The explosion in California’s prison population can be traced to first-term Gov. Jerry Brown’s signature on the Uniform Determinate Sentencing Act of 1976, a bill that was supposed to remove racism and irrationality from prison terms but in the end did the opposite. Fourth-term Gov. Brown, who left office last year, understood the problem well. He presided over a prison system that has been under federal court order since 2011 to reduce unconscionable crowding — the result of gratuitous “enhancements” piled on by lawmakers and voters over 40 years. He tried to fix the problem but achieved only partial success.
It’s now time for California to finish the job.
There are two ways forward, and they are not mutually exclusive. The state can overhaul its criminal sentencing laws and, in fact, began a well-considered process early this year to do just that. Recommendations from the Committee on Revision of the Penal Code are to be submitted in January.
In the meantime, prosecutors can and should use their considerable discretion to inject rationality and fairness in their charging decisions, as new Los Angeles County Dist. Atty. George Gascón did his first week in office when he instructed prosecutors not to charge enhancements. More on Gascón’s and the committee’s processes in a moment. But first, some definitions.
“Determinate” and “indeterminate” are technical words best known to tomato growers, and “enhancements” is a term more suited to a plastic surgeon’s office, but these terms also describe features of criminal sentencing and are essential to understanding the mess in our system of incarceration.
Until nearly half a century ago, California sentenced convicted felons to indeterminate prison terms — 25 years to life, for example, or five to 20. When you got out depended in large part on how you behaved in prison and whether and when you were deemed “rehabilitated,” having learned your lesson and prepared yourself for a responsible life in society without further endangering public safety.
But Black inmates often found that on sentences of five to 20, the warden or the parole board considered them rehabilitated after 20 years, while their white counterparts were getting out after five. Besides race, discrepancies reflected a host of other prejudices and injustices.
Determinate sentencing — a flat, easy-to-understand term of 10 years, for example — took out much of the randomness but left little flexibility to account for extenuating circumstances, so California settled on a range of possible years for each crime. For example, robbery results in a sentence of three, six or nine years, depending on the facts of the crime and the record of the defendant. If you used a gun, you could expect to get the high end of the range.
But then came the enhancements. Instead of getting the high end of the range for robbery, you'd be sentenced to an additional 10 years if you used a gun, whether or not it was loaded. Add 20 if you fired it, and life imprisonment if you caused injury with it. Of course we want to punish gun violence, but there was no need to add enhancements to a robbery charge to do that; the defendant could simply be charged with assault with a deadly weapon or a host of other base crimes that better matched the defendant's deeds.
Add more time if you’ve been convicted previously, and more on top of that if you’ve been locked up before. More time if you’re a gang member — and gang enhancements are disproportionately charged against Black and Latino defendants, reintroducing and, in fact, exacerbating racial disparities that were supposed to be eliminated by determinate sentencing. Even though the crimes and the sentences were the same, the actual time served increased substantially.
For many crimes, prosecutors can now choose from a nearly bottomless well of charging choices with an enormous range of possible sentences. They can use these options to dissuade a defendant — even an innocent one — from going to trial. Plead guilty and serve nine years, for example, or face 39 years in prison if convicted.
Gascón cut through this irrationality with his order to charge only the base crime and not the enhancements. Some news accounts implied that the result would be murderers, rapists and other dangerous criminals immediately walking free. This is, of course, bunk. Murder is still murder, rape is still rape; the order does nothing to reduce those charges or the statutory punishments. In some cases, a convicted perpetrator might now be granted a parole hearing after serving decades in prison. That reintroduces one of the positive aspects of indeterminate sentencing: The criminal is punished and the public is protected, yet the inmate retains an incentive to participate in rehabilitation programs in the hope of gaining release many years in the future.
Sentence enhancements have become such a prominent feature in California criminal law that in some cases they have virtually replaced base sentences altogether; for example, in the case of hate crimes and child abuse. On these and a handful of others, Gascón reconsidered and will now allow enhancements.
The penal code committee’s recommendations include guidance for judges for dismissing enhancements and restricting gang enhancements to only the truly dangerous and coordinated crimes. That’s a good start, but California’s goal should be more ambitious. We need a rational sentencing scheme that relies on prison to keep us safe, without using it to such excess that each successive year of imprisonment offers little evident benefit.
This story originally appeared in Los Angeles Times.
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