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November 11, 2011

New SLR Online gets started with great piece on "California's De Facto Sentencing Commissions"

Hoover-tower-squareI am pleased and honored to have been asked to help spread the word about today's launch of the Stanford Law Review Online, which aspires to "offer a flexible outlet for our publication of short, original pieces of scholarship and commentary on timely topics."  I am also pleased and excited that the first piece in the first issue of the SLR Online is by one of my very favorite sentencing scholars, Robert Weisberg, in the form of this thoughtful commentary titled "California's De Facto Sentencing Commissions." Here are a few excerpts from the piece which should help highlight why the full article is a must-read:

The concept of a sentencing commission as a mechanism for governance of a jurisdiction’s criminal justice system has achieved great prominence in recent years and been the subject of much important commentary.  In light of California’s recent passage of A.B. 109, legislation that drastically overhauls the state’s sentencing and correctional systems, now is an ideal time to evaluate California’s adoption and implementation of the commission model.

Readers who are familiar with California criminal justice will pause quizzically at that last sentence, observing that the California Legislature has steadfastly refused to create a sentencing commission.  But my argument here is that there is now, in effect, a California sentencing commission even if not by explicit law.  Indeed, I will argue that collectively the branches of our state government have, whether intentionally or not, created a number of sentencing commissions....

[W]hile the commission idea failed de jure, it “succeeded” de facto.  This is because the legislature in effect did cede power to the “sentencing commission” constituted in the United States District Courts for the Northern and Eastern Districts of California.  These courts have taken over much of the administration of the prison system.  They have ordered the state’s Department of Corrections and Rehabilitation to exhaustively study and, where necessary, change sentencing and corrections practices without legislative participation, and they have directly drawn on the state treasurer’s bank account to pay for it....

[T]he much-publicized A.B. 109, the Criminal Justice Realignment Act of 2011, ... is the most significant change in the California Penal Code since the DSL was passed.  But it operates more indirectly than any straightforward rewriting of the Penal Code.  The gist of the new law is to shift control over thousands of prisoners from the state to the counties....

So who is in charge of all these operations?  A.B. 109 requires each county to create a Community Corrections Partnership (CCP) to develop and recommend to the county Board of Supervisors a comprehensive plan for carrying out all the demands of the new realignment mandate.  Each CCP is to consist of the chief probation officer, the sheriff, local police chiefs, the district attorney, the public defender (or head of the relevant defense organization), the presiding judge of the superior court, and representatives from such agencies as social services, mental health, and alcohol and substance abuse programs....

I submit that by virtue of its membership and functions, the CCP is a sentencing commission.  The CCPs are now scrambling to figure out how to survive this massive transfer of authority with what might prove to be insufficient funds and without clear data to predict the size and nature of its new inmate, probationer, and parolee populations...

So now California has fifty-eight sentencing commissions (or fifty-nine if you count the federal judiciary).  California could have had just one, and it could have made that commission a responsible and well-coordinated branch of state government.  Perhaps recklessly, it chose this other path.  The lesson: a criminal justice system in sufficient crisis will have a sentencing commission — one way or another.

November 11, 2011 at 02:20 PM | Permalink


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