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October 28, 2012

Post-modern sentencing reforms: restricting judicial discretion to be harsh

The story of "modern" sentencing reforms in the 1980s and 1990s was mostly about legislatures enacting sentencing statutes and guidelines that greatly limited judicial discretion to be lenient in response to relatively serious offenses.  But, as this local story from California highlights, what I will call "post-modern" sentencing reforms now involve legislatures enacting sentencing statutes and guidelines that greatly limit judicial discretion at sentencing to be harsh in response to relatively less serious offenses.  The story from California is headlined "State's prison overhaul changes sentencing structures but leaves judges with little discretion," and it starts this way:

Since the overhaul of California's state prisons in October 2011, nearly 90 people convicted of felony crimes were sent to Santa Cruz County Jail instead of prison under the new sentencing guidelines established by AB 109.

With prison realignment, state officials have carved out a number of types of felony crimes that no longer carry the option of a prison sentence. Instead, offenders convicted of these crimes serve their time locally, be it in county jails or through alternative programs such as drug treatment programs and electronic monitoring.  It's also meant more people are getting placed on probation.

The new structure gives judges limited discretion when it comes to sentencing, said Judge John Salazar, presiding judge of Santa Cruz County Superior Court.  When it comes to sentencing for crimes designated as jail-eligible, judges have the discretion to impose two types of sentences to County Jail.  Previously, felony offenders were more likely sent to prison.

Judges may commit the offender to County Jail, or they can impose what's called a split sentence, with a portion served in jail and the rest on mandatory supervision.  Eighty-eight people who would have been sentenced to prison before realignment now have been given County Jail sentences, said Jim Hart, the county's chief deputy of corrections.

Crimes that now carry potential jail, not prison sentences, are typically those considered "triple nons" -- nonviolent, nonserious and nonregisterable sex offenses.  These include many drug offenses and property crimes.  Before AB 109, these offenders would have been sent to prison.

How the actual jail portion of a sentence is served is left up to the jail staff to decide. Although judges can recommend or authorize certain types of alternative incarceration programs, Salazar said.  Once a person is handed a jail sentence, it is the jail staff that determines if and whether that individual can serve it in a way other than being locked up in jail 24 hours a day.

As noted in prior posts here and here, the latest sentencing reforms in Ohio have also restricted judicial discretion to send certain offenders to prison (and, not surprisingly, it is now prosecutors rather than defense attorneys complaining about these new restrictions on judicial sentencing discretion).  Similarly, a number of other states also dealing with overcrowded and costly prisons have likewise created new sentencing structures to urge or require sentencing judges to look at alternatives to prison.

This new story from California highlights one especially notable (and not always recognized) aspect of these post-modern reforms: in addition to restricting judicial discretion, these reforms have often shifted on-the-ground discretion from both judges and prosecutors now to corrections officials and thsoe who create and operate prison alternatives.  Whether this kind of shift will be good for justice and public safety in the long run will be important to watch in the years and decades to come.

October 28, 2012 at 11:47 AM | Permalink


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Murder in Oakland? Up 20%. The answer to this decision has been immediate.

Posted by: Supremacy Claus | Oct 28, 2012 1:37:23 PM

"[T]hese reforms have often shifted on-the-ground discretion from both judges and prosecutors now to corrections officials and those who create and operate prison alternatives. Whether this kind of shift will be good for justice and public safety in the long run will be important to watch in the years and decades to come."

Been there. Done that. The Indeterminate Sentencing Law of yore shifted discretion to the "experts" in corrections. It didn't work, and we got rid of it.

"Those who cannot remember the past are condemned to repeat it."

Posted by: Kent Scheidegger | Oct 28, 2012 1:51:40 PM

I do not think of the so-called reforms of the 1970's and 80's as modern at all, but rather an abandonment of the checks and balances system of government. The legislative branch of government dumped a "hot potato" on the judicial branch which it eagerly accepted and then screwed up. A modern system would do just the opposite and rethink the distribution of powers, giving the judiciary the authority to hold offenders accountable, which does not change once fixed, and the executive branch authority to control risk, which is variable. For example, no one including judges can say today how dangerous a person will be in five years. Risk has to be evaluated day by day, which is an executive function.

Posted by: Tom McGee | Oct 28, 2012 3:03:30 PM

This might sound silly, but what is the difference between a sentence in 'jail' and a sentence in 'prison'? Down-under, locked up is locked up. We don't distinguish between state run prisons in any formal sense (the only real distinction would be between low and high security facilities, and, in some states, private and public run facilities), certainly not at sentencing, and there are no 'federal' prisons for federal offences (they do their time with their state-law-breaking fellow felons).

I do see a difference if 'jail' staff can determine the detail of a regime (day release, weekend detention, etc) and 'prison' staff can't, but is this the only difference?

Posted by: Mark Kernich | Oct 29, 2012 2:02:22 AM

in american there are not too many differeces.

the big one is easy. Prison is paid for though the state. Jail is paid for locally for the most part.

Posted by: rodsmith | Oct 29, 2012 11:59:21 PM

Thanks, my guess is that leads to issues of quality of care - particularly in the local jails.

I did just read this on Oct 26 post on this blog, quoting US Dist Crt Judge Mark Bennett ... "One meth-addicted mother faced a 240-month sentence because a prior meth conviction in county court doubled her mandatory minimum. She will likely serve all twenty years; in the federal system, there is no parole, and one serves an entire sentence minus a maximum of a 15 percent reduction rewarded for “good time.”"

Now, that's a significant difference also!

Posted by: Mark Kernich | Oct 30, 2012 2:10:36 AM

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