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August 20, 2009

Possibility of California sentencing commission continues to generate controversy

Those scholars who focus on sentencing issues disagree about plenty, but there tends to be consensus in the academic community that the creation of a sentencing commission can help a jurisdiction reform (or at least monitor) criminal justice law and practices effectively.  Yet, as revealed by this Sacramento Bee article, which is headlined "Sentencing panel sets off alarms," just the creation of a sentencing commission in California is controversial.  Here are the basics:

A package of money-saving prison measures that lawmakers will debate today includes creation of an appointed commission with broad powers to rewrite sentencing guidelines. The state's police chiefs and district attorneys associations slammed the sentencing commission proposal, saying it would give an unelected body authority to transform sentencing laws.

But Gov. Arnold Schwarzenegger, who usually sides with the police chiefs and district attorneys, backs the commission idea, said spokesman Aaron McLear....

The California Police Chiefs Association had supported [other prison and sentencing reforms] but will re-evaluate its stance after learning of the sentencing commission proposal, said the association president, Bernard Melekian, chief of the Pasadena Police Department.

Under the proposal, the commission would have until July 1, 2012, to establish new sentencing guidelines, which then would automatically take effect on Jan. 1, 2013, unless rejected by the Legislature and the governor.

The commission would include 13 voting members, including the chief justice of the California Supreme Court and eight others appointed by the governor. It also would have three nonvoting members, including an ex-felon selected by the speaker of the Assembly and a crime victim chosen by the governor.

Melekian said legislators hadn't told the association they were adding the sentencing commission until recently. Steinberg spokeswoman Alicia Trost disputed that, saying all the proposals had been discussed publicly for months. "We think that the fact that there's this commission that has to be overruled by the Legislature is a problem," Melekian said. "We think it's an abrogation of legislative authority."...

Earlier Wednesday, Schwarzenegger said he backed efforts to reform the state's prison system although he said he wouldn't touch California's tough "three-strikes" sentencing laws.  He had just toured parts of the California Institution for Men in Chino badly damaged in an Aug. 8 prison riot. McLear said the governor supported the sentencing commission because it would allow him to appoint the members, would have a majority of public safety members and "has teeth." "It's important that the commission would have real authority," McLear said. "We've been debating this for two years. It's time to act."

Informed readers should realize that the authority proposed for the new California commission is comparable to the powers exercised by the US Sentencing Commission.  Moreover, in light of the unpredictable (but predictably dysfunctional) politics of crime and punishment in California, a lot could and surely would happen between the creation of a California Sentencing Commission now and the development of new sentencing guidelines for implementation in three years.

UPDATE:  Kent Scheidegger in this post at Crime and Consequence showcases the political argument against creating a sentencing commission in California:

The purpose of this commission is to effectively disenfranchise the people of California on the subject of criminal sentencing by insulating most of the legislators from the wrath of the voters when our laws are softened and criminals are let loose to prey on us again.  The veto bills will be killed in committees by members from "safe" districts, and the legislators from competitive districts will be able to tell angry constituents they would have voted for the veto, but it never got to the floor....

Sentencing commissions allow philosopher kings to decide what is best for the people, whether they like it or not.

My initial response is to wonder whether Kent feels "disenfranchised" on the subject of federal sentencing and whether he thinks that the US Sentencing Commission is full of philosopher kings.  As indicated above, it appears that the proposed California commission's authority is modeled on the USSC's power structure.  My sense is that the USSC has been very attuned to political concerns and pressures, perhaps more so than might be healthy for effective development of sentencing law and policy.

Moreover, all objective measures — recidivism rates, budget economics, prison security and conditions —  suggest that California's politicians have so far done a very poor job on "the subject of criminal sentencing."  Unless and until Kent makes a full-throated case for the current California punishment and sentencing status quo, I have a hard time understanding his full-throated attack on the creation of a sentencing commission to try to make things better in California.

August 20, 2009 at 10:45 AM | Permalink


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Tracked on Aug 20, 2009 10:56:35 AM


And, it would get around, the policy of having politicians score points with the voters, when they "get touch on crime" and write wild bills with sentences that are way too long.

Posted by: DLJ | Aug 20, 2009 12:28:42 PM

Opponents of a commission like this should reread The Odyssey. Or any basic game theory or public choice textbook. Sometimes it is in a person's--or an electorate's--best interest to tie his or its own hands. And the current state of our sentencing laws suggest that there is something Sirenic about punishing people.

Scheidegger attempts to foreclose debate through sarcasm and by forcing those who disagree with him to implicitly define the average voter as belong to the "Great Unwashed." But the simple fact (we can all play this game--to disagree with me is to go against common sense) is that criminal justice policy is profoundly complex. When CERN get the LHC up and running, it is not going to put its use to a vote via referendum. Why do we think that criminal justice and sentencing policy is best resolved through direct democracy?

Posted by: John Pfaff | Aug 20, 2009 2:40:42 PM

"Moreover, all objective measures — recidivism rates, budget economics, prison security and conditions — suggest that California's politicians have so far done a very poor job on 'the subject of criminal sentencing.'" Crime levels in CA are at 1950's rates, and it has nothing to do with the economy (which is now in the tank for the forseeable future, thereby dispelling the alleged link between economic conditions and crime rates). The low crime, however, is related to locking people up for breaking the law. For some of them, that even means 25 to life. Who would have thought if we take criminals off the streets, then crime rates would also fall? And all of this without the help of "an unelected body authority to transform sentencing laws."

Posted by: Large County Prosecutor | Aug 20, 2009 5:20:15 PM

I was surprised to see someone with such a detailed knowledge of sentencing law make such a bald statement in comparing the US Sentencing Commission with this proposed California commission. The two would seem to be similar only in name.

The USSC is part of the judicial branch and makes guidelines which are consulted in federal criminal sentencing. (Which are now advisory, as you have repeatedly told us.)

This proposed California sentencing commission is yet another attempt by Senator Romero & those of her ilk to completely co-opt the role of the California Legislature & the Governor to create/modify/delete criminal laws. Anything passed by this commission would become law unless vetoed by the Legislature (and as a quarter-century veteran California prosecutor, I can vouch for the virtual impossibility of this Legislature alllowing much of anything that would be anti-criminal or pro-law enforcement. Kent knows from bitter experience how such bills die in committee in California) AND the Governor.

Additionally, given the certainty of anti-law enforcement philosopher kings like Gerald Uelman being appointed to said commission (not to mention an ex-con being given a voice at the table) we can be quite confident that this commission would be slanted towards the ivory towers and away from the best interests of the People of the State of California.

Posted by: BJ Gunderson | Aug 20, 2009 6:02:36 PM

I am not surprised two prosecutors are eager to defend the status quo, since I suspect relatively few of the dysfunctions of California's system are big problems for prosecutors. As for the crime rate reduction, my sense is that the decline in crime rates in California are relatively comparable to the decline in crime rates for other states (including many states with sentencing commissions which managae the reform and monitoring of sentencing law and policy and have not used 3-strikes laws much).

Notably, states with sentencing commissions have been able to manage budget cuts in criminal justice with some coordination. This is not to say that prosecutors will always like what they get from a commission all the time, but in my view that's a sign of balanced policy-making.

Put another way, it makes sense that prosecutors believe and want every marginal tax dollar devoted to fighting crime and locking up more criminals. But it is not clear that this is what the populace wants when marginal dollars are scarce and need are varied. Moreover, an effective and honest sentencing commission can and should help a state understand the economic and social costs of spending more on prison and law enforcement relative to other public expenditures.

It seems from comments by Kent and others that you all do not trust the a California sentencing commission to be effective and honest. That may be a fair concern, but it is also an apparent problem with the status quo, since politicians have not been effective and honest about the costs and consequences of current policies.

The fact that the rhetoric surrounding the very creation of a sentencing commission is already so heated may suggest that any reform project in California is doomed. But again, I keep waiting to hear a full-throated defense of the status quo (including the economic and social costs) before I readily credit assumptions that the proposed changes are obviously changes for the worse.

Posted by: Doug B. | Aug 20, 2009 9:31:38 PM

Who is Afraid of Early Releases and Non-Custodial Sentences?

Not the American public, according to a study conducted by the National Council on Crime and Delinquency. The findings are summarized as follows:

* A majority of US adults believe that some crimes, for which offenders are currently incarcerated, do not demand time behind bars.
* Eight in ten (77%) adults believe the most appropriate sentence for nonviolent, nonserious offenders* is supervised probation, restitution, community service, and/or rehabilitative services; if an offender fails in these alternatives, then prison or jail may be appropriate.
* Over three-quarters (77%) believe alternatives to incarceration do not decrease public safety.
* More than half (55%) believe alternatives to prison or jail decrease costs to state and local governments.
* US adults more often think alternatives to incarceration are more effective than prison or jail time at reducing recidivism (45% vs. 38%).
* Respondents cited a variety of reasons they believe justify sending fewer people to prison or jail, including expense, overcrowding (danger to guards, danger to inmates), the ability of proven alternatives to reduce crime, and the fairness of the punishment relative to the crime.

There is a link to the full study at the above link (California Correctional Crisis blog).

Posted by: George | Aug 21, 2009 2:13:25 AM

They can live next door to you, Doug.

Posted by: federalist | Aug 22, 2009 3:42:22 AM

Professor Berman: The fullest possible throated defense of the current situation is the 40% drop in crime from the 1980's by mandatory increase in incapacitation, against the will of the criminal lover judges owing their jobs to criminals. Millions of crime victims have not been victimized, with about 200 million FBI Index felony crimes not happening since the mid 1990's. Advocates of incapacitation would be excluded from or silenced in any Cali sentencing commission as politically incorrect.

Criminal lover legislators are always from high crime areas, crime being their primary industry. Drug dealers start legitimate businesses that funnel campaign donations coming from the proceeds of drug sales to these politicians. These legislators are paid off and working for organized, well armed, paramilitary, illegal alien, ultra-violent, and now ultra-corrupting, politician buying drug gangs. Self-help has full moral and intellectual justification. It is defending our way of life from a takeover of government by these alien drug gangs. Any politician taking donations from these front businesses should go to jail. That will never happen, since drug dealer campaign contributions are immunized political speech, the lawyer on the Supreme Court has held.

The above argument is documented in this book if anyone wants data:


A former Secretary of Defense (from Cali) used to say, our defense budget is set by the Soviet Union. Government must defend the nation as its first duty. Our criminal justice cost is set by the criminals.

Savings suggestion. To nearly eliminate crime, and all its costs, get rid of the rent seeking lawyer from all policy positions, including those on the appellate bench. Allow a lawyer on an appellate bench, and only the interests of the criminal cult enterprise get promoted. The lawyer causes crime by 1) coercing an explosion of bastardy and eradication of traditional family formation, to satisfy the blood lust of the feminist lawyer against a patriarchy and common decency; 2) nearly total immunization, even today, of 99% of crime victimization; 3) diversion of prosecutorial resources to lawyer confiscatory business plan, prosecuting productive people on mala prohibita (worthless, damaging lawyer gotchas in paperwork). If you believe good education and health care prevent crime, the lawyer has made it impossible to teach and treat too. For the lawyer mandated cost of special education given to defective children who will never get productive, one could sent three intelligent, but poor and deprived children to top private schools, so they might compete for a spot at Harvard Law one day. In our schools, one cannot even criticize knucklehead behavior let alone physically correct it without being investigated and fired for harassment. Question at dinner to teacher, "Do you ever think about being sued?" "Just about every minute."

Posted by: Supremacy Claus | Aug 22, 2009 8:41:05 AM

George: That study is pure left wing invalid garbage, the propaganda of a left wing fringe organization. The group is affiliated with UC Berkeley, and other left wing extremist hate groups. Most people support the death penalty, not hug-a-thug.

Posted by: Supremacy Claus | Aug 22, 2009 8:53:33 AM

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