The Informant

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:

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.

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: Continue reading →

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.

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. Continue reading →