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December 23, 2013

Isn't it crazy (and one reason for much dysfunction) that California does not have some kind of sentencing commission?

Cal prisonI have written a law review article emphasizing that the mere existence of a sentencing commission within a jurisdiction does not magically solve or even necessarily improve the development of sentencing and corrections laws and policies in that jurisdiction.  Indeed, some might reasonably claim that in jurisdictions that have other agencies collecting system-wide data, a sentencing commission can become a costly luxury that may at times do more harm than good.

That all said, and as the question in the title of this post highlights, it strikes me as truly nuts that California has never created some kind of sentencing commission to assemble at least basic state-wide sentencing information.  Indeed, given the huge mess that has long been California's massive sentencing and corrections system, and given the crisis-mode reforms and regulations imposed by judges and governors for decades now, I have to think any kind of sentencing commission in California would be able to improve matters in some way at least by being the go-to location for information about what the heck is even going on in the state on a range of sentencing and corrections issues.

These matters come to mind in reaction to this notable new article in the Sacramento Bee headlined "Sentencing commission, suggested in Sacramento, faces long odds." Here are excerpts:

Key California lawmakers this summer suggested that a commission to review and overhaul criminal sentences not only could bring coherence to a disjointed system but also perhaps ease chronic prison overcrowding in the long term. But the idea now appears stalled, despite the incentive of federal litigation that could force Gov. Jerry Brown to release as many as 10,000 inmates next spring.

Lawmakers chastened by a history of unsuccessful sentencing commission bills hold out little hope that this time could be different. “These issues are hard,” Sen. President Pro Tem Darrell Steinberg, D-Sacramento, said in an interview last week. “They’re hard to bite off politically.”

The notion of a panel to overhaul California’s penal code has percolated for decades but eluded proponents time and again. Supporters argue that a steady accumulation of different regulations, layered on top of one another over time, has led to a labyrinth of sentencing guidelines. “There is a lot of disproportionate punishment in our penal code, and that’s because not uncommonly a horrible crime may be committed in someone’s district and so the response is legislatively to get tougher,” said Sen. Mark Leno, D-San Francisco. “These are emotional issues,” he added, “and to have politics infused in all of our decision-making does not create the most sound public policy.”

State sentencing commissions are typically independent bodies, appointed by officials, that study a state’s galaxy of sentencing laws and condense them into a comprehensive framework. They issue guidelines that would increase or decrease sentences for various categories of crimes. That troubles some law enforcement leaders who see the potential for weakened sentences. And it rattles lawmakers wary about constituents – or future electoral opponents – who could hold them responsible for changes that emanated from an unelected body.

“No legislative body wants to give up power,” said Rep. Karen Bass, D-Los Angeles, a former Assembly speaker who pursued a sentencing commission during her time in the Legislature.

Historically, the state’s law enforcement community has been hostile to allowing appointed entities to dictate consequences for crimes.  District attorneys, sheriffs and police chiefs have opposed past efforts, raising concerns about who would sit on panels with expansive authority to reshape criminal justice.  “In California, the only times sentencing commissions come up, it has been code for sentence reductions,” said Sacramento County District Attorney Jan Scully.

But the idea resurfaced this summer when Gov. Jerry Brown, seeking to satisfy a federal order to reduce California’s prison population without resorting to more early releases, proposed spending an additional $315 million to provide more cells.  Steinberg broke with the governor, rallying Senate Democrats behind an alternate plan that questioned expanded capacity.

Among other provisions, Steinberg’s blueprint included a detailed plan for immediately creating an 18-member sentencing commission that could provide recommendations by the end of 2014. A letter to Brown argued that “short-term fixes provide no sustainable remedy.” Steinberg’s letter said the panel would make recommendations aimed at “long-term prison capacity, staying within the (prison capacity) cap, including changes in criminal sentencing and evidence-based programming for criminal offenders.” He included private poll results that showed nearly three-fourths of Californians supported a panel “to streamline California’s criminal statutes with the goal of safely reducing prison costs and maximizing public safety.”

But by summer’s end, the governor got his cash infusion. The final bill also created a special corrections policy committee tasked with broadly examining criminal justice in California. Last week, Steinberg called sentencing reform “a key piece” of rethinking the state’s criminal justice system. But he expressed doubt that substantial changes would materialize in the coming legislative session....

This session, Leno carried his second consecutive bill easing penalties for simple drug possession. Brown vetoed it. Part of Leno’s argument emphasized the state’s uneven sentencing statutes, which make possession of cocaine a felony but allow possession of Ecstasy or methamphetamine to be charged as misdemeanors. Leno cited such inconsistencies in arguing that the sentencing commission is “an idea whose time has come,” adding that the state’s struggles to reduce its prison population “only underscores the need for it.”...

Past sentencing commission efforts have self-destructed because the panel’s recommendations, though subject to legislative approval, would have carried the force of law, argued Sen. Loni Hancock, D-Berkeley. By contrast, Steinberg proposed a purely advisory body.

After seeing previous resentencing campaigns stymied, Hancock said an advisory commission may be the only tenable approach. Even if a commission’s recommendations remain just that, Hancock said she would push to see them implemented. “It’s just so important to cast some rational light on what goes on with our sentencing that I would be happy to see one that makes discretionary recommendations,” Hancock said.

I am pleased to hear there is talk of making a sentencing commission advisory in California because that should be one key to making such an entity a viable reality. But, were I a lawmaker in California, my proposal for a CA sentencing commission would be for the entire voting body of any such commission to be staffed only with district attorneys, sheriffs and police chiefs and for these folks on the CA commission to always have a majority of voting members. In that way, it should and could be clear that having a CA sentencing commission would not be code for sentence reductions but rather just a means for seeking greater sentencing rationality and information as defined by those very state actors elected and most responsible to the voters for seeking to ensure public safety and sensible use of tax resources to that end.

December 23, 2013 at 11:26 AM | Permalink


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More worthless make work jobs for lawyers. Will a sentnecing commission make the public safer? If that cannot be proven, it is worthless.

Posted by: Supremacy Claus | Dec 25, 2013 12:51:40 AM

As a CA prosecutor I agree that our Penal Code with respect to sentencing is unnecessarily complicated and not particularly consistent. Whether a feature or bug, it has so much flexibility that its application varies widely across the state based on the same conduct.

That being said, a sentencing commission will not pass, not because of a fear of loss of power by the legislature, but rather because Hancock and Leno and some of the other politicians who hold key positions on the public safety committees cannot be trusted with criminal justice policy because they are not honest brokers.

For example, Hancock was the spokesperson for the "replacement of the death penalty with LWOP" a marketing phrase where any reading of the initiative would reveal it was a repeal; even NPR called her out on this during an on air interview. Leno is part of the problem when it comes to piecemeal criminal legislation except that there is no penalty, except for perhaps the PC crimes (sexual assault and DV), that he does not want to reduce. Funny that he blames increases in sentencing on cynical political gain, but his reductions, of course, are simply good public policy.

When Jerry Brown is the voice of reason regarding criminal justice policy to restrain the legislative "leaders" in CA it tells you that it is not "crazy" or even a reason for disfunction in CA to not have a sentencing commission, but rather it is a sensible restraint on the Christmas wishes of those who want to go back to the punishment model of the 60s claiming that we now know how to treat the criminal population (an affliction that should make the DSM VI). I, for one, would not trust the legislature regarding the selection of the commission members even if they fit the profile suggested by Professor Berman.

Because CA criminal sentencing has so much flexibility built in, especially in the non-violent crime area, why do we need a fundamental shift in criminal sentencing? I would note that murder is probation eligible in CA in many circumstances which should give you an idea of the flexibility the judges have. Unlike in the federal system, government appeals of sentencing decisions are not permitted in most circumstances and even where they are (a claim of an illegal sentence) they are rare. I have not read significant academic research suggesting that CA mandatory minimums are unnecessarily increasing the prison population, nor have a I read that judges are routinely criticizing the sentencing scheme as too harsh. The three strikes law was just softened, thirteen years ago CA removed incarceration as an option for the vast majority of offenders who only use and possess drugs. There has recently been a substantial increase in credits that inmates in county jail and prison can earn so even the overall number is a not a reflection of the actual term served. Despite all this, our prison population has remained "too high" for the academics and the legislators who want to spend that money on something else.

Any sentencing commission envisioned is more of the same, wholesale reductions in penalty with the heartfelt belief based upon nothing more than faith that we will get it right this time, and absolutely will not serve the purpose serve its only legitimate purpose, uniformity and reduction in complexity.

Posted by: David | Dec 25, 2013 11:01:03 AM

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