Sentencing Commission Bill: Vaguer Definitions

At the request of one of our readers (thanks, Tom!) , we’re posting some more information about the legislative proposal to create a California Sentencing Commission. At our conference in March, Kara Dansky, Executive Director of the Stanford Criminal Justice Center, discussed the potential for reform using a commission, as well as answered some possible critiques of the idea. For more on that, here is her review from a while back on the California Progress Report. 

Here is the proposal itself, from Assembly Member Bass, after a few changes made in mid-April. As you’ll see when you read it, the main change is moving the sentencing intentions and definitions out of the proposal itself, as well as out of the hands of the legislature, and into the hands of the commission, whose purpose is now defined much more vaguely:
There is hereby established an independent, multijurisdictional body to provide a nonpartisan forum of statewide policy development, information development, research, and planning concerning criminal sentences and their effects. 
This is much vaguer than the original intent behind the proposition, and may have to do with the ability to better “sell” a body whose authority is not clearly defined, as well as with the will to keep the commission free from constraints. It also might mean that their decisions would not necessarily be binding. Who knows? Interestingly, Crime Victims United of California consider A.B. 1376 a “placeholder” bill, and see it as a cause for concern.

More on the CDCR Budget Cut (again, from secondary sources)

I wonder why CDCR does not have the budget cut details posted to its website. All they have done so far, in terms of public information, is to tweet about others’ responses to the plan. At this point, therefore, I can provide some more details about the plan and about different reactions to the plan.

You may recall the $400,000,000 cuts from the Governor’s budget action in February, which included the Governor’s expectation that the cuts be implemented ““in a manner that promotes rehabilitation and preserves public safety.” The original budget action also mentioned some specific ways to deal with the problem:

Counties will recall that over the last several years a range of proposals have been put forth by a variety of sources — expert panels, the Administration, and the Legislature, among others — that aim to reform the corrections system, while realizing cost savings. These proposals include various approaches to parole reform, credit enhancement, increasing thresholds for property crimes, and other sentencing changes. It is not certain whether CDCR will pursue these or other means for achieving the $400 million in savings, but the CDCR Secretary and staff have assured counties and local law enforcement stakeholders that they welcome input and suggestions, given that any reform effort is sure to impact local governments and local public safety. CSAC will continue to be engaged on counties’ behalf regarding these proposals and any others that may be considered in order to meet the Governor’s directive.

Here are the main changes, as they appeared on the Chron, the L.A. Times, and the Sac Bee:

  • Reduction of parole population by 25% (about 30,000 parolees), focused on nonviolent offenders
  • Impact of reduction: lesser parole violations, less returns to prison – a projected reduction of 4,000 in prison population
  • Expansion of good behavior credits for inmates who successfully complete educational/rehabilitative programs – a projected reduction of 4,000 inmates
  • Increased use of GPS monitors for parole violators, rather than a return to prison
  • A change in the definition of grand theft, which will raise the threshold from $400 to $950 (the previous number was set in 1982!)
  • Elimination of 150-200 positions at CDCR’s Sacramento headquarters
  • Closure of one juvenile prison
  • As a concession to law enforcement opponents: proposed legislation that will allow police to search former prisoners and seize evidence of a crime from them without a warrant for at least three years after their release, even if they are not on parole

Some initial thoughts:

The decrease in parolee numbers is probably a healthy thing. I wonder whether it will be tied to severity of offense or to some measure of risk assessment (CDCR, please post the details on the website!). Most importantly, the hope is that the decisions on who is let off the hook will be in line with the parole reform suggestions that CDCR had begun working on.

The concession seems to be quite dramatic, its constitutionality seems questionable, and it certainly does not lie in CDCR’s realm of expertise. Search and seizure raise constitutional issues, and in the current climate, given that this exercise of power doesn’t have a price tag attached to it, I don’t see CA courts, or even the Supreme Court, dismissing such legislation. The Supreme Court has been typically dismissive of the rights of former prisoners in respect ot search and seizure, exemplified by its decision in Samson v. CA (2006), which allows for a suspicionless search of parolees. So, this concession will be a legislative expansion of Samson to non-parolees as well.

While a 8,000-inmate reduction may seem dramatic to victim advocacy groups, it is a far cry from the 50,000-inmate reduction suggested in the Plata v. Schwarzenegger tentative decision, and will have a very small effect on the overcrowding problem (not that releasing 50,000 inmates with no re-entry programs to speak of is a good idea in this economy, as we argued elsewhere).

One prison is closing down. Will the CDCR continue building other prisons? Three weeks ago there was still talk of looking for $810,000,000 (twice the budget cut!) for purposes of prison expansion.

What do you think?

BREAKING NEWS: -$400,000,000

That is the budget cut for CDCR. Today, CDCR Secretary Matthew Cate announced his plan to cope with the significant reduction in corrections budget. As reported on this morning’s Chron, Cate,

tasked with finding $400 million in cost savings, unveiled proposals Friday to save money by reducing the number of parolees by 30,000 and the state’s prison inmate population by 8,000 by next summer.

We knew this was coming for quite a while; Secretary Cate mentioned the dilemmas involved in crafting the plan back in late March. The objecting parties are, as expected, victim advocacy groups and the prison guards union.

There are no details of the plan yet on the CDCR website, but once the full plan is posted, we will analyze and comment. Stay tuned.

Keeping Track of Inmates: CDCR to Revamp its Offender Database

Here are some highlights from the CDCR press release (the full story is here):

SACRAMENTO – The California Department of Corrections and Rehabilitation (CDCR) announced today the intent to award a contract to EDS, an HP company, to begin a multimillion-dollar effort to automate and streamline offender data systems. The project, called the Strategic Offender Management System (SOMS), will consolidate existing databases and records and replace manual paper processes over a four year contract period. . . SOMS will replace more than 40 aging electronic and paper database systems, which are becoming increasingly difficult and costly to maintain. The system will contain an “Electronic C-file” for inmates and provide the opportunity for electronic data exchange–with Jails, Courts and the Office of Prison Healthcare Services.

This is an excellent idea. And, if this happens in the time allotted, and with the available resources, it could do wonderful things, such as make sure that folks aren’t subject to parole/probation requirements in three counties at the same time.

Incidentally, it probably wouldn’t be a bad thing to similarly improve the criminal court database, too. Currently, the data is on several different silos, and is rather inaccurate, which, among other problems, also hinder the ability to do research work on CA courts.

One Hand Criminalizeth, and the Other Decriminalizeth Away


Two interesting and seemingly unrelated events were reported on the news yesterday. The L.A. Times reported on the oral argument in the school strip search case. Here is the full text of the oral argument, and as can be seen from the Justice’s questions, suspicions and the War on Drugs played an important part in the courtroom discussion, as did concerns about the risks of over-the-counter drugs (the search in the case was conducted to find ibuprofen in the 13-year-old’s underwear). Two interesting examples from the transcript, which blur the distinction between drugs and pills:

JUSTICE SCALIA: Had it been the case that, as I recall, someone had — well, students were popping ibuprofen, weren’t they?
MR. WRIGHT: Yes, Your Honor.
JUSTICE SCALIA: I guess they might pop aspirin as well. I’m not aware that one gets a high on either one of those.

CHIEF JUSTICE ROBERTS: I’m sorry, your answer to me was they have to take it seriously. My question to you is, what is the administrator supposed to do? He sees a white pill; nobody can tell him what it is. Is he allowed at that point to search the undergarments or not?
MR. O’NEIL: No.
CHIEF JUSTICE ROBERTS: He’s not?
MR. O’NEIL: He is not.
CHIEF JUSTICE ROBERTS: Even if it turns out to be — you know, I don’t know, some very deadly drug?
MR. O’NEIL: Mr. Chief Justice, we do not believe that this Court should get in the business of deciding that searches are okay for, for example, heroin, but not okay for cocaine.
CHIEF JUSTICE ROBERTS: That’s what you just told us we should do, in answer to Justice Alito’s question.
MR. O’NEIL: No, I simply — the point was simply that if there is some common understanding that a type of contraband is generally secreted in a certain way, and the example is crack, and there is a known understanding that crack can be hidden in that way, that that would be relevant to the totality of the circumstances.
JUSTICE SOUTER: And I don’t see why your answer might not be different if, under the Chief Justice’s question, he didn’t know it was ibuprofen. All he knew was that it was a white pill. He’s not a pharmacologist, he doesn’t know what’s in it. Wouldn’t the reasonableness of the — wouldn’t the scope of reasonable search at least potentially be greater for the undifferentiated white pill than for the known ibuprofen?

At the same time, the SF Chron reports that, due to budgetary constraints, the Contra Costa DA’s office will no longer prosecute several misdemeanors.

Kochly wrote that he had long taken pride in saying that his office could do “more with less.”

“Unfortunately, we have now reached a point where we cannot maintain the status quo,” he said. “We will definitely be doing ‘less with less’ as a prosecution agency.”

The changes are needed to help eliminate a $1.9 million budget deficit in the district attorney’s office for this fiscal year. By month’s end, six deputy district attorneys will be laid off, and 11 more will have to be let go by the end of the year, Kochly said.

Criminal justice policy is made in many sites, on many levels, and by a variety of actors. It is not a well-planned, intentional conspiracy. As David Garland wrote in The Culture of Control, the “history of the present”, as he calls it, is characterized mainly by punitive measures, but there are also counterexamples. Note that the counterexample in this case has to do with costs (humonetarianism raising its head once more), and that in the oral argument the Justices are not preoccupied with the issue of costs.

Are Californians Punitive?

A key assumption underlying the discourse of correctional policies has been that the ever-increasing sentences, changes in trial structure, and criminalization, represent the will of the public. This is a particularly strong argument in the case of California, since a substantial amount of our correctional reforms occur through voter initiatives. It’s probably time to ask ourselves whether the assumption that Californians are punitive, and desire these reforms, is true.

On its face, the assumption seems to be supported by some anecdotal evidence. In the last elections, Californians passed Proposition 9, which, in addition to strengthening the victim’s position in the criminal process, worsens the inmate’s position in parole hearings (by increasing pre-parole imprisonment periods and diminishing the scope of the right to counsel); while these particular provisions have not been incorporated yet into law, through Judge Karlton’s intervention, they were still elected as “the will of the people”. They also rejected Proposition 5, which promised drug treatment and various diversion options for non-violent drug offenders. Anecdotal evidence also seems to support an assumption of punitiveness; it is enough to glance at the comments at SFGate.com to be confronted with anger about crime, which translates itself into demands for more punitiveness. But is this really true? How does one systematically measure punitiveness? And, more importantly, how do we differentiate between public punitiveness and the initiative of lobbyists, interest groups, and politicians?

The first thing to ask ourselves is whether this is, indeed, a particularly punitive period in our history. While many influential thinkers, such as David Garland, Stanley Cohen, and Jonathan Simon, characterize our times as being increasingly punitive, others disagree. As Roger Matthews reminds us, there also have been examples to the contrary. Think, in the California context, of the recent developments regarding the possibility of decriminalizing marijuana, or on the considerations of incarceration options.

The next step is trying to figure out whether people are particularly punitive, and if so, which factors predict punitiveness. We don’t know much about the punitiveness of Californians in particular, but research conducted elsewhere in the States and in the world suggests that public punitiveness is an empirically complex issue.

Shadd Maruna and Anna King, who conducted a survey on the British public, found that factors such as concerns about the economy and the state of ‘the youth today’ account for a substantial proportion of the effect of actual crime concerns on punitiveness. On the other hand, crime-related factors, such as victimization experiences or anxieties about crime did not appear to predict punitiveness. Similar trends, connecting punitiveness with strong emotions or sentiments, were found by Devon Johnson, who used U.S. national survey data. Her work shows that anger about crime is a significant predictor of punitive attitudes, after controlling for other factors such as racial prejudice, fear of crime, causal attributions for criminal behavior, and political ideology. Similarly, in a national survey study, Sherwood Zimmerman, David van Alstyne and Christopher Dunn found considerably punitive trends; they then compared the hypothetical outcomes to a recent conviction cohort from New York State, and found that, had the public’s will been faithfully applied to actual convictions, the additional correctional costs would have been very high.

Emotion-driven opinions about punishment are, of course, particularly strong regarding issues like the death penalty. Mona Lynch’s study of pro-death penalty discourse on the internet finds that the death penalty is framed as a symbol of justice, a triumph of sorts of the good (the innocent victim) and the evil (the capital murderer). This essentialist perspective eliminates all consideration of costs, let along empathy for the offender.

Some studies, however, have found less punitive outcomes, particularly by tweaking the methodology of punitiveness surveys. Douglas Thomson and Anthony Ragona have critiqued standard punitiveness surveys, arguing that these generally do not ask respondents to consider contingencies such as offense circumstances, behavioral content of various sentences, or fiscal cost differentials. This means that the public will necessarily appear to be more punitive than judges, because they are not faced with the full spectrum of judicial considerations, nor are they offered information about the relative fiscal costs of current and alternative sentencing practices. Thomson and Ragona, who conducted an Illinois survey incorporating issues of costs found that, on several dimensions, the public turned out to be less vengeful than typically portrayed in public opinion poll and media accounts, notably in its openness to community sentences. I find this information particularly interesting, because it suggests, in the spirit of humonetarianism, that a discourse of scarcity has the potential to decrease public punitiveness. It is useful, in this context, to remember the rejection of Proposition 6, which suggested extremely punitive measures against juveniles and gang members; Prop 6 was mostly attacked for its high financial costs.

Neville Blampied and Elizabeth Kahan, who conducted a survey study in New Zealand, found creativity and openness to alternative punishments among community members asked about responses to juvenile noncompliance. The outcomes here may have been less punitive because of the case study, but they may also reflect cultural differences between the U.S. and New Zealand, which has been very open to juvenile justice reforms, and uses family group conferences almost to the exclusion of juvenile courts.

The last important question is whether public punitiveness – if, indeed, it exists – is the reason for punitive policies. As Katherine Beckett argues in her beautiful book Making Crime Pay: Law and Order in Contemporary American Politics, these policies do not originate with the public. She carefully timelines punitive initiatives, demonstrating how public opinion is being swayed by politicians and the media. In states like California, where much public policy is made directly by the public, it is important to examine who stands behind punitive initiatives and how these campaigns are being run.

Judge Alsup: Death Row Conditions in San Quentin Reach Constitutional Threshold

(images courtesy CDCR.ca.gov)

Some of the recent discussion of prison costs has to do with the expenses associated with running San Quentin’s Death Row. As some of you may recall, a planned expansion of Death Row, deemed costly, was killed by a bipartisan initiative last year. The struggle around the planned expansion occurred against the background of 30 years of litigation regarding conditions on Death Row.

Yesterday, the Chron reports, Judge William Alsup of the California District Court ended this lengthy era of court supervision, after ruling that the improvements made to Death Row were enough to satisfy constitutional requirements. The improvements included getting rid of dirty water and rodents.

The nation’s largest Death Row now houses 665 men. Only 10 inmates were held there when the suit was filed shortly after capital punishment was reinstated in California in 1977.

Fama said the inmates’ original complaints were dirty and decrepit housing and a system that classified all condemned prisoners as security risks who had to be confined to their cells nearly 24 hours a day.

The 1980 consent decree required prison officials to evaluate condemned inmates individually and allow the less-dangerous ones the same exercise time and visiting privileges as non-Death Row inmates. It also required improvements in food, medical care, cells, showers and access to a law library.

As the Death Row population multiplied, the state periodically sought to end court supervision. But a series of reports by judicially appointed monitors over the years found a variety of violations, including a flawed cell assignment system that led to violent clashes and disciplinary rules that sent offenders to “strip cells” wearing only a pair of shorts.


One thing that strikes me as interesting is that the improvement in conditions consists, in some respects, of making the Death Row experience more like “regular” life imprisonment. Does this reflect a realistic understanding that Death Row has become no more than a very lengthy imprisonment period, with a possible (but not certain) ending by execution? The time between sentencing and execution has gradually increased since the reinstatement of the death penalty in 1977. San Quentin Death Row currently houses 665 men; between 1977 and 2008, 14 men were executed. The recent trend we have documented, of cost-driven moratoria on the death penalty, is complicated by the costs of death penalty-related litigation (Brandon Garrett of Virginia Law School presented an interesting work on this, in its early stages, at the Conference for Empirical Legal Studies last year); one possible scenario is that, at some point, Death Row will quietly become a thing of the past, and conditions (as well as inmates) will be indistinguishable from those pertaining to life without parole.

This actually has a precedent; after the Roper v. Simmons decision, which rendered the death penalty for juveniles unconstitutional, all death sentences against juveniles were shifted to Life Without Parole (for an argument that Roper deems LWOP unconstitutional for juveniles, as well, check out what the good folks at the Sentencing Law and Policy Blog have to say). The cost argument may be supplemented by some studies that doubt the efficacy and humaneness of death by lethal injection.
In any case, the improvement of conditions may make Death Row more akin to the general population prison, and may be an invisible step toward a CA moratorium that will go beyond a de facto lag in executions.

More Humonetarianism on a National Level: What About Us?

(image courtesy NYT.com)

This New York Times piece from a couple of weeks ago highlights another aspect of humonetarianism: To cut costs, states close prisons down or switch to community programs. Here’s the “local interest” bit:

In California, where Gov. Arnold Schwarzenegger, a Republican, has called for $400 million to be cut from the state’s corrections budget, officials are seeking to remove low-level drug offenders from the parole supervision system and to provide them treatment options instead.

Like other states making such changes, California is led by a governor who long opposed such shifts in prison policies. But Mr. Schwarzenegger, as well as other leaders and lawmakers who are far more conservative, has come around to a view held by advocates of sentencing and prison reform that longer sentences do little to reduce recidivism among certain nonviolent criminals.

“In California we are out of room and we’re out of money,” said the state’s corrections secretary, Matthew Cate. “It may be time to take some of these steps that we should have taken long ago.”

But we are by no means the thriftiest state. Other states have been examining prisons to see whether they are efficient, and are closing them down. And other states are also reforming their sentencing laws, particularly minimum sentences for drug offenders. Many concede that the big waste of money is parole and are cutting down on supervision.

A few thoughts on some of the trends in the piece:

  • By closing down prisons and transporting people to other prisons, we may be saving costs, but we’re perpetuating the setup of prisons as far away gulags. A visit from one’s family becomes more unlikely if everyone is shipped to a facility far away.
  • The cuts, as Jennifer Steinhauer points out, go both ways. While treatment options are perceived to be cost-saving mechanisms, they need to defend their own funding. In emergency times, when short-term thinking is prevalent, lengthy project evaluation, examining declines in recidivism, may not be possible.
  • This is something I’ve already said regarding the Plata/Coleman decision: I am deeply concerned that mass release of prisoners with no job skills and little support by way of reentry programs is a self-defeating step, which, without overhauling other systems, will lead to their return to prison. This sort of thing will only work if parole is retooled as an instrument of rehabilitation and hope.