What a California Sentencing Commission Might Do

Posted on 20 February 2007

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By Megan Corcoran
Director of Policy and Communications
Center on Juvenile and Criminal Justice

As stated in the recent Little Hoover Commission report released in January 2007, one of the primary goals of sentencing commissions established in states other than California is to “improve public safety by preventing the premature release of dangerous offenders.” To achieve this important goal, sentencing commissions start by reviewing a state’s extant sentencing practices and their impact on public safety and corrections management. In other words, a commission looks at data and determines if the sentencing regime in use by a state is working. In most cases, historically, a commission is set up when a state’s correctional system is approaching or in crisis. Thus, it is almost a given that something is not working. A commission has the difficult task of identifying the problems, and determining appropriate improvements to remedy the crisis. If it is a worthwhile commission, it will also have the teeth to implement the necessary changes.

Across the country, more than twenty states have sentencing commissions. Their composition, responsibilities, and authority vary, but in no state has a sentencing commission been created in order to make things worse. And in only one state was a commission disbanded due to failure. (It should be noted that this commission, in Florida, implemented longer sentences resulting in extreme prison overcrowding and court intervention.) In most states with commissions, their effects have been to reduce prison population growth, provide rationale to support effective and evidence-based programs, both in and out of custody, and to tie policies to financial analysis.

It is a great disappoint, therefore, to read statements asserting that sentencing commissions are intended as nothing more than a mechanism to reduce inmate sentences with no public accountability. It is high time the public became informed of the importance of a comprehensive criminal justice sentencing policy—one that not only untangles the jumbled penal code that Californians currently bear, but also coordinates rational sentencing practices with correctional resources and viable community punishment options.

In October 2006, Governor Schwarzenegger declared a state of emergency in the prisons due to overflowing sewage systems, overworked electrical systems and increased inmate violence. The 2006 special session of the legislature did not produce any new law to mitigate the crisis. Now, even Schwarzenegger is proposing a sentencing commission to help California find its way out of its corrections mess.

California’s prison crisis, in which California prisoners find themselves sleeping on triple bunks dangerously crowded into any available space and with limited access to programs meant to fulfill the purpose of the new “R” in the CDCR’s revised nomenclature, is the result of three decades worth of tough-on-crime lawmaking. Since the enactment of California’s determinate sentencing law in 1978, there have been 80 substantive increases in sentencing lengths for specific crimes. In addition, the state passed various amendments allowing judges the discretion to impose additional time for various aggravating factors. To further confuse the public, thirty years of revisions to the determinate sentencing law have produced 1000 felony sentencing laws and more than 100 felony sentence enhancements spread throughout 21 separate sections of California law.

These amendments to sentencing law, complex enough in their ramshackle structure, failed to consider the correctional infrastructure requirements, the financial costs or the social spending cuts that underlie the reality of additional and longer prison terms. Stakeholders may say that the changes were necessary responses to crime problems, but the responses were one-dimensional at best. While it is easy to say, as a state, that we do not like crime, it is much more difficult to say how we intend to support public safety. Locking more than 172,000 people away and maintaining over 116,000 people on parole does not, by itself, create a more secure society for Californians.

In fact, 40 percent of all California prisoners are in prison for nonviolent offenses or are nonviolent repeat offenders, and 58 percent of California prisoners were on probation or parole when arrested for the current crime. Add to this the fact that these nonviolent folks often spend the same amount of time behind bars as some of the violent offenders. This translates to another giant failure to adequately address the issue of crime prevention, or, put another way, public safety. California spends an enormous amount of money, ($36,000 per year per general population inmate, not including court costs) to churn individuals in and out of prison in a way that does not necessarily correspond to the seriousness of the risk the individual poses to society.

Here is what a sentencing commission can do to deal with California’s prison crisis: 1) it can gather data and information to inform stakeholders about the true effects of the current sentencing regime; 2) it can review sentencing practices in other states and report on their successes or failures; 3) it can identify a risk-needs assessment tool that will alert judges to the issues of each defendant before a sentence is imposed; 4) it can evaluate parole, including the sensibility of placing every released inmate on parole for three years; 5) it can develop models to produce population projections and policy impacts of sentencing modifications; and 6) it can develop a continuum of community-based punishment options and evaluate the effectiveness of these programs.

To those who pay attention to these things, the list above looks suspiciously like the good work that has been completed over the years by the Little Hoover Commission whenever it takes on the corrections issue. The potential value added by a sentencing commission will come through its power to create and revise law. The one item not listed above, but that begs the sincere consideration of both the legislature and the public, is the authority invested in a California sentencing commission. Should our future sentencing commission make sentencing policy and practice recommendations that would be enacted into law? Or, more simply put, should it have teeth?

Currently, California legislators are facing at least two bills calling for sentencing commissions. The California Correctional Peace Officer’s Association, also known as the prison guard’s union, is even in the fray, attempting to develop a proposal to be carried by a lawmaker. And then there is Governor Schwarzenegger’s proposal. The major difference between each potential commission is the important issue of authority. If California would like to learn from other states’ commissions, it might read the results of a recent survey by the National Center for State Courts. The state chief justices and court administrators of 19 states with sentencing commissions responded that the strengths of commissions were in their ability to provide trustworthy data that improved decision-making. Respondents also reported on weaknesses: advisory commissions suffer from their lack of authority.

Granting the authority to enact law will require the legislature to delegate to the sentencing commission some of its most serious responsibilities, while reserving some right to override commission recommendations. The great impetus here is clearly to remove the political attraction of voting for tough on crime measures that do not account for the realities of cost and implementation. Voters fall into the same trap, drawn to the appeal of promised public safety but never properly instructed on the requisite bonds or taxes, cuts to other programs and ongoing problems in the prisons that will compound upon the passage of yet another sentencing enhancement. One needs only to recall Three Strikes, or more recently, Jessica’s Law, which has already spurned clarifying litigation and will require an additional $150 million over the next two years to implement, to recognize the consequences of sentencing initiatives passed by the electorate.

California must climb out of its corrections crisis. If it cannot climb on its own, it will be forced to do so after litigation and/or greater tragedy in the institutions. Thirty years of aggressive and often emotional revision of our determinate sentencing law has left the state with an irrational and puzzling sentencing regime that is in dire need of a comprehensive, strategic plan. The plan should not be afraid to consider evidence-based alternatives that may look at community treatment for nonviolent offenders, as Proposition 36 did for drug offenders. The plan should also be willing to inform the public about better ways of responding to crime and effecting public safety, beyond simple punishment. Finally, the plan should prepare the state to understand the fiscal and social impacts of correctional policies and practices. It has become clear that the Legislature cannot or will not do this effectively through piecemeal lawmaking. A sentencing commission, on the other hand, can.

The Center on Juvenile and Criminal Justice is a nonprofit, nonpartisan organization in San Francisco that offers policy analysis, program development and technical assistance in the criminal justice field. For more information, please visit www.cjcj.org.