California’s run-on sentences

Today, Reynolds and Krisberg discuss mandatory sentencing. Previously they debated application of three-strikes laws, the three-judge panel that will review the question of capping California’s prison population, crime rates and incarceration, prison overcrowding.

Too many laws
By Mike Reynolds

Barry:

Your comments on Thursday were better directed to today’s question on mandatory sentencing.

Your assessment of California laws is correct inasmuch as there seem to be more of them and they seem to be more voluminous in text. If there is a more complicated way to write laws, California seems to find it.

But a sentencing commission is nothing more than political appointments that reflect the makeup of our state legislature at any one time and will raise or lower penalties and politically isolate our elected officials from taking responsibility for their screw-ups. Example: If the commission lowers penalties and allows the release of a violent offender who proceeds to re-offend, everyone asks, “Who let him out?” The way things are now, the elected office holder who changed the law would take the heat. With a commission the blame is lost and it’s impossible to assign responsibility.

Mandatory sentences have times when they are too harsh or too weak, depending on the merits of each case and it own circumstances. That’s why judges have leeway and flexibility to consider particular factors before handing down the sentences. The law provides each crime with three different penalties and allows a judge to use one that he feels best fits the offense and the offender. When the judge uses the lowest term it is called a mediated term. When he uses the greatest, it is referred to as the aggravated term.

District attorneys or prosecutors are also empowered to reduce or escalate charges, thus you see “plea bargain” prosecutions that never go to trial in over 90% of all criminal convictions in California.

I feel mandatory sentences do serve a very important part in the criminal justice system. They, for the most part, are reserved for the crimes that the public most wants to stop, such as drunk driving, child molestation and repeat offenders. Even driving illegally in the car pool lane will get you a mandatory $247 fine. It’s like “mandatory” really means, “we are serious about this law — don’t do it.”

If you get to thinking about it in the laws of nature, the penalties are always the same or “mandatory.” A good example is the law of gravity: if you jump a off a 10 story building you’re a goner. Nature’s law of inertia: if you step in front of a tank you know exactly what will happen.

Our man-made laws seem to have so many exceptions that after a while compliance becomes a joke.

This use of mandatory laws do work in this regard. Either a person is deterred from these types of crimes or they are detained. The end result is exactly the same — the crime stops.

I personally feel we have far too many laws, rules and regulations.

Good laws should be simple to understand, tough enough to stop criminal conduct and certain — no excuses.

Mike Reynolds is the father of Kimber Reynolds, who was murdered 1992 at the age of 18. He is also the father of “Three Strikes and You’re Out” and “10-20-Life (Use A Gun and You’re Done),” which are said to be among America’s toughest crime laws.

Punishing ourselves
By Barry Krisberg

Let me thank you, Mike, for agreeing to have this dialogue with me on crime and punishment in California. The sorrow of the tragic loss of your daughter is unimaginable to another parent. Your are to be commended for your ongoing commitment to improving our system of justice. I hope that this exchange stimulates a series of discussions that our elected officials and citizens must have on the vital topic of prisons and public safety.

Today’s topic is about mandatory sentences. The idea of building inflexibility into the sentencing system came from a growing distrust of the fairness and common sense exercised by judges and parole boards. This is somewhat surprising to me because over the past 50 years most of our judges and parole board members were appointed by Governors who were ideologically conservative and generally punitive on crime issues. In California, our judges must be approved by the voters, so ultimately the people do get their say. The surest path to the judiciary in California has been to first work as a prosecutor. Being a retired police officer has been a stepping stone to parole board membership. It is hard to see how excessive leniency toward defendants would come to dominate this sentencing system.

Mandatory sentencing was fueled by the “use a gun, go to prison” campaign launched by former Attorney General and Governor George Deukmejian. Next, the legislature expanded the mandatory prison term to lots of other crimes, especially drug crimes. Mandatory prison terms beget three strikes laws, that beget laws requiring prisoners to serve most of their terms (“truth in sentencing laws”) and the movement to make prison conditions even more punitive and the abandoning of rehabilitation.

There are many problems with mandatory sentencing. First, they provide the illusion of certainty when in actuality the discretion of judges is replaced with the discretion of prosecutors who decide how to charge cases. Years ago, I looked at the mandatory sentencing for gun crimes. As I read case files, I came across the curious notation by prosecutors that “the defendant swallowed the gun” This colorful phrase meant that in exchange for pleading guilty, the legal system would pretend that there was no gun found in the offender’s possession. Indeed, I found that the mandatory prison sentences was used for a minority of cases in which the police reports described the presence of weapon. Since the vast majority of criminal cases are settled with plea bargains, mandatory sentencing just pushes the decision-making process from open court to the backrooms of D.A. offices.

Second, there is little evidence that mandatory sentences actually deter offenders or potential offenders from committing new crimes. This is especially true for offenders struggling with addiction or mental health issues, or people whose social circumstances suggest that they have little more to lose.

Third, mandatory sentences make our punishment system a blunt tool, rather than a more refined instrument that can consider a range of factors that might suggest the rehabilitation services could work. Since the mandatory sentencing became popular, the failure rates of released prisoners has doubled, making our streets less safe. Remember that almost all prisoners will be coming home and we want their recidivism rates to go down. With over 125,000 California prisoners being released to our communities each year, we have a strong public safety interest in rehabilitating those who can benefit from these services.

Ultimately, mandatory sentences pack the prisons with non-dangerous as well as very dangerous criminals. The prisons become schools for crime when what California needs are schools that help our young people succeed in the emerging global economy. More prisons and more inmates can only do so much to advance public safety. It is stronger communities, more capable families, greater economy opportunities, better schools and health care that are central to achieving domestic tranquility. Mandatory sentences drain scarce public dollars away from the social investments that would make us safer.

It is interesting that we both agree that there are too many laws — in the early 19th century they would have branded us as “Liberals.” By the way, sentencing commissions do not hide from public accountability. The legislatures in Virginia and North Carolina still set policy and get to ratify the decisions of the commission. The sentencing commission increases the odds that policy will be made in a thoughtful and objective manner, rather than in the heat of political and media spotlights.

We also agree that there is still lots of human discretion left in the seemingly automatic sentencing process. I just want to bring the process into the daylight and increase the transparency of the criminal justice system.

Human beings are complex, and so should be their institutions. Apparently simple rules of dealing with offenders are illusory. Sentencing individuals, not just legal categories, makes more sense to me. One reason why dangerous offenders get out of prison too early is that the legal terms of their conviction sometimes understate their true danger to the community, or the actual harm that they inflicted on victims. This was why I was a fan of indeterminate sentencing in which real human beings looked at inmates and made a reasoned judgment as to the risk of releasing them. I don’t think that responsible parole board members would have released that apparently mentally ill San Quentin inmate who almost stabbed a 14-year-old girl to death in San Francisco the next day — the rigid current sentencing system forced that release.

Mike, we are not disagreeing about locking up the very dangerous and violent criminals. But, mandatory sentencing for the non-violent and non-dangerous, especially minor drug offenders, is costing society too much with little or no payoff. As my mentor Milton Rector would say “In our zeal to punish offenders, we should be careful not to punish ourselves”

Dr. Barry Krisberg is the President of the National Council on Crime and Delinquency, a criminal justice research institute based in Oakland, CA. This fall he will be teaching a class at the Boalt Hall School of Law on Prisoner Reentry.