Community Commentary: California needs to change mandatory-minimum sentencing

Prison reform has dominated California's budgeting discussions. When a state with 10% of the nation's prisoners makes 20% of the nation's prison expenditures, something must be wrong. Or so the argument goes.

To save money, Gov. Jerry Brown recently began moving about 15,000 prisoners from state prisons to county jails. But space is filling up quickly.

The Orange County Register reported the state transfers to Orange County in October totaled 292 — more than twice the 143 for which the county planned. As more jail space becomes necessary, Orange County will need to terminate its contracts with federal immigration and customs groups that are projected to generate net income of $21 million in 2011 alone.

Some counties have gotten creative in dealing with rising incarceration costs. Riverside County, for example, will bill prison living expenses to inmates with the means to pay beginning this month.

In recent years and months, we have seen state legislators turn to makeshift measures and budget stopgaps because politics get in the way of real prison reform.

Politicians frame the prison reform debate in the polarized manner of "hard on crime" versus "soft on crime." Reelection-seekers feel they simply cannot risk being perceived as the latter.

Another approach to reform is abolishing (or significantly reducing) mandatory-minimum sentencing. Federal mandatory minimums gained popularity in the 1980s and 1990s as a tough way to limit drug use and prevent drug-related crime. Mandatory minimums increase the average drug sentence, while limiting judicial discretion. It was not until 1994 that a federal judge could even use discretion in a mandatory minimum-bound case. Congress passed the Safety Valve bill in 1994, but to even qualify, a defendant still needs to meet five strict qualifications.

The Federal Bureau of Prisons estimates the cost of incarceration at $24,000 a year per inmate. The lower the mandatory minimum in a case, the more discretion a judge can apply, and the more power a judge can maintain in sentencing, resulting in more federal money becoming available to close the federal deficit or to help balance state budgets.

And California can save from amending its own mandatory minimum: the Three Strikes Law. The Stanford Three Strikes Project reports that more than 25% of California's 2009 prison population had received an "enhanced sentence" as a result of Three Strikes. The sentence enhancements were on average nine years, costing California more than $19 billion over the course of the inmates' sentences that the three strikes law determined.

Most view prison reform as a liberal agenda. Fiscal conservatives in increasing numbers, however, have started to tackle prison reform. Since 2007, Texas Gov. and GOP presidential candidate Rick Perry transferred $240 million from prison construction to criminal rehabilitation programs in Texas. Additionally, South Carolina passed a bill to keep low-risk and non-violent convicts out of prison and in community transition programs. Furthermore, Arkansas, Kentucky, Alabama and Oklahoma have all passed similar bills that favor crime prevention over criminal punishment.

The reason? A perceived need to examine a new approach to crime. Perry champions crime policy that is "tough and smart." Conservative leaders Grover Norquist and Newt Gingrich founded the organization Right on Crime to protect economic considerations in criminal justice policy-making. Right on Crime's statement of principles states how "as members of the nation's conservative movement … [Right on Crime must be] known for being tough on crime … but … must also be tough on criminal justice spending."

Stanford's Three Strikes Project is drafting legislation to amend Three Strikes. And next November may offer a favorable political climate for such legislation. A poll commissioned by Families Against Mandatory Minimums, a nonprofit devoted to reversing mandatory minimums, found that majorities in both parties oppose mandatory minimums. Perhaps most significantly, the poll also found that 60% of voters are likely to vote for a politician who opposes mandatory minimums.

With its initiative process, California has the unique ability to reform Three Strikes without relying on its politicians to do so.

The initiative process produced the law under Proposition 184 in 1994, with an overwhelming 72% vote. Seventeen years later, voters in California have an opportunity to free state funds for cash-strapped schools and state programs. Democrats can vote to usher in their long-desired prison reform and Republicans can vote to move toward criminal justice that is "tough and smart." Californians can vote to reform Three Strikes Law and provide the impetus for federal reforms of mandatory minimum sentencing.

It looks like a win-win for everyone.

DANIEL SHANE of Irvine is a junior at Claremont McKenna College in Claremont. He graduated magna cum laude from Irvine's University High School in 2009. At Claremont McKenna, he majors in the interdisciplinary philosophy, politics, and economics program and participates in the school's Student Investment Fund, Model United Nations and Mock Trial programs.

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