California Sentencing Law: What a Long, Strange Trip It’s Been

I’m currently doing some research on California’s 1977 switch to determinate sentencing. As background, from 1917 forward California (like many states) had what’s known as “indeterminate sentencing,” meaning that convicted offenders would get sentenced to a very broad term — say, 1 year to life — and then they would go periodically before the parole board, who would decide if they were sufficiently rehabilitated to be released back into the community. Among other consequences of this policy, the parole board — an unelected and relatively anonymous government body — had all the practical power over sentencing in California — legislators, judges, prosecutors, and defense attorneys had virtually no say in how much time any given defendant would actually wind up serving. Also, the sentences actually served for the same crime varied widely from one offender to the next: For instance, out of inmates doing time for second-degree murder in the early 1970s, the actual time served ranged from 19 months to 26 years.

This all changed after 1977, when California passed legislation involving a broad set of criminal justice reforms, including a switch to “determinate sentencing.” Now, post-1977 California sentencing law gives new meaning to the word byzantine, so I won’t go into all the details here, but the core idea behind the changes was twofold: (1) the purpose of imprisonment is punishment, not rehabilitation, and (2) offenders who commit similar crimes should serve similar sentences. So, under California’s determinate sentencing scheme, the legislature prescribes a narrow sentencing range for each offense (e.g., 2, 3, or 4 years for crime [x], plus various “enhancements” — additional terms of years that can be tacked on — for things like using a firearm or being a repeat offender). The sentence imposed by the judge, minus good-time credits accumulated while in prison, is the sentence that the offender actually does; the parole board can’t let him out early. I’ve just made the whole process sound a few orders of magnitude more straightforward than it actually is, once you factor in complications like concurrent vs. consecutive sentencing, multiple offenses, subsequent reforms like the Three Strikes Law, etc., etc., etc., which is why many California judges, prosecutors, defense attorneys, etc. rely on a computer program to figure out any particular defendant’s sentencing exposure. (Oh, to be one of those states that just has a single-page chart.)

Anyway, I mention all this because I’m reading an article written in 1978 by two lawyer-professors who helped draft the 1977 legislation, explaining how the new system would work and calling attention to some of its practical implications, unresolved ambiguities, possible loopholes, etc. The article is April Kestell Castou & Brian Taugher, Determinate Sentencing in California: The New Numbers Game, 5 Pac. L. J. 5 (1978). Here’s the quote that really stood out for me (p. 30):

Comment is also in order concerning conflicting predictions that under the new ranges, more felons will go to prison for more time, versus predictions that [the legislation] is a legal, mass jail break. So many factors affect the length of terms under the new law’s radically changed sentencing structure that only future experience can provide any definitive answers. … Conclusive predictions at this time are simply not possible.

Now, we all know that legislative reforms often (always?) have unforeseen consequences. But I just feel like it’s probably never a good sign when a comprehensive legislative overhaul of something as consequential to day-to-day life as, say, the criminal justice system passes, and the people who helped draft the legislation, and have studied every facet of it closely, admit from the get-go that they have no idea what its effects are going to be. I’m trying to imagine what would happen if, say, President Obama proposed a health care bill under the tagline: “Hey, my legislative aides tell me millions more people might get insured under this bill. On the other hand, they tell me, it’s so complicated that it’s also possible millions of people will lose their insurance. We just can’t predict.”