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EQUAL LAWYER PROPOSAL IN DV CASES IRRITATES SOME ADVOCATES A task force pulled together by California Chief Justice Ronald George to improve the handling of domestic violence cases got plenty of praise during a public hearing in San Francisco last week. But there also were a few words of warning � particularly regarding a controversial proposal to ensure that accused batterers, as well as their victims, have lawyers to seek restraining orders. “Our personal experience,” said Susan Roberts, staff attorney for Richmond-based Bay Area Legal Aid, “is that when batterers have legal representation, they are more likely to use the process to perpetuate a pattern of abuse.” Beverly Upton, executive director of the San Francisco Domestic Violence Consortium, agreed, saying that the granting of mutual restraining orders “undermines the domestic violence victim’s faith in the system” and doesn’t provide that person meaningful protection. “It sends the message that the community did not believe them,” she said, “and that they are as guilty as the perpetrator.” But Julie Saffren, a solo practitioner who helped found San Jose’s Domestic Violence Limited Scope Representation Project, had a different view on the proposal. She told the task force that it is “not a satisfying legal victory” when she represents an alleged victim against a non-English-speaking defendant who has no lawyer. That kind of person, she said, leaves the courtroom bitter and more dangerous than ever. “We aim for family-centric orders,” Saffren said. Wednesday’s hearing in the Hiram W. Johnson State Office Building was the second this month for the task force, with the first taking place in Los Angeles. The group was seeking input from the public and legal experts on several proposals aimed at ensuring “fair and accessible justice” for all litigants in domestic violence cases. Last week’s hearing began with opening remarks by Laurence Kay, chairman of the task force and a former justice on the First District Court of Appeal, and by San Francisco Superior Court Presiding Judge David Ballati. Speakers included not only experts on domestic violence issues, but also prosecutors, family law attorneys, women’s advocates and judges. Besides discussing legal representation for alleged batterers, speakers at the morning session of the five-hour hearing also called on the task force to implement existing state laws on domestic violence and to beef up courthouse security. “San Francisco has done a lot [toward security],” Upton said, “but, as you know, funding in this area is scarce. We’re worried about having a homicide occur” in the courthouse.

Mike McKee

SENTENCING: COST V. MORALS As lawmakers and prison guards consider the role of the sentencing commission Gov. Arnold Schwarzenegger has proposed as part of his prison reform plan, academics are also chiming in on the debate. Stanford law professor Robert Weisberg says the mere existence of a state sentencing commission would be “revolutionary.” He presented his unfinished paper (.pdf), “How Sentencing Commissions Turned Out To Be a Good Idea,” to a group of law professors and students at Boalt Hall School of Law on Friday at a symposium hosted by the Berkeley Center for Criminal Justice. In December, Schwarzenegger asked lawmakers to create a 17-member commission that would evaluate the state’s sentencing laws, taking into account costs to the crowded prison system, and report to the Legislature annually with recommendations. For instance, it would analyze the possibility of shortening the state’s mandatory three-year parole period. While some conservatives have argued against shorter sentences, the idea of a commission has attracted some support from stakeholders because it would be independent from the political pressure that legislators face to appear tough on crime. California legislators don’t currently subject sentencing laws to a cost-benefit analysis because the criminal justice system is based on a sense of morality, Weisberg said at the symposium, adding that it needs “constitutional thinking” in a procedural sense. So the idea that the state sentencing commissions would be subject to cost considerations is novel. Harvard law professor Carol Steiker added that in the current criminal justice system, district attorneys and sentencing judges have incentives to “over-sentence.” Weisberg, who studied the history and outcome of existing state sentencing commissions, says in his paper that other states have come to a consensus that sentencing guidelines should not be considered permanent, that budgetary limits should be a key criterion for all decisions, and that commissions should avoid grand statements about purposes of punishment. Sentencing commissions “should have some leeway to experiment with rehabilitative measures,” he wrote. Although advocates disagree on whether the commission should be treated as an executive branch, an independent agency or a subset of the courts, they generally agree that the commission should be made up of some combination of all of them, Weisberg wrote. Offering examples of states illustrating “exemplary stories of correctional reform,” Weisberg points to North Carolina. Similar to California, North Carolina owes the 1990 creation of its sentencing commission to prison overcrowding. Today, Weisberg wrote, North Carolina has the second-lowest rate of incarceration in the South, and its crime rate dropped after 1993.

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