislators do not want to be bothered with hearing cases or actually doing anything about all the people rotting in prison, even though we are in an overcrowding crisis. Nobody can give the prisoners two years of their lives back and as you can see there is no conscience or inclination to hear these cases at all. Assemblymember Mark Leno took a brave stance with a "NO" vote, the others are trusting the judges are going to be called into accountability by Appellate courts. How often does that ever happen?

How ridiculous to think that would be an actual "control" over a judiciary already operating out of control.

Here's the letter for you to revise into your own words, surely you value the 6th Amendment's guaranteed right to a trial by jury. Use you Senator or Assemblymember's name in the Salutation and remember how they voted on this one.

March 24, 2007 

Senator or Assemblymember

Dear Senator or Assemblymember: 

Please allow me to share my thoughts with regarding SB40. I am staunchly opposed to this bill as it is simply sidestepping the Cunningham decision and I am asking you to vote against it. The 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, SB40 gives the sole power to judges to sentence criminal defendants to maximum terms without requiring a jury to find any sentencing factors. I would like to include some facts for your consideration. 

Senator Gloria. Romero, who authored this bill, 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. 

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. 

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 SB40 passes, increased costs of incarceration would be $130 million annually. 

Lastly, I would like to ask what happened 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. If we allow laws to whittle away at the rights of our citizens because “the courts will be chaos”, then it is guaranteed the courts will 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. 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 the job they have done. This kind of emotion has no place in our justice system and must be stopped. 

Legislators must not act hastily or emotionally to vote for a 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. 

Sincerely yours, 

There are a number of horrendous bills proposed this session, which makes me doubt the sincerity of the claims of an all new, improved prison guard's union since their endorsed officials are proposing the worst ones. I'll believe it when the life and death appeals for help stop filling my inbox and I see resolution to some of these abuses and medical neglect.

We cannot have enough writers, recruiters and protesters in our UNION, please sign up for my daily newsletter so that I can teach you how, where, when to fight back and you can do your share of standing up for your rights. I was amazed at the poor turn out for the hearing which the legislators always interpret as support for the bill. Opposition in the form of crowds at the Capitol is a requisite or we lose by default.

Sometimes just being in the audience is support enough when something as important as giving the judges more power and preserving the 6th amendment is on the table. Please alert others and take some definite action on this one. Unfortunately, passing email alone is not a fully effective campaign. More than that is required. Those who oppress you are very adept at manipulating the system, writing to editors, showing up en masse at important hearings, electing their own people to office by bringing busloads to vote at the polls and always bringing more people into their groups. You can do the same, if you value liberty.

Rev. B. Cayenne Bird
P.O. Box 340371
Sacramento, Ca. 95834 

"Ignorance and apathy of the people rule governments.

Knowledge is power. Knowledge comes from reading newspapers,

not from getting your news from television alone"

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