Sentencing commission, suggested in Sacramento, faces long odds

Key California lawmakers this summer suggested that a commission to review and overhaul criminal sentences not only could bring coherence to a disjointed system but also perhaps ease chronic prison overcrowding in the long term.

But the idea now appears stalled, despite the incentive of federal litigation that could force Gov. Jerry Brown to release as many as 10,000 inmates next spring. Lawmakers chastened by a history of unsuccessful sentencing commission bills hold out little hope that this time could be different.

“These issues are hard,” Sen. President Pro Tem Darrell Steinberg, D-Sacramento, said in an interview last week. “They’re hard to bite off politically.”

The notion of a panel to overhaul California’s penal code has percolated for decades but eluded proponents time and again. Supporters argue that a steady accumulation of different regulations, layered on top of one another over time, has led to a labyrinth of sentencing guidelines.

“There is a lot of disproportionate punishment in our penal code, and that’s because not uncommonly a horrible crime may be committed in someone’s district and so the response is legislatively to get tougher,” said Sen. Mark Leno, D-San Francisco. “These are emotional issues,” he added, “and to have politics infused in all of our decision-making does not create the most sound public policy.”

State sentencing commissions are typically independent bodies, appointed by officials, that study a state’s galaxy of sentencing laws and condense them into a comprehensive framework. They issue guidelines that would increase or decrease sentences for various categories of crimes.

That troubles some law enforcement leaders who see the potential for weakened sentences. And it rattles lawmakers wary about constituents – or future electoral opponents – who could hold them responsible for changes that emanated from an unelected body.

“No legislative body wants to give up power,” said Rep. Karen Bass, D-Los Angeles, a former Assembly speaker who pursued a sentencing commission during her time in the Legislature.

Historically, the state’s law enforcement community has been hostile to allowing appointed entities to dictate consequences for crimes. District attorneys, sheriffs and police chiefs have opposed past efforts, raising concerns about who would sit on panels with expansive authority to reshape criminal justice.

“In California, the only times sentencing commissions come up, it has been code for sentence reductions,” said Sacramento County District Attorney Jan Scully.

But the idea resurfaced this summer when Gov. Jerry Brown, seeking to satisfy a federal order to reduce California’s prison population without resorting to more early releases, proposed spending an additional $315 million to provide more cells. Steinberg broke with the governor, rallying Senate Democrats behind an alternate plan that questioned expanded capacity.

Among other provisions, Steinberg’s blueprint included a detailed plan for immediately creating an 18-member sentencing commission that could provide recommendations by the end of 2014. A letter to Brown argued that “short-term fixes provide no sustainable remedy.”

Steinberg’s letter said the panel would make recommendations aimed at “long-term prison capacity, staying within the (prison capacity) cap, including changes in criminal sentencing and evidence-based programming for criminal offenders.”

He included private poll results that showed nearly three-fourths of Californians supported a panel “to streamline California’s criminal statutes with the goal of safely reducing prison costs and maximizing public safety.”

But by summer’s end, the governor got his cash infusion. The final bill also created a special corrections policy committee tasked with broadly examining criminal justice in California.

Last week, Steinberg called sentencing reform “a key piece” of rethinking the state’s criminal justice system. But he expressed doubt that substantial changes would materialize in the coming legislative session.

While Brown is considered an overwhelming favorite to win a second term (he has yet to formally declare a campaign), potential Republican challengers perceive the governor as vulnerable on public safety. They have hammered his plan, known as prison realignment, to shuffle low-level offenders to county jails.

“I hope there’s a lot of discussion on it this year,” Steinberg said of a sentencing overhaul, “but my expectation is it is what will largely be a second-term issue for Gov. Brown.”

This session, Leno carried his second consecutive bill easing penalties for simple drug possession.Brown vetoed it.

Part of Leno’s argument emphasized the state’s uneven sentencing statutes, which make possession of cocaine a felony but allow possession of Ecstasy or methamphetamine to be charged as misdemeanors. Leno cited such inconsistencies in arguing that the sentencing commission is “an idea whose time has come,” adding that the state’s struggles to reduce its prison population“only underscores the need for it.”

“This is not a radical notion or a novel idea,” Leno said, pointing to more than 20 other states that have established similar commissions.

Bass described a similar scenario when, as Assembly speaker, she pushed a sentencing commission bill in 2009. Then, as now, California was grappling with a federal court order to trim its prison population, and some saw a durable solution in an overhaul of sentencing laws. But the bill collapsed, marking at least the 12th time in the last 25 years lawmakers have pressed the concept and failed.

“I viewed it as an opportunity to put something in place that would prevent us from being in the same situation again,” Bass said. She attributed the measure’s failure in part to lawmakers fearing they would be “barraged” with electoral challenges.

Past sentencing commission efforts have self-destructed because the panel’s recommendations, though subject to legislative approval, would have carried the force of law, argued Sen. Loni Hancock, D-Berkeley.

By contrast, Steinberg proposed a purely advisory body.

After seeing previous resentencing campaigns stymied, Hancock said an advisory commission may be the only tenable approach. Even if a commission’s recommendations remain just that, Hancock said she would push to see them implemented.

“It’s just so important to cast some rational light on what goes on with our sentencing that I would be happy to see one that makes discretionary recommendations,” Hancock said.

“As long as I chair the Public Safety Committee in the Senate,” Hancock added, “those recommendations would not sit on the shelf.”

Read more here: http://www.sacbee.com/2013/12/23/6021724/sentencing-commission-suggested.html#storylink=cpy

The politics of parole

http://informant.kalwnews.org/2012/02/imprisoned-for-life-part-ii/

By Joaquin Palomino

A life sentence with the possibility of parole is one of the only sentences in California designed to encourage the convicted to reform. Lindsey Bolar, who served 23 years in prison before receiving parole, believes “lifers make up your best population in prison.” After serving between 20 and 25 years, Bolar says, “you know that the mad stupid stuff doesn’t go anymore, then all of a sudden you are trying to find a meaning for your life and you want to go home.”

The system seems to work. Only around one percent of lifers return to prison after being released, and almost never for another violent crime. Still, for the past three decades, it has been nearly impossible to be paroled. The reasons have less to do with public safety than politics. In the second segment of a three-part series, we look at the political chutes and ladders of California’s parole process.  KALW’s Joaquin Palomino has the story.

Around one quarter of California prisoners are serving a life sentence with the possibility of parole. Also known as lifers, they’re a unique group of inmates. For starters, most have committed a horrendous crime – typically murder, rape, or kidnapping. They also have one of the only indeterminate sentences in California, meaning their term is open-ended and they have to work for their freedom.

J.B. Wells is one such person. “The crime I was charged with is murder in the second degree and it carries a maximum sentence of 15 to life,” says Wells. In 1983, he was sentenced to life with the chance of parole (“chance” being the key word). To be freed, he had to participate in programs, build up a resume and kick a steady drug habit. In prison, he became a published author. “I’ve been in famous plays, I played the part of Lucky in Waiting for Godot, I played the part of John Brown in John Brown’s Body, and I just had a really, really fabulous prison experience.”

It’s pretty rare to hear an inmate say he’s had a “fabulous prison experience.” Although most released lifers don’t use such animated terms to describe prison, many do say it was positive. Much of this has to do with their indeterminate sentence, a type of sentence that was once much more common in this state.

For almost the entire 20th century, California had an indeterminate sentencing system.  Offenders would get very broad sentences, such as five years to life in prison. A parole board would make the final decision on whether or not an offender would be released. “[An] independent, objective set of experts would look at someone, look at their psychology and look at their behavior, look at the totality of the situation and make a reasonable decision,” explains criminal justice expert Barry Krisberg. Theoretically, those that were fit to reenter society would be released, and those that posed a threat would stay in prison. But there were flaws in the process.

In 1979, a number of factors led to the end of that system and the implementation of determinate sentencing. The driving force was fairness. Under an indeterminate sentencing system, one person might get four years in prison for dealing drugs and another could get six months for the same crime. Accusations of discrimination and favoritism are inevitable.

Determinate sentencing prevents those accusations. “Under determinate sentencing, for virtually every crime, there are three potential sentences that the judge can choose from: a high sentence, a medium sentence, and a low sentence,” says Krisberg. “Under determinate sentencing, you walked out of the courtroom knowing exactly how much time you were going to serve.”

The state needed to rewrite the penal code to reflect the sentencing overhaul and it put the legislature in charge of deciding which crimes carried which sentences. That decision came with an unintended consequence. “Suddenly, in this very political environment, with everybody watching, with the media there, you have elected officials who don’t necessarily have training or background deciding [the scale] of penalties,” says Krisberg. The shift sparked an era of tough-on-crime politics in California.

“It almost became a bidding war. ‘I want to show that I am tougher than you, so if you think a rapist should get ten years, I think he should get 20 years.’  So there has been this natural escalation upwards,” Krisberg explains.

Life with the chance of parole was one of the few sentences excluded from the overhaul. It maintained its indeterminate status, but it wasn’t excluded from the trend towards toughness.

For most of the 1990s and in the early 2000s, the chance of being paroled on a life sentence was around one percent. Last year, it peaked at 18 percent, the highest it’s been in 30 years. Again, the reason for this has to do with politics.

“California was in the grips of a moral panic about crime,” explains Krisberg. “Voters were concerned with it. People would get defeated for office because of it. We would have statewide elections that were strictly about criminal justice sentencing.”

At the onset of this panic, in 1988, a ballot measure had passed that granted the governor power to overturn parole board decisions. Governors have been taking advantage of that power ever since.

During the 12 years Pete Wilson and Grey Davis were in office, almost no life prisoners were released. Schwarzenegger was more lenient, but he still reversed about 70 percent of his parole boards decisions. According to Krisberg, Governor Brown is allowing more inmates to be paroled, but the system is still stuck.

J.B. Wells can attest to that. He was eligible for release in July of 1990, but each time he went in front of the parole board he was rejected for the same reason. “They would cite the gravity of the offense, the heinousness of the crime,” says Wells.

He was turned down ten times on those grounds. Then, in 2008, the California Supreme Court changed the rules. The Justices decided that a lifer’s original crime could not be the sole factor in a parole board’s suitability hearing. “The courts eventually said you just can’t use that over and over and over again,” Wells explains, “because that is something the prisoner can’t change.”

In a 2010 parole hearing, Wells was found suitable for release – but he still couldn’t get out right away. The tape recorder had malfunctioned during the hearing and he was told that, without a transcript, the parole hearing was null. Wells had to wait another year.

Last year, Wells was finally released, 21 years past his minimum parole date, at the age of 68 years old.  “I’m just so grateful to still be alive, to have hair on my head and teeth in my mouth,” says Wells.

Having an indeterminate sentence, which aims to rehabilitate, in a prison system guided by retribution creates some pretty noticeable contradictions. Wells experienced the extremes of both. In his own words, he had a “fabulous prison experience,” accessing a number of rehabilitative services and enrolling in a multitude of arts programs. He was also an active member in a San Quentin Vietnam War veterans group. But he also spent 21 extra years in prison despite never being considered a risk to society by the parole board.

“At the end of the day, corrections was about the bumping of heads of those people that think prison should be for punishment and those people that think that prison should be for rehabilitation,” Wells says. “And I was caught between that every day.”

It’s clear which side is winning this tug of war. In past 30 years, California criminal justice has been guided almost exclusively by goals of retribution, which many believe is the root of our current prison crisis.

There are signs, though, that times could be changing. In 2006, Governor Schwarzenegger put a key word back into the title of the state department responsible for prisons, the California Department of Corrections and Rehabilitation. More recently, the implementation of prison realignment has started bringing more discretion to the sentencing process. Some lawmakers are even wondering if a return to indeterminate sentencing might be in order.