The Informant

There is a growing consensus that California won’t solve its correctional crisis without major sentencing reform.  For some, that means returning to indeterminate sentencing, but as I argued in last week’s post, this “reform” is unlikely to reduce the prison and jail populations—the crux of the crisis.  That said, it’s clear that determinate sentencing hasn’t worked for California either.  The incarcerated population ballooned after the state switched from discretionary to non-discretionary sentencing.  In fact, according to Kevin Reitz, the University of Minnesota law professor mentioned in my last post, of the ten states with the highest prison growth from 1980 to 2009, California was the only one with determinate sentencing.

But fixed sentencing is not really the problem.  The problem is that California politicians (and voters, through the ballot initiative) routinely pass laws that increase prison and jail populations without concern for finances, the availability of space to house offenders, or proportionality (whether the punishment actually fits the crime).  The Golden State has a Wild-West approach to sentencing law—anything goes.

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California's Wild-West approach to sentencing law is unsustainable.

There is another way.  Those states with the least prison growth between 1980 and 2009 had determinate sentencing. Unlike California, however, they also had sentencing guidelines developed by a sentencing commission.  The guidelines help order judges’ decisions, and the commission helps order to the sentence-making process.  This is to say, the difference between California and these other states is not between determinate and indeterminate sentencing; it’s between structured determinate sentencing and (in the case of California) non-structured determinate sentencing.

Minnesota is widely considered the model for structured determinate sentencing.  In 1980, it implemented an independent sentencing commission charged with developing, instituting, and monitoring sentencing guidelines to increase uniformity in sentencing, make judicious use of prison space, and match sanctions with existing resources.  Richard Frase, an expert on sentencing guidelines, discusses the vital role of this “resource matching”:

The Commission gave great weight to the statutory directive to take existing correctional resources into serious consideration; accordingly, the Guidelines were designed to produce State prison populations that remained well within (no more than 95 percent of) current and projected (fully funded) prison capacity.  A detailed, computerized projection model was developed and used throughout the drafting process to test the expected prison population that would result from each proposed guidelines rule or procedure.  The commission’s “capacity constraint” and its prison population projections forced members of the Commission, as well as outside constituencies and interest groups, to confront the reality of limited prison resources and the need to set priorities in the use of those resources; any member, constituency or interest group that proposed greater severity for one group of offenders was asked to identify other offenders who could receive correspondingly reduced severity… This policy has helped Minnesota to avoid the problems of prison overcrowding.

The commission produced guidelines for all felony crimes (except those with sentences of life, such as rape and murder).  The resulting punishment “grid” provided presumptive sentences based primarily on two factors: the seriousness of the current offense and criminal history.  The guidelines recommended whether an offender would go to prison or receive a stayed sentence (which would generally mean jail time and probation) and stipulated the maximum and minimum length of the sentence.  Putting the guidelines into practice, judges would decide the actual length of the sentence within the given range.  They could consider individual characteristics of the case and traditional punishment purposes such as rehabilitation, incapacitation, and deterrence.  Judges could even depart from the guidelines for “substantial and compelling” reasons, but to do so, they must justify those departures in writing, and allow both the defense and prosecution to appeal the departures.  In brief, the commission developed clear, but relatively flexible, guidelines based on resource considerations and penological goals and principles.

After incorporating feedback from diverse constituencies, the commission submitted its final product to the Minnesota state legislature.  To block the guidelines the legislators would need to pass a bill disapproving the changes, but the politicians did no such thing: Minnesota became a “guidelines state.”

Since 1980, Minnesota’s independent sentencing commission has continued to monitor and tweak its guidelines, often in concert with the legislature.  Although some observers believe Minnesota’s guidelines could still be improved, there is general agreement that the commission and its guidelines have been successful.  Frase explains:

Minnesota’s experience over the past quarter century shows that legally binding sentencing implemented by an independent sentencing commission can achieve many important policy goals—reducing unwarranted sentencing disparities without greatly complicating sentencing hearings or unduly confining the judge’s ability to consider case-specific facts; controlling prison population growth and avoiding overcrowding; setting priorities in the use of limited prison capacity; using appellate review to create a common law of sentencing that assists the Commission and Legislature in developing sentencing policy; and promoting “truth in sentencing” (limits on prison-release discretion ensure that the amount of time actually served in prison is not dramatically less than the prison term imposed by the court at sentencing). The role of the Minnesota Guidelines in promoting public safety is more difficult to assess, but the similarity between crime trends in Minnesota and the rest of the United States in the past three decades suggests at least that the Guidelines have not seriously interfered with crime control efforts.

California has seen various attempts to implement a Minnesota-style sentencing commission.  The latest came in 2009 as part of then-Governor Schwarzenegger’s efforts to decrease the state’s massive budget deficit and keep the prison system out of federal receivership.  That legislative proposal ultimately failed due to stiff resistance from Republican legislators (and a small group of Democrats who faced reelection), law enforcement organizations, and punitive-oriented crime victims’ groups.  Arguments against a California sentencing commission rested (and continue to rest) on several claims.

1. Sentencing commissions are undemocratic.
2. They abrogate lawmakers of their responsibility to determine criminal penalties.
3. They’re stealth means for reducing (“softening”) prison terms.

In Thursday’s post, I will draw on Minnesota’s experience with its sentencing commission and guidelines to evaluate each of these claims and consider the possibility of bringing structured determinate sentencing to the Golden State.