What is an “Arbuckle Waiver”? A defense lawyer explains

In California, an Arbuckle Waiver is when you forego the right to have the same judge who accepted your plea bargain also handle your sentencing hearing. You have the right to have the same judge for both stages of the process. You waive that right with an Arbuckle Waiver. The name comes from a California Supreme Court case.

What is an Arbuckle Waiver in California?

An Arbuckle Waiver is a waiver of your right to have the same judge who accepted your plea bargain to also impose your sentence. The judge must have retained sentencing discretion under the terms of your plea deal for the rights to be triggered.

In 1978, in the case People v. Arbuckle, the California Supreme Court recognized the general principle that you have a right to have the sentencing judge be the same judge that accepted your plea deal, so long as the trial court judge retained sentencing discretion pursuant to your plea agreement. The California Supreme Court recognized that the identity of the sentencing judge was a significant factor in your decision to plead guilty to a crime, even if it was just a misdemeanor. If the judge who accepted your plea bargain retained sentencing discretion, this became an implied term in the plea agreement. You have a contractual right to enforce that implied term of the agreement.¹

However, you can choose to waive this right to have the same judge at both proceedings. Doing so is called an Arbuckle Waiver. If you make an Arbuckle Waiver, you will be sentenced for the criminal charges by a different trial judge than the one that received your guilty plea.

It is up to the prosecutor to prove that you knowingly and intelligently waived your right to be sentenced by the same judge.²

What happens if my Arbuckle rights are violated?

If you make a plea of guilty or a no-contest plea and the judge who receives that agreement retains sentencing discretion, but then a different judge sentences you, that would violate your Arbuckle rights. If this happens, you can:

• enforce your Arbuckle rights and demand to be sentenced by the judge that accepted your plea deal,
• file an Arbuckle Waiver, or
• withdraw the plea deal.³

Violations of Arbuckle rights are common in large courthouses with lots of judges. If a judge is reassigned, goes on leave, or retires between your plea agreement and your sentencing hearing, it can impact your Arbuckle rights. When this happens, you can file an Arbuckle Waiver or take back your plea deal. This would advance the criminal case past the arraignment and closer to the jury trial.

Why do I have a right to the same judge?

In California, your Arbuckle rights come from the fact that judges are given a lot of discretion in a sentencing hearing. They make important decisions about:

• how long you will be held in county jail or state prison,
• the amount of fines that you will have to pay,
• when you will be eligible for early release, and
• the length and rules of your probation.

Because of this discretion, different judges have reputations for imposing relatively harsh or relatively lenient sentences. The identity of the judge at the sentencing hearing matters a lot. You may choose to plead guilty in order to get the judge accepting the plea to stay on the case for sentencing, as well.

In Arbuckle, the California Supreme Court recognized that it would be unfair for a new judge to sentence you if you expected and relied upon being sentenced by the same judge that took your plea agreement.⁴

Protecting this expectation also incentivizes you into taking plea deals, expediting your case, and saving resources in the criminal justice system.⁵

When do I have to raise this right?

If you are a criminal defendant in California, you do not have to raise your Arbuckle rights. They are an implied term in the plea agreement. They are valid unless you waive them. It is up to the prosecutor to show that you made an Arbuckle Waiver. Even if you do not affirmatively invoke your Arbuckle rights, they are not forfeited.⁶

Additional reading

For more in-depth information, refer to these scholarly articles:

• Why Sentencing by a Judge Satisfies the Right to Jury Trial: A Comparative Law Look at Blakely and Booker – McGeorge Law Review.
• When Process Affects Punishment: Differences in Sentences after Guilty Plea, Bench Trial, and Jury Trial in Five Guidelines States – Columbia Law Review.
• The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges – George Washington Law Review.
• The Sentencing Views of Yet Another Judge – Georgetown Law Journal.
• Sentencing: The Judge’s Problem – Federal Probation.

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