Stanford Report and Recommendations Show Need for a Sentencing Commission in California to Complete Reform Already Under Way

• While changes in our sentencing system will help to resolve California’s prison overcrowding situation, the sentencing system is itself flawed and in need of repair;

• Sentencing commissions can help a state collect and analyze sentencing data, promulgate sound sentencing policies, develop and implement effective risk-needs assessment tools, and ensure that sentencing laws take into account fiscal limitations;

• In states that have created sentencing commissions, the commissions work in tandem with the state legislatures, within the boundaries of their legislative mandates, and legislators view the commissions as partners in sentencing policy development;

• Sentencing commissions, even those with binding authority to promulgate sentencing rules, are democratic to the extent that they are open and transparent to the public;

• A California sentencing commission should be required to comment on the benefits and consequences of proposed public initiatives so that the public can be better informed about the effects of the sentencing policies they are asked to vote on;

• California lacks a coherent sentencing philosophy; and

• A California sentencing commission would be helpful in structuring sentencing policy to comply with state and federal constitutional mandates.

Opponents of creating a sentencing commission take the position that a sentencing commission with authority to implement sentencing policies would be undemocratic because it would hand over the power to sentence individuals to a group of elite administrators. This argument fails to take into account the fact that sentencing commissions operate in tandem with a state’s legislature, within the boundaries of their legislative mandates, and are completely open and transparent. Legislators in other states have found sentencing commissions to be extremely helpful because sentencing commissions exist solely in order to promulgate good sentencing policy on the basis of empirical research and sound policy. This is so both in states whose commissions have binding authority and in states whose commissions are advisory only. Whether a sentencing commission with authority to promulgate sentencing rules would violate the California constitution’s separation of powers provision is a separate legal question requiring further analysis.

Sentencing commissions do not embrace any particular political agenda. They have no inherent bias towards shorter sentences, longer sentences, early release, or the usefulness of incarceration. Sentencing commissions are not typically affiliated with a particular political party or philosophy. They do not take normative positions on whether prison terms should be long or short. They do not make sentencing decisions in individual cases. Sentencing commissions help states make intelligent decisions about who should go to prison, and for how long, and they do this on the basis of empirical analysis, not political ideology.

California does need to enact changes in its sentencing structure. The Determinate Sentencing Law, which currently governs the imposition of sentences in the vast majority of felony matters, is excessively complicated and highly irrational. California also needs to make better decisions about who to incarcerate. While few would dispute the need to incarcerate those who pose a threat to public safety, the latest research is showing that increasing incarceration rates does not reduce crime. Locking people up when doing so makes us no safer is a waste of money and bad policy.

It is time for an honest debate about the need for sentencing reform in California. The crime decline that we experienced in the 1990s seems to be reversing and the state is facing imminent action by the federal judiciary. The people of California are entitled to accurate information about the need for sentencing reform and about the role a sentencing commission can play in bringing it about. The March 9 Executive Session was helpful in airing some of these issues and in clearing up some of the confusion. It is encouraging to see this kind of dialogue happening in California; hopefully that dialogue can be transformed into action. The safety of our communities depends on it.

Kara Dansky is the Executive Director of the Stanford Criminal Justice Center and a lecturer at Stanford Law School. She is a member of the Little Hoover Commission Advisory Committee on Sentencing Reform.