There is no responsibility that judges
take more seriously than sentencing criminal offenders. The principal purpose
of government and the rule of law is to ensure public safety and security.
It is to judges that the authority and responsibility to sentence those
whose crimes undermine public safety is entrusted. Serious crimes result
in unspeakable injury and loss to the victims most directly affected, and
threaten the entire community. The stakes for the offender and for the
offender's family are equally high. Judges are never more mindful of how
grave a responsibility it is to act as a single judge on behalf of an entire
community than when carrying out their sentencing responsibilities.
Criminal cases dominate the workload of California judges, who sentence
more than 135,000 felony offenders a year. The hardest cases are not those
of the most violent or dangerous criminals, or the sexual predators. Those
offenders belong in prison and constitute only about 10 percent of the
cases. Cases where the law mandates a prison sentence under circumstances
that a judge considers unjust are hard, but they are also rare. For many
judges the most difficult and frustrating aspect of handling felony cases
is dealing with the crushing volume of repeat offenders, most charged with
nonviolent crimes, who constitute the vast majority of felony cases. Year
after year, California judges sentence repeat offenders to jail and probation,
and finally prison, with little hope for success in changing an offenders'
future criminal behavior. Over time, many judges grow increasingly cynical
and discouraged. Every day, judges see that our current sentencing policies
aren't working and question whether there isn't a better way.
California's sentencing policies aren't working because, more than any
other state, California relies overwhelmingly on incarceration as the answer
to every crime rather than invest in meaningful adult probation services
and effective community corrections programs to reduce crime. We need to
put the concept of "corrections" back into the corrections profession.
California has the highest recidivism rates in the country and, as a
result, the most overcrowded prisons. About half of those sentenced to
prison every year are nonviolent offenders previously sentenced to prison
but never for a violent crime.
Although criminal records of California prisoners reflect no greater
violence than inmates in other states, their records are longer and California
inmates are more likely to have been on parole when they committed a new
offense. Two thirds of parolees are returned to prison within three years
-- twice the national average. Eighty-eight percent of those parolees are
returned because of new criminal activity.
As California criminologist Joan Petersilia observed, "California epitomizes
revolving-door justice in the United States."
In California, basic sentencing reform is long overdue. In recommending
a plan for prison reform, Gov. Arnold Schwarzenegger noted that thousands
of low-level offenders in California today are serving prison sentences
with little opportunity for rehabilitation and that implementation of an
effective strategy to reduce prison overcrowding and offender recidivism
will require a partnership between state and local corrections agencies.
His most recent proposal to address the state's prison overcrowding crisis
calls for bipartisan cooperation to achieve essential sentencing reforms
and reduce California's high recidivism rates. He has outlined a promising,
but still incomplete, vision of the path to true prison reform and improved
public safety for the citizens of California.
The governor's principal sentencing reform proposal is to create a California
sentencing commission. California is indeed out of step with state-of-the-art
sentencing structures across the country in failing to have a bipartisan,
professional and independent sentencing commission. In 20 other states
sentencing commissions are responsible for reviewing proposed sentencing
legislation, making population and financial projections, conducting research,
coordinating the collection and dissemination of relevant data and making
recommendations to policy-making bodies. Sentencing commissions ensure
that policy makers have accurate and credible data needed to make well-informed
decisions.
Commendably, the governor's proposal budgets $50 million this year and
$100 million in following years to improve adult probation services for
youthful offenders. But the governor's proposals to reduce recidivism still
focus on prison inmates and parolees, and do very little to promote the
development and funding of local corrections programs to reduce recidivism
among more of the 35,000 offenders sentenced to prison every year for nonviolent
offenses. In the long run, the most cost-effective way to slow prison growth
and improve public safety is to develop effective community corrections
and treatment programs that reduce recidivism -- especially among nonviolent
offenders -- before offenders are imprisoned.
Unlike many other states, California provides almost no support for
the provision of rehabilitation services to offenders in communities where
they and their families live. It is one of only two states where adult
probation services are primarily a local responsibility. As a result, adult
probation services are drastically underfunded; more than half of the 300,000
adult offenders on probation are not actively supervised. The state has
yet to act upon the recommendation made by the bipartisan Little Hoover
Commission more than 15 years ago to implement community corrections programs.
The California State Sheriffs' Association and California State Association
of Counties also have called for implementation of such programs.
Thirty years ago, when California's current sentencing policies were
written, there was a great deal of skepticism about whether rehabilitation
really works. But today there is a voluminous body of rigorous research
that has proven that well-implemented treatment programs targeting appropriate
offenders do work and reduce offender recidivism by 10 to 20 percent. The
same research also proves that without treatment incarceration does not
work to reduce recidivism (beyond the period of incarceration) and in fact
increases the likelihood of recidivism.
Unlike California, many other states, including Arizona, Oregon and
Washington, are already committed to these evidence-based practices to
reduce recidivism. Arizona courts use offender risk assessment tools in
sentencing. Oregon courts require sentencing judges to consider the likely
impact of potential sentences on reducing offenders' future criminal conduct.
The Oregon Legislature has required the state's criminal justice agencies
to collect and share sentencing data to determine the effect of various
sentences on offenders' future criminal conduct. The state's Legislature
also required that 50 percent of funding provided for corrections programs
in 2007 be spent on evidence-based programs and 75 percent of the funding
in 2009.
Facing the need to construct new prisons, the Washington Legislature
called for a study of the existence of any evidence-based corrections alternatives.
The study identified a number of evidence-based programs that reduce recidivism
by up to 20 percent and found that implementation of the evidence-based
options would reduce Washington's crime rates, avoid future prison construction
and save taxpayers $2 billion.
Evidence-based community corrections programs promote public safety
by reducing recidivism by known offenders and by freeing prison bed space
for long-term imprisonment of more dangerous and serious offenders. They
allow offenders to be in the work force and pay restitution to the victims
of their crimes. They are not soft on crime. They target offenders who
present a high risk of reoffense but not violent, dangerous or the most
serious criminals for whom long-term incarceration is clearly more appropriate.
In addition to providing services to reduce recidivism, the programs can
control the risk of offender misbehavior through, for example, local incarceration,
intensive supervision, electronic monitoring, day or evening reporting
responsibility, testing and surveillance.
For many of these offenders a community treatment program with behavioral
controls is a tougher and more effective sentence than imprisonment. For
many offenders the responsibility to change their own anti-social behaviors
is a lot tougher than doing time. Most nonviolent offenders don't serve
long prison sentences anyway. Nonviolent offenders in California serve
a median of less than 10 months in prison before being paroled.
Sentencing reforms now enjoy broad public support. Although public safety
is a top public concern, the public believes in rehabilitation and doesn't
see punishment and rehabilitation as either/or propositions. When asked
in a recent nationwide survey by the National Center for State Courts whether
they think that once offenders turn to crime, very little can be done to
turn them into productive, law-abiding citizens or that under the right
conditions many offenders can turn their lives around, almost 80 percent
of 1,502 people surveyed say that people can turn their lives around. Eighty-eight
percent believe that rehabilitation and treatment programs should often
or sometimes be used as alternatives to prison. Seventy-seven percent say
they would prefer to see their tax dollars spent on programs to help offenders
find jobs or get treatment rather than on building more prisons. The public
favors a balanced approach to public safety: an approach that is tough,
especially on the most violent, dangerous or threatening offenders, but
that also encourages less serious offenders to turn their lives around.
The Little Hoover Commission, which over the past 15 years has published
a number of reports on California's correctional system, is planning this
week to release its latest report on opportunities for sentencing reform.
The commission's report may further guide California along the path that
the governor has outlined and may provide a more complete vision of prison
reform and improved public safety for the citizens of California.