AB 109 sheds light on need for sentencing reform in California

150 150 Tom Hoffman

(photo credit: Sal Falko)

The implementation of AB 109 has brought new light and social interest to a wide range of public safety related issues. These include the treatment of the mentally ill in our society, providing medical care to those who are in custody or recently released and the availability of post-incarceration rehabilitative services in communities all across our state, to name a few.

Perhaps the most politically sensitive discussion now boiling just beneath the very controlled surface of public debate is sentencing reform. Given that we are in an election cycle year, there is little appetite inside the halls of our capital to tackle such a thorny social problem as the need to rethink the two or more decades-long commitment of modifying the CA Penal Code. With over 1,000 sentencing enhancements mostly designed to add many years to the term of incarceration for a wide range of criminal offenses and/or create new criminal offenses in response to particularly horrific crimes, it’s no small undertaking. 

Once elected officials breach this subject, or simply suggest there is a need to thoughtfully evaluate where we are in this process, accusations of being “soft on crime” start to fly. Predictably, few of those seeking public office are in any hurry to be be labeled as such as voters move towards the polls. It seems the challenge here is to draw clear distinctions between being “smart on crime” and being “soft on crime” as there is a huge distinction between the two points of view.

One is based on a factual analysis of the outcomes being achieved by the criminal justice system in our state and and using those findings to develop sound public policy. The other is mostly emotionally based, often driven by the theater associated with politics while remaining loyal to an historical definition of criminal “accountability.” This definition of the desired outcome of the criminal justice systems demands that punishment and retribution remain the default response to crimes of all kinds in our society.       

To be clear, there are folks in our society that very simply need to be removed so they cannot injure or kill others, some of them forever. There are some truly dangerous human beings living amongst us and we all deserve to be protected from them when they are identified and captured.  There is also a very clear and appropriate need to hold those that violate the laws and moral thresholds of our society accountable for their actions, even when their crime is “non-violent” in nature.

Unfortunately jail and prison beds are a finite publically funded resource. By every measure under the sun, we have tapped out this resource in virtually every state in our nation. Tthe body of science and research related to human behavior, and what effectively impacts behavior, has grown exponentially over the past three decades. Research and study around crime, who commits these acts and very specifically the impact of incarceration on public safety outcomes is now an immense field of study. A simple Google search will lead you to much of this work.

I am not suggesting that I am an “expert” on criminal justice sentencing in America, or California specifically. I do make an effort to read any published investigative reports that come to my attention around this discussion and any number of related public safety topics. I continue to be amazed at the volumes of information around a specific topic one can key into by setting a simple Google Alert. 

Sadly, despite this abundance at our fingertips, legislation around public safety is all too often crafted with little consideration given to the science and research around crime, offenders, incarceration and rehabilitation. In fact, it is not uncommon to hear that many consider any correlation between science, research and “real life” public safety decisions as marginally relevant. The “we know what we know and don’t confuse us with the facts” thought process is alive and well, sometimes held by those who truly do influence the outcomes we all see coming from important social debates. This reality needs to change.

Three California based research reports regarding sentencing and the need for reform were recently released; two of the reports compare practices in the United States to international standards. These reports were authored by the California Little Hoover Commission, another by the Public Policy Institute of California (PPIC) and by University of San Francisco Center For Law and Global Justice. I have referred to some of the findings in these reports (and others) in this discussion. 

I understand attempting to compare criminal justice outcomes across international boundaries (county to county comparisons are hard enough!) creates an interesting range of analytical complexities. I think most would agree that human behavior is human behavior; we are all more similar than dissimilar.  What “gets our attention” in America would likely have a similar impact for someone living in another country.

With this thinking in mind, there are some facts about our criminal justice system in America, and even more so in California, that at the very least are cause for thoughtful pause and reflection:

The United States currently incarcerates 762 Americans for every 100,000 in our population. This is far and away the highest rate, per capita, in the world. It is interesting to note number two on the list is Rwanda with a 595/100,000 ratio, followed by Russia (529), Ukraine (347) and Iran (333).  Britain currently incarcerates 155/100,000 and Germany reports 86/100,000. In my experience, if I am doing something very different when compared to the vast majority of the world I am more likely to be wrong than right.

Also compelling to me is  research studies recently published by the University of San Francisco Center For Law and Global Justice and Public Policy Institute of California (a 333 page book), both of which came to a similar conclusion: an incarceration rate that exceeds, on the high side, 300/100,000, is actually more harmful than effective as a crime-deterring policy.

So if there are, at maximum, 300/100,000 beds to be effectively “filled,” maybe the focus of our discussion around reform should be, “who are the 300 and what did they do?” This narrowing can only happen through wholesale reform of how we sentence individuals. 

It is important to consider that these numbers don’t consider the economic and social impacts associated with the $50,000 per year California spends on every adult we sentence to a state prison. This is the most expensive per prisoner rate in the world. One thought provoking outcome of this general fund expenditure is that since the early 1980s, California has built 20 prisons, while at the same time constructing just one university.     

There are many unique realities embedded in our criminal justice system when compared to that throughout the world that merit some reflection and thought. Some examples are:

  • There are currently 2.3 million Americans in custody in jail or prison, this is the largest population known to exist in the world. China has the next largest population in custody with somewhere around 1.4 million…with a billion more people in their population.
  • The U.S. is one of nine countries which have both the death penalty and life without parole (LWOP); China, Comoros, Cuba, Israel, Kazakhstan, Lesotho, Nigeria and Zimbabwe round out the list.
  • There are currently 41,000 LWOP prisoners in America. Also unique to America, about 2,500 of these offenders were sentenced as juveniles. As a comparison, there are 59 adult LWOP’s in Australia, 41 in England and 37 in the Netherlands.
  • The US, Canada and Micronesia are the only known countries that permit both Federal and State prosecution for the same offense.

These are just some of the distinctions of our criminal justice/sentencing system in America. When we also contemplate the now well-known and documented outcomes associated with determinate sentencing, mandatory minimums, the countless sentences currently in place for drug and alcohol related offenses, the well-known collateral damage of being a convicted felon in our society and the implications of the criminalization of being mentally ill, there seems to be plenty to consider when we contemplate the need for change.       

Hopefully, when the current political season is concluded we can harness the social will to factually, thoughtfully and carefully engage in the long overdue need for debate and action around this important public safety policy. There is certainly enough history and documented facts available for us to be more than capable of crafting an effective, sustainable system for our future. 


Tom Hoffman

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