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September 27, 2009

"Forum: Does California need a sentencing commission?"

The title of this post is the headline of this piece in the Sacramento Bee that sets up yes/no commentary answers from leading voices in the sentencing reform debate in California.  Here is the set up, followed by links to the dueling commentaries:

For years, California has been considering a commission to coordinate sentencing guidelines and fiscal policy, and to pull together state and local corrections programs into a coordinated system.  In 2007, the Senate and the Assembly passed bills for a sentencing commission.  But the Legislature couldn't agree on a final bill, so the effort died.

This year, the dynamic changed.  The Senate approved of a sentencing commission as part of a larger prison reform bill, with the support of Gov. Arnold Schwarzenegger.  But the Assembly removed the sentencing commission from its legislation.  The final prison reform bill that passed and was signed by the governor did not include a sentencing commission.

Sentencing commissions, which have been implemented in more than 20 states, serve to propose new or revised sentencing guidelines for judges and prioritize bed space in states that struggle with overcrowded prisons.

Opponents of sentencing commissions say it is an attempt to soften punishment for criminals; those in favor say California's sentencing policies aren't working because the state relies overwhelmingly on incarceration rather than rehabilitation.

September 27, 2009 at 10:49 AM | Permalink


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The Sacramento Bee had a four-article opinion-page debate on whether California should have a sentencing commission. Interesting, neither "pro" author actually defends the proposal that was defeated. Both make the case for a very different proposal. Ka... [Read More]

Tracked on Sep 28, 2009 12:37:41 PM


The presence of the NC Sentencing and Policy Advisory Commission is a two edged sword. It has reduced geographical disparity in sentencing, but it is simply advisory. So, it recommends legislation to the General Assembly, which then fails to act due to the same political considerations of a reluctance to appear to be soft on crime.

A prime example is NC's Habitual Felon, or three strike, law. Judge Ross took the position that it was inconsistent to implement grid sentencing, where the def's prior record automatically enhances sentence, but retain the old fashioned habitual felon law, where a def's prior record enhances sentence.

The legislature could not bring itself to repeal anything with the word "habitual" in it, which word is now meaningless in light of grid sentencing. Once prosecutors figured out that they could combine both grid sentencing and three strike sentencing, sentences for nonviolent offenses in a lot of instances went crazy.

Right now in NC, one out of every eight persons in prison is there serving a long sentence, usually for a nonviolent offense, due to the double enhancement of the grid and the three strike law.

I have represented defendants who committed the offense of littering more than 500 pounds or failing to show up for court, serving sentences at a greater level than Armed Robbery.

In my opinion, as long as we have legislatures unwilling to enact legislation based on facts not political fear, and we have judges who are dependent upon the will of the majority to keep their seats, we will have a system of irrational criminal sentencing.

bruce cunningham

Posted by: bruce cunningham | Sep 27, 2009 3:37:17 PM

No one in prison today is safe to be on the street. They have failed all diversion programs. So this idea is a lawyer sham to give the appearance of virtue. They want crime up again, to generate lawyer jobs.

Posted by: Supremacy Claus | Sep 27, 2009 5:37:37 PM

SC, have you ever thought about seeking the help of a psychiatrist? Modern pharmaceuticals can do wonders for some forms of paranoid behavior. Although, a person who actually believes that there is a conspiracy to "increase crime" to employ lawyers may be pushing the boundaries of what can be treated.

Posted by: Help Desk | Sep 28, 2009 9:20:29 AM

If, as seems to be The Big Item these days, the point is to save money wherever we can in the criminal justice/prison system, creating a new Sentencing Commission seems like a luxury. Like any government agency I ever heard of, its costs are (1) going to be understated to start with, and (2) will grow more than expected.

Even a Sentencing Commission that could set mandatory guidelines would be a stretch just now, but to spend new taxpayer dollars on a Commission THAT ONLY MAKES SUGGESTIONS is truly going too far.

Posted by: Bill Otis | Sep 28, 2009 10:45:02 AM

The two "pro" authors make the case for an advisory sentencing commission. If Senate leader Steinberg had allowed such a commission into the bill, it probably would have passed. The bill was defeated because he insisted that the commission be able to change the law on its own, subject only to a legislative veto. It was that proposal that drew the attacks along the lines of DA Scully's article.

Strange that the Bee got two people to write "pro" articles, but neither defends the proposal that was actually at issue this summer.

Posted by: Kent Scheidegger | Sep 28, 2009 12:43:05 PM

Help Desk: Supremacy Claus IS a psychiatrist. A licensed, practicing psychiatrist. This is not a joke. SC's identity is easy enough to find with a little Googling.

Posted by: anon-mush | Sep 28, 2009 1:22:43 PM

Anon-Mush, maybe the Scientologists are right, then.

Posted by: Help Desk | Sep 28, 2009 1:27:53 PM

It's too bad it's a holiday today, I would have like to have read the Prof.'s take on Roman Polanski.

If ever there was a poster-boy for why "judicial discretion" is a really bad thing, it's Polanski.

If California had a guideline system in 1978 Polanski would have been given the reasonable sentence he bargained for and be making films in Hollywood today despite the imperious temperament of a jerk in a robe.


Posted by: Ferris Bueller | Sep 28, 2009 1:31:44 PM

Kent -- The media is at the top of its game when searching for a useful idiot among "conservatives" to make a so-called balanced presentation against liberals who actually know what they're doing.

Posted by: Bill Otis | Sep 28, 2009 2:30:02 PM

This is not a conspiracy. It is The Rent Seeking Theory. It explains all anomalous lawyer behaviors.

The Sentencing Guidelines drop crime 40%, a tremendous lawyer achievement. Scalia, a conservative, leads the attack on these guidelines, using the logic of a foreign law maker, after saying no foreign law should influence the Court. This foreign law maker voted for the Stamp Act, tried our patriots in absentia, a real enemy of our nation and freedom. How do you explain that anomaly? Only Rent Seeking can explain that sequence.

Posted by: Supremacy Claus | Sep 28, 2009 2:32:14 PM

Ferris: See the comments in the post right below this one. Some of your concerns are addressed.

Posted by: Supremacy Claus | Sep 28, 2009 2:35:16 PM

Personal remarks just indicate lawyer frustration in the traverse. Even if you kill the person, nothing will change about the utter failure of every self-stated goal of every subject in the law. The profession will still be in failure and hated, even by its own members.

Posted by: Supremacy Claus | Sep 28, 2009 2:36:53 PM

Bill, I'm not sure I follow you. In this case, the paper failed to get anyone to actually support the Steinberg proposal.

Posted by: Kent Scheidegger | Sep 28, 2009 3:35:20 PM

Kent -- What I meant to convey is that the press will often trot out a "conservative" who is at odds with the majority conservative position on the particular issue to be discussed. For example, Meet the Press loves to have McCain on as a "foil" to liberal views on campaign finance, but in fact McCain is more allied with the liberals than with conservatives on that particular issue. Same deal with the Sotomayor nomination: the "conservative" who got trotted out was Lindsay Graham, who wound up supporting Sotomayor, unlike most of his fellow Republicans. Colin Powell is another favorite in that regard, because the press knows that he can be counted on to ding the conservative position all the while posturing as a Republican.

The all time favorite was, of course, Arlen Specter, but he's no longer useful since he's now shown his true colors.

This virtually never happens with the Left. When the press wants to showcase the liberal position, they get a genuine liberal -- Schumer or Leahy or someone of that sort, someone they know will be faithfully toeing the party line.

Posted by: Bill Otis | Sep 28, 2009 4:51:20 PM

"What I meant to convey is that the press will often trot out a 'conservative' who is at odds with the majority conservative position on the particular issue to be discussed."

Yes, that does happen often, but not in this instance.

Posted by: Kent Scheidegger | Sep 28, 2009 5:01:34 PM

I am confused as why second degree robbery is a "violent offense" when to get second degree robbery there was no weapon or violence. maybe someone can answer this for me its really bugging me

Posted by: serenetie | Nov 9, 2009 8:45:59 PM

I assist older out of school students in obtaining high school diplomas. Many had their education interrupted due to juvenile justice involvement, and some are repeatedly incarcerated for nonviolent offenses. I attended last week's USSC conference in San Diego. I am quite concerned that the Amendments are still not clear on appellate options for my clients - often low income with very limited work experience and many other "risk" factors that need to be addressed.

Posted by: ED | May 22, 2011 6:31:23 PM

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