California has recently taken a major step to reduce its prison population. Governor Brown’s realignment plan will divert low-level convicts and parole violators from the state to local counties. But even with this change, the prisons will remain overcrowded—just less so. Without sentencing reform, the jails too will soon overflow (some are already filled to the brim). One promising reform would come in the form of a
California Sentencing Commission with the authority to develop, implement, and monitor guidelines, but when lawmakers have proposed this reform in the past, they have faced rigid opposition. Their fellow politicians, law enforcement groups, and punitive-oriented crime victims’ groups consistently raise three primary arguments:
- Sentencing commissions are undemocratic.
- They abrogate lawmakers of their responsibility to determine criminal penalties.
- They’re stealth means for reducing (“softening”) prison terms.
To evaluate these claims, I turned to the rather extensive research on Minnesota’s experience with a sentencing commission and guidelines. I also had a conversation with Richard Frase, law professor at the University of Minnesota and one of nation’s foremost experts on sentencing commissions. Here’s what I learned:
Sentencing commissions are somewhat undemocratic, but not as much as critics claim. These commissions operate as relatively independent agencies that purposefully buffer sentencing from immediate political calculations, interest group pressures, and hysteria over sensational crimes. Frase puts it this way:
Sentencing commissions have the time and resources to study complex things and to look at things in the aggregate, the big picture. Instead of having what’s called “crime of the week” legislation, you can say, “All right, we have all these different crimes and we’ve got these resources. How are we going to fit all these crimes with these resources?” …Especially for hot button issues, it’s valuable to have a little bit of insulation from short-term political pressures and the impatience of the political process. The commission, through its resource impact assessments, can buy time and produce much more reasonable and affordable policies.
Although commissions can (and, in my opinion, should) insulate sentencing policymaking to some degree, they can, at the same time, be quite democratic, as Frase explained:
I think [the claim that commissions are undemocratic] is mostly a distortion of the way most commissions have worked. Minnesota’s commission had an aggressively open political process. They had all these meetings around the state when they were still in their fact-finding and early deliberative stages. The idea that this is somehow a cabal is not true.
Frase elaborates on the “aggressively open political process”:
The Commission reached out to and sought to involve in the drafting process all of the key interested constituencies of sentencing—corrections, defense, prosecution, courts, the Legislature, local government (responsible for most non-prison sentences) and key public interest groups, particularly Blacks, Native Americans and women. Commission members representing these constituencies acted as liaisons, communicating to the Commission the perspective of their group… and explaining to the group the goals, views and policies of the Commission. Commission meetings were well attended by members of these groups. [Note: two of the nine original commission members in Minnesota were “public members.”]
A second outreach component involved holding numerous public hearings and speaking engagements around the state to explain the Commission’s work and solicit public comment and concerns. Hearings were held during the development process and again after the Guidelines had been put into effect, to get input into how they were working. The Commission found this input helpful in modifying the Guidelines and disseminating the Commission’s data on sentencing practices under the Guidelines. In the two years leading up to the effective date of the Guidelines, Commission members and staff spoke at more than 100 meetings of professional, business, community and religious groups in the State.
Minnesota’s sentencing commission continues to hold public hearings and meetings, informs the public and policymakers about its practices, and freely shares its extensive data. Fears that the organization would be too isolated (and isolationist) have not panned out. In fact, the Commission is remarkably open and transparent, even twenty years after its creation.
This is a contrast with California’s current policymaking around sentencing, which is only superficially democratic. Legislative “sausage making” is controlled by well-heeled interest groups and largely occurs behind closed doors (public hearings are often just pro-forma performances that occur after decisions have already been made), while voters (after electing those legislators) are minimally involved through the initiative process. They may sign a petition, see a few ads (which tend to distort complicated, important issues), or vote “yes” or “no” at election time, but average voters have no means of shaping what initiatives say or do. Only the rich individuals and organizations that pay for those initiatives decide what actually gets on the ballot. So, ironically, a sentencing commission could actually bring more people from more communities into the policymaking process, and its open meeting and information distribution processes could increase public knowledge about sentencing and criminal justice issues.
Sentencing commissions reduce legislators’ role in sentencing policymaking, but not as much as critics claim. While a central purpose of a California Sentencing Commission would be to insulate sentencing policy from heated political gamesmanship, it wouldn’t cut legislators out of the picture altogether. In the guidelines development process, legislators weigh in during hearings and open meetings, and ultimately, politicians have the authority to accept or reject the guidelines altogether (at least in states like Minnesota, in which the guidelines go into effect unless the legislature passes a bill rejecting them). Finally, Frase explains, even if the guidelines go into effect, lawmakers can still affect sentencing law:
They can always change the laws, like [instituting] a mandatory penality. You still have the statutes. New mandatory minimums trump the guidelines. [Also], sometimes [politicians] will say to the Commission, “You must rank this [crime] this way and provide this presumptive sentence.” And they can give specific directions to the Commission. The Commission in most of the states is considered to be within the legislative branch. And the third way the legislature can do it, and they’ve done this lots of times, they just say to the Commission, “We want you to study whether these penalties should be increased.” And then the Commission will come back to the legislature [after studying how the proposed changes would affect resources and the prison population]. The Commission has felt free to say, “We’ve studied this and don’t believe change is warranted.” Then the legislature can say, “Okay, we’re telling you” [to change the guidelines]. But many times the Legislature says, “Thanks for the study.” And that is that.
Ultimately, sentencing commissions don’t abrogate legislatures of their responsibility over sentencing policy. Minnesota’s commission has actually been successful, in large part, because it works well with its state legislature.
A California sentencing commission would reduce prison sentences, but wouldn’t be “soft on crime.” Unless the state is willing to seriously increase taxes and build more prisons, it simply must reduce the number of people behind bars and the length of time they serve. As shown in Minnesota, it’s possible to sanction offenders without sending them all to prison. Minnesota sends approximately 25% of convicts to prison (the national average is about 45%), and makes extensive use of probation, brief jail sentences, community service, house arrest, electronic monitoring, and treatment for the rest. Minnesota is not “soft on crime.” It just reserves prison beds for the most serious offenders. So, yes, a California Sentencing Commission would reduce prison sentences. But it wouldn’t let offenders off the hook; they would still pay for their crimes. Not all of them would do so in expensive prison cells.
In all, the Minnesota experience shows that critics’ arguments about a potential California Sentencing Commission distort reality. Politicians and powerful interest groups want to retain their effective monopoly over sentencing policy. Thus far, they’ve shown little desire to make this policy area more democratic—no matter how loudly they scream “undemocratic” whenever a proposal for a sentencing commission makes its way through the legislature. If lawmakers and interest groups truly care about solving California’s correctional crisis—which, after all, spiraled out of control in the very decades in which these groups controlled the Golden State’s sentencing—they will give a commission the opportunity to fix the state’s broken sentencing laws and practices.