Sentencing commission, suggested in Sacramento, faces long odds

jwhite@sacbee.comDecember 23, 2013 

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.”

Call Jeremy B. White, Bee Capitol Bureau, (916) 326-5543.

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