Brown: Sentencing ruling "golden opportunity
California Attorney General Jerry Brown
By Julia Cheever, Bay City News Service
January 23, 2007
California Attorney General Jerry Brown said Monday that a U.S.
Supreme Court ruling
striking down the state's determinate sentencing law could affect
thousands of inmates who may seek resentencing.
At the same time, Brown said, the ruling opens a "golden
opportunity" for the California legislature to re-examine
Brown said, "This is a golden opportunity for the Legislature
to take a hard look at the criminal sentencing system and the
prison system as well."
The high court said by a 6-3 vote that California's system of
allowing trial judges to increase sentences is unconstitutional
because it violates defendants' Sixth Amendment right to a jury
The ruling was made in the case of former Richmond police officer
John Cunningham of San Pablo, who was convicted of sexually abusing
his son and sentenced to 16 years in prison.
The 30-year-old determinate sentencing law sets a lower, middle
and upper term for most felony crimes. Judges are required to
impose the middle term unless they determine that aggravating
or mitigating circumstances justify the lower or upper penalty.
The terms for Cunningham's conviction for continuous sexual abuse
of a child were six, 12 or 16 years in prison.
A Contra Costa County Superior Court trial judge sentenced him
to the upper term after concluding there were aggravating circumstances,
including the boy's vulnerability.
The Supreme Court based its decision on previous rulings in 2004
and 2005 in which it struck down Washington state and federal
sentencing schemes that allowed judges to decide to increase sentences.
Justice Ruth Bader Ginsburg wrote, "Because the determinate
sentencing law authorizes the judge, not the jury, to find the
facts permitting an upper term sentence, the system cannot withstand
measurement against our Sixth Amendment precedent."
The court said it was up to California to decide how to adjust
its sentencing system, but noted that one option is to allow juries
to decide whether a sentence should be increased.
Brown said he is considering asking the California Supreme Court
to construe the law as giving judges discretion in a way that
meets constitutional standards without requiring jury decisions
on sentencing circumstances.
In the meantime, he said, inmates sentenced to upper terms who
are seeking resentencing could either be given a jury proceeding
for resentencing or be sentenced to the middle term.
David LaBahn, executive director of the California District Attorneys
Association, estimated that the ruling will affect about 5 percent
of state prisoners. He noted that more than 90 percent of inmates
are in prison as a result of plea agreements.
LaBahn said his organization plans to ask the Legislature to
change the law to allow judges to impose any of the three terms
without requiring a finding of aggravating or mitigating circumstances.
Stanford University Law School professor Jeffrey Fisher said,
"I think it's good that the court has stood its ground in
terms of the jury trial right and that California will take a
fresh look at its sentencing system."
Fisher wrote a friend-of-the-court brief in the case for the
National Association of Criminal Defense Attorneys.
Peter Gold, Cunningham's lawyer in the appeal, said he expects
Cunningham, who is now serving his sentence, to be resentenced
in Contra Costa County Superior Court.
Gold said, "I am very happy the opinion strongly reaffirms"
the high court's precedent in the previous sentencing cases.
California's determinate sentencing law, enacted in 1977, was
intended to reform the state's previous indeterminate sentencing,
in which judges gave open-ended prison terms and the state parole
board determined when a convict would be released.
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