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November 20, 2006 - Sacramento Bee (CA)

Sentencing Panel May Get New Life

Idea Hasn't Fared Well In State, But Crowded Prisons Need Relief

By Andy Furillo, Bee Capitol Bureau

Return to Drug War News: Don't Miss Archive

Facing a double whammy of a population cap and a court decision that threatens to wipe out the state's sentencing law, the Department of Corrections and Rehabilitation is considering a sentencing commission that would help decide who goes to prison and for how long.

"We are willing to engage in sentencing reform," Corrections Secretary James Tilton said in an interview with The Bee, adding that as part of the discussion, the Schwarzenegger administration is looking at establishing a sentencing commission.

Such panels take different forms but can allow states to manage prison populations by altering the approach to sentencing. The idea was rejected seven times in California between 1984 and 1998 -- three times by gubernatorial vetoes and four times by legislative committees.

But a new urgency has slammed down on the state's prison system. Legal motions filed last week in three pending federal cases already decided in favor of the defendants are demanding that the prison system cap its population.

Meanwhile, the U.S. Supreme Court is deliberating on a case that very well could render to the trash heap the way judges have been sentencing convicted defendants in California for nearly 30 years.

Details on a commission proposal have yet to be fleshed out. But with the prison population rising, the corrections budget projected by the Legislative Analyst's Office to exceed $9 billion next year and inmates rights lawyers monitoring its every move, the administration now views a sentencing commission as a possible salvation.

"The sentencing commission clearly is going to be one issue looking forward," Tilton said.

Knocked off the correctional agenda for the better part of a decade, talk of the commission has resurfaced in recent months as the state prisons' overcrowding crisis has worsened.

Last week, inmates rights lawyers filed motions with judges who have been friendly to them over the years to fix an unconstitutional level of overcrowding by imposing the population cap. That matter is the subject of a Dec. 11 hearing in U.S. District courts in Sacramento and San Francisco.

Lurking in the background is the pending U.S. Supreme Court decision -- expected to come down within the next seven months -- that is targeting the state's 1977 determinate sentencing law.

The Cunningham v. California case is challenging trial judges' triple-option sentencing structure created under determinate sentencing.

It's a system that has allowed judges to pick from a low-, middle- or high-term sentencing range depending on whatever aggravating or mitigating circumstances, if any, they find in a defendant's conduct.

But in piling on extra years, the Cunningham case charged that the defendant's sentencing judge made findings of aggravation that were not presented to the jury. The case was filed after the high court tossed out a similar sentencing scheme in the state of Washington in 2004.

If the result mirrors the Washington case, it could set up something of a perfect storm -- or opportunity -- that would clear the way for creating a state sentencing commission, according to Evan Lee, a law professor at the University of California's Hastings College of Law.

"It could be the political impetus needed to say, 'We have to do something because the Supreme Court says so,' " said Lee, a consultant to the American Law Institute's council on sentencing guidelines.

"One rational response is, 'Let's use this to create a sentencing commission.' Then you've got somebody other than federal judges managing the prison population," he said. "You've got a central authority at the wheel."

California's 33 prisons are jammed to more than twice their designed capacity, with the system housing 173,434 inmates. Even before he got hit with the legal motions to limit the population, Tilton had imposed a de facto limit of his own. By midsummer, he said, he will literally run out of every inch of space to house incoming prisoners. At that point, he said, he will accept only inmates from counties as space becomes available -- one out, one in.

For the long term, Tilton said, he plans to come back to the Legislature next year with a package similar to the $6 billion, construction-heavy plan he presented to a special legislative session on prison overcrowding last summer, one that lawmakers scaled down and ultimately killed.

The special session package called for building two prisons, adding bed space to existing prisons, placing as many as 10 "re-entry facilities" in communities for short-term, low-level offenders, and moving thousands of nonviolent female inmates into community correction facilities.

As a stopgap measure, the administration has already shipped 80 inmates to a private, out-of-state prison and wants to transfer more than 2,200 total.

With pressure rising in the system and with a "really good chance" that the Supreme Court is going to get rid of the California sentencing system, Lee said the "best-case scenario" for the state is to go ahead and create a sentencing commission.

"This is a real window of opportunity," Lee said.

Twenty-two states already have sentencing commissions, as does the federal government and the District of Columbia. Usually made up of gubernatorial and legislative appointees, the commissions take a wide range of forms, from mere advisory panels to bodies that have the full, legislatively delegated force of law to establish a state's sentencing guidelines.

Sentencing commissions gather facts and figures on whom their states are incarcerating, why and for how long. The stronger ones use the information to come up with guidelines, matrixes and grid charts that seek to prioritize prison bed space for the most serious offenders and require judges to spell out their reasons if they depart from the sentencing recommendations.

Lee said commissions "manage" their prison populations on a "prospective" basis, applying their guidelines only to newly convicted offenders rather than retroactively releasing convicts.

"It's all on the intake side," Lee said.

In California, sentencing commissions met disfavor from Republican Govs. George Deukmejian and Pete Wilson, each of whom vetoed bills (Wilson twice) that would have established such panels.

Deukmejian, in a 1984 veto message, said they threatened to undermine the determinate sentencing law and took away from the Legislature's accountability.

Wilson, in a 1994 veto, suspected that a sentencing commission would favor the "discredited" indeterminate system where judges had a wide range of options and that it would reinstate a "lenient" parole board that would let too many prisoners out too early.

Gov. Arnold Schwarzenegger said in Los Angeles last week that "everything should be on the table" when it comes to fixing the prisons. He added, "I am open-minded about this, and that's how we're going to solve that problem."

State Sen. Gloria Romero, D-Los Angeles, slated to become the Senate's public safety chairwoman when the Legislature reconvenes, discussed prisons with the Republican governor in Mexico during his trade mission earlier this month. She said a sentencing commission is "near the top of my list" as a prison problem-solver.

"The concept is sound," Romero said. "It's something I'm working to craft legislation around."

Copyright © The Sacramento Bee

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