California sentencing panel may get new life

By ANDY FURILLO
Tuesday, November 21, 2006
Facing a double whammy of a population cap and a court decision that threatens to wipe out the state's sentencing law, the Department of Corrections and Rehabilitation is considering a sentencing commission that would help decide who goes to prison and for how long.

"We are willing to engage in sentencing reform," Corrections Secretary James Tilton said in an interview with The Bee, adding that as part of the discussion, the Schwarzenegger administration is looking at establishing a sentencing commission.

Such panels take different forms but can allow states to manage prison populations by altering the approach to sentencing. The idea was rejected seven times in California between 1984 and 1998 _ three times by gubernatorial vetoes and four times by legislative committees.

But a new urgency has slammed down on the state's prison system. Legal motions filed last week in three pending federal cases already decided in favor of the defendants are demanding that the prison system cap its population.

Meanwhile, the U.S. Supreme Court is deliberating on a case that very well could render to the trash heap the way judges have been sentencing convicted defendants in California for nearly 30 years.

Details on a commission proposal have yet to be fleshed out. But with the prison population rising, the corrections budget projected by the Legislative Analyst's Office to exceed $9 billion next year and inmates rights lawyers monitoring its every move, the administration now views a sentencing commission as a possible salvation.

"The sentencing commission clearly is going to be one issue looking forward," Tilton said.

Knocked off the correctional agenda for the better part of a decade, talk of the commission has resurfaced in recent months as the state prisons' overcrowding crisis has worsened.

Last week, inmates rights lawyers filed motions with judges who have been friendly to them over the years to fix an unconstitutional level of overcrowding by imposing the population cap. That matter is the subject of a Dec. 11 hearing in U.S. District courts in Sacramento and San Francisco.

Lurking in the background is the pending U.S. Supreme Court decision _ expected to come down within the next seven months _ that is targeting the state's 1977 determinate sentencing law.

The Cunningham v. California case is challenging trial judges' triple-option sentencing structure created under determinate sentencing.

It's a system that has allowed judges to pick from a low-, middle- or high-term sentencing range depending on whatever aggravating or mitigating circumstances, if any, they find in a defendant's conduct.

But in piling on extra years, the Cunningham case charged that the defendant's sentencing judge made findings of aggravation that were not presented to the jury. The case was filed after the high court tossed out a similar sentencing scheme in the state of Washington in 2004.

If the result mirrors the Washington case, it could set up something of a perfect storm _ or opportunity _ that would clear the way for creating a state sentencing commission, according to Evan Lee, a law professor at the University of California's Hastings College of Law.

"It could be the political impetus needed to say, 'We have to do something because the Supreme Court says so,' " said Lee, a consultant to the American Law Institute's council on sentencing guidelines.

"One rational response is, 'Let's use this to create a sentencing commission.' Then you've got somebody other than federal judges managing the prison population," he said. "You've got a central authority at the wheel."

California's 33 prisons are jammed to more than twice their designed capacity, with the system housing 173,434 inmates. Even before he got hit with the legal motions to limit the population, Tilton had imposed a de facto limit of his own. By midsummer, he said, he will literally run out of every inch of space to house incoming prisoners. At that point, he said, he will accept only inmates from counties as space becomes available _ one out, one in.