Jeff Adachi
2007-03-23 10:00:00.0
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SAN FRANCISCO -

When the United States Supreme Court recently declared California’s sentencing laws unconstitutional, it gave California legislators a golden opportunity to address its prison crisis, which has forced Gov. Arnold Schwarzenegger to send prisoners out of state and to seek $11 billion to build more prisons. Instead, the Legislature is moving quickly to pass a bill that will increase the number of state prisoners and raise the cost of incarcerating prisoners by millions of dollars.

Last January, the Supreme Court ruled that a jury must decide any sentencing factor used to sentence a person to a maximum term. The Court said the Legislature could cure this problem by requiring prosecutors to prove sentencing factors at trial or by giving a judge the power to sentence within a range of possible sentences.

At the request of Los Angeles prosecutors, state Sen. Gloria Romero adopted the second approach in introducing Senate bill 40. This bill gives judges complete power to sentence criminal defendants to maximum terms without requiring a jury to find any sentencing factors. SB 40 is now before the Assembly Appropriations Committee and will take effect immediately if passed.

At first glance, SB 40 looks like a good old law-and-order solution: Why not give maximum sentences to convicted felons? But SB 40 is a wolf in sheep’s clothing. By making it easier for judges to increase sentences, it will vastly increase the length of sentences and, therefore, the cost of incarcerating prisoners. A recent study by the Vera Institute of Justice of prisons in all states over the past 25 years found that sentencing systems similar to SB 40 “are associated with higher growth in prison populations,” with some states experiencing a 50-61 percent increase in their imprisonment rates.

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, that 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. Thus, if California experiences a 50 percent increase in its imprisonment rates, this would increase incarceration costs by $130 million annually.

SB 40 will also unfairly impact ethnic minorities. Numerous studies, both national and statewide, have shown that African-American and Latinos are more likely to receive maximum sentences than their white counterparts. Whites 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.

State Sen. Romero has argued that SB40 is needed “to avoid chaos” in California’s criminal justice system. But her claim is seriously undercut by the fact that less than 2 percent of cases go to a jury trial. Criminal cases resolved by plea bargain are unaffected by the Supreme Court’s decision, since a person who pleads guilty waives these protections.

Sen. Romero also 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. Despite this evidence, SB-40 passed this week in the Assembly Public Safety committee by a vote of 5-2.

And there’s a real risk that SB 40 may be later found unconstitutional. According to Stanford constitutional law professor Jeffrey Fisher, SB 40’s solution works only when judges are given a wide sentencing range, which is not true of California’s current sentencing scheme. This could require that hundreds of cases be retried.

The Legislature should not act hastily to make a decision 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.

Jeff Adachi is the public defender of San Francisco.