BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair S
2007-2008 Regular Session B
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SB 110 (Romero and Perata)
As Amended March 14, 2007
Hearing date: April 10, 2007
Penal Code
AA:br
SENTENCING COMMISSION
HISTORY
Source: Author
Prior Legislation: SB 670 (Vasconcellos) - 1998; died in the
Senate
SB 166 (Polanco) - 1996; died in the Assembly
AB 1036 (Vasconcellos) - 1996; died in the Assembly
AB 43X (Polanco) - 1994; died in the Senate
AB 2944 (Vasconcellos) - 1994; vetoed
SB 56 (Presley) - 1984; vetoed
Support: Friends Committee on Legislation (if amended);
Taxpayers for Improving Public Safety (if amended)
Opposition:California Peace Officers' Association; California
Police Chiefs Association; California Narcotic
Officers' Association; Los Angeles Police Protective
League; California District Attorneys Association
KEY ISSUE
SHOULD A CALIFORNIA SENTENCING COMMISSION BE CREATED, AS SPECIFIED?
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PURPOSE
The purpose of this bill is to create the California Sentencing
Commission, as specified.
Current law vests the legislative power of this State in the
California Legislature which consists of the Senate and
Assembly, and in the people, as specified. (Cal.Const. Art.IV
1.)
Current case law generally provides that the Legislature may
make "reasonable grants of power to an administrative agency,
when suitable safeguards are established to guide the power's
use and to protect against misuse. The Legislature must make
the fundamental policy determinations, but after declaring the
legislative goals and establishing a yardstick guiding the
administrator, it may authorize the administrator to adopt rules
and regulations to promote the purposes of the legislation and
to carry it into effect." (People v. Wright (1982) 30 Cal.3d
705, 712-713, citations omitted.)
Current law contains an Act known as The Penal Code of
California, enacted in 1872. (Penal Code 1.)
Current law contains more than 1,000 felony sentencing laws and
more than 100 felony sentence enhancements across 21 separate
sections of California law. (Solving California's Corrections
Crisis: Time is Running Out, Little Hoover Commission (January
2007), citing Judicial Council of California 2006 Felony
Sentencing Handbook.)
This bill would create the California Sentencing Commission (the
"Commission"), with the following features and requirements:
Duties
This bill would confer the following duties on the Commission:
Develop a new sentencing system by doing all of the following:
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? Basing the system on fairness, reason,
accountability, and equity.
? Specifying the circumstances under which
imprisonment for an offender is appropriate.
? Specifying the appropriate length of sentence
for certain actions based upon the nature of the
offense and circumstances of the offender.
? Retaining the statutory classifications of
offenses as infractions, misdemeanors, alternate
felonies or misdemeanors, and felonies existing in
California as of January 1, 2008, and at the
discretion of the commission, make recommendations
to the Legislature regarding any offense
classifications that warrant revision.
? Considering existing correctional resources,
including the capacities and needs of local and
state correctional facilities.
? Ensuring that the new sentencing system
complies with state and federal constitutional
mandates.
? Providing that "(n)otwithstanding any other
provision of law, the sentences imposed for
commission of infractions, misdemeanors, alternate
felonies or misdemeanors, and felonies shall be as
provided by the commission in the new sentencing
system created pursuant to this paragraph unless
rejected by a statute passed by a two-thirds vote
of the Legislature."
Serve as a resource and information center with respect
to state and local sentencing policy.
Upon the request of the Legislature, provide a fiscal
analysis of legislation under consideration by the
Legislature or initiatives.
At the end of each legislative session, compile a list of
all legislation that sought to modify sentencing and
provide a fiscal analysis of the cumulative impact of
those measures.
Membership
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This bill would require that the Commission be composed of 20
members, as follows:
the Chief Justice of the California Supreme Court, who
shall chair the commission;
one sitting or retired appellate court justice appointed
by the Chief Justice of the California Supreme Court;
two sitting or retired trial court judges appointed by
the Chief Justice of the California Supreme Court;
the Secretary of the Department of Corrections and
Rehabilitation, or his or her designee;
the Attorney General;
one California district attorney appointed by the Senate
Committee on Rules;
one county sheriff appointed by the Speaker of the
Assembly;
one county mental health director appointed by the
Speaker of the Assembly;
one attorney with legal expertise in litigating
conditions of confinement on behalf of inmates, appointed
by the Senate Committee on Rules;
one legal scholar with expertise in sentencing law and
policy, appointed by the Senate Committee on Rules;
one academic expert in criminal justice policy appointed
by the Speaker of the Assembly;
four members appointed by the Governor:
? a public defender;
? a chief probation officer;
? a rank and file representative with a minimum of
five years experience working in a state adult
correctional facility; and
? a representative of crime victims.
This bill would provide that the following legislators serve on
the Commission as ex officio, nonvoting members:
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the President pro Tempore of the Senate;
the Minority Floor Leader of the Senate;
the Speaker of the Assembly; and
the Minority Floor Leader of the Assembly.
Establishment of Standing Committees
This bill would require the Commission to establish the
following standing committees:
Community corrections.
Sentencing policy and practices.
Postcustodial corrections, including parole policies and
practices.
Data collection and analysis.
Establish ad hoc committees as deemed necessary by the
commission.
Terms
This bill would provide the following with respect to terms of
commission members:
The terms of the members appointed by the Chief Justice
of the Supreme Court shall expire on July 1, 2012.
The terms of the members appointed by the Speaker of the
Assembly shall expire on July 1, 2012.
The terms of the members appointed by the Senate
Committee on Rules shall expire on July 1, 2012.
The terms of the members appointed by the Governor shall
expire, as follows: two on July 1, 2011, and two on July
1, 2012.
This bill would provide that successor members shall hold office
for terms of three years, each term to commence on the
expiration date of the predecessor. This bill would provide
that any appointment to a vacancy that occurs for any reason
other than the expiration of the term shall be for the remainder
of the unexpired term, and that members would be eligible for
reappointment.
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Data
This bill would provide that the sentencing commission shall
have access to individual record data and information pertaining
to offender, offense, criminal history, victim impact, sentence,
and correctional programming information entered from judgment,
sentence, and correctional forms for all felons to carry out the
duties listed above.
This bill would provide that "(a)ny such information obtained by
the commission is confidential. It shall be maintained in a
manner that meets the highest standards of privacy and shall not
be disclosed other than for the purpose for which it was
acquired."
This bill would provide that the commission is a criminal
justice agency within the meaning of Section 13101 of the Penal
Code.<1>
Executive Director; Administrative Matters
This bill would require the commission to appoint an executive
director and hire its own staff necessary to fulfill the
commission's duties.
This bill would provide that "the administrative duties of the
commission shall be conducted by commission staff physically
sited in the Administrative Office of the Courts (AOC). All its
decisions, analysis, recommendations, and other duties shall be
independent of the AOC and shall not reflect any position of the
AOC or be represented as those of the AOC."
This bill would provide that, for the purposes of expenditures
for the support of the commission, including the expenses of the
members of the commission, the commission shall be deemed to be
within the judicial branch of state government, but the
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<1> This section and the chapter where it is located generally
pertains to criminal offender record information. See Penal
Code Section 13100 et seq.
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commission shall not be subject to the control or direction of
any officer or employee of the judicial branch except in
connection with the appropriation of funds approved by the
Legislature.
This bill would provide that the members of the commission would
serve without compensation, but shall be reimbursed for all
necessary expenses actually incurred in the performance of their
duties.
This bill contains specified legislative findings and
declarations, and states the following legislative intent:
In enacting this act it is the intent of the
Legislature to enhance public safety, promote
effective crime reduction strategies, base
California's sentencing practices on principles of
fairness, justice, and accountability, and ensure
that public resources and taxpayer dollars are
expended in a way that most successfully protects
the public from crime and reduces criminal
recidivism.
It is the further intent of the Legislature to
create the California Sentencing Commission
comprised of individuals who will provide a
reasoned, balanced, and independent viewpoint to
achieve sentencing practices that are grounded in
data and based on sound policy.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
significant level of overcrowding.<2> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
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<2> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
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the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form, . . . ."<3> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<4>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
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<3> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
<4> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<5>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
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<5> Analysis 2007-08 Budget Bill, supra, fn. 1.
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Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
coordination between health care staff and custody staff."<6>
This bill would not appear to aggravate the prison or jail
overcrowding crisis.
COMMENTS
1. Stated Need for This Bill
The author states in part:
A California Sentencing Commission will create a new
sentencing system, which will promote public safety
through effective evidence-based sentences and make
the most efficient use of correctional resources.
The current sentencing regime in California has
developed into a complex and confusing system. . .
.
The failure to base sentencing on what works has
lead California to a situation where recidivism
rates are at seventy percent, and increasingly
local and state resources are being diverted to
incapacitate individuals rather than educate and
rehabilitate offenders. California needs to
follow numerous other states in developing an
evidence-based sentencing system that uses
policies which implement sanctions proven to work,
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<6> Primer, supra, fn. 4..
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increase the public safety, and make the most
efficient use of resources.
. . . Following the model used successfully in
other states, SB 110 creates a sentencing
commission to develop a coherent sentencing system
based on data that will maximize public safety
while making the most efficient use of resources.
. . .
The Sentencing Commission shall represent a broad
range of governmental and community interests.
The Commission shall be independent and
non-partisan, and function as a clearinghouse on
correctional and sentencing data. . . . No
single branch of government shall appoint a
majority of members. Membership includes
representatives of defense lawyers and
prosecution, victims' rights and inmates' rights,
rank and file and management. No single interest
groups will drive the agenda or be able to force
through a new sentencing system.
The Sentencing Commission must operate within
boundaries established by the Legislature. The
Legislature having decided the nature of an
offense and its classification (as an infraction,
misdemeanor, alternate misdemeanor-felony, or
felony) instructs the Commission to develop a new
sentencing system guided by specific factors. The
Commission may make recommendations of revision of
offense classification to be presented to the
Legislature. However, based on the nature of
offenses and their classification existing on
January 1, 2008, the Commission shall develop a
new sentencing system, which will take effect
unless rejected by both the Assembly and the
Senate.
. . .
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The California Sentencing Commission shall develop
a new sentencing system, within the parameters
established by the Legislature, which will promote
public safety, remove disparity, use
evidence-based research, and make effective use of
resources.
2. What This Bill Would Do
As detailed above, this bill would establish the California
Sentencing Commission. The Commission would be required to
"develop a new sentencing system" within the following
yardsticks and fundamental policy determinations established by
the Legislature pursuant to this bill:
Retain the statutory classifications of offenses as
infractions, misdemeanors, alternate felonies or misdemeanors,
and felonies existing in California as of January 1, 2008, and
at the discretion of the commission, make recommendations to
the Legislature regarding any offense classifications that
warrant revision.
Base the system on fairness, reason, accountability, and
equity.
Specify the circumstances under which imprisonment for an
offender is appropriate.
Specify the appropriate length of sentence for certain actions
based upon the nature of the offense and circumstances of the
offender.
Consider existing correctional resources, including the
capacities and needs of local and state correctional
facilities.
Ensure that the new sentencing system complies with state and
federal constitutional mandates.
Serve as a resource and information center with respect to
state and local sentencing policy.
Upon the request of the Legislature, provide a fiscal analysis
of legislation under consideration by the Legislature or
initiatives.
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At the end of each legislative session, compile a list of all
legislation that sought to modify sentencing and provide a
fiscal analysis of the cumulative impact of those measures.
3. Sentencing Laws in California
California's current determinate sentencing law ("DSL") was
enacted in 1976 as a response to an indeterminate sentencing law
which was, at that time, widely criticized.
Prior to 1976, California, like much of the nation,
provided for indeterminate sentences for criminal
offenders. . . . Indeterminate sentencing was
justified by the belief that the primary purpose of
punishment was rehabilitation. . . .
Commentators across a broad political spectrum
rejected that model. . . . () By the mid-1970s,
a number of states abandoned indeterminate
sentencing. Giving far less prominence to
rehabilitation, they reestablished retribution - and
proportionality of punishment - as primary goals. .
. .
California followed that route. In abandoning
indeterminate sentencing, California stated its goal
in no uncertain terms: "The Legislature finds and
declares that the purpose of imprisonment for crime
is punishment. This purpose is best served by terms
proportionate to the seriousness of the offense with
provision for uniformity in the sentences of
offenders committing the same offense under similar
circumstances."
The change from indeterminate to determinate
sentencing forced the legislature to compare
different kinds of criminal conduct. . . . That is,
presumably, the 1976 reform forced the legislature
to attempt to rationalize criminal sentences. . . .
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<7>
The expansion and development of California's DSL since its
enactment in 1976 has been continuous. Some legal scholars and
others have severely criticized California's determinate
sentencing laws as incoherent, and grist for the political mill.
Criminal sentencing in California is without a
coherent penal theory, which is in part a result of
multiple layers of criminal sentencing that have
come about over almost thirty years of legislative
changes to sentencing laws.
. . .
The numerous "drive by" sentencing laws have eroded
whatever coherence was achieved in 1976. That is,
when the media have reported particularly heinous
crimes or trends in criminal behavior, the
legislature has often enacted enhancement
provisions. Multiple enhancement statutes erode the
principle articulated in Penal Code Section 1170.
From 1984 to 1991, over 1,000 crime bills passed.
Virtually none of them reduced sentences and many of
them imposed sentence enhancements. Often, the
crime bill was a reaction to the "crime of the
month," a crime that was hyped in the media. For
example, in 1987 the legislature enhanced an
offender's sentence for a murder that occurs when
the shooter is inside a car. Other legislation has
enhanced sentences for a variety of crimes committed
against certain classes of victims or committed
under specific circumstances.<8>
California courts have been no less disapproving of California's
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<7> Vitiello and Kelso, A Proposal for a Wholesale Reform of
California's Sentencing Practice and Policy (38 Loy. L.A. Lev.
903 (2004) at 918-920).
<8> Id. at 917; 920-921 (citations omitted).
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sentencing laws, referring to them in various published opinions
as "labyrinthine procedures,"<9> "mind-numbing complicated,"<10>
and a "a legislative monstrosity, which is bewildering in its
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<9> "Justice Gardner also aptly noted: 'As a sentencing judge
wends his way through the labyrinthine procedures of Section
1170 of the Penal Code, he must wonder, as he utters some of its
more esoteric incantations, if, perchance, the Legislature had
not exhumed some long, departed Byzantine scholar to create its
seemingly endless and convoluted complexities. Indeed, in some
ways it resembles the best offerings of those who author
bureaucratic memoranda, income tax forms, insurance policies or
instructions for the assembly of packaged toys.'" Community
Release Bd. v. Superior Court (1979) 91 Cal.App.3d 814, 815, fn.
1 [154 Cal.Rptr. 383].)
<10> "As Presiding Justice Roth has so eloquently indicated:
'[S]entencing statutes are mind-numbing. complicated and, by
virtue of continued legislative tinkering, not likely to soon
become any easier to apply. As the trial judge in this case
remarked: 'I regard it as one of the principal credits to my
professional career that I had nothing to do with designing the
determinate sentencing law.' Such frustration is widely spread.
. . . [] The frequency with which both simple and vexatious
sentencing questions are raised on appeal strongly suggests that
the Legislature can and should undertake with the help of bench
and bar a solid comprehensive overhaul of the system to help all
potential defendants and the public generally.'" (People v.
Reyes (1989) 212 Cal.App.3d 852, 858-859 [260 Cal.Rptr. 846].)
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complexity."<11> Similarly, in 1991 the California District
Attorneys Association sponsored a bill "to reform, simplify, and
revamp California's sentencing law." As explained in the Senate
Judiciary Committee analysis of that bill:
Existing law contains over 30 possible
sentencing triads for felony offenses. The
sentencing formulas are complex, inconsistent
and confusing. A judge is often required to
complete a worksheet which can be more
complicated than an IRS form in order to
calculate the proper sentence. When
mathematical errors or other mistakes are made,
the case is often reversed on appeal. . . .<12>
Most recently, the Little Hoover Commission in January of this
year published a harsh rebuke of California's correctional
system which included California's sentencing laws:
Years of political posturing have taken a good
idea - determinate sentencing - and warped it
beyond recognition with a series of laws passed
with no thought to their cumulative impact. And
these laws stripped away incentives for
offenders to change or improve themselves while
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<11> "When in 1976, the Legislature ended its 60-year-old
romance with the Indeterminate Sentence Law, few tears were shed
at the demise of that highly visionary, but woefully
unsuccessful, effort at effective penology. [P] Alas, few
hosannas have been heard in the judicial system for its
successor, the so-called determinate sentence law, Penal Code
Section 1170, et seq., a legislative monstrosity, which is
bewildering in its complexity. Superimposed on Penal Code
Section 1170 et seq. are the sentencing rules (Cal. Rules of
Court, rule 401 et seq.) promulgated under the aegis of Penal
Code Section 1170.3. Here, the already perplexing provisions of
Penal Code Section 1170 et seq. are further refined into a kind
of labyrinthine formalism under which trial judges carefully
pick their way in a kind of ceremonial ritual during the
sentencing processes. . . . Whether all of this results in any
uniformity of sentencing is doubtful. Tough judges still
sentence severely, easy judges leniently - all within the rules.
One result is crystal clear - sentencing today affords a rich
field of appellate litigation. . . . (People v. Sutton (1980)
113 Cal.App.3d 162, 164 [169 Cal.Rptr. 656].)
<12> Senate Judiciary Committee analysis of SB 25 (Lockyer)
(1991). This measure was vetoed.
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incarcerated.<13>
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<13> Little Hoover Commission, Solving California's
Correctional Crisis: Time is Running Out (January 2007) at ii.
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In that report,<14> the Commission enlisted the help of the
Stanford Criminal Justice Center to analyze amendments to
California's sentencing structure. "The Stanford researchers
focused solely on penal code amendments to Sections 1170 and
12022, two of the more substantial sections of criminal justice
sentencing code. . . . The final report states, 'as most
experts have already concluded, California's sentencing system
is unbelievably complex and in dire need of simplification.'
The report also concluded:
1. There have been countless increases in the
length of criminal sentences since the enactment
of the Determinate Sentencing Act. The analysis
of the two sections of the penal code revealed 80
substantive increases in sentence lengths for
specific crimes since the enactment of determinate
sentencing.
2. Statutes also "increased" sentences in
other ways. While the Legislature occasionally
increased the number of years to be imposed upon
conviction of a particular offense or imposition
of a particular enhancement, it also frequently
increased sentences by limiting the discretion of
sentencing judges to make determinations with
respect to the imposition, aggravation, or
enhancement of a sentence.<15>
SHOULD CALIFORNIA'S SENTENCING LAWS BE REVIEWED AND REFORMED IN
THE PROCESS AND MANNER PROPOSED BY THIS BILL?
4. Sentencing Commissions
As noted above, the California Legislature has considered
establishing sentencing commissions over the course of several
legislative sessions, dating back to 1983-84. California also
is one of many states (as well as the federal government) that
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<14> The Commission approved the report 7-1, with a dissenting
opinion by Commissioner Assembly Member Audra Strickland, who
wrote in part: "The factually inaccurate premise which
permeates the report is exemplified by the statement that
'thirty years of "tough on crime" politics has not made the
state safer.' Nothing could be further from the truth. Since
the implementation of "three strikes," 10-20-Life and other
tough on crime measures, the overall crime rate per 100,000
residents in California has been reduced to its lowest levels in
35 years. According to the non-partisan Legislative Analyst,
most major crimes have decreased by 50 percent or more since
reaching their peak in 1980. By every measure, used by both the
FBI and the California Attorney General, crime rates are
dramatically down. I agree that the job is not done and that we
need to address the state's recidivism rate. However, I object
to the Commission's reliance on recidivism rates as the sole
measure of safety." (App. G, Solving California's Correctional
Crisis: Time is Running Out, supra.)
<15> Id. at 35.
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has looked to a sentencing commission model for developing
sentencing approaches and guidelines.
In its January 2007 report, the Little Hoover Commission
recommended that California establish a sentencing commission to
guide the state's criminal justice sentencing policies to
enhance public safety.<16> The Commission examined the
experiences of other states, the majority of which confronted
challenges similar to those now present in California.
(N)early two dozen other states developed
sentencing commissions to enact or recommend
sentencing laws and guidelines. Many of these
states not only were confronting overcrowding and
fiscal challenges, they also had indeterminate
sentencing structures and the inequities that
frequently accompany those systems. For many of
these states, the first order of business for the
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<16> As noted in footnote 14, supra, Commissioner Strickland
dissented from the Commission's recommendations. With regard to
a sentencing commission Commissioner Strickland wrote: "I
strongly oppose Recommendation #3 calling for the creation of an
unelected sentencing commission. The Legislature's first duty
is to promote public safety. Legislators are accountable to the
voting public and will be judged on the efficacy of the policies
they promote and defend. The fundamental problem with a
sentencing commission is the lack of direct accountability. In
the past, the voters have bypassed the Legislature when it
failed to address serious public safety issues. The actions of
an unelected, unaccountable sentencing commission will, with all
certainty, invoke a new voter backlash. I believe that a
sentencing commission that works purely with the facts and
statistics will give the Legislature useful information for
making laws regarding public safety. I do not believe that a
commission that usurps the facts accomplishes this goal."
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sentencing commission was to review sentencing
practices and establish sentencing guidelines,
either mandatory or voluntary.
In the best models, a sentencing commission sets
guidelines that provide an overarching framework
consistent with policy goals, while allowing
judicial discretion and appellate court review of
sentences that depart from the guidelines.
Minnesota was the first state to establish
guidelines and its sentencing commission is
frequently used as a model. There are, however,
several key variances among the two dozen states
with sentencing guidelines and sentencing
commissions.
The underlying goals for the majority of states that
have established sentencing commissions or adopted
guidelines have been:
? To improve public safety by preventing
the premature release of dangerous offenders.
? To make sentencing more uniform and
reduce disparity.
? To promote more rational policy
formation that is at least somewhat insulated
from political pressure.
? To develop data for informed resource
management decisions.
States that use the knowledge and analysis of
sentencing commissions have been able to improve
long-term forecasting and management of correctional
resources. These states have benefited from
accurate computer simulations of the impact of
sentencing law changes on prison resources and the
budget. States aided by this kind of data and
analyses are able to more easily set policy
priorities and make fiscal forecasts whenever
guidelines, amended guidelines or new punishment
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laws are proposed or enacted. In these states,
legislators and other policy-makers know, with
reasonable precision, the cost of a change in
penalties for crime. Armed with this data, most
states with sentencing commissions have reduced
overall crime rates by increasing penalties for the
most dangerous offenders and expanded options for
community-based sanctions for certain low-level,
nonviolent offenders.<17>
During the Little Hoover Commission's review of California's
correctional situation, Kara Dansky, Executive Director of the
Criminal Justice Center, submitted written testimony to the
Commission concerning sentencing commissions in other states,
and the opportunities associated with creating a sentencing
commission in California. Ms. Dansky described "a common set of
core principles" embraced by states that have created sentencing
commissions:
(V)irtually every state that has created a
sentencing commission agrees at least on a common
set of core principles. These principles seem to
hold true in almost every context, regardless of the
nuances of a state's particular sentencing
structure:
An expert agency capable of setting
sentencing policy, evaluating sentencing
structures, and collecting sentencing and
corrections data, is good policy. Some states,
such as Maryland and North Carolina, began by
establishing a temporary commission that then
recommended a permanent commission, which the
legislature subsequently enacted. All ultimately
agreed that a permanent sentencing commission was
desirable.
Some form of sentencing guidelines structure,
whether mandatory or voluntary, is preferable to
either a completely discretion system or a system
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<17> Id. at 38-40 (citations omitted).
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of statutorily-prescribed mandatory punishments.
Finding ways to link sentencing policy with
correctional resources (both short term crowding
issues and long-term budgetary issues) is crucial.
This is true without any regard to whether the
state ultimately decides to adopt a sentencing
structure that is wildly indeterminate or rigidly
determinate, voluntary or mandatory. No matter
what sentencing structure is in place, tying
sentencing policy to correctional resources is
simply a matter of sound public policy.
Maintaining discretionary parole violates
Truth in Sentencing principles, which is
politically untenable.
Promoting alternatives to incarceration for
non-violent offenders, even perhaps while
increasing sentences for violent offenders, is a
way to control incarceration rates without
threatening public safety.<18>
In its report, the Little Hoover Commission identified the
following key features for a sentencing commission:
The primary goal of a sentencing commission
should be to enhance public safety and use public
resources wisely.
A sentencing commission should be permanent and
independent from all branches of government with
dedicated funding to support a small staff that
would include criminologists, statisticians, legal
experts and policy advisors.
The sentencing commission should be
geographically and culturally diverse and its
members must have demonstrated leadership
----------------------
<18> Dansky, Contemporary Sentencing Reform in California: A
Report to the Little Hoover Commission (August 24, 2006)
(citations omitted; emphasis in original).
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capabilities.
The sentencing commission should have the
authority to develop sentencing guidelines, as well
as post release supervision and revocation
guidelines that become law unless rejected by a
majority vote of the Legislature.
The sentencing commission should be the State's
clearinghouse for all sentencing and offender data.
The sentencing commission should assess all
proposed sentencing law changes for their potential
effect on criminal justice policies and correctional
system resources.<19>
Sentencing commissions typically have been created in response
to indeterminate sentencing systems. California, as explained
above, has had a largely determinate sentencing system for over
30 years. However, as explained by Ms. Dansky of the Stanford
Center, the fact that California has a determinate sentencing
structure does not mean California could not benefit from a
sentencing commission.
(S)entencing commissions make sense as a matter of
public policy no matter what type of sentencing
structure a jurisdiction has chosen to implement.
Commissions bring an element of objectivity to the
development of sentencing policy because their members
do not necessarily represent any particular
constituency. Commissions tend to consist of experts in
the field of sentencing law and policy; they stay
abreast of current developments in sentencing
jurisprudence and in the relevant social science
literature. Unlike legislators, they have time and
money to devote to the development of statewide policy
priorities and to responsible resource management,
employing a long-term perspective. They have staff to
collect and analyze data. They are able to spend the
time that is necessary to educate judges and
practitioners on the sentencing policies and practices
-----------------------
<19> Solving California's Correctional Crisis: Time is Running
Out, supra, fn. 13.
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they recommend. . . .
WOULD THE SENTENCING COMMISSION PROPOSED BY THIS BILL "enhance
public safety, promote effective crime reduction strategies,
base California's sentencing practices on principles of
fairness, justice, and accountability, and ensure that public
resources and taxpayer dollars are expended in a way that most
successfully protects the public from crime and reduces criminal
recidivism," AS IS THE STATED INTENT OF THIS BILL?
WOULD THE SENTENCING COMMISSION PROPOSED BY THIS BILL IMPEDE
LEGISLATIVE ACCOUNTABILITY FOR SENTENCING POLICIES?
5. Membership
This bill would create a sentencing commission chaired by the
Chief Justice of the California Supreme Court and comprised of a
membership derived from the judiciary, law enforcement,
academia, the defense bar, and county mental health. The
following charts depict the commission's membership and
appointment compositions:
WOULD THE MEMBERSHIP PROPOSED BY THIS BILL CREATE A SENTENCING
COMMISSION "comprised of individuals who will provide a
reasoned, balanced, and independent viewpoint to achieve
sentencing practices that are grounded in data and based on
sound policy," AS IS THE STATED INTENT OF THIS BILL?
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ARE THE APPOINTING POWERS PROPOSED BY THIS BILL LIKELY TO
PROMOTE A BALANCED AND EXPERT BODY?
6. Authority
As noted above, the California Constitution vests the
legislative power of this State in the California Legislature
which consists of the Senate and Assembly, and in the people, as
specified. However, case law generally allows the Legislature
to make "reasonable grants of power to an administrative agency,
when suitable safeguards are established to guide the power's
use and to protect against misuse." (People v. Wright (1982)
(30 Cal.3d 705, 712-713 (citations omitted).)
Exacting the constitutional limits of legislative grants of
powers to an administrative agency is beyond the scope of this
analysis. Broadly speaking, however, members may wish to bear
in mind the following factors and considerations derived from
the limited body of case law available to provide guidance in
this area:
Delegated power must be accompanied by suitable
safeguards to guide its use and to protect against its
misuse. (Blumenthal v. Board of Medical Examiners, 57
Cal.2d 228 (1962).)
An unconstitutional delegation of legislative power
occurs when the Legislature confers upon an
administrative agency unrestricted authority to make
fundamental policy decisions. (People v. Wright, 30
Cal.3d 705 (1982).)
The Legislature must make the fundamental policy
determinations, but after declaring the legislative
goals and establishing a yardstick guiding the
administrator, it may authorize the administrator to
adopt rules and regulations to promote the purposes of
the legislation and to carry it into effect. (People
v. Wright, 30 Cal.3d 705 (1982).)
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The Legislature cannot authorize an executive body
to declare what shall be a misdemeanor or to impose a
penalty; and the fact that it fixes a maximum of
penalty, which it authorizes the body to impose, is of
no avail. Board of Harbor Commissioners v. Excelsior
Redwood Co., 88 Cal. 491 (1891).)
This bill contains the following two provisions restricting the
authority of the commission:
The Commission would be required to retain "the
statutory classifications of offenses as infractions,
misdemeanors, alternate felonies or misdemeanors, and
felonies existing in California as of January 1, 2008
. . . "; and
The sentences provided by the commission would be
subject to rejection by a statute passed by a
two-thirds vote of the Legislature.
The author may wish to explore whether these restrictions are
sufficient to ensure that the commission's mandate under this
bill could not be construed to be an unconstitutional delegation
of legislative power.
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