BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1376
                                                                  Page  1

          Date of Hearing:   May 13, 2009

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Kevin De Leon, Chair

                    AB 1376 (Bass) - As Amended:  April 13, 2009 

          Policy Committee:                              Public  
          SafetyVote:  5-2

          Urgency:     No                   State Mandated Local Program:  
          No     Reimbursable:               

           SUMMARY  

          This bill establishes "an independent, multi-jurisdictional body  
          to provide a non-partisan forum for statewide policy  
          development, information development, research, and planning  
          concerning criminal sentences and their effects."

           FISCAL EFFECT  

          1)Because this measure is in skeletal form, precise costs cannot  
            be determined. Based, however, on earlier sentencing  
            commission models, annual costs would be in the range of $2.5  
            million, depending on the authority of the body. 

            For example, this committee estimated costs for SB 110  
            (Romero, 2008) - which was charged with developing mandatory  
            sentencing guidelines and significant tasks, such as preparing  
            inmate population projections, developing recommendations on  
            how best to comply in the event a court orders a reduction in  
            the state's inmate population, providing training to criminal  
            justice practitioners, conducting research, and developing  
            materials, information systems and annual reports to the  
            Legislature - would be in the range of $2.5 million, with a  
            staff of about 20.  

          2)Prospective costs/savings due to actions of the body cannot be  
            determined, though it is likely a non-politicized sentencing  
            commission, using evidence-based practices and models, could  
            recommend a sentencing/parole scheme that results in  
            significant net state savings. 

           COMMENTS  








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           1)Rationale  . The author's intent is to create a nonpartisan  
            independent sentencing review body to address California's  
            well known prison travails, much of which can be attributed to  
            haphazard sentencing law. 

            According to the author, "AB 1376 seeks to create an  
            independent, multi-jurisdictional body to work on policy  
            issues related to the state's criminal justice system. It is  
            anticipated that such a body could work on issues ranging from  
            the state's sentencing structure to what needs to be done to  
            curtail the cycle of recidivism. Our current criminal justice  
            sentencing structure leads to seriously overcrowded  
            facilities, financial constraints, an inability to deliver  
            reentry services and high recidivism rates. California needs  
            to step back and comprehensively look at our system. A  
            sentencing entity could review our codes; look at individual  
            sentences, policies and programs that are successful or  
            unsuccessful in other states; incarceration and alternatives,  
            as well as rehabilitation and public safety." 

           2)This measure needs considerable development  in terms of  
            objectives, appointments, timelines and authority.

          3)Sentencing history/background  . Until 1976, California operated  
            under the indeterminate sentencing law (ISL). Judges had  
            considerable discretion to impose sentences within broadly  
            defined ranges, and parole authorities had almost complete  
            discretion to release inmates before the expiration of the  
            imposed sentence. 

            In 1976, academics and policymakers, conservatives and  
            liberals, united in their opposition to this system,  
            condemning it for a lack of uniformity, proportionality, and  
            transparency. The left contended no one could get out of  
            prison; the right contended anyone could get out of prison. In  
            reaction to ISL discontent, in 1976, California enacted a  
            determinate sentencing law (DSL), which grouped crimes into  
            categories, with each category tied to a sentencing 'triad'  
            containing a high, middle, and low sentence. The law directed  
            judges presumptively to impose the middle sentence or, if  
            justified by aggravating or mitigating factors, the higher or  
            lower sentence. The DSL also abolished discretionary parole  
            release. 









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            Now, some 30 years later, there is increasing sentiment among  
            policymakers and academics that California's DSL has created a  
            correctional system plagued by overcrowding and unsafe  
            conditions. The right contends DSL releases inmates who are  
            not ready; the left contends DSL prevents the release of  
            inmates who are ready. As evidenced by the more than two dozen  
            states that have formed or are in the process of forming  
            sentencing commissions, with varying degrees of authority and  
            success, the current policy direction appears to favor an  
            independent, depoliticized commission, drawing on a broad  
            spectrum of policy expertise. Some commissions have created or  
            recommended sentencing systems that use both ISL and DSL; for  
            example, ISL for the most serious and violent offenders, and  
            DSL for property offenders. 

            (In 1980, Minnesota pioneered the sentencing guideline  
            structure. Minnesota's sentencing commission was tasked with  
            developing guidelines that would take effect unless voted down  
            by the Legislature. Minnesota's commission specifies  
            presumptive sentences through legally binding guidelines. The  
            guidelines, also, however, authorize substantial trial court  
            discretion to deviate from presumptive sentences in cases with  
            extraordinary circumstances. When judges deviate from the  
            presumptive sentence, they must explain for the record why  
            they deviated from the guidelines and there is an appellate  
            review mechanism for these cases.)  

          4)CDCR in Crisis  . The state prison population is 167,000, in  
            space designed for a maximum of about 150,000. As a result of  
            numerous lawsuits, the state has entered into several consent  
            decrees to improve prison conditions. As these cases have  
            continued over several years, however, prison conditions have  
            failed to improve and scrutiny of the federal courts over  
            California's prisons has intensified. 

            In February 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. Medical,  
            mental health and dental care programs at CDCR are all under  
            varying levels of federal court supervision. 

            In February 2009 a panel of three federal judges deemed the  
            state's latest efforts to address overcrowding and  
            unconstitutional conditions (via new construction and program  
            enhancements in AB 900) insufficient and stated that  








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            "plaintiffs have presented overwhelming evidence that crowding  
            is the primary cause of the underlying constitutional  
            violations. No party contests that California's prisons are  
            overcrowded, however measured, and whether considered in  
            comparison to prisons in other states or jails within this  
            state. There are simply too many prisoners for the existing  
            capacity?.

            "We therefore tentatively conclude that there is no relief  
            other than a prisoner release order that can remedy the  
            constitutionally inadequate medical and mental health care in  
            California's prisons."


           5)Prior Legislation .


             a)   AB 160 (Lieber, 2008) established the California  
               Sentencing Commission to devise sentencing guidelines. AB  
               160 died on the Senate Inactive File. 


             b)   SB 110 (Romero, 2008) created a sentencing commission to  
               revise rules and penalties imposed for specified crimes  
               unless rejected by the Legislature in statute. SB 110 died  
               on the Assembly Floor. 


             c)   ABx2 14 (Lieber, 2006) established a sentencing  
               commission to devise sentencing guidelines. ABx2 14 was  
               never heard. 


             d)   AB 2152 (Goldberg, 2004) established a sentencing  
               commission to devise sentencing guidelines. AB 2152 was  
               substantially amended when it reached the Senate and was  
               subsequently vetoed. 


           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081