Sentencing reform

 COMMENTARY 


The solution to California’s overcrowded prisons

San Diego Union-Tribune, Aug. 27, 2011

By Paul Sutton

The federal mandate that California release 33,000 inmates has spawned a flurry of stopgap solutions, the worst of which demands that our county jails somehow manage the formidable task that our $10 billion state prison system has failed to do. It is pure folly. The only answer to prison crowding is to reform how and why we sentence offenders in the first place.

California should aim not so much at reducing prison populations as at managing them. Through a variety of decisions, we, as a society, dictate the nature and size of our incarcerated population. In the same way, we can change it – rationally and responsibly.

Experts agree that we send too many people to prison for too long and do too little for them while they are there. The solution is not more beds, but a more efficient use of them, something best accomplished via sentencing reform. Yet, California has never seriously considered comprehensive sentencing reform in addressing its decades-old prison crowding problem.

Why not?

  • —    Politicians do not want to appear “soft on crime.”

Sentencing reform generally connotes shortening sentences. But there is nothing inherently “soft” about reform. California’s last overhaul of sentencing – the 1977 determinate-sentencing law – increased prison sentences and launched a 30-year quintupling of California’s prison population. California’s “three-strikes” law was similarly harsh. Unfortunately, the public gave little thought to the impact of either. The point is not that sentencing reform should be harsh or lenient, but that it should be smart. Properly cast, sentencing reform can help us to manage the number and types of people in prison.

  • —    The public wrongly believes that sentencing “works.”

Sentencing is more ritual than science: we do it, but we don’t agree on the whys or hows. Faith in the current system rests on two mistaken beliefs: that judges fashion sentences to accomplish rational and objective goals – e.g., justice, deterrence, rehabilitation, and public safety; and that sentences actually accomplish these objectives. Neither belief is correct.

First, the sentencing “decision” is the arbitrary, even accidental, product of a sequence of decisions made by legislators, police, prosecutors, judges, and probation, prison, and parole officers. While each actor, no doubt, anguishes over his or her part in the “decision,” there is no metric connecting any decision to any overriding goal or result.

Second, different objectives can call for very different sentences. Retribution, for example, might demand a long prison term, rehabilitation a shorter one, and reintegration no prison term at all. But neither reason nor authority makes one objective more appropriate than another for a given case. Consequently, decision-makers indulge their personal biases and philosophies as they fashion sentences.

Third, There is no evidence that one approach to sentencing produces better results than another. If we wish to be safer, for example, or to make an offender less likely to recidivate, we simply do not know what sentence is most likely to do either; nor, after the fact, do we know if our strategy worked best. We simply guess and hope, ignorant of outcomes and falsely confident in the knowledge that at least we did something.

  • —    People believe that harsher sentences are better.

People intuit that if two years is a good punishment, then three years must be better. But there is no empirical evidence that longer sentences are inherently better. There is no evidence, for example, that we will be safer because Offender X got a sentence of four years rather than three. Nor should we believe that the offender will be better. Indeed, the opposite may be true. Today, when California sentences are the longest in modern history, the state is posting record-high recidivism rates, a pattern which contradicts the “harsher is better” premise.

  • —    People believe that real reform is too difficult.

Real reform is difficult, especially when players prefer to exploit public fears to serve their political ends. “Tough on crime” arguments forge an easy consensus that avoids hard questions about costs, goals, and outcomes. Reform will require people of different stripes and philosophies to subordinate their individual agendas to higher objectives.

But it can be done. Decades ago, Minnesota paved the way by overhauling sentences with a “guidelines” approach that assured similar offenders convicted of similar crimes would receive similar sentences. The result was equity in sentencing, cost savings, and an effective tool for managing prison populations. In California, It will take a concerted public demand for a more rational and effective approach to criminal sentencing and steadfast political leadership to guide the way.

Sutton is a professor of criminal justice and prison documentarian at San Diego State University and former senior research associate at the National Center for State Courts.