SB 105 Misses the Mark: Sentencing reform is biggest loser in battle to de-crowd prisons

by Karin Drucker on September 17, 2013

Last week, California Senate Majority Leader Darrell Steinberg blew a chance to reform California’s jumbled morass of a penal code. He and Governor Jerry Brown agreed to Senate Bill 105, a compromise plan to comply with prison de-crowding—and he gave up one of the most promising plans for fixing California’s broken justice system: a state-wide sentencing commission.

Despite Sen. Steinberg’s Press Secretary Rhys Williams’ promise that, “Creating a sentencing commission is a priority for Senator Steinberg in the next legislative session,” I am not comforted. Killing proposals for sentencing commissions is long-standing tradition for California leadership, which is again choosing not to challenge the practices that fuel our broken criminal justice system. And (with one notable exception) no one blinked.

Collateral damage of SB 105—sentencing reform

Gov. Brown said of the senator’s plan for a sentencing commission, “It would not be responsible to turn over California’s criminal-justice policy to inmate lawyers who are not accountable to the people.” California has shot down sentencing commissions many times in the past, including 2006 and 2009. In a 2009 presage to our irascible governor, one critic wrote that a sentencing commission would “allow philosopher kings to decide what is best for the people, whether they like it or not.”

According to Gov. Brown and Sen. Steinberg, SB 105’s de-crowding provisions will only go into effect if the federal court refuses to give them more time to reduce the prison populations to 137.5% of capacity. As of September 4th of this year, the system was at 143.8% capacity, with 123,777 inmates. SB 105’s plan to meet the decrease would cost the state $315 million.

I am skeptical of this bill for many reasons: First, Governor Brown has a track record of trying to dodge the order to de-crowd; second, hunger strikes have wracked the California prison system, proving that conditions are far from acceptable; and third, most troublingly, the new plan will give a windfall to the US’ first and second largest private prison companies Corrections Corporation of America and Geo Group.

In early August of this year, Gov. Brown asked the Court to release him from the original order to de-crowd saying that health conditions had improved, but the court refused. Now, he is thumbing his nose at the court, indicating that he intends to take the issue back to the U.S. Supreme Court, which ruled in 2011 that CA prison conditions amounted to cruel and unusual punishment. This is beginning to feel like Gov. Brown’s personal contest of wills, not a genuine attempt to, you know, govern.

Second, California already renewed contracts with Corrections Corporation of America to house 9,000 prisoners out of state by moving incarcerated people—with or without their consent—to out of state prisons. SB 105 slates more to go to Geo Group, which once housed children in a “cesspool of unconstitutional and inhuman acts and conditions,” at Walnut Grove Youth Correctional Facility in Mississippi, according to a federal judge. In early 2013, the California Department of Corrections found that more than 4,100 people are incarcerated for possessing drugs that they intend to use themselves, according to the San Francisco District Attorney George Gascón’s September 2013 newsletter. What did they do to deserve the Geo Group?

Furthermore, Gascón points out that Gov. Brown’s rhetoric always establishes a false dichotomy: unless the court extends his de-crowding deadline, he’ll be forced to release prisoners willy-nilly. Gascón’s op-ed:

“California is on track to meet the court order by the end of the year…. The California Department of Corrections and Rehabilitation has already reduced the number of inmates in California’s prisons by 4,819 by placing offenders in fire camps and out-of-state prisons. To comply with the court order, the state need only reduce the prison population by another 4,817 inmates by Dec. 31.”

Good efforts are underway. Williams assured me that that the “tide is turning” for criminal justice reform in the legislature. This is likely true; the Assembly just passed Sen. Mark Leno’s (D-San Francisco) legislation, which would give prosecutors discretion to charge low level drug offenses as misdemeanors. Sen. Leno’s effort is a great step, but it is not enough to shave away bits of the behemoth penal code.

Sen. Steinberg’s commitment sounds nice, but legislators need to stand firm—not cave to Gov. Brown—and fight for a sentencing commission with teeth.

Wait…we want more bureaucracy?

Recently, someone told me, “If you want something not to happen, create a commission.” This is a fair point, especially considering the most famous of its kind, the U.S. Sentencing Commission. Since 1984, it has largely failed to improve federal sentencing laws—if it were acting as it should, it would have declared long ago what US Attorney General Eric Holder recently did: sentencing practices have created “a decimation of … communities, in particular communities of color.” Tellingly, the U.S. Justice Department sent a message to the U.S. Sentencing Commission in July of this year, saying that states’ elimination of mandatory minimums represent a new mindset: prisons should be used “sparingly” while reentry is a “core priority.”

In other words, states are leading the way. Sentencing commissions in at least 20 states such as Minnesota, Kansas, North Carolina, Pennsylvania, and Virginia have garnered bi-partisan praise for their work. Minnesota created a commission with a high level of public input and great longevity; it has released annual findings since 2004. The National Association of Sentencing Commissions is a non-profit group dedicated to sharing expertise and many states participate in its conferences and surveys.

In short, the U.S. Sentencing Commission’s failure is a poor argument against one in California.

Kate McCracken of the Center on Juvenile and Criminal Justice makes a compelling case for a sentencing commission and notes that in the past 30 years over 1,000 “sentencing enhancement bills” made it through the California legislature. “The complexity of these bills, as well as their punitive nature, has increased the number of individuals committed to state prison with a trend for longer sentences,” she wrote. Others concur. Earlier this year, President of the Rosenberg Foundation Timothy Silard called for a sentencing commission to disassemble California’s “hodgepodge of [a] penal code.”

However, I argue that without power to enforce, a sentencing commission is only as good as the leaders who stick with it for the long haul.

A plea for the unsexy agenda

There is a reason that the sentencing commission debate does not appear on the front page of the L.A. Times—in contrast to Gov. Brown’s threats of mass release, appeals to the Supreme Court, and sensational stories about consequences of Realignment, changing the law is an unsexy, almost un-newsworthy topic.

I saw this when I worked on a federal task force whose recommendations went nowhere. Media attention peaked when the task force debuted and then sank like a stone, particularly after its cogent yet voluminous recommendations hit the proverbial desk. I say proverbial because I could not even tell you whose desk it hit.

In other words, who reads commissions’ recommendations? We cannot appoint a sentencing commission and promptly pat ourselves on the back. California needs to implement its recommendations, provide judges with programmatic alternatives to traditional sentencing, and ensure long-term oversight to determine the changes rendered through sentencing reform. Public input, which was a major component of Minnesota’s successful commission, should be a priority. Appointments should reflect the need for substantial buy-in must from judiciary, law-enforcement, corrections, and county governments.

After implementing recommendations, we must anticipate and watch for issues such as judicial departure from sentencing guidelines and ensure that judges have, a) adequate alternatives to incarceration, and b) a streamlined process for placing individuals in appropriate programs. New York, for example, is experimenting with technology that will help to pair those eligible for alternatives to incarceration to the appropriate programs; too often the chances of entering a program depend on who you, your lawyer, or your judge know. Judges’ use of alternatives to incarceration, and programs themselves, need on-going scrutiny and research. It is, indeed, a long haul.

Finally, in light of SB 105’s inadequate plan, we need to consider additional options, which deserve articles unto themselves:

• First, “compassionate release.” In February, Assembly member Cheryl Brown (D-San Bernardino) introduced AB 353, which would release individuals who are “permanently medically incapacitated.” It stalled in Assembly committee for reasons I could not determine.
• Second, pre-trial detention reform is more vital than ever before. Seventy percent of those in California jails have not been convicted of a crime; they just cannot afford bail.

Legislators need to push these unsexy, back-end agenda items. And, they need to tackle criminal justice reform from the front-end: establish a state-wide sentencing commission, and make sure it works.

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