January 18, 1994

The Honorable Pete Wilson Governor of California

The Honorable David Roberti President Pro Tempore of the Senate     and Members of the Senate

The Honorable Kenneth L. Maddy Senate Minority Floor Leader

The Honorable Willie L. Brown Jr. Speaker of the Assembly     and Members of the Assembly

The Honorable James Brulte Assembly Minority Floor Leader

Dear Governor and Members of the Legislature:

A young girl is snatched from the supposed safety of her bedroom and killed. People are gunned down on the streets after they comply with muggers' demands for their valuables. Drive-by shootings proliferate and auto thefts turn into murderous carjackings.

While statistics tell us that overall crime has held steady and even dropped slightly in the past few years, violent, senseless crime has escalated to the point where few Californians feel completely safe in their daily lives. Since a primary, fundamental responsibility of government is to protect its citizens, the Little Hoover Commission embarked on a study in mid-1993 that was designed to pinpoint state policies and procedures that could be revised to increase the effectiveness of the adult justice system.

What the Commission found is that while the State has many tools at its disposal for tackling crime, its policies are not sharply focused on the need to maximize the effectiveness of those tools. All to often emotion rather than carefully considered, out-come based goals guide decisions about fighting crime. This is particularly true when it comes to the operation of the State's prison system.

The Commission's report, which is being transmitted to the State's top policy makers with this letter, contains seven findings and 30 recommendations designed to redefine the role of California's prisons and reassure citizens that their government can and will protect them from violent criminals. Specifically, this report looks at:

1. The sentencing structure, which has grown too complex and inequitable through constant, uncoordinated alterations.
   
   
   • The Commission recommends immediate steps to revamp sentencing and also a long-range system to monitor overall cohesiveness as reforms are made in the future.

2. The need for the State to treat violent criminals differently than non-violent offenders.
   
   
   • The Commission recommends indefinite sentences for violent criminals and habitual offenders, with restricted ability to earn reduced sentence time.

3. The parole system, which is no longer an effective deterrent that keeps parolees from returning to a life of crime.
   
   
   • The Commission recommends lengthening the time beyond the present limitation of one year that a parolee can be returned to prison for a violent crime and/or only suspending -- rather than eliminating -- the portion of a sentence reduced by work credits so that a parole violator has to return to serve out the remainder of his time.

4. The effectiveness of work programs in reshaping the lives of the 90 percent of the prisoners who are released back to the streets.
   
   
   • The Commission recommends refocusing work programs to instill a work ethic in prisoners and to give them actual skills that will make them employable in the outside world.

5. The effectiveness of education programs in turning around the huge rate of illiteracy among prisoners.
   
   
   • The Commission recommends denying paying jobs to prisoners who cannot read at the ninth-grade level.

6. The problems caused by the historical fragmentation of authority and responsibility among prisoners, which often have operated as independent fiefdoms.
   
   
   • The Commission recommends continued standardization of policies and centralized accountability, including the creation of a separate Inspector General function and modifications to the warden selection process.

7. Stumbling blocks that keep the Department of Corrections from operating effectively and efficiently.
   
   
   • The Commission recommends modifying the Inmate Bill of Rights so that prisoners are restricted to the same level of protection afforded prisoners in the federal system and in most other states.

   While the Commission acknowledges that there are no easy answers to crime, we believe it is critical to re-balance the way California uses its prison system so that the focus is on the violent criminal and habitual offender. We believe that speedy enactment of the Commission's recommendations will put criminals on notice that California is serious about fighting crime and beating back the terror that now stalks our streets. The Commission stands fighting ready to work with the Governor and the Legislature to make these policy changes a reality.

   Sincerely, Nathan Shapell Chairman

   ---

   
   Table of Contents

   Executive Summary

   Introduction

   Findings and Recommendations

   Sentencing Structure
   Finding 1: Complex, inequitable sentencing system

   Finding 2: The need to treat violent criminals differently

   Finding 3: Parole system is ineffective

   Prison Programming

   Finding 5: Education is poorly managed

   Department of Corrections' Operations

   Finding 6: Prison operations should be centralized

   Finding 7: Policies and laws hamper Department

   Conclusion

   Appendices

   Endnotes

   
   
   

   ---

   Introduction

   Any study of California's adult criminal justice system has the potential for the exploitation of dramatic and emotion-laden anecdotes -- whether from the perspective of those who think crime has run amok and government is doing little about it, or from the position of those who find conditions in prisons inhumane and state policies so flawed that people who emerge from incarceration actually are a more violent threat to public safety than when they went in. Consider just a few examples gathered during the past nine months:

   • Polly Hannah Klaas, a 12-year-old snatched in the middle of the night from her Petaluma bedroom, is dead. The killer -- who has confessed, according to his lawyer -- is a multiple kidnapper who in different times or places would have been dead or permanently incarcerated rather than free to commit this fresh tragedy. News accounts are full of statements by community leaders, politicians and the public expressing dismay about a system that does not keep proven criminals behind bars.

   • Damian Monroe Williams is sentenced to 10 years for throwing a brick that struck trucker Reginald Denny in the head and assaulting four other people during the 1992 Los Angeles riots. Between the time he already has spent in jail while being tried and state laws that cut most sentences in half, he is expected to serve less than four years in state prison. News accounts highlight frustration felt by officials and members of the public over "phantom" tough sentences that are levied but never meant to be fully served.

   • A Sacramento woman's father is shot dead in broad daylight during a street robbery. The man arrested for the crime is on parole after serving time for a long list of prior armed robberies and, during the course of his parole, has been arrested for possession of a weapon and cocaine. The woman believes, based on state records, that he was continued on parole -- and thus free to kill her father -- rather than returned to state prison because prison overcrowding had caused bureaucrats to order sharp cutbacks on revocations for parole violators.

   • Prison guards decide to bathe a possibly psychotic and certainly obnoxious prisoner who has smeared himself with fecal matter. The prisoner, held in the tub and scrubbed, emerges with third-degree burns over much of his legs, skin and flesh peeling off in chunks.

   • A minimum-security inmate at Pelican Bay who is within one month of his release date is attacked by other inmates in the prison yard. A guard fires a shot to break up the fight but the bullet goes astray and kills the victim of the attack.

   • A veteran of the Pelican Bay Security Housing Unit, where there are no efforts to provide counseling, training or education and where inmates spend 22.5 hours a day in their cells, is released directly to the streets of the Bay Area when his sentence ends. Within days, he assaults and rapes a woman.

   It takes no particular genius to recognize that something is wrong with a system that produces these stories and many, many more like them. But sorting out what reforms are needed is a much more difficult task that quickly can become mired in philosophical differences. If crime stems from poverty, ignorance, drugs and neglectful or abusive upbringing, then should not society treat criminals as afflicted persons who need to be treated and cured? If many rise above similar dismal backgrounds without resorting to a life of crime, then should criminals be viewed as soulless deviants who must be segregated from society permanently? The argument between the factions formed around these very different perspectives seems inexhaustible -- and does little to advance practical solutions for how California should cope with crime.

   Beyond philosophical questions are the very real, practical concerns: Dealing with crime costs money, yet state resources are limited and much in demand across a broad spectrum of social needs. Public support for a "lock-'em-up-at-any-cost" policy runs headlong into public dissatisfaction when taxes are raised or education funding is cut. Anyone who enters the debate on coping with crime is soon constrained by what is financially doable and what is publicly acceptable.
   

   With these factors in mind and at the request of Senator Robert Presley, the Little Hoover Commission embarked on a study of the adult criminal justice system in May 1993. The Commission's first task was to define issue areas where meaningful input could be directed to policymakers, and then to take a factual, analytical approach to the issues that sorted out esoteric theory from reality, weighed cause and effect, and focused on goals rather than emotion.
   

   To begin, the Commission assembled a Criminal Justice Advisory Committee from among the top experts in both the public and private sectors of the criminal justice field (please see Appendix A for a list of those who participated). Through discussions with the advisory committee, two facts immediately became evident: 1) Criminal justice involves a vast interrelated system controlled by many different levels of government and 2) much comprehensive, authoritative work has been done already -- although not always followed by recommended reforms -- on many different issues.
   

   The first fact (which is more thoroughly explored in this report's conclusion) means that proposed revisions of any single component of the system are likely to have ripple effects and unintended consequences if not placed carefully in context. Increasing law enforcement presence on the street, for instance, dramatically affects the clogged court system. Tinkering with parole laws can send the population in already-overcrowded prisons soaring. And keeping the counties' portion of the cost of sending felons to state prison low discourages counties from using cheaper (but more costly to counties), local options.
   

   The second fact is most clearly illustrated by the January 1990 report of the Blue Ribbon Commission on Inmate Population Management. This broad-ranging document, which has served as the springboard for emerging reforms in the past three years, is particularly definitive on the issues of substance abuse treatment and intermediate punishments (options that range somewhere between probation and prison time). Other extensive work has been done by public entities, such as the Legislative Analyst's Office and the Robert Presley Institute of Corrections Research and Training, and private researchers, such as Rand of Santa Monica and the National Council on Crime and Delinquency.
   

   Based on this knowledge and with input from a wide variety of sources, the Commission chose to focus on the tail-end of the system: the state prisons, where 20 percent of those convicted of felonies are sent and where the fastest growing allocation of state funds -- almost $3 billion -- is expended. Specifically, the Commission decided to examine:
   

   • The sentencing structure. Nothing is a more potent driver of state costs and nothing is more clearly linked in the public's mind to safety and justice than the amount of time criminals are kept off the streets. Yet California's sentencing rules change constantly at legislative whim, with no mechanism to ensure internal consistency and no assessment of the trade-offs that occur by default. The result is a system that is difficult to administer and that fails to meet public expectations for fairness, safety and retribution.
     

   • Prison programs. The tough-on-crime wave of the '80s and '90s made "rehabilitation" a disfavored concept. The reasoning was blunt: Why should criminals be rewarded with free training and education? And since change can rarely be imposed from the outside, failure seemed to be the result more often than success. But the reality is that the present system puts almost 90 percent of prisoners back on the street at some point. Without some effort to make them literate, instill a work ethic or provide them mental stability, they all too often return to crime and simply prey upon the public yet again. Despite this widely acknowledged problem, the state prison system can only place a low priority on prison work and education programs.

   • Operational problems in the Department of Corrections. The Department of Corrections runs the second largest prison system in the world (eclipsed only by China) under increasing stress caused by restricted funding and an ever-growing population. While the Department is moving to correct shortcomings that have been criticized for years, a lack of accountability and standardization among the separate prison "fiefdoms" and legal restrictions on prudent policies hamper effective and efficient operation.
     

   To explore these issues, the Commission held two public hearings, one on July 20 in Los Angeles focusing on sentencing reform and a second on September 21 in Sacramento to highlight management issues (please refer to Appendix B for a list of witnesses at each hearing). In addition, the Commission conducted a thorough review of the literature, numerous interviews with experts and on-site prison visits to complete its investigations.
   

   In the course of its investigations, the Commission found many doubtful "truisms" about the criminal justice system. Because a handful of core concepts, reached after consideration by the Commission of a variety of data and material, provided a platform for the formation of findings and recommendations, it is important to lay out the Commission's perspective.

   • The mechanisms society uses to cope with crime are too expensive. The entire criminal justice system in California -- law enforcement, prosecution, defense, courts, probation, jails, Department of Corrections and the Youth Authority -- cost about $12.7 billion in 1990-91. Each time sentences are lengthened for specific crimes, police are added to a city's force and therefore make more arrests, or a parole is revoked the costs rise -- often out of proportion with whatever the crime committed is. The conclusion of some analysts: We cannot afford to continue to fight crime in traditional ways. The Commission, however, believes the cost of crime unhampered far outstrips the drain on the public purse for a role -- protecting public safety -- that goes to the very essence of why government exists.

   The economic loss in California of all crime acts is difficult to determine. The same year the various levels of government spent almost $13 billion on dealing with criminals, the total value of all property reported stolen was $2.86 billion -- but that does not include medical costs for injuries, damages to property and unreported crimes. That last category is particularly important since, on a national level, about 31 million of the 34 million crimes committed are never reported. It is not difficult to imagine the total economic loss due to crime rapidly outpacing the cost of catching, prosecuting and punishing criminals.

   Testifying to the Commission, State Attorney General Daniel Lungren cited a 1988 Rand study indicating that imprisoned criminals, when free, are responsible for between 200 and 300 crimes a year. Using a U.S. Department of Justice average cost of $2,300 per crime, the cost per inmate weighs in around $500,000 per year. The cost to house that inmate, Lungren pointed out, is around $22,000 a year -- and still nowhere near $500,000 when all of the other elements of the justice system are added in. In its long-time role of fiscal watchdog, the Commission believes funding needs to be well targeted and spent prudently -- but it also believes that the cost of coping with crime is well justified.

   • Prisons don't work. California and the nation have spent the last decade on a massive prison construction binge (nationally 42 new prisons are built each year -- California alone has built 20 new facilities or additions to existing facilities in the past nine years, with an additional seven prisons on the drawing boards). Yet people tell pollsters they feel less safe today than ever before and that crime is their number one concern -- and this in a state whose economy is plagued by disappearing jobs and plunging real estate values. The conclusion of some analysts: Putting criminals in prison does not work. The Commission, however, disagrees.

   The Commission's conclusion is partially based on data and partially on pragmatism. A U.S. Justice Department survey has found that crime has dropped in the past 20 years (from 35.7 million in 1973 to 33.6 million in 1992), but violent crime has risen dramatically (jumping from 15 percent to 20 percent), fueling the public perception of crime as an increasing threat to safety. A National Academy of Sciences panel concluded that without the increased level of incarceration, the crime rate could have been 10 to 20 percent higher. And keeping violent predators off the streets -- who by definition commit repeated, high levels of crime -- does, indeed, preclude their continued preying on the public.

   • Only a prison sentence is a harsh enough punishment to deter crime. Anything short of a prison sentence is a "soft-on-crime" sin that only encourages more law-breaking. Probation is a joke because programs are too overloaded to provide effective supervision of cases, and alternative programs -- if they existed -- are just a slap on the wrist that criminals can ignore. Conclusion of tough-on-crime advocates: Break a law, go to prison is the solution to crime.

   The Commission is vigorously anti-crime. However, it is impossible to ignore the fact that prisons have a finite capacity, even when overcrowded to a maximum level. Flowing from that observation is the conclusion that, to get the best use of its prisons, California should be very carefully targeting who it places in them.

   The director of the Department of Corrections has raised the prospect -- realistically, the Commission believes -- that if more criminals are jammed into the prisons by increasingly tough sentences, the court system eventually will rule, as it has in other states, that prisoners must be released because of overcrowding. The result could be rushed, wholesale releases of low-end criminals, rather than a reasoned, judicious choice arrived at through a legislative process about who belongs in prison and what punitive alternatives should be fashioned. If given a choice of who should have reserved prison space between habitual violent offenders or petty thieves, the Commission picks the habitual offender and believes other punitive measures should be developed for the thieves.
   

   With these concepts in mind, the Commission has produced the following report, which includes seven findings and 30 recommendations. Beginning with the Executive Summary and this introduction, the report includes a chapter each on the sentencing structure, prison programs and Department of Corrections operations, each with a brief background followed by findings and recommendations. The report closes with a conclusion, appendices and endnotes.

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   Sentencing Structure

   
   
   

   The current sentencing system is complex and inequitable. There is little distinction between the way violent and non-violent criminals are handled. The parole system is no longer an effective deterrent to recidivism. Recommendations: Establish a sentencing commission to keep the sentencing structure cohesive and equitable. Place all violent offenses under the indeterminate sentence system. Strengthen punishment for parole violations.

   
   

   The Sentencing Structure

   California courts are sending record numbers of adults to state prison and county jails. A sampling of comparative statistics shows:
   
   • Judges in 1975 sentenced 5 percent of the felony offenders to state prison; in 1992 they were sending 22 percent. The courts in 1975 sentenced 40 percent of felony convictions to probation with a jail term first; by 1992 the figure had risen to 61 percent.⁷

   • State prison inmate population jumped from 20,000 in 1975 to 115,000 in mid-1993. In that span of time the Department of Corrections has constructed 16 prisons to house the increasing prisoner population. Despite the building program, today California's institutions are filled to about 180 percent of capacity.
     

   • Inmate population at the end of 1992 included 57 percent non-violent offenders, such as burglars, thieves, drug offenders and those who possess weapons or drive under the influence of controlled substances. Although record keeping at the Department has been modified since, closely comparable figures show 38 percent were non-violent offenders in 1975.
     

   • In 1992, 43 percent of the inmates were sentenced for violent offenses including murder, assault, robbery, sex offenses and kidnap. The nearly comparable figures for 1975 show 62 percent were violent offenders.
     

   • Parolees returned to prison after violating their terms of parole but without new felony convictions rose from a yearly figure of 900 in 1975 to 35,000 in 1992.⁸
     

   • County jail population has increased from 23,000 in 1975 to 73,000 in mid-1993. The counties and the State have spent $1.5 billion to build 58 new jails.⁹
     

   These California statistics mirror changes occurring in the rest of the country. Nationwide, in 1975 there were 241,000 sentenced prisoners, a rate of 111 per 100,000 residents. In 1990, the number of prisoners had risen to 771,243, a rate of 293 per 100,000.¹⁰
   

   While much of the statistical change stems from a rising tough-on-crime attitude that swept the nation in the '80s and '90s, another key cause in California was a complete overhaul of the philosophy behind sentencing. In 1977, the State adopted the Determinate Sentencing Act, which established specific sentences for each offense. The law was passed to eliminate unfairness, uncertainty and the perceived failure of the rehabilitation model of the pre-1977 system, known as Indeterminate Sentencing.

   
   

   Sentences used
   to be set on
   a case-by-case
   basis by a board

   Since 1918, the state had operated under an Indeterminate Sentencing Law, in which felons were sentenced to a term range, such as 15 years to life, with their actual term set on a case-by-case basis by the state body called the Adult Authority. The Authority used no specific guidelines when making parole decisions, but made judgements based on factors such as the inmate's crime, his time in custody and his prison behavior. The Authority was not required to give an inmate reasons for its decisions.

   The years prior to 1977 saw increasing opposition to the Indeterminate Sentencing Law. Critics charged that the Adult Authority was making unfair and subjective decisions regarding the length of prison terms and was holding prisoners who had committed similar crimes for widely different periods of time -- many believed racism was a factor. The Authority also was accused of holding some prisoners longer than was warranted, considering the severity of their crimes.

   While many critics believed the Authority was too prone to keeping people in prison, others had the opposite criticism, contending that the Authority released people too soon or for the wrong reasons. These views were based on several instances when the Authority "bulk" released large numbers of certain types of inmates to avoid prison overcrowding.

   The various criticisms were not simply the mumbling of a few disgruntled observers. The California Supreme Court added its weight to the growing unhappiness with Indeterminate Sentencing when it upheld a 1975 case that found the Authority lacked standardized guidelines and was not making good decisions that were well linked to individual cases.¹¹
   

   
   

   The determinate
   system was
   designed to be
   uniform and fair

   The Determinate Sentencing Act was the Legislature's answer to this problem, stripping away from the Authority the responsibility of setting precise sentences. The Legislature established uniformity of sentencing as the sentencing system's primary goal. The structure was designed to give concrete notice to offenders and their families, prosecutors, defense attorneys, judges and victims that sentencing would be based on specific guidelines.

   The new sentencing structure set up four offense groupings, increasing in severity with the seriousness of the offense. Within each grouping were three possible terms, called a triad, for each offense. For instance, one triad consisted of terms of 16 months, 2 years or 3 years, with the middle term as the indicated sentence unless circumstances warranted a change. Limited flexibility was granted to the sentencing judge to impose the lower term if there were mitigating conditions and the higher term if aggravating circumstances existed.

   When it passed the Legislature, the Determinate Sentencing Act also explicitly abandoned the long-standing purpose of prison as rehabilitation and instead established punishment as the stated goal. "There was no evidence that the state of the sciences enabled anyone to diagnose a criminal's crime-causing problem, treat it, cure it or predict non-repetition," said the act's drafters in a subsequent law review article.¹²

   The drafters of the act also hoped it would:
   • Help the Legislature resist piecemeal changes in sentencing.
     

   • Reduce sentencing appeals.

   • Decrease the number of parolees rearrested and returned to prison.

   • Decrease the parole agent caseload.

   The act left in place Indeterminate Sentencing for the most violent and serious crimes, including murder and kidnapping for ransom, extortion or robbery. Responsibility for setting terms for these serious cases was given to the commissioners of the newly created Board of Prison Terms. The board, which is appointed by the governor, also was given authority to rule on parole violations.
   

   
   

   The determinate
   system has had
   a substantial
   impact on prisons

   The impact of the Determinate Sentencing Act, which is still followed today, is felt throughout the criminal justice system, from top to bottom. For instance, legislation that mandates prison sentences for specific crimes and increases penalties is sending more offenders to state prisons. The Department of Corrections has been able to accommodate the upsurge not only with the most ambitious prison building program in the country but also by taking extraordinary means to add beds. Virtually all prisons that had gymnasiums have converted them to inmate dormitories, some housing as many as 200 prisoners. Although the Department's design policy calls for single bunking in cells, new prisons routinely are built with two installed bunks as another strategy in relieving overcrowding systemwide.
   

   The effect ripples on beyond state prisons. Parole and probation officers are handling increasing caseloads once the inmates are sentenced by the court or released from prison. There are 85,000 inmates on parole from state prison, a ratio of 85 offenders to each parole officer. County probation officer caseloads vary, averaging about 300 to 1; however, the County of Los Angeles, struggling with budget problems, estimates an offender-to-officer ratio of 5,000 to 1.
   

   Because the sentencing system has such a dramatic impact on the cost, efficiency, fairness and consistency of the criminal justice system, the Commission examined it closely. The result is the following three findings and 13 recommendations.

   
   

   ---

   
   

   Finding #1: The sentencing system is complex and inequitable, frustrating the public's desire for consistency and certainty.

   
   
   
   The bulk of the state's felony offenders are sentenced under the Determinate Sentencing Act of 1977, with finite sentences for each offense. The goals of the new law included equity, consistency and simplicity. But the current system, due to inherent flaws in the original law, changes in public policy and piecemeal revisions, is not working. The state's tangle of sentencing statutes is so complex even experts make sentencing errors. It is a system that is inequitable to both victims and offenders, offering little in the way of certainty and nothing to a sense of fairness.

   
   
   

   Complexity of system
   has increased
   as Legislature
   has added terms

   The Determinate Sentencing system did not suffer from complexity when it was created. Annual legislative tinkering with its provisions, however, has added layer-upon-layer of restrictions and requirements for computing sentences. From the original four offense groups, the Legislature has amended the law until there are now many times that number, some experts classifying 10 groups and others, 25.
   

   The impact can be seen in how similar but slightly different crimes are now handled. For instance, all assaults with a deadly weapon originally fell under a triad that allowed for a sentencing option of two, three or four years, depending on the specific circumstances of the crime. In place of that single triad, there now are seven triads for various types of assaults with deadly weapons. The table on the next page gives some examples:

   
   

   ASSULT WITH A DEADLY WEAPON
   Triad	Specific Crime
   Two, three or four years	Assault on a citizen
   Three, four or five years	Assault on a peace officer
   Three, six or nine years	Assault on a citizen with a semi-automatic rifle
   Four, six or eight years	Assault on a peace officer with a firearm
   Four, eight or 12 years	Assault on a citizen with a machine gun
   Five, seven or nine years	Assault on a peace officer with a semi-automatic rifle
   Six, nine or 12 years	Assault on a peace officer with a machine gun

   Source: California Penal Code

   
   The triads are not the only components of the system that have been expanded. In addition to the discretion left to judges to select the highest penalty provided by the triad, sentences also may be enhanced for specific conduct that the Legislature has determined adds to the seriousness of the crime. An estimated 80 statutes scattered across the penal, vehicle, institutions, and health and safety codes outline various enhancements. A sentence may be enhanced for weapons, injuries inflicted during the course of crime, extent of monetary loss, vulnerability of victims, narcotics, gangs, prior convictions, multiple victims and sex crimes.
   

   For example, a one-year enhancement is added to the sentence of a second-degree robber if he uses a knife. A two-year enhancement is added to the sentence of a defendant who intentionally causes losses of more than $150,000. The varying enhancements connected with prior convictions are particularly lengthy and complex.

   
   
   
   

   The felon who
   commits multiple
   crimes often serves
   no time for most

   When a felon is tried and convicted for several crimes at once, the confusion is heightened by the statutes governing how to determine consecutive sentences. The offense that carries the longest base term -- usually the middle term -- plus any enhancements, is designated the principal term. All additional terms for non-violent felonies are computed at one-third the base term without enhancement, but cannot exceed five years or double the base term, whichever is more restrictive.

   There are many exceptions to the method of determining consecutive sentences, including violent felonies and prison crimes, among others. But overall, the formula means that someone who is convicted of a large number of crimes will escape serving time for most of them. The district attorney may not even prosecute some of the cases, because they will not add to the offender's prison sentence

   The following graph illustrates the operation of the restrictions involving consecutive terms. It assumes the offender has committed 10 home burglaries, for which the penalty is two, four or six years. The graph begins with the base prison term of 48 months (the middle term) already built in and adds each consecutive term of 16 months (one-third the middle term) up to the limit of an additional 48 months.

   
   As the graph illustrates, after serving the 48-month base term and the three consecutive 16-month terms, the burglar will receive no additional time. Six offenses will go unpunished or be dismissed.

   The proliferation of crime-specific triads, the multiplicity of enhancements and the artificial formulas for figuring consecutive sentences all add up to a sentencing structure that is fragmented and difficult to understand. Probably the most strongly worded summation of the current state of the sentencing law appeared in an appellate court decision:

   As a sentencing judge wends his way through the labyrinthine procedures of section 1170 of the Penal Code [the Determinate Sentencing Act], he must wonder, as he utters some of its more esoteric incantations, if, perchance, the Legislature had not exhumed some long departed Byzantine scholar to create its seemingly endless and convoluted complexities. Indeed, in some ways it resembles the best offering of those who author bureaucratic memoranda, income tax forms, insurance policies or instructions for the assembly of packaged toys.¹³

   Judges and lawyers, both prosecutors and defense attorneys, must wade through this maze of sentencing laws, a process that is time consuming and fraught with error. The Judicial Council estimates that while nearly 80 percent of criminal appeals are upheld, 23 percent of the cases that are overturned involve sentencing errors.¹⁴ These errors, most of which can be blamed on the complexity of the system, absorb the time of the courts and lawyers, resulting in significant public expense. The ripple effect of sentencing errors impacts the state Attorney General's Office (which assigns its lawyers to defend the state in appellate cases), the public defender and the publicly funded defense lawyers. Also affected are the appellate courts, where the cases are decided.

   
   

   Besides being complex,
   the sentencing system
   is often inequitable
   for victims, criminals

   In addition to its complexity, the sentencing structure can be criticized for its inequities, from the perspective of both the victim and the criminal. One example of the inequity involves consecutive sentences. As already noted, placing a maximum on the sentence of five years or double the basic term means that charges which push prison terms over the maximum often will be dismissed because the inmate gets no added time. The dismissal appears inequitable to the citizen whose home was one of the last to be broken into by a busy serial burglar. And the burglar potentially will serve no more time than someone who broke into far fewer homes.

   There are other inequities in the law. For instance, a residential burglary falls under a triad of two, four or six years, while the sentence for assault with corrosive acid with intent to disfigure is two, three or four years. Few would argue that burglary is a more serious crime than throwing acid in a victim's face, but that conclusion is what the sentencing structure implies. The reality, however, is that during the strengthening of various parts of the assault statute in the years after the passage of the Determinate Sentencing Act, assault with corrosive acid was never addressed.
   

   Another example of the inequities is the different treatment accorded kidnapping. Kidnapping for robbery carries a life sentence, while kidnapping with intent to commit rape is not a life sentence crime but carries only an enhanced term of five, eight or 11 years.¹⁵
   

   Yet a third area is the disparity between the sentencing statutes for drug and for alcohol offenders. A study by The Sentencing Project¹⁶ concludes the direct harm caused by the two sets of offenders is about the same, with drunken drivers responsible for an estimated 22,000 deaths annually in the United States. Drug-related deaths due to overdoses, diseases and drug violence are estimated at 21,000 annually.
   

   A first-time offender on a drunken driving offense in California faces a $390 fine while a first-time offender charged with drug possession faces up to three years in state prison and a $20,000 fine. On the second offense, the drunken driver could get 48 hours to 10 days in the county jail and a $375 fine while the drug offender faces three to six years in state prison, the study showed.
   

   Even within the category of drug offenses, there are disparities between the sentences for crimes with little rationale for the difference. The widely differing penalties for possession of various drugs for sale is one example:
   

   • Possession of methamphetamine for sale -- 16 months, two or three years.

   • Possession of powdered cocaine for sale -- two, three or four years.

   • Possession of rock cocaine for sale -- three, four or five years.¹⁷
   A Sacramento Bee columnist put a human face on the effect of sentencing disparities when he wrote about a woman who received a nine-year sentence for arson in federal court:
   Up the block in state court, a convicted arsonist might get six years and serve three. A first-offending child molester recently got six months in county jail. For their egregious violation of Rodney King's civil rights, former L.A. policemen Stacy Koon and Laurence Powell got 2 1/2 years. The civilized world awaits the sentence of Ellie Nesler, who won't get [nine years] for blowing a man's brains out.¹⁸

   
   

   The determinate system
   lacks a mechanism
   that would allow
   changes without chaos

   It is ironic that the Determinate Sentencing Act is undermined by the very problems that reformers were trying to iron out of the old indeterminate system: complexity and inequity. But the outcome is not surprising, given the changing perception of how to deal with criminals over the last two decades and the resulting changes in sentencing laws. The flaw of the sentencing structure is that it lacks a mechanism to make adjustments that are in tune with those attitude shifts while at the same time ensuring that the changes are also in keeping with the overall philosophical goals underlying the system.
   

   The shift in public attitude accelerated during the 1980s. The harsher attitude toward crime occurred despite the fact that the crime rate in California stayed nearly steady, rising slightly for violent crimes and declining somewhat for property crimes. California's trend reflects the national picture, with two exceptions: the number of rapes per 100,000 population has declined faster than the national average and auto theft has risen faster.¹⁹
   

   While the reason for the shift in attitude cannot be found in crime rates, other statistics amply document the effect of the changing perceptions. The statistics noted at the beginning of this section showing the upsurge in offenders sent to California's prisons and probationers who serve jail time before release are results of the legislative response to the public's tougher stance on crime. Nationally, other states and the federal government were equally as aggressive as California in sentencing offenders to prison terms.
   

   The most prominent example of the more stringent sentences is in the case of drug users and drug merchants, the target of the national War on Drugs. In 1980, California's prison system admitted 1,063 inmates for new drug offenses. During 1992, 12,791 new drug offenders were admitted to prison.

   
   

   Common elements
   are foundation
   for effective sentencing system

   The impact of the tough-on-crime attitude is demonstrated in the growing prison population, but its effect on the integrity of the underlying philosophical goals of the sentencing system is less evident. While the Determining Sentencing Act does not lay out a complete array of goals, many of those connected with the criminal justice system share a consensus about those goals, the Commission discovered during the course of its study. The same elements appeared, whether the Commission consulted its advisory committee experts, participated in a broad-based conference on building an effective corrections system, or perused academic literature.²⁰ The following summary contrasts the desirable goals expressed by experts to the Commission with the reality of how the sentencing system works today. Those experts in general agree that a well-coordinated sentencing system would:
   • Protect the public safety. The public looks for long prison sentences that will keep violent criminals off the street. There is also the common belief that the potential of harsh punishment will serve as a deterrent to some degree to others who are tempted to engage in crime. The reality is that despite publicity about new laws extending sentences, the average time an offender released on parole has spent in prison is 21 months.²¹ As for the deterrent effect, the system is so convoluted that not even judges and attorneys are certain about potential sentences -- let alone the criminal on the street who is supposed to have second thoughts about committing a crime when faced with a stiff penalty.

   • Tailor the punishment to the crime. The public wants a criminal who has been particularly vicious to be treated differently than one who has merely stumbled into breaking the law. In that regard, the fragmentation of the sentencing system from four triads into a myriad of triads for very specific crimes actually reflects the public desire for accountability. But constraints such as artificial limits on consecutive sentences and the failure to overhaul all sentences at once in relation to each other serve to create a system that is ultimately insensitive to the differences between crimes.

   • Address the needs of victims. Most victims of crime, no matter how charitable, want to feel some sense of vindication and/or retribution. Instead, they are buffeted by a system that appears to pay little attention to their needs. "They (the criminal justice system) are lying to us in sentencing. It'sa blatant lie," said Patty Tate, sister of Sharon Tate, the film actress who was murdered by the Charles Manson Gang. Patty Tate pointed out that Manson Gang killer Tex Watson, far from serving "hard time," has gotten a college degree, married and fathered three children, all while serving a life term.²² The neophyte first encountering the system may presume that the convicted felon actually will serve the amount of time he is given in state prison. Instead, work and education credits most likely will cut in half the time spent in prison, while credit for time spent waiting in jail for the trial reduces prison time even further. Ideally, victims also would receive restitution for the losses they incur, but of the hundreds of millions or dollars lost to crime, only about $1.3 million was repaid in the last year by inmates in prison work programs.

   • Foster responsibility in inmates. The public does not want a prison system with a revolving door, where criminals emerge no better off -- or sometimes worse -- than they entered. Not only should they not learn new "tricks of the trade" while incarcerated, they should show some level of remorse, learn skills and come out productive citizens. But the reality is that the Department of Corrections has no mandate to rehabilitate, only to punish. While the Department does offer some rehabilitative programs, they are a low priority. The bulk of the dollars are spent on building more cells to house inmates. The result can be seen in recidivism rates. In 1992, almost 60 percent of the inmates released on parole were returned to prison for technical parole violations or new felonies -- and that rate of return was the lowest in seven years. In contrast, when rehabilitation was a goal of the sentencing system in 1975, only 11.3 percent returned.23

   • Balance costs with benefits in terms of public safety. A person who commits a crime should be punished, regardless of crowded conditions in prisons. But the overall scheme of sentencing can be tailored so that crimes that the public sees as less serious can be dealt with through alternative methods that relieve the pressure for added, expensive prison construction. The reality, however, is that sentencing legislation today is analyzed with little acknowledgement of costs versus benefits. The result is an exploding Department of Corrections budget and prison construction program that divert resources from other valuable, needed state programs. The only escape valve is early parole on a case-by-case basis, an option that undermines the certainty and equity that is sought through a determinate sentencing structure.

   Such goals are an important element of setting up a sentencing structure, and the Little Hoover Commission heard that fact emphasized repeatedly in the course of its study. Once goals are set, they keep sentencing priorities clear and consistent over time. The executive director of the California Probation, Parole and Correctional Association said at the Commission's Los Angeles hearing:

   We must look to a sentencing design which is flexible but holds the offender strictly accountable, in which the punishment fits the crime and the offender, and in which the victim is considered, and as greatly as possible, made whole again. We need a sentencing system which is clear about its goals; a sentencing system built on clear objectives as to what the corrections system is expected to accomplish with each offender.²⁴

   How did reality drift so far from the philosophical goals of the sentencing system? One key factor is the lack of a mechanism that oversees the sentencing system as a whole and analyzes the impact on the total system of changes that occur over time. Instead, reacting to the widespread tough-on-crime sentiment, the State's Legislature has made piecemeal changes toughening the Determinate Sentencing Act -- many believe more in the name of political expediency than rational policy making.

   
   

   Changes are made
   without anyone
   examining the
   overall effect

   Between 1984 and 1991, more than 1,000 bills were passed to change felony and misdemeanor statutes.²⁵ Virtually none of the measures reduced sentences. These crime bills, many introduced in reaction to stories trumpeted in the newspapers or on television, became known as "crime of the month" legislation. Examples include:
   • A drive-by shooting bill passed in 1993 that would make murdering a person from inside a car a death penalty offense. Determining a sentence based on where a criminal is standing is bad criminal law, opponents argued. A murderer who killed someone standing beside a car still could receive a lesser sentence.

   • Legislation passed during the same session to create a new crime for vandalizing buildings with acid, despite current statutes that cover vandalism. The bill was aimed toward offenses that had been committed against abortion clinics, although abortion clinics were not cited specifically in the legislation.

   • Tougher sentencing measures created in 1991 for "hate crimes," although district attorneys could get stiff sentences charging offenders under other existing statutes. A beating, for example, could be charged under assault statutes.

   While these measures addressed real problems and attempted to pursue the goal of fitting punishments to specific crimes, there was no coordinated effort to analyze the impact on the whole criminal justice system or to assess how the longer sentence related to sentences for other crimes. Bill drafters and legislative analysts often face deadline pressures and lack the expertise to explore questions about the impact on the overall sentencing system.

   The effects of the sentencing quagmire are serious. Victims and offenders are not treated in an evenhanded manner. Mistakes absorb government resources. And the difference between what the system is supposed to accomplish and what actually occurs generates anger and frustration in the public.

   Ventura County Superior Court Judge Steven Z. Perren, a member of the Sentencing Advisory Committee to the California Judicial Council, summed up the condition of the state's sentencing system during the Commission's public hearing in Los Angeles:

   In California it seems to me...it is time to clear up a statute which is, by its nature, so Byzantine that the citizen who has come to rely upon it to protect his or her property or well-being can't understand what he or she is relying upon. That the defendant who is supposed to be deterred by the prospect of some form of punishment hasn't got a clue as to what that punishment is going to be. And that the judge who is supposed to impose it will probably call me at 8 o'clock in the morning before the sentence is imposed to ask me to see if he or she has structured the sentence properly.²⁶

   
   

   Commissions have
   been established
   to keep sentencing
   systems balanced

   California, of course, is not alone in coping with sentencing complexity and inequities. Other states and the federal government have similar problems and have tried different approaches as remedies, including the creation of sentencing commissions. Such commissions received a great deal of discussion during the 1980s, and various types of commissions were established. Commonly, a state's legislature set up a commission to study the state's entire criminal code and create a sentencing structure that would make sense. If the proposal was adopted, some states opted to continue the commission to maintain and monitor the system.

   The concept of a commission answers the need for a mechanism to balance the sometimes-competing goals underlying a well-conceived sentencing structure. A properly constructed Commission with adequate authority would be able, in theory, to:

   • Bring a holistic approach to sentencing, establishing penalties that are equitable and tailored to the level of specific crimes.

   • Block piecemeal changes that introduce an imbalance to the structure and eventually spawn complexity and inequities.

   • Provide needed expertise and institutional memory to analyze the systemwide impact of proposed changes.
     

   • Remove decisions, to some extent, from the political arena where nuances and subtleties are often lost amid sound bites and posturing.

   • Generate the respect needed to make cost-benefit analyses credible. Otherwise any attempt to balance the public desire to punish crime with the high cost of incarceration would bring criticism that government is going "soft on crime" to reduce program costs.

   Most commissions across the nation have fallen short of this performance ideal. Commission efforts have included:²⁷
   

   • New York and South Carolina, where temporary commissions created binding sentencing structures only to have the proposals rejected by the legislatures.

   • Maine and Connecticut, where the commissions decided against adopting sentencing guidelines. In the Maine experience, the judicial members of the commission argued the sentencing structure was a usurpation of judicial authority. At the end of its statutory term, the commission produced only an interim report. The commission was reauthorized by the Legislature, but it was never funded and commissioners were never appointed. Connecticut's advisory commission decided to oppose establishing sentencing guidelines and instead recommended passage of a determinate sentencing law.

   • Pennsylvania, where the commission established a sentencing structure that has been criticized as too loose to be effective. One sentencing expert's opinion was that the system also suffers from leaving the ultimate release power with a parole board, undermining certainty and equity.

   • The federal government. The U.S. Sentencing Commission generally is considered a failure, amply documented in 1990 by the Federal Courts Study Committee and the General Accounting Office. Their main objections centered on these issues:
     • Guidelines are too rigid and rob the judge of any discretion.

     • Guidelines are too complex.

     • Sentencing procedures have become lengthy and time consuming.

     • Work of the commission has become highly politicized.
       
   The U.S. Sentencing Commission is up for reauthorization by Congress, but criticism has been so heavy that indications are it will not be continued.

   Despite the dismal record of some commissions, there have been notable successes. These include:

   • Delaware. Most states that have created voluntary -- rather than binding -- sentencing guidelines have seen their systems fail because the guidelines are widely disregarded by judges and have little effect on sentencing. But Delaware's Sentencing Accountability Commission has tracked a 90 percent compliance rate with its voluntary guidelines. While judges are not bound by the guidelines, the five-level structure of the punishments system -- including intermediate punishments -- was set in place by the administrative order of the Delaware Supreme Court. Judges must provide reasons if they deviate from the recommended level or length of sentence, which, together with the administrative order, could be a persuasive technique in maintaining conformity of sentencing without binding guidelines.

   • Oregon. The 21-member Oregon Criminal Justice Council wrote the guidelines, which apply to crimes which occurred after Nov. 1, 1989. The council now serves the function of a sentencing commission, first in drafting revisions to the guidelines, then in administering the system. Goals of the sentencing revision include:
     • Truth in sentencing.

     • Appropriate punishment.

     • Reduction in sentence disparity.

     • Balance between sentencing policy and prison needs.

     • Creation of a sentencing data base.
   The guidelines generally have fulfilled the goals, according to Oregon officials. The imprisonment rate for offenders who committed "crimes against persons," i.e. violent crimes, increased from 34 percent before the new sentencing structure to 47 percent in 1992.²⁸ At the same time the imprisonment rate for property offenders dropped from 19 percent to 13 percent, and for driving offenses, from 9 percent to 3 percent. In addition, prison stays increased during the period, but most dramatically for violent crimes, from 34 to 48 months. With its database of felony cases, the state has developed a well-documented inmate population impact statement for every new crime proposed by the Legislature.
   • Minnesota and Washington, regarded by experts as the two most successful commission efforts. In each, the sentencing system is based on:
     • Sentences with a narrow range of judicial choice.
       

     • Sentence length taking into account the seriousness of the crime and the criminal history of the offender.
       

     • A structure to consider mitigating and aggravating factors in sentencing.

     • Emphasis on prison for violent offenders and alternatives for property offenders.

     • Appellate review of the sentences imposed.²⁹
       
   While similar, the commissions also have marked differences. For instance, the Minnesota structure involved "freezing" the prison population at given levels, while the Washington system was set up to be "sensitive" to prison population.³⁰

   
   In Minnesota, while initially successful in that the rate of compliance remained high, the structure more recently has seen deviations of 25 percent by judges from the standard ranges. Most of the deviations have been to mitigate the sentences downward.³¹
   

   The state has constructed an extensive database that monitors every sentenced felon. The database provides factual backup needed for the impact statement the commission provides for all legislative sentencing proposals. Legislators take the impact statement very seriously, according to the executive director of the commission, because the statements are extremely credible.³²
   

   The Minnesota commission does not merely monitor sentencing reform proposals. It also is proactive, proposing new or revised guidelines which are submitted by the commission to the Legislature for its passive review. In the passive review process, proposals are considered adopted after a period of time unless expressly denied by the Legislature.

   Minnesota judges have the choice of significant number of intermediate punishments that avoid prison time for property and other non-violent offenders and conserve prison beds for violent felons. (An intermediate punishment is a sanction against an offender short of prison but more serious than probation.)

   In the Washington version, judges are overwhelmingly conforming to the structure, with only 3.5 percent deviating from the guidelines.³³ Inequities present before the law's passage generally have been corrected. As with Minnesota, the Washington commission monitors and distributes analyses of legislation reflecting the measure's impact on prison population and the sentencing structure. In addition, it advises the Legislature and the executive branch on sentencing policy.

   Unlike Minnesota, the sentencing structure in Washington lacks intermediate punishments options, and proposals are being made to establish them.

   
   

   Commissions have
   been successful
   when given clear
   direction, authority

   Is a sentencing commission appropriate for California? In the few states considered models, experts agree the commissions have been moderately successful in maintaining the cohesion of the sentencing structure and adopting a strong advocacy role with the Legislature regarding sentencing and prison population.

   Perhaps even more important, the commissions have established themselves as respected voices in the coordination of statewide sentencing and policy innovation. Washington's commission, for example, drafted sentencing options to reduce criminal behavior through intervention. Minnesota is developing two intermediate punishments, day fines and intensive community supervision.
   

   But experts worry that without proper safeguards, a sentencing commission in California is likely to follow in the footsteps of states that have had little success with this mechanism. In a 1991 article, one expert highlights the New York commission's attempt to establish a sentencing structure and the U.S. Sentencing Commission's experience in highly politicized atmospheres as indicators of a turbulent future for a California commission:

   If past be prologue, for example, the 14 years of legislative tinkering with California's Determinate Sentencing Law, generally on the side of `tough-on-crime' posturing, may suggest that the auguries for sentencing guidelines in California are not good.³⁴
   
   

   The successful models in Washington and Minnesota operate without the factionalism and highly political atmosphere present in California, a factor that was detrimental to the commission concept in other jurisdictions. Additional factors that contributed to success in these two states weigh against it in California. Washington and Minnesota are both small, homogeneous states with dramatically less prison population than California. Minnesota, for example, has a prison population of about 4,000. Washington's state prison system incarcerates 10,000 inmates.

   
   

   California has used
   commission structure
   successfully in
   transportation arena

   Despite the differences, however, there is evidence that a well-constructed commission effort can be successful in California. A wider look at the commission concept in general shows that they can be effective even in situations where politics are a substantial factor. In the case of two powerful commissions, they have functioned effectively because the item-by-item policy decisions have been taken out of the political arena. These two commissions deal with particularly sensitive issues. One, at the federal level, is the U.S. Base Closure and Realignment Commission and the other, at the state level, is the California Transportation Commission.

   Authorized by Congress in 1990, the U.S. Base Closure and Realignment Commission was handed one of the most controversial issues to face any group of politicians -- the closure of military bases that provided jobs to the communities that the elected officials represented. Once the law creating the commission and its structure was established, the base closure process specifically excluded action by Congress. The eight-member commission took base closure recommendations from the secretary of defense and reviewed them, "absent political or partisan influence," according to the commission's Report to the President.

   Congress, in enacting the commission structure, implicitly admitted the impossibility of implementing difficult policy decisions in its fiercely politicized arena. While individual elected officials lobbied the commission to retain bases, they ultimately acceded the decision-making power to the commission.

   The membership of the commission was made up of four persons selected by the Speaker of the House and the President Pro Tem of the Senate; two selected by the minority leadership of the House and Senate; and two by the president.

   The California Transportation Commission is another example of a commission that has been given substantial authority untempered by the legislative process. For many years, the commission has made the decision as to what priority will be given to each proposed highway project in the multi-year State Transportation Improvement Program (STIP). Billions of dollars in federal and state highway construction funds are allocated in this decision-making process.

   This process avoids a situation where highway priorities are decided in the Legislature, where lawmakers, looking out for local interests, might strike bargains to assure highway projects end up in their districts. Instead, the commission holds hearings to prioritize projects and legislators may testify on behalf of local projects. The final decision, however, rests with the commission after hearing from local agencies (Regional Transportation Agencies), CalTrans and elected officials.

   
   

   Commission offers
   hope for improvement
   over problems with today's system

   As to whether a commission might be a workable way to draft and administer a coherent, rational sentencing system for California, one sentencing expert, despite moderate pessimism, concludes problems with the Determinate Sentencing Act and prison overcrowding are bad enough to give it a try:
   
   California needs to do something else. For all the risks attendant upon creation of a sentencing commission, there is no more plausible vehicle for comprehensive reform of California sentencing policies, and it probably makes sense to set one up.³⁵
   

   Suggestions for the structure of a California commission that have been made include:
   

   • An explicit rationale for punishment.

   • Sentencing guidelines which will not fill the prisons to more than 95 percent of rated capacity.

   • Appellate review of sentences.
     

   • Full-time chairman and modestly paid part-time members.
     

   • Three years for commission staff to write the guidelines.
     

   • Repeal of present mandatory sentences upon passage of the guidelines.

   • Guidelines to take effect six months after delivery to the Legislature unless expressly rejected by both houses.³⁶
     

   The sentencing commission concept is not new for California's policy makers. A previous attempt to establish a sentencing commission passed both houses of the Legislature in 1984. It was vetoed, however, at least partly because of the widespread feeling at the time that the determinate sentencing structure was working and that the problems under the indeterminate structure had been banished. This measure, authored by Senator Robert Presley, would have done the following:
   

   • Set up a commission of 19 members, including four ex officio public officials.

   • Developed sentencing guidelines for each felony.

   • Given the commission ability to review trial court and appellate court sentencing decisions and recommend adjustments if the sentence has been appealed.

   • Developed recommended prosecuting standards.

   • Established a Judicial Advisory Committee to assist the commission.

   
   

   Repeated efforts
   to reform sentencing
   in the Legislature
   have failed

   The Presley bill has not been the only effort to restructure sentencing. In 1988, 1990, 1992 and 1993, Senator Bill Lockyer attempted to reclassify crime and punishment into a more consistent structure. His bills have been part of an eight-year project by the California District Attorneys Association to reform, simplify and revamp the sentencing structure. Sentencing expert Perren lauded the effort in his testimony to the Little Hoover Commission, saying:
   The virtue of this system was that it pulled together all of the crime punishment sections that are found in at least four different codes in the state of California, pulled them into one section of the penal code, which seems to me an eminently logical place for them to be found, and then said we're going to divide all crimes into five classes of offenses.

   The various bills ranged the five classes (the latest version has six classes) in order of severity and established a range of years (the latest version has triads) within each category. As with the present system, the middle year in each category was presumed to be the sentence unless other factors in aggravation or mitigation were under consideration. The lowest year in each class was the presumed sentence for each additional offense, greatly simplifying the current complex and poorly understood method of calculating added crimes. The bill also eliminated the limits on consecutive sentences and gave judges the discretion of imposing full, separate and consecutive sentences for each felony conviction.

   Lockyer's bills also categorized sentencing enhancements, including those for prior offenses, in an organized way and established a two-level schedule for them, greatly simplifying and clarifying the enhancement structure.

   By 1990 when a Lockyer bill was approved by the Legislature, the sense of complacency about the success of the Determinate Sentencing Act had disappeared. The Lockyer measure, however, met defeat for reasons unrelated to the reorganization of sentencing formulas. Other provisions of the senator's bill providing for early inmate release to relieve prison overcrowding were unpopular with those who believed sentences should be served in full. The measure was vetoed. In 1992, Lockyer's similar bill was also vetoed. At the close of session in 1993, the latest version of the bill was in an Assembly committee and was still the focus of negotiations between various interest groups.

   
   

   As problems with
   determinate system
   have worsened, need
   for reform is clear

   Almost a decade after the veto of the Presley bill and more than a year after the latest Lockyer veto, there is more general agreement by both experts and the public that the sentencing structure under the Determinate Sentencing Act is not fulfilling the State's criminal justice goals. The complexity and inequity of the present system have become the driving factors in a growing debate of how sentencing can and should be reformed.

   
   
   

   Recommendation #1: The Governor and the Legislature should enact a compromise, short-term measure that will clarify and simplify sentencing in California.

   
   The concepts embodied in Senator Lockyer's long-running effort would provide relief from the many problems of inequity and complexity currently existing with the State'ssentencing structure. In the long-run, however, there is nothing built into the new system that would preclude a growing imbalance and complexity to occur once again. Therefore, the Commission believes this reform should be adopted as a short-term solution while the other recommendations outlined below are given time to come into play.

   Recommendation #2: A sentencing commission should be created in California either by action of the Governor and the Legislature or by ballot initiative.

   
   The commission structure and authority should be patterned after successful models in other states and in other policy arenas. This includes providing a politically balanced membership with a wide range of expertise.

   For instance, the membership of the commission could include seven members, three to be appointed by the governor and two each by the leadership of the Assembly and the Senate. The composition of the commission could include a former appellate or supreme court justice, district attorney, criminal defense attorney, law enforcement official, correctional authority (from corrections, parole, probation or the Board of Prison Terms); a victim's representative; and a prisoners' rights representative.

   The commission also should be given a definite timeline, such as two years, to survey all felony and present state statutes and to develop a rational sentencing structure. Once the structure has been adopted, the commissioners could be empowered to monitor, maintain and make suggestions for improvement to the system.

   Recommendation #3: The commission should be charged with creating a sentencing structure that meets the philosophical goals of the criminal justice system.

   
   
   While the commission needs to have the independence and power to act outside the political arena, it also should be guided by parameters that have been agreed upon through public dialogue and the legislative process. It is anticipated that the goals that would emerge from such a process would be similar to those identified for the Little Hoover Commission by experts, including:

   • Protecting the public safety as a top priority, both through removing criminals from the street and providing a deterrence through recognized consequences for breaking the law.

   • Tailoring the punishment to the crime so that different crimes are treated with a sense of proportionate justice.

   • Addressing the emotional and fiscal needs of victims and their families for vindication and/or retribution.

   • Fostering responsibility in inmates by establishing meaningful incentives and disincentives for those convicted to show remorse, improve themselves and embrace a different lifestyle in the future.

   • Balancing costs with benefits so that all crimes are appropriately punished within the context of limited resources to 0expand prison capacity.

   By setting a goal of public safety as the top priority, the final product of the commission will be firmly anchored in protection of the citizens. By including the other factors in a comprehensive approach to sentencing, the commission will be able to structure a system that deals appropriately with victims, inmates and state budget priorities.

   
   

   Recommendation #4: The structure recommended by the sentencing commission should organize felonies in an easily understood manner in order of severity.

   
   
   Aprimary objective of the Commission should be eliminating the complexity of the present system, including simplifying the organization of different types of felonies, consolidating the enhancement system, allowing more flexibility in the calculation of consecutive sentences, and clarifying the use of prior offenses in determining sentences.

   
   

   Recommendation #5: The sentencing system created by the commission should be insulated from politically motivated, piecemeal tampering by using a passive legislative approval mechanism.

   
   One of the main reasons to create a commission is to avoid the gridlock of competing interests and philosophies that could bog down efforts to overhaul the sentencing system. But as the primary policy-making body in the State, the Legislature should have a voice in the final formation of a new sentencing structure.

   One mechanism that would balance these goals is to have the commission's plan take effect within 90 days of submission to the Legislature unless, before the end of that period, either house adopts a resolution by majority vote rejecting the entire proposal.

   There is both academic support and existing state precedent for such a mechanism. One sentencing expert advises an adoption procedure that first presumes a list of structural requirements to be included in the proposal and then establishes a passive adoption by the Legislature within six months. In his proposal, rejection would have to be adopted by both houses. An existing model is the procedure well-established in California statute that is used for the adoption of a governor's reorganization plan. The law provides for the adoption of a reorganization plan 60 days after submission to the Legislature unless, before the end of the period, either house rejects it by a majority vote.³⁷ This system was used for the adoption of the California Environmental Protection Agency (Cal-EPA) in 1992.

   
   

   Recommendation #6: Once the sentencing structure has been adopted, the sentencing commission should monitor the structure and suggest modifications to maintain equity and consistency.

   
   An essential part of the Washington, Minnesota and Oregon sentencing systems is the database each state has developed to monitor felons and felony sentences. These information bases identify trends and weaknesses in the systems. They also provide information on which to develop quick, well-documented analyses of proposed changes in sentencing.

   Following that pattern, California's sentencing commission could establish a statewide database. Such a computerized system would allow analysis of sentencing proposals not just relating to corrections but to all other parts of the law enforcement system. Santa Clara County currently is assisting Colorado in setting up a statewide operation based on a computer model it has developed.

   
   

   Recommendation #7: The sentencing commission should make recommendations to the Legislature on each sentencing bill and analyze it as to internal consistency with the sentencing structure and impact on inmate population and spending.

   
   
   California's decentralized law enforcement, court, prosecutorial and jail systems afford ample opportunities for the criminal justice system to become unbalanced if one element changes significantly. Large counties with a multiplicity of jurisdictions, such as Los Angeles, are already using informal coordinating councils to assist them.

   The sentencing commission, with established expertise and a repository of data, would serve as the lead state agency coordinating criminal justice policy when it makes its recommendations to the Legislature on sentencing measures. Currently, sentencing laws -- dealing with mandatory sentences, for example -- often are enacted without regard for their impact on prison population or prison spending. At the same time, legislation may ignore its impact all along the criminal justice horizon: jails, lawyers, courts, parole and probation.

   
   

   Finding #2: The degree to which the present criminal justice system distinguishes between violent and non-violent offenders is not sufficient to protect the public and maintain the credibility of the system.

   
   
   In retaining indeterminate sentencing for some violent crimes, California recognized that to maximize public safety some criminals should be judged, incarcerated and released on a case-by-case, subjective basis rather than on the basis of rigid, objective standards. The present system, however, draws the line between crimes in such a way that the bulk of both violent and non-violent crimes falls under the determinate sentencing structure. This results in fixed release dates for the majority of prisoners that are unrelated to either the violence of their crime, their behavior in prison or their prospects for crime-free success after release.

   The current split between indeterminate and determinate sentencing leads both to the public perception and the reality that prison's barred gates are actually revolving doors for too many violent felons. This conclusion is borne out by studies of criminals in general, inmates in California's prisons, sentences served, paroles revoked and recidivism rates. The current split also drives up costs, increases prison discipline problems and undermines the credibility of a system whose chief goals should be to protect the public, satisfy a societal sense of justice and cycle inmates back into the real world in a manner that maximizes their potential for a crime-free life.

   
   

   Determinate sentences
   have not satisfied the
   desire to keep dangerous
   felons locked up

   When the Determinate Sentencing Act was passed, a handful of crimes, including first degree murder, remained under the indeterminate structure. Almost immediately, many policymakers began to feel a need for a mechanism to keep a broader range of dangerous criminals in prison indefinitely. Reluctant to release criminals with dangerous potential, the Legislature began to move sentences for the most serious crimes back over the line to the indeterminate system. Since then, 25 statutes have been added moving determinate sentences to indeterminate. They include extremely serious crimes, such as torture and kidnap for robbery or ransom.

   Echoing the major flaw in the determinate structure, however, these indeterminate sentencing changes were made piecemeal without coordinating the entire system. In cases like Lawrence Singleton, paroled after a relatively short determinate sentence for chopping off the arms of a teenaged girl, the Legislature changed his crime -- aggravated mayhem -- to an indeterminate sentence. Other crimes that many might consider equally serious -- such as manslaughter, assault with a deadly weapon, sex crimes and armed robbery -- remain in the determinate sentencing structure.

   Portrait of criminals: To be effective, sentencing policies need to be based on information about criminals that is as accurate as possible. While a precise portrait of the life of a criminal is difficult to pin down, researchers have studied prison inmates, their background and their activities. In general, the career of the majority of inmates follows what some experts refer to as a crime curve, starting in their teens. These young people are most frequently from poor, inner city neighborhoods that provide an unlimited supply of street criminals, according to one critical discussion of correctional policy:

   Similar to organized sports, most of these criminal operations have major leagues, minor leagues, and a bench. Children come up through the ranks, learn the game, and finally move into the starting lineup once they reach their adolescent years. When they are temporarily or permanently removed (that is, arrested, imprisoned or killed), they are replaced by others from the bench to continue the game.³⁸

   
   

   Teenagers make up
   almost one-third
   of arrests for
   violent crimes

   Some comparative statistics demonstrate how influential the under-18 age group is on the crime scene: They comprise one-fifth of the general population, one- fourth of those arrested and nearly one-third of all those arrested for the seven crimes that compose the nationally accepted Uniform Crime Index offenses. (Those offenses are homicide, forcible rape, robbery, aggravated assault, burglary, vehicle theft and larceny.) Studies have shown that a typical young criminal usually begins his career at 14 or 15 years old and continues to increase his criminal activity into his mid-20s. In California, the average age of first arrest is 17, leading experts to believe that the youthful criminal was committing crimes undetected, or at least unpunished, for some time. Youths are even more likely than adults to escape getting caught for criminal activity.³⁹
   

   (It is important to note that in the overwhelming number of cases, for both youth and adult criminals, the offenders have committed a great many crimes undetected or unpunished. In 1990 an estimated 34 million serious felonies were committed nationwide, but in 31 million of the cases, the crimes were unreported or unsolved.⁴⁰ )

   Ironically, studies show the offender's criminal activity tapers off in his late 20s and early 30s, coinciding with the average age of the first commitment to state prison. The result is that at the same time the offender is beginning to decrease his crime frequency, his criminal rap sheet has lengthened to the point where he will be committed to prison when found guilty of a crime.

   The research findings are reflected in California statistics. The following graph shows the age groups of inmates in the California prison system as of December 31, 1992.

   
   As the graph illustrates, the two largest single group of inmates are in their mid- to late 20s and early 30s -- just when studies indicate their crime careers are likely to end. The average age of the California inmate is 31, and he was first committed to prison at 26.

   A Rand Corporation study⁴¹ sheds additional light on criminal behavior, outlining some of the characteristics that separate violent and non-violent criminals. The researchers studied 2,200 criminal offenders from Texas, Michigan and California. Using a combination of official records and self-reported criminal activity from the inmates, the study found that most criminals are specialists and can be categorized based on the types of crimes they commit. The crimes studied included drug, violent and property crimes, but did not include sex offenses or kidnapping.

   The researchers found that the activity of criminal offenders could be grouped into 10 categories, from the most violent, high frequency offenders who concurrently rob, assault and deal drugs, to the lowest rate offenders who perpetrate occasional drug deals. In each category, whether it was burglars, robbers or drug dealers, a small percentage of high-rate criminals committed the overwhelming bulk of the crimes.

   
   

   Violent predators
   commit a broad
   range of crimes
   at high rates

   The most dangerous category of criminal identified in the Rand study was the violent predator, who committed crimes ranging from assaults and robberies to thefts and drug transactions. Not only did the violent predators commit crimes across the spectrum, they committed them at much higher rates than even the high-rate criminals in individual crime categories.

   For example, in the category of burglar-dealers -- those criminals who break in and steal from buildings and also sell drugs -- 10 percent commit burglaries at a rate exceeding 148 a year and/or make drug deals at a rate exceeding 2,890 a year. In comparison, the 10 percent of the highest rate violent predators will commit burglaries at a rate exceeding 516 a year and carry out 4,088 drug deals.⁴²
   

   By comparison, the study showed, the majority of criminals commit crimes at low rates. For example, more than 60 percent of the inmates who do burglaries commit an average of 5.5 per year.⁴³ Most offenders hold some sort of job, even if sporadic, and non-violent offenders often work fairly steadily. The property and drug offenders are good candidates for rehabilitation, the researchers found.

   On the other hand, violent predators are poor candidates for rehabilitation and the most appropriate candidates for long prison terms:

   The seriousness of their crimes, the rates at which they commit all crimes, and their violence have an inordinate effect on crime in our society. Their characteristics and consistent behavior imply that extended imprisonment is the only currently understood policy likely to substantially reduce crime rates for all the crimes they commit -- not just the crimes for which they are convicted.⁴⁴

   Being able to recognize the violent predator is a top priority, said the study's authors. "In order to effectively and efficiently reduce crime, it is crucial to be able to differentiate the violent predators -- who are disproportionately high-rate offenders -- from others."⁴⁵
   

   
   
   

   Recognizing violent
   predators is
   difficult because
   of little information

   But Rand found that official records are woefully inadequate in revealing information needed to identify the violent predators. Most crimes go unpunished and unreported. Cases are plea bargained down so it is difficult to tell what the actual original crime was. Juvenile records are incomplete and teens are much less likely to be caught in the first place.

   To supplement the lack of records, the researchers developed a list of predictive characteristics for violent predators:

   • Frequent violent crimes committed before age 18.
     

   • Early onset of violent crimes, starting before age 16.

   • Number of prior robbery convictions as adults.

   • Being young, unmarried and persistently unemployed.

   • High-rate multiple drug use.

   Rand's conclusion that a small number of people commit a disproportionate share of crimes is reinforced by statistics gathered from a wide variety of sources:
   • An earlier Rand study found that incarcerating the most active 8 percent of a group of robbers studied could prevent three times as much crime as imprisoning the least active half for the same amount of time.⁴⁶

   • Orange County officials, who have run three separate annual studies of juvenile crime, have found that roughly 9 percent of offenders commit the bulk of crime.

   • Similar statistics were recently highlighted by the president of the Safe Streets Alliance in Washington D.C. He wrote that an exhaustive Philadelphia study showed that just 7 percent each of two different age groups committed two-thirds of all violent crime in the city, including three-fourths of the rapes and robberies and virtually all of the murders. He also cited the efforts of Oxnard, California, to target and imprison the city's 30 serious habitual offenders. "As a direct result, in 1987 violent crimes dropped 38 percent, more than double the drop in any other California city. By 1989, when all 30 active, serious habitual offenders were behind bars, murders declined by 60 percent, robberies by 41 percent and burglaries by 29 percent."⁴⁷

   Safe Streets Alliance argues that these and other studies show that society should concentrate on imprisoning those who are committing violent crimes and those who are repeat offenders. And to some degree that has occurred nationally, according to the group. In 1986, the nation's state prison population contained 55 percent violent offenders.⁴⁸ That statistic is not reflected in California today, however, where the prison population is composed of only 43 percent violent offenders. (Before the Determinate Sentencing Act was adopted, 61.8 percent of the population in prison were there for violent crimes.) And the system in California does not allow the State to focus on violent offenders, even if they are determined to be dangerous and a threat to public safety.

   
   

   Most violent
   criminals are
   serving determinate
   sentences

   While the split between crimes covered by determinate and indeterminate sentencing pays homage to the concept of separating more serious from less serious crimes, the reality is that most violent crimes come under the determinate structure. That structure still governs penalties for rape, child molestation, assault with a deadly weapon and armed robbery, among others. The result is that the majority of inmates in prison are serving determinate sentences. The chart below shows the types of sentences being served in state prison by violent and non-violent offenders in mid-1993.
   

   
   As the chart indicates, 57 percent of the prisoner population are serving determinate sentences forcrimes defined as non-violent in the state's Penal Code, including burglary, grand theft, auto theft and drug offenses ranging from possession of rock cocaine to sale of marijuana. The other 43 percent have been incarcerated for violent crimes, all but 9.8 percent serving determinate sentences. The 9.8 percent figure -- representing 11,396 prisoners -- includes 8.8 percent serving life terms with parole as a possibility and 1 percent serving life without possibility of parole. (Not counted for purposes of this discussion are the 366 condemned prisoners housed on Death Row.)⁴⁹

   The impact of the broad scope of determinate sentencing is that both violent and non-violent offenders are treated much the same, although the propensity for them to endanger public safety is quite different. For the small portion of the prison population who are under the indeterminate structure, there is a distinctive difference in management processes:

   • Under determinate sentencing, as already discussed in Finding 1, the inmate receives a fixed sentence. This sentence may not reflect the full extent of crimes committed because of formulas that limit consecutive terms. The inmate's time served may be reduced substantially because of time already served in jail and because of work credits earned during imprisonment. No matter how the inmate behaves in prison, short of action that prompts new charges and a new sentence, the release date is fixed. And when that date arrives, the inmate is set free, without having to produce a plan for how he will support himself, stay away from drugs or remain crime-free.

   • The indeterminately sentenced lifers must serve a mandatory amount of time before they are eligible to be considered for parole, but there is no assurance they will then be released. Parole is granted at the discretion of the Board of Prison terms, and the inmate could serve his full life term. Every lifer must, by statute, serve at least seven years, and some offenses have higher minimums. A first-degree murderer sentenced to 25 years to life, for example, must serve a minimum 16 years and eight months before becoming eligible for parole consideration. The attempted murder of a public official is a 15-year-to-life sentence with parole eligibility after seven years and six months. Reduced time for these two offenses and several other life terms is available through work incentives, but the most serious offenders are not eligible for work credits.⁵⁰

   The board fixes a parole date based on the type of crime, the number of victims, aggravating factors such as a pattern of significant criminal behavior and mitigating circumstances such as generally good performance on probation or parole on previous offenses. Also affecting the parole date are post-conviction credits that can be granted if an inmate studies, works and stays out of trouble while in prison.

   
   

   Who should serve
   indeterminate terms
   is a decision
   that affects safety

   The vast difference between the way determinately sentenced and indeterminately sentenced criminals are processed and managed is indicative of a belief that public safety is best ensured by taking a close look at certain inmates before they are released. A key policy question is who should be included in that pool of carefully monitored inmates. Statistics about the varying levels of security required to house inmates, length of sentences served, parole revocations and recidivism provide relevant information for addressing the question.

   Security Levels: To determine how to house inmates, the state prison system has developed a classification system that takes into account risk and stability factors that have proven over time to be good indicators of how intensive security measures must be to manage the inmate. The prisoner's classification is based on weighted scores for factors such as sentence time, personal history, prior incarceration behavior, medical history and flight risk. An inmate with a score of zero to 18 is a Level I or low-risk inmate; 19-28 is a Level II; 29-51 is a Level III; and 52 and above are Level IVs, or the highest-security inmates. Other factors may be used to override classification scores when making the final decision of where to place an inmate, but for the most part the classification score is a fair representation of how dangerous prison authorities believe an inmate is. The chart below shows a breakdown of inmates by security classification.

   
   
   

   INMATES BY SECURITY CLASSIFICATION July 1993
   Security Level	Number	Percent
   Level I	26,332	31.2
   Level II	19,949	23.6
   Level III	19,826	23.5
   Level IV	13,277	15.7
   Special Security*	2,271	2.7
   Medical/Psych	2,743	3.3
   Total**	84,398	100

   Source: Department of Corrections
   
   *Special Security prisoners are considered to be the most violent-prone
   and trouble-causing inmates in the state system.
   
   **Excludes inmates awaiting classification.

   
   As the chart indicates, almost one-third of the inmates who have been classified are viewed as minimal threats to security and another quarter are slightly more dangerous. The highlighted area shows the number of prisoners that correctional officials believe are the riskiest inmates -- a combined total of 41.9 percent of all inmates. When contrasted with the almost 10 percent of inmates serving indeterminate sentences, it is clear that many inmates who are serving set terms and will be released on a fixed date have been assessed as extremely dangerous by knowledgeable corrections experts.

   Length of Sentences: Beyond the question of what type of inmate is in California's prisons is how long they remain there and the impact that has on the prison system. Nationally, violent offenders receive an average sentence of seven years and 11 months but serve less than three years. Fifty-one percent of violent offenders are discharged in less than two years.⁵¹ California figures are similar. The following chart breaks down the average number of months served by violent and non-violent offenders first released to parole during 1992. (First releases to parole include inmates paroled for their first time and parole violators returned with a new sentence by the courts and then paroled for the first time following the new offense.)
   
   
   

   
   

   AVERAGE TIME SERVED IN MONTHS BY CALIFORNIA FELONS FIRST RELEASED TO PAROLE IN 1992
   Offense	Time Served in State Prison	Time Served Prior to State Prison	Total Time Served
   Violent Crimes	27.7	5.3	33.0
   Property	14.2	3.7	17.9
   Drug	14.2	4.4	18.6
   Other	11.0	3.2	14.2
   All Offenses	16.8	4.2	21.0

   Source: California Department of Corrections

   
   The table shows that among those violent offenders eventually paroled, both determinately and indeterminately sentenced, the average term served was less than three years. (The average terms for specific violent crimes ranged greatly above the 33 months -- such as 168.9 months for first-degree murder, 92.8 months for second-degree murder and 77.5 months for attempted first-degree murder -- but there are few prisoners in those categories compared to the large numbers serving average terms of 30.5 months for robbery and 27.1 months for assault, thus lowering the overall average.) The total time served included credit for jail time prior to sentencing.

   As the table indicates, the time served by non-violent felons is even shorter, raising questions as to the cost-effectiveness of incarceration once the State pays for processing them through the reception center, testing their education, work skills and health, classifying them for housing purposes and transporting them to the prison where they will serve their sentence. Categories of non-violent crime for which prisoners spent less than a year in a state prison on the average include second-degree burglary (11 months), theft (10.8 months), forgery and fraud (11.6 months), controlled substance possession (9.1 months), marijuana posssession (11.5 months) and driving under the influence (9.6 months).

   
   

   Huge numbers of
   prisoners spend
   less than a year
   behind bars

   The in-and-out syndrome does not just apply to a few prisoners. In 1988, 46,000 prisoners spent less than one year in prison, 32,000 spent less than six months and 20,000 spent less than three months. Part of the low numbers of months served stem from time spent in jail prior to sentencing and part are due to parole violators, who can only be returned for up to one year. But 18,000 of those spending less than a year in prison were new commitments, 8,000 of whom spent less than six months in prison and 5,000 who spent less than three months. About 50 percent of all new commitments to the prison system were sentenced to two years or less -- with time served to be reduced by jail time and work credit.⁵²
   

   
   

   Time off sentences
   for working cuts
   most prison stays
   in half

   Alarge factor in the short duration of prison stays is a state law that allows prisoners to receive one day off for each day served as long as they stay out of trouble and have a work assignment (those on waiting lists for assignments receive one day off for each two days served). While a very limited number of prisoners who have committed severe crimes are not eligible for this reduction in sentence, known as worktime credit, for the most part there is no distinction between those who have committed violent crimes and those who are non-violent offenders.

   While the program is an important management tool for prison officials -- limiting violence and providing an incentive for prisoners to behave responsibly -- the lack of differentiation between violent and non-violent offenders means that the criminals whom the public has the most interest in keeping behind bars can reduce their terms at the same rate as those who constitute a far lesser threat to safety. Several critics of the system have pushed for reform, including legislators who have advocated a 15 percent credit for violent offenders -- enough to allow a continuing prison management tool while stopping the wholesale early release of the portion of the prison population that appears to worry the public the most.

   Parole revocation rates: The prison system's revolving door can be seen in parole revocation statistics, which will be discussed more thoroughly in Finding 3. Although some steps have been taken to reduce revocations -- largely by simply continuing people on parole despite violations -- the rate remains high. In 1992, about 53,000 parolees were returned to prison, a rate of 61 percent of those on parole.
   

   The revocation rate has jumped to historical highs since the creation of the Determinate Sentencing Act. In 1975, prior to the change, only 11 percent of paroles were revoked. While some blame rising drug use and an increasingly violent society for the revocation increase, many parole experts believe the difference is that inmates who would have been retained in prison under the indeterminate structure are now automatically released back to the streets at the end of their term to commit new crimes. The "quality" of freed prisoner is not as good as it was under the old system.

   Recidivism rates. The figures that show how often former prisoners return to a life of crime -- the true measure of the prison system's revolving doors -- are difficult to pin down in California. The yearly parole revocation rate gives a picture of how many offenders are returned to prison in one year, but a longer time period gives a truer picture.

   A 1989 study by the National Council on Crime and Delinquency (NCCD)⁵³ found that over a two-year period, 65 percent of the inmates in the study sample were rearrested for either felonies or misdemeanors. A federal Bureau of Justice Statistics report came up with much the same result on a three-year study of 109,000 prisoners released from prison in 11 states in 1983: 62.5 percent were rearrested, with 46.8 percent reconvicted and 41.4 percent returned to prison. Those arrested after their 1983 release -- 68,000 -- were charged with 326,000 new crimes, including 50,000 new violent offenses.⁵⁴
   

   The same study pinpointed a prior arrest history as the most important factor linked to the likelihood of rearrest. Those who were first-timers in prison before 1983 showed a 38 percent rearrest rate, while those with two prior arrests were rearrested at a 48 percent rate and those with three to five prior arrests hit 57 percent.

   Yet another Bureau of Justice Statistics report examined the history of felony defendants in 1990 in a sample of 14,000 cases. Fifty-nine percent of the defendants had multiple prior arrest charges, including 39 percent with at least five prior arrest charges and 22 percent with 10 or more. Fifty-four percent were known to have at least one prior conviction.⁵⁵

   Similar statistics have led to a public push for "three times, you're out" laws targeted at habitual offenders, such as the ones recently approved in the state of Washington and the U.S. Senate. In both cases, criminals convicted of a third violent felony would be sentenced to life in prison. A California version would double the sentences of those convicted of two violent felonies in addition to imposing a life term for the third violent crime.

   
   
   

   California has
   habitual offender
   laws but they
   apply to few felons

   California is not a stranger to the habitual offender concept. Existing law provides for an indeterminate sentence of 20 years to life for those who have served two prior state prison terms for certain violent felonies and who inflict great bodily injury in the third commitment offense. Another law provides life without the possibility of parole if the person has served three prior terms and inflicts great bodily injury.⁵⁶ But the provisions are so narrow that many critics have pushed for expansion of the habitual offender concept for several years.
   

   Among the proposals to reform the habitual offender statutes are to have any person who is sentenced to prison a second time placed under the indeterminate structure; broadening the scope of crimes included in the existing law to all violent felonies, both for prior offenses and for the current one; and giving an indeterminate 20-years-to-life sentence to anyone who commits a violent crime and who has served a prior sentence for a "serious" crime -- a lesser category of crimes as defined in the Penal Code. P Those who oppose tough sanctions on repeat offenders often decry the rush to impose severe penalties that comes after high-profile cases that become media circuses, like the Polly Klaas kidnapping-killing. But it takes little persistence to find case after case of violent crime that is perpetrated by someone who has already served one or more prison terms. In fact, such a background for criminals has become so mundane that it often is not treated as anything special by the media. Two examples:

   • A recent small story buried deep inside the Sacramento Bee told of a 75-year sentence imposed on a 49-year-old man for kidnapping and sexually assaulting an 11-year-old girl. Only the very last paragraph of the story indicated that the man "who has a history of violent crime dating back to 1963 for offenses including battery, assault and robbery, was sent to prison in 1981 for raping an 18-year-old Sacramento County woman..."⁵⁷ This man, who by any common definition would be considered an habitual offender, is being imprisoned under a determinate sentence and is capable of earning a reduced sentence.

   • Similarly, a small story on the difficulty of tracking sexual predators because they fail to report their movements as required by parole conditions cited a September incident in Southern California. A parolee whose previous offense had been raping schoolchildren in Pacoima "returned after 11 years to the same intersection. He stalked and raped three children before he was caught in Inglewood while trying to attack another young girl."⁵⁸

   
   

   The release of
   violent criminals
   from prison
   undermines the system

   The effect of California's failure to distinguish between its treatment of violent and non-violent offenders is multi-faceted: It ignores concern for public safety, drives up costs, increases prison discipline problems and undermines the credibility of the sentencing system:
   • The Rand study on violent predators and other statistical data already highlighted indicate that public safety is best protected when violent criminals are targeted for long-term incarceration.

   • The rapid return to prison -- either through parole revocations or recidivism -- of people who under an indeterminate sentencing system would never have been released from prison is extremely costly for the State. Processing costs to churn inmates in and out of the system run about $9,000 per inmate.

   • Prior to 1977, a powerful disciplinary tool and disincentive for violence-prone prisoners to commit further crimes in prison was the fact that their release date was greatly affected by their behavior in prison. Today, Department of Corrections officials complain, there is no such linkage and prisoners know that they will be released in a short amount of time regardless of their behavior.

   • That the system lacks credibility is evident from the frequent complaints by the public and officials:
     • The arrest of Polly Klaas' killer, a two-time kidnapper, prompted an array of comments including actress Winona Ryder ("It's infuriating. The fact that someone like this could be out of prison and walking around after he was convicted of kidnapping. It's outrageous.") and Governor Wilson ("After seeing the rap sheet for Richard Allen Davis, we know that had tougher measures been on the books, this vicious thug would still be behind bars.")⁵⁹

     • The sentencing of Damien Monroe Williams to 10 years for participating in the vicious beating of truck driver Reginald Denny and others brought quick reaction from people like Los Angeles County District Attorney Gil Garcetti ("Mr. Williams will serve only about four years and will come out the same way you saw him, with a big smile on his face and waving to his friends and family. In our opinion, Mr. Williams deserves 10 years of actual time.").

     • A police lieutenant, commenting on Sacramento's 89th homicide of 1993, said criminals have no fear of the system and are increasingly unwilling to bargain away homicide information for reduced time behind bars because they do not mind doing time. "What does that tell you when they say, `Your system doesn't scare me'? If you are of gang mentality, what is a prison but a gang?"⁶⁰

   Recognizing the importance of the demarcation between determinate and indeterminate sentencing, the Legislature's Joint Committee for Revision of the Penal Code held a hearing in March 1990 on the advisability of shifting that balance. A Board of Prison Terms commissioner testified that additional crimes should be included under indeterminate sentencing. He advocated putting all crimes classified as "serious felonies" as defined in Penal Code Section 1192.7 under the indeterminate system. Those include: murder, voluntary manslaughter, mayhem, rape, sex crimes, lewd acts on a child under 14, crimes with great bodily injury, offenses with weapons, robbery, arson, selling drugs to minors, residential burglary and exploding a destructive device.

   The commissioner described a case about which he had first-hand knowledge. The inmate was a fourth-term prison gang member that everyone assumed would reoffend once he was released. Law enforcement unsuccessfully tried to track him when he walked out the prison gates.

   Within two weeks he had committed over seven felonies involving firearms and the last time I went in to testify at a parole revocation hearing, I had a picture of him -- surveillance photo out of a bank -- with him holding a shotgun with a ski cap and I'm reminded of that. That's just one example of many that came about and we had no control.

   Weighing in with support was an appellate court justice who testified, "I think that degree of danger exists in many other crimes and when we address it simply by lengthening the term, we're not addressing whether that person's going to be a danger when (he) gets out."⁶²
   

   All of the problems and the statistics outlined above are a powerful argument for shifting more violent crimes into the indeterminate sentencing structure. The result, however, would be to increase the time served and, potentially, the number of inmates in state prisons, which already are operating at almost double capacity. The strength of such an approach would be to keep violent inmates incarcerated until they appeared ready for parole, potentially reducing the extremely high return rates of failed parolees and increasing public safety.

   
   

   Keeping violent felons
   in prison longer
   would add to
   overcrowding

   Prison capacity -- even with a building program in progress -- is fairly finite, so any reform that adds to the prison population stress needs to be coupled with ways to free existing beds. The key to any change, then, in how violent offenders are treated is the other side of the coin: how the sentencing structure treats non-violent offenders. At present, there are few options. Experts have told the Commission that one of the most glaring problems of the current criminal sentencing structure is the lack of so-called intermediate punishments: The sentencing options that fall somewhere between probation and state prison.

   The 1990 report of California's Blue Ribbon Commission on Inmate Population Management was particularly definitive on the needed development of intermediate punishments and, in particular, on drug treatment options. The Little Hoover Commission does not intend to duplicate the Blue Ribbon Commission's extensive work here, other than to highlight some of the options:

   • Electronic monitoring: Nearly always combined with house arrest. An offender wears a bracelet on the ankle or wrist and, using an active or passive mechanism, verifies he is home at certain hours of the day.

   • Intensive supervision: Offenders are monitored very closely by a parole or probation officer, with contact in some cases as often as once a day. Intensive supervision programs in Georgia, Iowa, Wisconsin and Ohio that diverted groups of offenders at sentencing were successful in posting lower recidivism rates than similar programs in which offenders served their time in prison, according to a 1990 General Accounting Office study.⁶³

     The same study surveyed preliminary results on relatively similar intensive supervision programs in three California counties -- Los Angeles, Contra Costa and Ventura -- and concluded that despite the considerable resources committed to a population of high risk offenders, they did no better than probationers who did not get the added services.⁶⁴

   • Community drug treatment: The success of drug treatment is dependent on the duration of the program and regular drug testing.⁶⁵ According to the experts, the participants will relapse, but the outcome depends on the frequency and severity of the relapses. Community drug treatment may be cheaper, since it has been shown that locally treated drug addicts are less likely to violate probation.

   • Community service orders: Mainly low-level offenders, in lieu of going to jail, serve on projects such as park and highway maintenance. Other community service orders may instruct offenders to do volunteer work or put in time with a non-profit agency. Virtually all California counties have used community service as a punishment for many years. Jail overcrowding is a major inducement to establishment of community service orders.
     

   • Fines: In England, 80 percent of all misdemeanor-level crimes (excluding traffic) involve fines as punishment. In the United States, federal felony fines now have been raised to a maximum of $250,000 per individual.⁶⁶

   • Restitution: If an offender is granted probation, the court may impose a restitution order of up to $10,000 to the State Victims of Crime Program or to the victim of up to the full economic damage.

   In addition to the intermediate punishments mentioned above, other alternatives currently used only after prison commitment might be viable at the time of sentencing. These could include:

   • Community Corrections Facilities: The Department has 5,000 beds in community correctional facilities. These "mini-prisons," ranging in capacity up to 450 inmates, include seven public facilities run by cities and five facilities operated by private correctional organizations. Inmates occupying these facilities are low-security inmates serving time for non-violent offenses, often first-time offenders and parole violators.

   • Mother\Infant Program: Women offenders with children under six can remain in custody with them and participate in family skills classes, education and work furlough near the end of their sentences.

   • Boot camps: The Department of Corrections under 1992 legislation established a boot camp program (called shock incarceration in some states) as a pilot project in six Bay Area counties. The participants are first-time non-violent felons with two years or less to serve who are released after a 300-day intensive work and training regimen. Twenty-six states have set up boot camps, but a study found that while they are too new for any definitive results, boot camps appear to reduce overall corrections costs by releasing prisoners earlier. The study said there appeared to be little improvement in recidivism.⁶⁷

   
   

   Alternatives to
   prison may not
   save money or
   reduce crowding

   A major drawback to sentencing felons to such intermediate punishments is the issue of "net widening" --that is, sentencing offenders to intermediate punishments who ordinarily would have been sentenced to probation. Net widening would add, not subtract, from the state's criminal justice costs. In addition, few of the intermediate punishments are less expensive than incarceration. But if they are available for judges both legally and programmatically, these sentencing options could reduce costs over the long term by increasing chances of successful rehabilitation and free prison space to house violent criminals for longer periods.

   While intermediate punishments are clearly a productive avenue for diverting offenders from prison, two policy issues need to be addressed in any scheme that is eventually put into place: Who among the non-violent offenders will be diverted and how can the programs be structured to satisfy public concerns?

   The first question was addressed by a 1992 University of California, Berkeley, report that targeted parole failures, drug offenders and non-persistent property felons as the groups responsible for the major part of prison growth during the 1980s.⁶⁸ The report discussed mechanisms for dealing with these populations, including developing alternative programs. Parolees will be addressed in Finding 3 of this report; current statistics for drug and property offenders, a