Pubdate: Sun, 04 Mar 2007
Source: Orange County Register, The (CA)
Copyright: 2007 The Orange County Register
Contact:  http://www.ocregister.com/
Details: http://www.mapinc.org/media/321
Author: Alan Bock, Sr. editorial writer, The Orange County Register

HARD TIME

This just might be the year in which Californians see relatively 
substantial progress toward prison reform in the state as a number of 
intensifying forces converge:

. The state has been notified that if something is not done to 
alleviate prison overcrowding, federal judges may step in and impose 
a cap on prison population by June.

. The California Correctional Peace Officers Association, the prison 
guards union and a principal force behind the "three strikes" law and 
long an advocate of harsh sentencing, has done something of an 
about-face and come out for modest sentencing reform, including 
establishing a sentencing commission.

. Although Gov. Schwarzenegger's "emergency" session on prison reform 
last summer didn't produce much in the way of substantive action, he 
says he is committed to prison reform this year.

. And state Senate Majority Leader Gloria Romero of Los Angeles 
continues to push what has become her signature issue.

Some of those circumstances are political or artificial, but the 
conditions in prisons that are moving them forward are real enough. 
California now houses about 173,000 prisoners in facilities designed 
for about 80,000. Between 16,000 and 19,000 inmates are assigned to 
cots in hallways and gyms -- which means spaces designed for 
rehabilitation and vocational programs are not available for those purposes.

James Tilton, appointed secretary of the Department of Corrections 
and Rehabilitation in September, says the overcrowding amounts to a 
powder keg of the sort that in other states has led to prison riots.

California has one of the highest recidivism rates in the country, at 
70 percent, which means prison becomes a revolving door for a certain 
sector of the population. The parole system loses track of about 20 
percent of those supposedly under its control. According to former 
Sacramento Superior Court Judge Roger Warren, scholar in residence at 
the state's Judicial Council, "about half of those sentenced to 
prison every year are nonviolent offenders previously sentenced to 
prison but never for a violent crime."

If federal judges take control of the prison system in June, 
taxpayers may not be pleased. Judges, according to a report released 
in January by the state's Little Hoover Commission, "now control 
inmate medical care and oversee mental health, use-of-force, 
disabilities-act compliance, dental care, parolee due-process rights 
and most aspects of the juvenile justice system." Their usual 
methodology is to mandate higher spending. Federal receiver Robert 
Sillen announced Feb. 23 that he was unilaterally raising the 
salaries of prison doctors from $163,360 to $180,000-$200,000 a year 
to attract more qualified physicians. He previously said that he 
would "back up the truck to raid the state treasury" if that is what 
it takes to bring prison medical care up to snuff.

Having aspects of the prison system under federal receivership (the 
result of various successful lawsuits) has created a parallel 
management structure between the courts and the California Department 
of Corrections and Rehabilitation that has led to confusion and 
plummeting morale. Two previous secretaries of the Corrections 
Department resigned abruptly in 2006 before Tilton was appointed. 
Mike Jimenez, who took over as president of the prison guards union 
four years ago, told the Register Editorial Board last week that 
morale among his members is so low that 4,000 authorized positions 
are unfilled -- despite the union's success at increasing annual 
salaries (from $14,440 in 1980 to $54,000 in 2002) and benefits and 
becoming one of the most politically formidable forces in the state.

Origins of Today's Situation

All this is largely the product of decisions made some 30 years ago 
to get tough on crime by imposing longer determinate sentences. As 
the Little Hoover Commission report put it, however, "Despite the 
rhetoric, 30 years of 'tough on crime' politics has not made the 
state safer. Quite the opposite: today thousands of hardened, violent 
criminals are released without regard to the danger they present to 
an unsuspecting public."

The roots go back to 1976 when the Legislature, upset with 
inconsistent sentencing by judges under what is known as an 
indeterminate sentencing regime, set up a determinate-sentencing 
system, with relatively narrow guidelines for punishment for crimes 
and little discretion for judges. Like most reforms, however, it had 
unanticipated consequences.

For one thing, California also kept its parole system, with 
theoretically supervised parole of up to three years for every felon 
released. Under indeterminate sentencing parole had offered an 
incentive for prisoners to get out early if they behaved decently and 
did things like participate in vocational training or drug 
counseling. Under the current system every prisoner knows he or she 
will be on parole after release, and early release is based more on 
overcrowding issues than prisoner behavior. And because every 
released prisoner is on parole, the potentially dangerous former 
inmates who could use some supervision after release often don't get 
extra attention -- or, in practice, any effective attention at all.

In addition, dozens of new sentencing laws have been passed since 
1976, creating a confusing patchwork of sentencing laws rather than 
the consistency the lawmakers desired. In hearings before the Little 
Hoover Commission, Judge J. Richard Couzens of Placer County outlined 
a hypothetical case in which a judge could have given a defendant 
anywhere from supervised probation to a 25-to-life "third strike" 
sentence and be in compliance with existing laws.

Sentencing Commission Proposed

Potentially the most significant step being proposed on all sides is 
the creation of a sentencing commission. The governor, the guards 
union and most Democrats in the Legislature have signed on to various 
versions, and the Little Hoover Commission recommended it. The 
federal government and 22 states now have such a commission. 
Independent of all branches of government and permanent, it would be 
tasked with reviewing all sentencing policies and proposals through 
evidence-based analysis. Its proposals would become law unless 
rejected by a majority vote in the Legislature.

Sentencing commissions are sometimes equated with shorter sentences, 
but commissions in North Carolina and Virginia imposed longer 
sentences for serious and violent crimes, with shorter sentences or 
alternatives like community-based programs for less-serious 
nonviolent crimes. The best sentencing commissions constantly 
accumulate and analyze data on the real-world consequences of 
sentencing policies so as to update policies based on evidence.

Other Proposed Reforms

State Sen. Majority Leader Gloria Romero of Los Angeles, perhaps the 
most active legislator on prison reform issues, told me that in 
addition to introducing a sentencing commission bill (SB110), she has 
introduced a parole reform bill that would "shift resources to the 
highest-risk parolees," and have gradations in parole length. Another 
bill would allow some nonserious, nonviolent offenders to be 
discharged directly, without parole.

She has also introduced a proposal (SB851) for new in-prison 
rehabilitative programs based on a program for mentally ill homeless 
people begun in 2000 that she believes has been largely successful 
and holds lessons for prison management.

The Senate has passed SB40, a response to the U.S. Supreme Court's 
Cunningham decision in January that declared unconstitutional one 
aspect of California's sentencing system -- add-ons by a judge based 
on information a jury had not heard or decided upon. So far the 
Assembly has not scheduled hearings.

The Little Hoover Commission has presented a detailed set of 
proposals for dealing with current overcrowding in prisons, including 
selective early furlough and getting other agencies with different 
kinds of expertise besides the Corrections Department involved.

Gov. Schwarzenegger last December offered a new $11 billion prison 
reform package that included some of the elements that didn't pass 
during his emergency session last summer and included 16,000 new beds 
on existing sites, 5,000 to 7,000 secure re-entry beds, 10,000 
medical and mental-health beds and 45,000 local jail beds. There is 
talk of expanding Orange County's James A. Musick Facility near 
Irvine. But we can't just build our way out of this crisis, especially by June.

When the Register Editorial Board met with Mike Jimenez and Chuck 
Alexander, president and executive VP, respectively, of the 
California Correctional Peace Officers Association, I was surprised 
to find them backing several reform measures, including measures that 
would reduce the prison population. "We don't need more prisoners to 
bolster our union," Jimenez said. "We're already 4,000 authorized 
positions short, and as long as California's population keeps growing 
some of them will end up in prison."

The Little Hoover Commission suggested that if the governor and 
Legislature don't have the political will to enact reforms, they 
should turn the job over to "an independent entity modeled after the 
federal Base Realignment and Closure Commission." That commission, 
back in the 1990s, studied the question of which excess military 
bases should be closed and came back to Congress to be voted up or 
down, with no opportunity to offer amendments (as Congress members 
are wont to do in response to local pressures). It was a fairly 
drastic step, but it worked.

A More Fundamental Look

All these reforms would alleviate overcrowding and the dangers it 
poses, but more serious reform should include more serious, even 
radical rethinking of crime and punishment. It should start by 
relearning St. Thomas Aquinas' distinction between malum in se (bad 
in itself) and malum prohibitum (bad because prohibited) crime. A 
real crime in this understanding is one that actually and concretely 
hurts another human being, whether through force, violence, stealing, 
fraud or deceit. Crimes created by statute that don't involve damage 
to a victim are often statements about acceptable behavior that can 
be better handled by families, churches and community pressure.

The most obvious example in our current society is drug laws, which 
make the mere possession of certain substances illegal. This legal 
prohibition creates black markets with huge potential profits that 
encourage those most adept at concealment, intimidation and violence 
to supply drugs to those who want them. In the process they create 
all kinds of real crimes, from mugging to robbery to burglary, that 
would almost certainly not occur in the absence of prohibitory drug laws.

Until we relearn Aquinas' ancient wisdom, however, legislators have 
plenty of reason to get serious -- finally -- about the kinds of 
incremental reforms the governor, Sen. Romero, Irvine Republican 
Assemblyman Chuck DeVore and others have proposed. We'll be watching. 
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MAP posted-by: Richard Lake