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DUI sentences should be different

I have been asked by numerous people to explain the sentencing in People v. Buffington.

Let me begin by suggesting it certainly was unfortunate, and somewhat disturbing, that the district attorney’s office chose a strategy of trying to compare my client’s case to another driving-under-the-influence case. Such comparisons, made out of context, certainly beg the question of how does this happen?

There is no real answer that analysis can provide. As a trial lawyer for many years, I wish I had a nickel for every time I started discussing the likely sentencing outcome with a client, only to be asked, “Yeah, but my cousin had a case just like this and he got…” The simple truth is that every case is different.



To begin with, in the late 1970s California switched from an indeterminate criminal sentencing scheme to determinate sentencing. Under indeterminate systems, the length of the sentence was almost entirely within the discretion of the judge or the parole board. It was the parole board which typically had broad power to decide when to release a prisoner since the sentence imposed was open ended. When such sentencing schemes were vogue, they were criticized for producing unfair disparities, including income or race-based differences in the punishment of similarly situated defendants.

To correct the injustices created by such vagaries, California law changed to reflect consistent sentencing guidelines. This gave sentencing judges guidelines so that a particular defendant and crime committed in one area would be sentenced the same as the same defendant and crime committed in another. However, noble this goal, societal value of determinate sentencing is sometimes very difficult to apply. It might be cliche, but oftentimes true, no two crimes are alike just as no two people are alike and what at first blush appears the same crime, upon closer inspection is really quite different.




That is why comparisons, such as those made between the Buffington case and another local case, by using only a few relevant facts of another case, don’t work. If such an approach was adopted by the court, the sentence argued for was then based upon the few facts which constituted DUI with injury, without consideration of any other factors, in contravention of considerations currently recognized under California law. To allow otherwise, would suggest that the sentence for DUI with injury would carry a single sentence — say 10 years imprisonment. Thus under this approach, every person convicted of DUI with injury, including Mr. Buffington, would receive that sentence. Such a system, while assuring uniformity would exact an intolerable societal cost.

Such simple determinate sentencing arguments would lead to identical punishments on people who committed their crimes in very different ways or stand before the court with different life experiences. When individual defendants who committed dramatically different conduct end up being punished the same way, an injustice has taken place.

Hence, under California’s sentencing guidelines the court is given approximately 20 factors which apply, not only to the nature of the crime but also to the individual defendant. These factors are used in determining whether an eligible defendant should be granted or denied probation and if prison is to be imposed considering factors in mitigation or aggravation which justify either a lower or upper prison term. Of course, there are certain cases where the judge has no discretion as certain crimes or defendants are exempt from probation or receiving a determinate prison term such as under the “three strikes” law.

In our fast-food-one-size-fits-all society, we must be careful of determinate sentencing, which has the virtue of treating like cases alike, but can also fail to treat different cases differently.

Another undesired consequence of sentencing guidelines, both state and federal, which are established by the Legislature, is that they take away the discretion and limit the independence of the judiciary. The problem is not too much disparity, but rather excessive uniformity. Our judges work very hard to avoid sentencing individuals on an assembly line or “cookie cutter” fashion.

Perhaps, in the end, justice is best served, not by the old indeterminate sentences with its unfettered discretion, or the pure determinate approach which limits judicial discretion. Instead we should seek judges who take the time to listen and reflect, not be swayed by passion or prejudice and ultimately bring their humanity to the bench in using the sentencing guidelines. To the judge’s credit, that is exactly what happened during Mr. Buffington’s sentencing.

ooo

D. Michael Phillips is an attorney for Diamond Baker Phillips & Walters LLP in Nevada City. He represented drunken driver Leland Buffington.


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