In moving forward on criminal sentencing reform, California should remember its history

What were the staples of '70s cop movies and TV dramas? OK, sure — wide ties, floppy collars, sideburns and muscle cars. Maybe a disco soundtrack. But what else?

There was also the rant — the diatribe by the beleaguered police detective or the outraged deputy district attorney against naive or corrupt decision-makers in the justice system. In seemingly every episode, a hard-working, no-nonsense guardian of public safety would catch the rapists, the murderers and the pushers, only to have some liberal judge cut the crooks a break because he or she believed their sob stories.

Or maybe a parole board filled with crooked political appointees would set the bad guys free, so that they could return to their criminal ways. The cops and prosecutors could only complain: When are we going to take this system away from the do-gooders and politicos who know nothing about the streets?

Meanwhile, in academia, sociologist Robert Martinson summarized a study of prison rehabilitation programs in a 1974 essay that politicians and newspaper headlines famously boiled down to a catchphrase: “Nothing works.”

And if nothing works, why have open-ended (“indeterminate”) sentences, such as five years to life? How could parole boards rationally decide to grant or deny parole if no prison program could actually change the behavior of inmates after their release?

That message made sense to another figure from of that era, California Gov. Jerry Brown. In 1977, he signed a bill eliminating open-ended sentences and ending the state's 60-year mission to make its prison system an instrument of rehabilitation. From that point forward, the purpose of prison would be strictly punishment.

The move was applauded by conservatives who wanted to eliminate the discretion exercised by judges and parole boards and replace it with set, certain prison terms. The move was applauded by some liberals, too, who didn't like losing rehabilitation but argued that judicial and parole board discretion was too often exercised in racial terms, with whites receiving favored treatment over African Americans and others. And besides, how fair was it to send someone to prison without allowing him to know how long he was going to be there?

On paper, the change looked promising. What could be more fair than set terms for specific crimes? You're convicted of crime X, and you're sentenced to Y number of years. No special deals, no favored treatment, no distinction based on race or social circumstances. Truth in sentencing. It's like they sang in one of those '70s cop shows: Don't do the crime if you can't do the time.

But it wasn't that simple. There was a new focus on sentence “enhancements”: More incarceration for using a gun, for example, or for being in a gang, or for having a previous record. Plea bargains didn't disappear, as many expected, but rather became all the more important, with prosecutors using the threat of enhancements as leverage to extract guilty pleas. Discretion didn't disappear; it was merely transferred from judges, juries and parole boards to prosecutors.

Abolishing open-ended sentencing, an older and wiser Brown now says, was the worst mistake he made in his first go-'round as governor.

Late last month, he proposed a ballot measure as a partial correction. It's by no means a full roll-back to pre-1977 sentencing laws, but it would return some discretion to the judges and parole boards who lost much of it in the 1970s and continued losing it as the Legislature and voters mandated increasingly more onerous prison terms.

The central issue is discretion: What ought to be its role, who gets to exercise it, and subject to what constraints?

Are we as a society now older and wiser, like Brown, with more data, more experience and more perspective about criminal justice? After all, there have been many studies refuting the “nothing works” findings of the 1970s and, besides, that was never the point Martinson was trying to make. There is now a solidifying body of evidence about which laws, programs and methods of supervision result in positive behavioral change inside and outside of prison, and a better understanding of how parole and rehabilitation credits can reduce criminal recidivism. It would be foolish to ignore 21st century knowledge in order to proceed with a 1970s sentencing scheme.

One 1970s tough-guy movie actor, who became a 1980s superstar and governor of California in 2003, signed a bill that again made rehabilitation a goal of the state's corrections system. But prisons have remained too crowded to adequately implement effective programs.

And what about the liberals' former reasons for mistrusting open-ended sentences? The nation in recent years has begun to confront whether police work is still negatively affected by implicit bias — subconscious actions and attitudes about not just race but age, class, gender and physical appearance.

If we haven't eliminated such bias in policing, are we ready to return discretion to judges and parole boards who are likely also affected? Do we compile enough sentencing and parole data to make sure we don't exacerbate these problems? Have we improved training and oversight of parole boards? Is the bench still overwhelmingly white and made up heavily of former prosecutors, and does that affect the quality of judicial decisions?

In reforming criminal sentencing laws, California should be sure that it is climbing a ladder toward ever-more effective and enlightened sentencing rather than merely clutching the end of a pendulum that swings back and forth with time and changing fashion. Brown's ballot measure would not return the state to an era of open-ended sentences but would simply recalibrate some of the discretion in the system. It appears thoughtful and carefully limited. Success will require an equally thoughtful look at those players in the system who stand to win back a measure of discretion.

Follow the Opinion section on Twitter @latimesopinion and Facebook

Copyright © 2016, Los Angeles Times
A version of this article appeared in print on February 07, 2016, in the Opinion section of the Los Angeles Times with the headline "Discretion in sentencing - In moving forward on criminal justice reform, California should remember its history." — Today's paperToday's paper | Subscribe