Saturday, March 21, 2009

Sentencing Reform in California

One thing that became crystal clear on the Thursday opening panel was the lack of coordination between the different steps of the correctional process, starting with sentencing; but the deep problems, and the immense challenges in fixing them, were fully introduced only on Friday morning on the sentencing panel.

The panel was opened by Judge Tricia Bigelow, Associate Justice at the 2nd District Court of Appeal, who teaches sentencing to judges, and who used the words "labyrinth" and "byzantine" when describing the CA sentencing scheme (citing a colleague who compared our sentencing laws to bureaucratic memoranda and toy assembly instructions!). Since 1977, Judge Bigelow explained, the basic structure for single-count felony sentencing consists of choosing a "base term", and then adding conduct and status enhancements. The penal code provides "triads" for each particular crime (for example: 2, 3, or 5 years); after Cunningham v. CA, a temporary legislative fix allows the judges to select one term out of the triad based on a set of factors from a non-exclusive list. After adding enhancements - additional prison time due to the nature of the crime (injury, gun, excessive taking in a theft) or to the circumstances of the criminal (previous convictions) - the judge can review a variety of statutory reasons for mitigation or aggravation. This is a fact-specifc process, which is difficult to systematize. The judge must also state reasons for selecting the base term out of the triad.

The picture becomes murkier, though, because CA law is a patchwork of sentencing initiatives that create special sentencing schemes for special cases. Not only do we have a "ghetto" of indeterminate sentencing for lifers, but we also have three strike laws, which, incidentally, create changes in sentencing for two-strikers as well (double the punishment); special sentencing schemes for sex offenders, gun offenders, gang offenders, and others. Judge Bigelow amused/horrified/bewildered us with some of the example cases she gives to judges when she teaches sentencing; it is truly a difficult maze and, as she reports, none of them got one of the examples right. She mentioned the need for a unified system that produces predictable results.

How must we proceed in producing a unified system? Kara Dansky, Executive Director of the Stanford Criminal Justice Center, strongly advocated for a sentencing commission. She started by highlighting two themes in CA sentencing: the unique rigidity and complexity of our sentencing system, and the shift in discretion from the hands of judges and correctional officials to legislators and prosecutors. What we have now is remarkably different from what the original enactors of the Determinate Sentencing Scheme had in mind in 1976; the triads, which were supposed to simplify matters and provide certainty, ended up being part of a patchwork, and are surrounded by hundreds of enhancements. Every single time a sentencing commission has been proposed - and there have been 11 bills so far - it has died, been vetoed, or stalled. There is now a new bill for a sentencing commission before the Assembly, based on Tentative Draft #1 (which, despite its tentative name, is the last word from the people who brought you the Model Penal Code).

A sentencing commission would have several purposes. It would be expected to develop sentencing guidelines (with an eye toward creating uniformity while still allowing judges room to individualize the sentence); collaborate with judges (who should be more involved than they are now); provide information and generate knowledge from the entire system (there is no single nonpartisan forum for policy, nor is there any communication between the different silos maintaining datasets on CA sentences); explain the logic behind sentencing policy (a duty from which our lawmakers are exempt); and ensure that all of this happens on a permanent and ongoing basis.

Dansky also tackled several of the arguments against sentencing commissions, arguing that they were based on misconceptions of the institution and the logic behind it. Two worth mentioning were the concern that commissions would be undemocratic, when, in fact, they would be a transparent governmental agency, and the concern that voter initiatives would render them useless, which may be the case for some, but not all, sentencing situations.

It was a pleasant surprise to find out that not only judges and policymakers had concerns with sentencing; Michael Jimenez, President of CCPOA, showed us that correctional officers and guards have vested interest in what happens to their inmates before they arrive in prison. In fact, Jimenez argued, the sentencing scheme is so bad that he could not imagine anything worse. The CCPOA has been pushing for a sentencing commission as well, but very disheartened with the political process around it. It all revolves, said Jimenez, around money; there is no political fix for the sentencing problem as long as our policy calculations are influenced by short term, year-to-year tactics.

The politics of sentencing reform were furtherly driven home by State Senator Mark Leno, who shared with us the sobering realities of sentencing politics. California, said Leno, now spends 11 percent of its budget on corrections - that is, more than it spends on higher education, and obtains abysmal results. We have twice the national recidivism rate and half the national parole completion rate. 70% of the inmates come out of prison functionally illiterate; 70% face serious alcohol and drug problems; 60% will be homeless and unemployable. We are the only state that has both determinate sentencing and parole – three years of it, irrespective of the crime - and no intermediate sanctions. As prison population ages, the costs per prisoner rise; they double for inmates over 50, and triple for inmates over 60.

Leno told us of several attempts to amend CA laws and how they were fought - unfairly and inaccurately - by aggressive lobbyists using fear tactics. An attempt to amend the three strikes law a few years ago, to require that the third strike be a violent offense, seemed to make sense to voters - until the governor had a wealthy sponsor flood the media with statements on the potential to release dangerous rapists and murderers, information left out of the brochure because of its inaccurate, misleading nature. Another attempt to reform the system by allowing people to exit parole after 12 months - which would have saved 70 million dollars, which would then be directed into rehabilitation programs in prison - was killed by a floor alert saying that the bill would release thousands of rapists and murderers. Immediately after the bill was killed, Leno got the following message from the lobbyists: “we apologize for the inaccuracies in our floor alert”.

Leno highlighted that the fear tactics were not a republican problem. Neither republican nor democrat lawmakers want to appear soft on crime at any cost. Under the circumstances, and given the fear of elected officials, a sentencing commission is necessary.


michele said...

I have the perfect case where the judge let the DA make all the rules. This judge never read the 995 motions to dismiss. And openly stated she would not read them. That she wanted a plea deal to take effect post hast. I don't feel the system is fair. If a pre-trial judge takes a charge off, why do the DA's have the write to put it back on. Just so they can climb the political ladder. This system is so broken. I do believe that a sentencing commission would be the answer. Or at least help. With the prision system being as it is something needs to be done quickly. But with our government and legislator this will not be easy.

Unknown said...

I believe the “sentencing commission” would be a great solution to the unfair judgements that we throw on our society's prisoners. A commission that is made of different people who are there to analyze and review appropriate documents that judges don't have time and arriving at a fair and appropriate punishment. First offenders who don't have any violent crimes but falls on the categories of robbery & kidnaping almost automatically gets long punishment that produces more bad individuals in the street learning from the prison jungle. I believe that if the state legislators should understand that the solution of teaching the first offender lesson and directing them to being responsible instead of punishing with very long prison terms only produces more ills to the society.

I know since I have an 18 1/2 year old son sent to prison who got 11 years for trying to get his money back since he originally wanted to buy some illegal gun solicited by the “accuser” who also is a drug-user and deals with impostors gun-runners. When the accuser couldn't give my son’s money back, my son and his friend ask him if he has money in credit card. They went to an ATM, got some money which is less than what they originally paid him and drop him close to his home. After few hours, he reported he was kidnaped at gunpoint, rob and threatened to be killed. This accuser admitted of doing this type of scheme with other drug-users with the intent to lure young kids in buying guns, getting their cash and running away. But my kid changed his mind and ask his money back. His mistake was another friend with him took a camera that the accuser owns and hold-on to the card since the ATM money was not enough. No physical harm was done to the accuser but they did scare the accuser who was also found high with drugs at the time he reported the scene to the police. They also found some drugs and paraphenila in his house during the interview.

This ills of society continue to roam the street preying on young kids like mine to make easy bucks and sustain their drug habits while my son serves his prison experiencing the brutal side of prison. He does his beat in learning the system and keeping his faith stronger and that somehow.. he understands that there for a good reason for all of this.

Me, my wife and my daugther have been in this journey due to the broken system and mys son’s mistake. And I pray that one of these days, we can better the system to make those who make mistakes learn their lessons through appropriate and fair punishments or prison terms so they do NOT become ills later of society. We have to start with the first offenders since they grow to become what they will later be based on our judges decision. “You cannot throw a dog inside a cage and live with other vicious animals..that might turn him into another animal inorder to survive the system.” Throw them in a place with similar offenses and age so they can challenge themselves better and well prepared to become better people when they come out.

I am currently a volunteer in the juvenile hall teaching music to kids who tap and redirect their creative minds in writing poems and transposing them to music.

Please continue fighting for sentencing reforms. It can only do good to the community, society and families of the incarcerated which are mostly poor and silent in their cries...

wakeup said...

How did it get so bad? I think a reasonable correlation is the power of the employee unions such as CCPOA and the political influence of corporate prison interests both of which are totally committed to making sure that the prison system grows. The prisons are supposed to be run by the State but everyone knows the prison guard’s Union calls the shots. Collecting almost $2 million, a month from its members makes it a powerful entity and a major donor to candidates who do their bidding, keeping prisons full and profitable. They do this by supporting legislators who they can count on to criminalize more and more behavior and increase the existing sentences for laws already on the books and by direct donations to every group that wants to throw another 'law and order' initiative on a public that obviously does not read before they vote. Their mission: Keep as many as they can cram in locked up for as long as possible, so inept prison employees keep making $150,000 a year to babysit pot smokers.
It is not only the CCPOA that want jails full; it's the companies contracting slave labor from them. For pennies a day inmates are forced into manufacturing everything from our clothing to computers. Jobs that used to be filled by us. Too bad California voters never bother to question anything, buying into the propaganda who ever talks loudest is right. There are currently many laws that call for mandatory first offense prison sentences. Offenders are offered a plea agreement (the courts could never handle it if all defendants elected to go to trial) and their choice is take the plea agreement or take it to trial, but, if they elect trial and found guilty the will receive the highest sentence possible. Most defendants (guilty or not) go for the plea agreement. Judges no longer have any discretion in sentencing ... it’s the D.A.'s call and a notch in their conviction scorecard.

California now has the biggest prison system in the world, a system 40 percent bigger than the Federal Bureau of prisons. The state holds more inmates in its jails and prisons than do France, Great Britain, Germany, Japan, Singapore, and the Netherlands combined. At the current rate of expansion, assuming they again ignore a court order that forces release of prisoners, it will run out of room in a very short time. To remain at double capacity the state will need to open at least one new prison a year, every year. This would just maintain the current standards, not improve them. It doesn’t take a genius to see the problem here, but then California isn’t big on education…

Anonymous said...

It is quite obvious the prison system is failing in America. A system that costs Taxpayers way too much. A system that releases inmates that will never reform. A system, that fails to deter crime. In older times they would hang, or exile the criminals. It is time we change the laws. That we exile our criminals to a remote island, never to return to the US mainland, nor escape the island alive. We have too many low life crimes against society, and no deterrent. Maybe being banned to some Aleutian island, where one will need to survive, 10000's of hard core criminals, one would think twice about stealing anything, or assaulting an innocent victim. This would deter crime, lower crime, and save billions in tax payer funds, that could be used to help food people, instead.