The origins of back-end sentencing in California: a dispatch from the archives.

• Author: Mayeux, Sara

1. INTRODUCTION

   In recent years, leading criminologists including Joan Petersilia and Jeremy Travis have identified parole policy as a significant yet hidden driver of mass incarceration. (1) By 2000, over a third of prison admissions nationwide were the result of parole revocations, not new criminal convictions. (2) In California, which has long kept a higher percentage of released prisoners under parole supervision than any other state, parole policy has played an especially important role in the growth of the prison system. (3) Returning parolees have been the largest group of offenders entering California state prisons since 1987, and made up over sixty percent of prison admissions by 2005. (4)

   To understand why so many California ex-offenders return to prison on parole violations, it is important to understand California's distinctive approach to parole. (5) While the word "parole" is often used as shorthand for early release conditioned upon supervision by a parole officer, in California parole has long had a different meaning for most inmates. Because California switched from an indeterminate to a determinate sentencing scheme in the late 1970s, the vast majority of its inmates do not have the possibility of discretionary early release. (6) Rather, they have been sentenced by a judge to a fixed term of years from a statutory menu, and must be released upon completion of that term (less any good-time credits). Around the same time that California switched to determinate sentencing, however, it also implemented legislation requiring every ex-prisoner, upon release, to submit to the supervision of a parole officer for up to three years. That legislation, the Public Protection Bill of 1978, is the subject of this Article, and will be discussed in more detail later. For now, however, it is only necessary to understand that California was unique among the states in combining determinate sentencing with mandatory post-release supervision. This unique choice explains why California has long had a much larger pool of "parolees" than other states.

   In addition, California has also made it easier than other states for parole officers to return parolees to prison, even for minor violations such as missing a meeting or failing a drug test. During his parole term, a parolee must comply with a long list of conditions: He must tell his parole officer if he gets a new job or moves to a new house; he must secure his parole officer's approval to travel more than fifty miles away from home, or leave the county for more than two days; he can't be around a gun or a knife longer than two inches. He must sign an agreement consenting to be searched at any time, with or without cause. He must not only obey the law, but also "[his] parole agent's instructions." (7) And if he is found to have violated any of these conditions, the state may send him back to prison, even without new criminal charges. (8) As of 2009, the odds that a California parolee would be returned to prison at least once during a three-year parole term were 70%. (9)

   California has an immediate impetus for reducing the number of parolees sent back to prison: its prison system is dramatically overcrowded and under a federal court order to reduce its inmate population. (10) But even if California's prisons were not overcrowded, its parole policies might be troubling for deeper legal-philosophical reasons. Until recently, the parole revocation process, or "back-end sentencing," (11) had not received the same intensive attention that politicians, voters, and scholars alike have focused upon the "front-end sentencing" that occurs in the criminal courts. (12) As Jeremy Travis has observed, the "truth-in-sentencing" reforms of the 1980s and 1990s made front-end sentencing decisions more public (often involving victim testimony), transparent, and legally constrained. In contrast, back-end sentencing through parole revocations retains all the much-maligned features of the pre-"truth-in-sentencing" regime: it occurs behind closed doors and free of many legal constraints. (13) These findings would be troubling enough if they applied only to technical parole violations, like failing a drug test or missing an appointment. But a final key distinction to understand about California's parole system is that the line between technical parole violations and serious crimes has been blurred. For example, in 2000, Travis found that 78 cases were classified by the California Department of Corrections and Rehabilitation (CDCR) as "homicides," but "handled through the revocation of parole, with a maximum prison sentence of a year, rather than through the traditional prosecution route." (14)

   For this mix of practical and legal-philosophical reasons, experts in recent years have identified back-end sentencing as a pressing reform priority for California, (15) and lawmakers have begun, albeit haltingly, to respond. As a result of this recent scholarly focus, we now know far more than we did ten years ago about how California's parole system works, how it differs from the systems of other states, and how it might be reorganized so as to reduce California's prison population without undermining public safety. In late 2009, the California Legislature took its first steps towards implementing the experts' recommendations with the passage of Senate Bill X3 18. (16) Under this bill, the CDCR is required to assess the risk of each individual inmate upon release, with the lowest-risk parolees being assigned to a new system of "summary" or "non-revocable" parole. These parolees are still subject to search and seizure conditions ungoverned by the Fourth Amendment warrant requirement, but are not subject to traditional parole supervision, and thus cannot be returned to prison for minor violations. (17) Even after these reforms, the percentage of released prisoners kept on full parole supervision in California is expected to be about 85%, which is still higher than any other state, making it likely that parole revocations will continue to be a major driver of prison admissions in California for years to come. (18) But the passage of SB X3 18 at least indicates some legislative recognition of the need for reform in this area.

   There is one perspective, however, that has been missing from the reform-oriented policy discussion on California's parole system. While doing much to fill in our understanding of the system's current operations and ramifications, the discussion has devoted little attention to its origins. Since it dates to 1979, criminologists have assumed that California's policy of keeping nearly all released offenders under parole supervision for up to three years was an adjunct or afterthought to the Golden State's 1976 determinate sentencing reforms. (19) For example, Grattet, Petersilia, and Lin have described California's current parole framework as having been implemented "simultaneously" with its determinate sentencing law. (20) At a higher level of generality, Jeremy Travis's call for a vigorous national discussion about the implications of back-end sentencing presupposes that "the practice of sending parolees back to prisons for new crimes" has not previously been the subject of extensive public debate, and that legislators may be unaware of the punishments that attend parole violations. (21)

   In this Article, I draw on legislative archives to tell a different story about the origins of California's uniquely expansive parole system. California's parole framework was not an afterthought to the determinate sentencing law, it did not escape legislative debate, and its effect on the size of California's prison population was not accidental. To the contrary, the proponents of California's "unusual hybrid" (22) of determinate sentencing with mandatory parole supervision intended and hoped for just the result that policy experts have observed and lamented: that the policy would make it easier to send more offenders back to prison. However, they may not have foreseen just how many more offenders that would be.

   As I will show, back-end sentencing was understood from the beginning as a key feature of California's new parole policy, both by parole officers themselves and by lawmakers. In the late 1970s, the California parole officers' lobby explicitly promoted the use of parole revocation hearings as a substitute for criminal prosecution in cases where, for various reasons, district attorneys were unable or unwilling to press charges. They articulated a vision of a criminal justice system in which constitutional limitations on law enforcement could be worked around through a second-best system of parole supervision. At a moment of great public concern about crime and safety, combined with tightening legal constraints on criminal investigation and prosecution, California's parole officers offered their services to help identify alternative routes for imprisoning dangerous individuals. And in nearly unanimously passing legislation to expand the use of post-release parole supervision, California legislators acquiesced in this vision, whether or not they agreed with it wholeheartedly.

2. SENATE BILL 1057: THE PUBLIC PROTECTION BILL

   Though there have been several legislative modifications to California's parole law and policy over the years, most recently with SB X3 18 in 2009, the basic framework remains that established by Senate Bill 1057, or the Public Protection Bill, which was signed into law by Governor Jerry Brown in September 1978. (23) Sponsored by Senator Robert Presley of Riverside, a former homicide investigator in the Riverside County Sheriff's Department, the bill passed unanimously in the Senate and almost unanimously in the Assembly. It arrived on Governor Brown's desk along with memos from two state bureaucracies: the Department of Corrections, recommending that he sign it, and the Department of Finance, taking a neutral position. Also in the folder were a...