Editorial: Fixing some of California’s tough-on-crime mistakes of the past

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Who overpacked California’s prisons? It was first-term Gov. Jerry Brown, when he signed into law the Uniform Determinate Sentencing Act in 1976. And it was the Legislature’s Democratic majority, who’d sent Brown the act in the first place and then tried to outflank tough-on-crime Republicans by adding one sentence-lengthening provision (or “enhancement”) after another.

In his second go-round, both Brown and the Legislature have been trying to make amends for the prison growth and over-incarceration that they helped to set in motion. Lawmakers are considering — and should send to Brown — two bills to undo some of the enhancement excesses.

One would give judges the discretion to ignore a particularly stiff enhancement now required for serious felons: an additional five years for each previous serious conviction, even if the defendant already served time for those crimes.


The other would eliminate a one-year enhancement that’s currently tacked on to nonviolent felony convictions for every previous jail or prison term the defendant has served.

If there was evidence that the extra prison or jail time deterred repeat offenders, the enhancements might make some sense. But years of experience show instead that many repeat offenders are driven by untreated mental illness or addiction. Treating those problems, rather than expanding prisons and jails to hold more offenders longer, should be the priority. Meanwhile, California has in place safeguards such as the three-strikes law to protect the public from repeat violent offenders.

If it’s difficult to understand how these two bills fit into the web of criminal laws or see how they could make much of a difference, don’t feel bad. California’s criminal sentencing scheme is so hard to understand and the proposed fixes so easy to mischaracterize in large part because of that law that Brown signed more than four decades ago.

Treatment, rather than expanding prisons and jails to hold more offenders longer, should be the priority.

For most of its history, California had what was known as indeterminate sentencing, under which a judge would sentence a convicted criminal to an indefinite term rather than a set number of years. A burglar, for example, might get five years to life. Then the judge’s sentencing role was finished, and the actual term spent behind bars would be determined by a parole board.

That gave inmates an incentive to behave in prison and to participate in rehabilitation programs. After they had served the low end of the range, they could take their case to a board, whose members would measure the inmates’ progress and grant or deny parole accordingly.


The system generally worked. The return-to-prison rate for paroled inmates hovered near 15%.

But Brown and lawmakers moved to determinate sentencing, which — counterintuitively — became even more convoluted. Judges could choose a standard sentence, a stiffer one or a lighter one, depending on the defendant’s prior convictions or other extenuating circumstances. All decisions were made on the front end, in court.

So in prison, fewer inmates bothered with rehabilitation programs because they couldn’t lead to earlier release. And, as a consequence, fewer were ready to responsibly go home to their neighborhoods after serving their time. The return-to-prison rate skyrocketed to 70%.

Brown completed his first tour of duty as governor in 1983, but lawmakers kept adding enhancements. For example, on top of the base term for committing the crime, new laws layered on additional time for being in a gang, for using a gun, for having been in jail or prison before, and on and on. The three-strikes penalties were also enacted. Other states followed California’s lead. And still recidivism rose.

When Brown returned from the political wilderness and was elected state attorney general in 2006, he faced an overflowing prison system he had helped to create: Instead of 10 prisons, California had 33, and its inmate population had grown by 900%.

In 2016, he presented and voters adopted Proposition 57, which brought back much of the former parole system and with it the incentive for inmates to participate in programs that will make them better bets to return safely to their neighborhoods. It also brought back some of the better aspects of indeterminate sentencing.


But all those enhancements remain in place, even in the absence of evidence that they protect the public from repeat offenders. Some make sense. But some don’t, including the requirement that new felony convictions carry an additional year for each jail term already served for a previous felony. SB 1392 would properly eliminate it. And the extra five years for having previously committed a serious crime — that’s something that judges should be able to keep or dismiss, in the interests of justice. SB 1393 would give them that authority.

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