BILL ANALYSIS
AB 1376
Page 1
Date of Hearing: April 28, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1376 (Bass) - As Amended: April 13, 2009
SUMMARY : 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 effect.
EXISTING LAW :
1)States when a judgment of imprisonment is to be imposed and
the statute specifies three possible terms, the court shall
order imposition of the middle term unless there are
circumstances in aggravation or mitigation of the crime. At
least four days prior to the time set for imposition of
judgment, either party or the victim, or the family of the
victim if the victim is deceased, may submit a statement in
aggravation or mitigation to dispute facts in the record or
the probation officer's report or to present additional facts.
In determining whether there are circumstances that justify
imposition of the upper or lower term, the court may consider
the record in the case; the probation officer's report; other
reports, including reports received pursuant to existing law
and statements in aggravation or mitigation submitted by the
prosecution, the defendant, or the victim, or the family of
the victim if the victim is deceased; and any further evidence
introduced at the sentencing hearing. The court shall set
forth on the record the facts and reasons for imposing the
upper or lower term. The court may not impose an upper term
by using the fact of any enhancement upon which sentence is
imposed under any provision of law. A term of imprisonment
shall not be specified if imposition of sentence is suspended.
[Penal Code Section 1170(b).]
2)Declares legislative intent 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
AB 1376
Page 2
same offense under similar circumstances. The Legislature
further finds and declares that the elimination of disparity
and the provision of uniformity of sentences can best be
achieved by determinate sentences fixed by statute in
proportion to the seriousness of the offense as determined by
the Legislature to be imposed by the court with specified
discretion. [Penal Code Section 1170(a)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : 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)History and Consequences of Sentencing Law in California :
According to information provided by the Stanford Law School
Criminal Justice Center, "Until 1976, California had an
indeterminate sentencing system: judges had almost complete
discretion to impose sentences within broadly defined ranges,
and parole authorities had almost complete discretion to
release inmates any time before the expiration of the imposed
sentence. Sentencing experts and policy-makers were
virtually united in their opposition to this system,
condemning it for lacking uniformity, proportionality, and
transparency, and for unrealistically promoting rehabilitation
as a primary goal of sentencing.
"In 1976, the California Legislature enacted the Determinate
Sentencing Act (DSA), explicitly describing the new law's
philosophy as rooted in 'punishment' rather than
rehabilitation. The DSA grouped crimes into categories, with
each category tied to a sentencing 'triad' containing a high,
AB 1376
Page 3
middle, and low sentence. The law directed judges
presumptively to impose the middle sentence or, if justified
by aggravating and/or mitigating factors, the higher or lower
sentence. The DSA also abolished discretionary parole
release.
"There is now growing agreement among practitioners,
policymakers, and academics that California's post-1976
sentencing structure has contributed to serious problems that
no one anticipated in 1976 - a correctional system plagued by
egregious overcrowding, unsafe conditions for officers and
inmates, high recidivism, a troubled parole revocation system,
increasing expenditures, a lack of systematic data collection,
and an incoherent sentencing structure.
"This new consensus now recognizes that it is good public policy
for California to create a sentencing data and policy
commission as a new independent agency, drawing on
professional policy expertise as well as the perspectives of
representatives from various parts of state government. The
agency's mandate would be to collect and analyze sentencing
and corrections data, to develop statewide sentencing and
corrections policies, and to coordinate sentencing policy with
correctional resources.
"Improvement in California's sentencing system requires the
cooperation and broad agreement of various branches and
agencies of government, as well as key constituent groups.
The institutional complexity of a large government in a large
and diverse state poses great logistical obstacles to the
kinds of inter-party discussion needed for such cooperation
and agreement. Hence, one key value of the CSC is that it can
serve as a representative microcosm of this range of
perspectives and interests and so it can replicate the kind of
dialogue that would otherwise happen only in an idealized
world. Because all the relevant parties have their own, often
conflicting, ideas on how best to resolve California's
sentencing and corrections crisis, the only sensible solution
is to delegate the responsibility of conducting an objective
analysis of these issues to an independent expert agency
capable of addressing them."
3)Experience of Other States : According to the Little Hoover
Report, several other states have developed successful
sentencing commissions:
AB 1376
Page 4
"In 1980, Minnesota pioneered the guideline-setting sentencing
commission structure. Minnesota's sentencing commission was
tasked by the Legislature with developing sentencing
guidelines that would go into effect unless voted down by the
Legislature. Minnesota's sentencing commission specifies
presumptive sentences through legally binding guidelines. The
guidelines, however, also authorize and invite 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. In written
testimony to the commission, Anoka County Attorney Robert M.A.
Johnson said that the primary goals of the commission 'are to
assure public safety, promote uniformity in sentencing,
promote proportionality in sentencing, provide truth and
certainty in sentencing, and coordinate sentencing practices
with correctional resources.' Since the 1980 Minnesota model
was enacted, a permanent sentencing commission overseeing and
setting sentencing guidelines has been emulated with
adaptation by nearly two dozen other states.
"Sentencing guidelines have been adopted in 18 states and a
half-dozen other states are considering adopting guidelines.
Several states, including Connecticut, Maine, Texas, Colorado,
Nevada, New York and Montana, considered guidelines and chose
not to adopt them. In seven states, sentencing guidelines are
voluntary and are not subject to the appellate process. In
some of these states, judges are required to give reasons for
departing from the guidelines. Because of this, compliance
rates in voluntary guideline states are often quite high.
Fourteen of the guideline states have permanent sentencing
commissions; four do not. Alaska had a temporary commission in
the early 1990s, and the guidelines developed in Florida and
Michigan were written by sentencing commissions that were
later abolished. New Jersey created a temporary commission in
2004 and is currently evaluating whether or not to make the
commission permanent. Some states have sentencing
commissions, but have not adopted sentencing guidelines. In
all, 21 states have sentencing commissions. Most sentencing
commissions include judges, prosecutors, defense attorneys,
corrections officials, academics, public members and sometimes
legislators. In all states with permanent sentencing
commissions, the CSC (or occasionally another state agency)
AB 1376
Page 5
performs the critical assessments of the impact of proposed
sentencing guidelines and statutes on resources.
"The North Carolina Sentencing and Policy Advisory Commission
was created in 1990 to bring certainty and rationality to a
system in which incarcerated felons were serving just a
fraction of their sentences and the public confidence in the
criminal justice system had seriously eroded. The system set
sentencing guidelines based on the crime committed and the
prior record of the offender and also expanded community-based
sanctions. The reform eliminated early release to parole but
included mandatory post-release supervision for certain
offenders. As a result of the reform, violent offenders
sentenced after 1993 serve much longer sentences. To
accommodate the increased length of incarceration for violent
offenders, the state developed and adequately funded
alternative sanctions for non-violent, non-repeat offenders.
Since the passage of the structured sentencing law, the
30-member commission continues to advise the Legislature on
sentencing policy by providing correctional resource
assessments and annually providing prison population
projections.
"The [Virginia Criminal Justice Research Center] showed that
Virginia's criminal justice system did not efficiently use
incarceration to protect public safety and that Virginia
incarcerated older, non-violent offenders much longer than
younger, violent offenders. Based on the research, the
commission developed voluntary sentencing guidelines that
resulted in violent and younger offenders serving longer
prison terms, abolished parole release and replaced it with
post-release supervision for certain offenders and expanded
alternative sanctions and intermediate punishment programs.
The sentencing commission became permanent, and its 17 members
were charged with administering the guideline system and
annually making sentencing law revisions which take effect if
the Legislature takes no action to override the revisions.
Additionally, the commission was charged with developing a
risk assessment tool for low-level non-violent offenders to be
used by judges at sentencing to divert these offenders to
community-based sanctions." [Little Hoover Commission (2007),
Solving California's Corrections Crisis: Time is Running Out,
pgs. 33-48.]
"Several states established temporary sentencing commissions or
AB 1376
Page 6
abolished permanent commissions, and California can benefit
from the lessons learned in these states as well as from the
states that have had successful commissions:
"The South Carolina Sentencing Guideline Commission was
established as a temporary commission charged with
recommending sentencing guidelines to the legislature.
However, the judiciary in the state opposed the creation of
the commission and, as a result, its recommendations were not
enacted by the legislature. New York also had a temporary
commission and its guidelines also were not enacted by the
legislature. In Michigan, the Supreme Court established
sentencing guidelines based on sentencing practices of trial
courts. Wanting to take a more active role in sentencing
policy, the Michigan legislature established the Michigan
Sentencing Commission in 1994. The Michigan Sentencing
Commission recommended guidelines that were enacted by the
legislature in 1998. The commission stopped meeting after it
developed the guidelines and the legislature took over
responsibility for evaluating, monitoring and amending the
guidelines. Experts suggest that the commission dissolved
prematurely due to the lack of political support from the
legislature. Florida's sentencing guidelines originally were
established through its judicial branch. The chief justice of
the Florida Supreme Court directed a research team to develop
guidelines that would be tied to existing practices and have
little impact on resources, but would reduce sentencing
disparities.
"By the early 1980s, both the legislature and the governor
became more interested in sentencing policy and created the
Florida Sentencing Guidelines Commission within the state's
department of corrections. With the commission's assistance,
lawmakers enacted increasingly tough sentences, particularly
for drug crimes. The inmate population quickly increased,
prisons became severely overcrowded and the federal courts
took control, imposing a population cap. As a result of the
mandatory minimums used to incarcerate drug offenders, the
courts were unable to shorten sentences for these offenders
and instead were forced to reduce sentences for more violent
and serious offenders. As a result of this fiasco, the
sentencing commission was abolished." [Little Hoover
Commission (2007), Solving California's Corrections Crisis:
Time is Running Out, pgs. 33-48.]
AB 1376
Page 7
4)Prior Legislation :
a) AB 160 (Lieber), of the 2007-08 Legislative Session,
would have established the California Sentencing Commission
(CSC), with specified membership and terms, to devise
sentencing guidelines. AB 160 died on the Senate Inactive
File.
b) SB 110 (Romero), of the 2007-08 Legislative Session,
would have created a CSC 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), of the 2005-06 Second Extraordinary
Session on Prison Overcrowding, established the CSC, with
specified membership and terms, to devise sentencing
guidelines. ABx2 14 was held at the Assembly Desk and
never heard.
d) AB 2152 (Goldberg), of the 2003-04 Legislative Session,
would have established the CSC, with specified membership
and terms, to devise sentencing guidelines. AB 2152 was
substantially amended when it reached the Senate and was
subsequently vetoed.
e) SB 873 (Vasconcellos), of the 1999-2000 Legislative
Session, would have provided that the Legislative Analyst
examine the costs and benefits of the Three Strikes Law and
report its findings to the Legislature. SB 873 was vetoed.
f) SB 2048 (Vasconcellos), of the 1997-98 Legislative
Session, would have provided that the Legislative Analyst,
in cooperation with the Judicial Council, the Attorney
General, and the University of California (upon approval by
the Board of Regents), examine the costs and benefits of
the Three Strikes Law, and report its findings to the
Legislature. SB 2048 was vetoed.
REGISTERED SUPPORT / OPPOSITION :
Support
None
AB 1376
Page 8
Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744