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January 26, 2016

What lessons are to be learned from California's recent experiences with sentencing reform?

The question in the title of this post is prompted by this notable new post authored by Michael Rushford at Crime & Consequences (and supplemented by Bill Otis) titled "Congressional Supporters of Sentencing Reform Need to Look at California."  As regular readers know, I have long pointed to California as a state to watch closely in the sentencing reform arena, and thus I am pleased to see this post urging federal legislators to look at California's modern reform experiences.  But while the C&C folks seem to think the California experience should lead Congress to back away from proposed statutory sentencing reforms, I see many of the problems emphasized by the C&C folks to be a result of the abject failure of California's legislature to respond wisely with statutory reforms when there was an obvious need to improve its sentencing structures.

I have previously highlighted some of these California realities in this extended 2014 post titled "Can and should California's enduring CJ problems be blamed on those who've long opposed a state sentencing commission?".  In that post, I stressed that while the tough-on-crime crowd over at C&C is eager to blame recent California developments on recent sentncing reform required by a federal court order in Plata and resulting from voter initiatives, it was this same tough-on-crime crowd that vehemently opposed and effectively blocked efforts to create a California sentencing commission to deal proactively and systematically with the state's enduring sentencing problems before they became so acute that federal court intervention was required.

The critical part of the California reform story left out from the C&C discussion is that the California legislature from 2005 to 2010 completely failed to respond in any sound way to sensible calls by sentencing reformers to deal with the state's unconstitutional prison overcrowding and the statutory sentencing problems aggravating these problems.  The court orders requiring prisoner release in Plata and the voter-approved sentencing reforms passed in subsequent elections were the direct result of federal courts and Californian voters no longer being able to trust the state's elected representatives to move responsibly forward with needed state statutory sentencing reform.   

In some ways, this potentially problematic, reactive-reform dynamic is already playing out in the federal sentencing system.  For example, the US Supreme Court has been saying in various ways for many years that Congress needed to fix various problems with the Armed Career Criminal Act.  Congress long failed to respond, and we ultimately get the Justices in Johnson striking down the ACCA statute as partially unconstitutional (which will now require the release of many offenders previously sentenced as armed career criminals).  Similarly, the US Sentencing Commission and the US Department of Justice have been saying in various ways for many reasons that Congress needs to address record-high federal prison populations.  I suspect the USSC concluded, after Congress failed to heed its repeated calls for broad statutory reforms, that it had to do something big itself (with DOJ's support) and thus voted unanimously to reduce guideline sentences for all drug offenses across the board and to make these reforms retroactive.

Now, after years of failing to heed calls by sentencing reformers (and the bipartisan US Sentencing Commission) to get ahead of statutory sentencing problems, much of Congress (now led by the GOP) has seemingly come to realize that failing to deal proactively and systematically with sentencing and corrections reform could produce even more long-term problems and challenges.  But, yet again, the tough-on-crime crowd at C&C and elsewhere is vehemently opposed to a legislature moving forward proactively and systematically with enduring statutory sentencing problems before we get to a crisis point and other actors feel compelled to get involved due to legislative inaction.

January 26, 2016 at 10:09 AM | Permalink

Comments

Prof. Berman, this post isn't responsive to the C&C post. Whether California should have created a sentencing reform commission years ago is perhaps an interesting and important question, but the C&C post argues a different issue, to wit, whether the Plata/referendum reforms are having their intended effect of reducing costs or crime. C&C posits, plausibly, that the answer is "no." You don't seem to dispute that. So why do you think those reforms have failed? Were you opposed to the federal reforms at the time? Why or why not? And assuming that the state-level legislative reforms you support had been enacted in, say, 2005, how would they have led to different results than the Plata/referendum reforms imposed later?

Posted by: Anon | Jan 26, 2016 12:25:23 PM

I am sorry if I failed to fully explain how all of this seems connected to me, Anon, so let me elaborate with responses to your reasonable questions:

1. Plata was not about reducing costs or crime, it involved a federal court order to reduce the California prison population that was required by unconstitutional overcrowding that went on for many years. Notably, way back in 2006, then-California Governor Schwarzenegger called the state's legislature into special session to address prison overcrowding, and if they had taken even modest proactive steps to deal with the issue, I am pretty sure Plata does not play out the way it did.

2. Because of Plata, we get Gov Brown's realignment plan, which shifted inmates from state facilities to local facilities and was driven really only by the goal of reducing the state prison population at Plata ordered. Though Gov Brown may have tried to sell the plan as intending to reducing costs or crime, its blunderbuss approach showed it was really only about complying with Plata.

3. I have seen various competing reports about the impact of Gov Brown's realignment plan on crime, and my sense is that it is a complicated and very localized story --- i.e., localities that "implemented" realignment well have seen some positive crime results, but others have not. My sense is that whichever reforms are "failing" have more to do with local implementation problems (which arguably are inevitable with reactive reforms).

4. I have seen very little data-based analysis of the impact of "The Three Strikes Reform Act" (Proposition 36 passed in 2012), but what I have seen suggest that it seems to have delivered on promises to make "the criminal justice system more fair and less expensive." In addition, I believe crime hit record low levels in California in 2014.

5. The data and anecdotes around "The Safe Neighborhoods and Schools Act" (Proposition 47 passed in 2014) seem to me much more complicated and uncertain, though I do fear that this voter initiative was another blunderbuss approach to sentencing reform that came to pass because the California legislature lacks the will or the way to do sound proactive reform on its own.

Posted by: Doug B. | Jan 26, 2016 4:30:56 PM

Fair enough, thanks for responding.

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