it’s always an abuse of discretion

The AG routinely overstates the abuse of discretion standard of review. In fact, I actually write in my briefs now, as a matter of course, that they are trying to water down the standard. Yes, the standard is deferential. But, I now argue that anytime the court violates the law–such as by deciding something falls within a hearsay exception when it doesn’t–that is per se abuse of discretion.

Now that courts have discretion to strike all these enhancements that they never had before, I am raising abuse of discretion sentencing issues all the time. I think when I first became a lawyer I would dismiss these types of arguments–of course I’m not going to win an abuse of discretion on a Romero, for example. That might be true. However, the abuse of discretion on sentencing issues is my new favorite thing to write. Most importantly, it makes our clients feel good. We can spend page after page (and oh yes I do) talking about how wonderful they are, how the crime wasn’t bad at all, how much hope we should have for their future, and how their conduct can be explained when considering their life circumstances. I cite studies on why it is understandable that they found themselves where they did, which I use over and over because — newsflash—our clients always have the same circumstances from incarcerated parents, to abuse, to addiction, to mental health issues. When the issue is abuse of discretion for declining to strike a five-year enhancement (e.g.), I cite studies on how lengthier sentences, especially three strike sentences, actually increase recidivism for those convicted of violent crimes. And then, I go through every single sentencing factor and the sentencing objectives to show how the court abused its discretion. (For samples, email:

Of course, the AG always argues that I’m asking the court to reweigh the sentencing factors. Because that’s how they view abuse of discretion. I say of course I’m not asking the court of appeal to reweigh anything. I’m asking that the court look at the law on when striking an enhancement might be appropriate; the law on what the objectives in sentencing are…to determine whether the trial court essentially misapplied the law by finding that the sentencing objectives were furthered by a ridiculously lengthy sentence.

Spoiler alert: I’ve never won one of these arguments. And, i’ve had some very sympathetic cases (all of my cases are sympathetic.) But, I’m going to make this argument until the day I die. Arguing mitigation is one of the biggest things that I miss about being a PD. It’s one of the only arguments we can make to humanize our clients and contextualize their mistakes. In my book, forget discretion, it is abuse of power to take someone’s liberty despite knowing what I know…and if the AG and the COA didn’t know, they sure as hell will after they read what I got to say.

Published by Jenny Brandt

About Me: sociology, african american studies, chicano/a studies, critical race studies, and criminal law scholar. public school kid from kindergarten-J.D. Former public defender. I am a post-conviction guru. Appeals. Sentencing. Withdraw Pleas. Habeas. Published author in the Criminal Law Bulletin and California Defender. "I do it for the joy it brings, because I'm a joyful girl, because the world owes me nothing, and we owe each other the world." Why I started JJC: My PD buddy suggested it. What and who JJC is inspired by: public defenders I have worked for, with, and next to. my clients who have battled things no one should and are still here. innocence and guilt and everything in between. My coworkers, who fight just as hard as the PDs I love, for many of the same reasons. My husband who was once voted "most Christ like" (every Jewish girl's dream). My Corgi who loves everyone. The constitution. Tabloids. My mom, for giving me a voice. My dad, for teaching me what to say. My brother, for teaching me how to say it.

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