Judicial Sentencing Authority

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The lack of inherent judicial power over sentencing is a logical product of our system of checks and balances

By Alex Ricciardulli

Ricciardulli

Mandatory sentencing laws have been an anathema to judges in California for more than 50 years. Judges have traditionally believed that “mandatory, arbitrary or rigid sentencing procedures invariably lead to unjust results. Society receives maximum protection when the penalty, treatment or disposition of the offender is tailored to the individual case. Only the trial judge has the knowledge, ability and tools at hand to properly individualize the treatment of the offender.” (People v. Williams, 30 Cal.3d 470, 482 (1981).)

Nonetheless, judges in both state and federal courts have now firmly accepted that they have no inherent authority to deviate from mandatory sentencing laws. As much as they may dislike them, judges are obligated to follow the law, even if it means imposing punishment that they personally feel is unjust. (Both the United States and California Supreme Courts have now established that judges enjoy no inherent power to deviate from maximum or minimum sentences. (Mistretta v. United States, 488 U.S. 361, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989); People v. Tanner, 24 Cal.3d 514 (1979).)

To be sure, a judge is not obligated to impose a sentence that violates the constitution’s bar against cruel and unusual punishment. But the constitution only bars punishments that are grossly disproportionate to an offense, meaning that harsh sentences such as California’s Three Strikes law have been held to be valid. (See Ewing v. California, 538 U.S. 11, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003).)

Many would be surprised to hear that the nonexistence of inherent judicial authority over sentencing was not always agreed upon. California courts briefly indicated that inherent judicial authority over sentencing did exist, but have since completely refuted such a notion.

This article charts the rise and demise of inherent judicial authority in California sentencing. As will be seen, judges gradually shifted the source of their discretion from inherent constitutional power to statutes, namely, California Penal Code 1385. This left them vulnerable to the legislature’s tinkering or outright elimination of their power, which is precisely what happened in several contexts. Although grumbling over mandatory sentences persists, inherent power to decrease sentences is no longer accepted by anyone as a valid answer to ensuring that the time fits the crime.

The birth of inherent power

In California before the 1950s, if a defendant was convicted of possessing drugs, he or she could be sentenced to probation or prison. The law was not mandatory because by sentencing a defendant to probation, the judge could thereby avoid prison. (If the judge did not sentence the defendant to prison, he could impose up to one year in county jail as a condition of probation. (Id.) However, in 1953 the law was amended to bar the judge from sentencing a defendant to probation when he committed a drug offense and had a prior conviction for a drug crime. (Health & Saf. Code, §11712, stats. 1957.)

The issue whether the 1953 no-probation law was valid came to the California Supreme Court in People v. Burke. The Supreme Court held that despite the mandatory nature of the no-probation statute, a judge had power to give a defendant probation.

Burke ruled that judges in California had the statutory power to dismiss cases “in furtherance of justice” under Penal Code §1385. (Penal Code, §1385 provided then, as it does now in pertinent part, that a judge can, “either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed.”) Burke reasoned that this authority allowed the judge to dismiss a prior that precluded probation, and sentence the defendant as if he did not have the prior. (People v. Burke, supra, 47 Cal.2d 45, 47.)

Most importantly, the Supreme Court also found that the no-probation drug law could not constitutionally deprive a court of the power to strike or dismiss an enhancement to impose an appropriate sentence. In Burke’s view, the courts have “constitutionally vested judicial power” to “prescribe the sentence which must be imposed,” and “[s]uch adjudication and judicial determination are inherently and essentially the province of the court.” (Id., at 52.)

Burke’s second ground was truly radical: it amounted to a claim that once a defendant is convicted of a crime, the appropriate sentence is a matter which a judge alone is free to determine, regardless of any restrictions imposed by the legislature. 

The beginning of the end of inherent power

What Burke gave to judges, the same court just a few years later took away from them in 1962 in People v. Sidener. (People v. Sidener, 58 Cal.2d 645 (1962).) Sidener involved a statute, almost identical to the one considered in Burke, that barred a judge from sentencing a defendant to probation if he was convicted of a drug crime with a prior conviction for a drug offense. (Health & Saf. Code, §11715.6, stats. 1959.) The only way to avoid a prison sentence was if the prosecutor moved to dismiss the prior. (Health & Saf. Code, §11718, stats.1959.)

The statute at issue in Sidener was enacted in response to the failure of the previous ratcheting-up of laws aimed at stemming drug abuse. The general perception was that courts had a hand in the laws’ failings. The public blamed the judges, and the legislature enacted the stringent Sidener statute. (See Donald R. Wright, The Role of the Judiciary, 60 CAL. L. REV. 1262, 1267 (1972).)

The Supreme Court rejected Burke and its holding that judges have inherent power to sentence defendants. (People v. Sidener, supra, 58 Cal.2d, 647.) Sidener held that judges’ power could be conditioned on the prosecutor’s agreement to a sentence. A judge’s power to individualize a sentence was dealt a sharp blow by the Supreme Court. Sidener stated that, “a court may feel that the punishment prescribed by the legislature for a recidivist narcotics offender is too severe or that by dismissing one or more charges punishment can be imposed that would better serve to rehabilitate him. To dismiss the charges . . . however, would be a flagrant usurpation of legislative power and an arrogant affectation of wisdom in the matter of punishment and rehabilitation superior to that of the legislature.” (Id., at 650.)

Restoration of power, but not inherent

Judges’ power was restored in 1970 when the California Supreme Court decided People v. Tenorio. (People v. Tenorio, 3 Cal.3d 89 (1970).) Tenorio overruled Sidener, and held that the no-probation statute for recidivist drug offenders was unconstitutional because it violated the separation of powers doctrine by conditioning judicial power on the prosecution’s consent. (Id., at 95.) Nonetheless, gone from Tenorio was all mention of judges having “inherent power” to sentence defendants despite legislative limitations.  Tenorio found that the sole source of judges’ power was Penal Code §1385.           

Nine years later, People v. Tanner cemented the epitaph of inherent judicial authority over sentencing. The case concerned whether judges had any power to sentence defendants to probation when they committed a crime using a firearm. The California Supreme Court upheld the mandatory law known as “use-a-gun, go-to-prison.” (Penal Code, §1203.06.) Tanner expressly held that judges had no “inherent” power to ignore legislative restrictions: “We reject any contention that courts are inherently or constitutionally vested with ultimate authority in fixing sentences or imposing penalty-enhancing factors for conduct made criminal by legislative enactment. Subject to the constitutional prohibition against cruel and unusual punishment, the power to define crimes and fix penalties is vested exclusively in the legislative branch . . . The function of the courts is to determine the guilt or innocence of an accused. What disposition may thereafter be made by way of penalty is for the legislature to determine.” (People v. Tanner, supra, 23 Cal.3d, 519, fn. 3.)

Gone with one stroke of the pen was any residual notion that judges’ power could not be eliminated by statutes. (Tanner also found that the legislature, in enacting the “use-a-gun, go-to-prison” law, had impliedly stripped judges in this particular situation of the power to strike in furtherance of justice under Penal Code §1385. Id., at pp. 520-521.)

The ephemeral nature of judicial authority to deviate from sentences was vividly illustrated by the experience with five-year priors. When a defendant commits a “serious felony,” he must be sentenced to an additional five years in prison for every “serious felony” he has on his record. (“Serious felonies” include ones where a defendant uses a gun, but also include non-weapons offenses like selling drugs to minors. See §1192.7, subd. (c)(8), (24).) The California Supreme Court in 1985 held that judges could dismiss these priors and avoid the five-year enhancement, not due to inherent authority, but because Penal Code §1385 permitted this action. (People v. Fritz, 40 Cal.3d 227 (1985).) A mere seven months later, the legislature amended §1385 to explicitly eradicate the power. (Penal Code §1385, subd. (b).) A subsequent challenge upheld the constitutionality of wiping out the judges’ power. (People v. Valencia, 207 Cal.App.3d 1042, 1045 (1989).)

Even judges’ most recent victory in being able to dismiss priors under the Three Strikes law in Romero was based only on an interpretation of the Section 1385 statute, not inherent constitutional authority. (See People v. Superior Court (Romero), 13 Cal.4th 497, 524 (1996).) Although the legislature has not moved to abrogate the power to dismiss strikes, it is certainly free to do so.

The moral of the story

The short appearance of inherent judicial discretion can be explained as a response to the early salvos of the War on Drugs. Scholars have explained that judges were driven by their antipathy to mandatory sentencing for drug offenders. (Preble Stolz, Judging The Judges, The Investigation of Rose Bird and the California Supreme Court, 227 (Free Press 1981).)

From 1956 to 1970, judges experimented with ways to avoid these mandatory sentences, eventually settling upon Penal Code §1385 as the sole source of their authority. The lack of inherent judicial authority on current practice is plain enough: other than cruel and unusual punishment, judges’ power over sentencing is completely beholden to shifting political winds.

When the legislature exponentially increased punishment for using a firearm in the “10-20-life” law, it explicitly provided that the judges were to have no power to ignore the law’s penalties. The restriction was upheld; judges have no power to avoid this enhancement. (People v. Zepeda, 87 Cal.App.4th 1183, 1213-1215 (2001).)

The absence of inherent power was also harshly felt in the battle over whether to allow defendants to participate in treatment under Proposition 36, California’s Drug Initiative. (Penal Code, §1210, et seq.) Proposition 36 bars judges from providing drug treatment under its provisions when a defendant was previously convicted of a “strike” prior and failed to satisfy a five-year “washout” period. (Penal Code, §1210.1, subd. (b)(1).) Assuming that a defendant is disqualified due to a “strike” prior, but the judge nonetheless believes that there is sufficient mitigation to warrant participation in a treatment program, what can the judge do?

Reaffirming the lack of inherent sentencing discretion, the California Supreme Court found in In re Varnell that the judge is powerless to order participation in a Proposition 36 program in this situation, regardless of how many mitigating factors may favor this result. (In re Varnell, 30 Cal.4th 1132 (2003).) The Supreme Court held that neither §1385 nor any other power allows judges to dismiss “strikes” to sentence defendants to treatment under Proposition 36.

The lack of inherent judicial power over sentencing is a logical product of the checks and balances that are the bedrock of American government. Judges may often believe that they know better than the legislature regarding what type of punishment or treatment is best for the defendant in their courtroom. Yet, allowing judges to individualize sentences in defiance of the strictures and limits imposed by elected representatives would encroach upon the legislative function to lay down the law.

Providing judges with inherent power to depart from sentences would invariably lead to disparities in punishment. Two defendants committing the same type of crime with the same criminal record could receive vastly different sentences based on nothing more than the predilection of the judge before whom they appeared.

Given the undesirable consequences that would ensue if judges were allowed to deviate from sentences based on their own conceptions of “justice,” it is just as well that California has put its experiment with inherent judicial sentencing authority long behind it.

• Alex Ricciardulli is a Los Angeles County deputy public defender.

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Self-assessment test

Answer the following true-false statements after reading the MCLE article on Rule of Professional Conduct 2-100. Use the answer form provided to send the test, along with a $20 processing fee, to the State Bar. If you do not receive your certificate within four weeks, call 415-538-2504.

1. When a judge concludes that a sentence is unconstitutionally “grossly disproportionate” to the defendant’s crime, the judge does not have to impose the sentence.
2. There is currently a split of authority between state and federal authorities regarding whether judges have inherent judicial authority to not impose mandatory punishment that a judge believes is unjust.
3. Under California law before 1950, judges were required to sentence defendants convicted of possessing drugs to state prison.
4. The California Supreme Court in People v. Burke rested its holding, in part, on judges having inherent authority to deviate from sentences judges find unjust.
5. In People v. Sidener, the California Supreme Court held that it was permissible to allow judges to grant defendants probation and avoid prison only when the prosecution agreed this was an appropriate result.
6. The statute that increased punishment for recidivist drug offenders at issue in Sidener was enacted due to reasons completely unrelated to judges’ use of discretion in avoiding prison sentences for drug addicts.
7.   Sidener rejected that judges had any inherent authority to deviate from mandatory sentences.
8. The California Supreme Court in People v. Tenorio disagreed with Sidener that judges’ power can be conditioned on the prosecution’s agreement to a sentence, holding that judges have inherent judicial authority to deviate from mandatory sentencing laws.
9. Judges have the power to dismiss prior convictions like the ones in Sidener and Tenorio, which would otherwise require that defendants be sentenced to prison, in furtherance of justice under Penal Code §1385.
10. Subject to the constitutional ban on cruel and unusual punishment, it has been held that a judge has no power to give a defendant probation under the “use-a-gun, go-to-prison” law.
11. In ruling that judges had no power to avoid prison sentences under the “use-a-gun, go-to-prison” law, the California Supreme Court held that judges’ power under Penal Code §1385 could never be used to avoid sentences set forth by the legislature.
12. The five-year priors law includes as priors only serious felonies where a defendant uses a gun.
13. Because five-year priors include priors for crimes other than using a gun, the legislature’s attempt to bar judges’ dismissal of priors in furtherance of justice under Penal Code §1385 has been held to be unconstitutional.
14. Judges have the power to dismiss “strike” priors in furtherance of justice under Penal Code §1385, but not due to inherent judicial authority over sentencing.
15. Judges resorted to inherent judicial power over sentencing in the 1950s and ’60s as a way of avoiding mandatory sentences that they found were inappropriately being used on drug offenders.
16. By 1970, judges concluded that other than the constitutional bar to cruel and unusual punishment, the only source of power to deviate from sentences is by acting under Penal Code §1385.
17. Although the legislature greatly increased punishment for using a firearm under the “10-20-life” law, it explicitly provided that the judges had the power to not impose the added penalties when the judges concluded that it would be in furtherance of justice under Penal Code §1385.
18. Under California’s Drug Treatment Initiative, Proposition 36, a defendant who commits a drug possession offense must be given drug treatment instead of incarceration, and, once treatment is completed, permits a judge to erase the arrest and conviction from the defendant’s record.
19. Defendants who have any “strike” priors on their record are categorically excluded from participating in Proposition 36 drug treatment.
20. If a defendant is disqualified from Proposition 36 due to a non-washed-out “strike” prior, the judge nonetheless can sentence him to drug treatment under Proposition 36 if he or she concludes that there is sufficient mitigation to warrant participation in a program.