The Not-so-Golden State of Sentencing and Corrections: California's Lessons for the Nation

• DOI: 10.3818/JRP.12.1.2010.133
• Published date: 01 June 2010
• Author: Robert Weisberg
• Date: 01 June 2010
• Subject Matter: Special Issue on Sentencing and Corrections in the States

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The Not-So-Golden State of Sentencing and

Corrections: California’s Lessons for the Nation

Robert Weisberg

Stanford University

* Abstract

California has become the unfortunate poster child of dysfunctionality in American

criminal justice, with most of its prison system under federal court control. From

2006–2008, the Stanford Criminal Justice Center undertook an innovative series

of Executive Sessions to help diagnose California’s problems and proffer solutions.

Participants included a range of high-level state off‌icials, judges, policymakers, and

agency heads, as well as academic experts, and this article synthesizes the consensus

observations of this group. The main symptom of California’s problems is the endless

recycling of offenders through parole revocations back into and out of prison, but

the sources of the problem lie in a poorly coordinated political economy of incarcera-

tion. The system is plagued by regulatory mismatches, failure to collect needed data on

offenders and transmit it eff‌iciently within the system, and irrational externalities and

disincentives that thwart the goal of sound cost-benef‌it analysis. However unusual,

California offers useful lessons for the whole nation, especially the value of seeing the

relationship between the macro governmental structure and the micro level of daily

administrative practice. The key lesson is that retooling the system from the ground

level up can help instill some faith in and momentum for reform.

JUSTICE RESEARCH AND POLICY, Vol. 12, No. 1, 2010

© 2010 Justice Research and Statistics Association

Sp e c i a l iS S u e o n Se n t e n c i n g a n d co r r e c t i o n S i n t h e St a t e S

P

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My goal here may seem paradoxical: to determine what general lessons can be

drawn from a situation that is peculiar, anomalous—indeed, arguably unique. That

situation is the current criminal justice system of California. My method is to exam-

ine that situation through the perspective of an academic experiment here at Stan-

ford, the Executive Sessions on Sentencing and Corrections.1 This program was un-

dertaken by the Stanford Criminal Justice Center (SCJC) in 2007–08 as a sequence

of roundtables with a partly continuous, partly rotating set of participants. The

participants included judges, prosecutors, off‌icials of the California Department

of Corrections and Rehabilitation (CDCR), legislators, sheriffs and police chiefs,

probation and parole leaders, and law and criminology scholars. The focus was

on assessing and improving the sentencing and corrections systems, as well as the

criminal justice system as a whole, in California. SCJC sought to extrapolate and

synthesize professional wisdom about the California criminal justice system with

the goal of serving the interests of reform here and in the nation more broadly.

As explained below, this experiment was conducted at a time of egregious

crisis in the Golden State. But in what might be thought of as an exercise in tonal

counterpoint, we did not make emergency or exigency an explicit premise of the

experiment. Rather, we acted on the premise that our participants would gener-

ate a sober understanding of the institutional dynamics built into the “DNA” of

California criminal justice and would suggest very concrete and politically and

economically plausible reforms. That way, under the political noise of the crisis

debates in the state, we might learn of the deeper explanations of the crisis that

could indeed be generalized to other jurisdictions.

SCJC undertook this effort at a time when California was achieving a some-

what dubious visibility—if not downright infamy—for the condition of its sentenc-

ing and correctional system. The latter part of this often blended phrase “sentenc-

ing and correctional” merited most of the attention, because the most dramatic

event that made California notorious was the federal court intervention that fo-

cused on the state of its prison conditions. But as discussed below, it is precisely

the linkage between sentencing and corrections (and the sub-links between them)

that enables a more holistic look at criminal justice, and that helps us learn lessons

from the California experience.

In this article I review the f‌indings, opinions, and speculations of our Execu-

tive Sessions participants to assess what has gone wrong in California and what

lessons can be drawn from its failures. As I will show, the key lesson to be drawn

from California is the importance of looking at any sentencing and correctional

system as a part of the jurisdiction’s political economy—in large structural terms

but also in ground-level terms involving apparently minor bureaucratic practices.

1 A description of the Executive Sessions and a full set of the reports thereof can be

found at http://www.law.stanford.edu/program/centers/scjc/#library.

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California is all about what economists would call agency costs and externalities

and skewed incentives. Its agencies and branches of and levels of government fail

to communicate with each other, fail to follow each other’s mandates, and reck-

lessly impose costs on each other. California prisons may be unconstitutionally

overcrowded, but it is hard to say that the overcrowding is the result of impris-

oning too many people—because the measure of “too many” is contestable and

because California is not much above the average on that score. Rather, California

has never wanted to pay for all of its prisoners or to take rational steps to ensure

that they do not return after release. Those sad facts are in part due to the unusual

parole system California created decades ago as part of its determinate sentencing

law. But they are also due to the state’s failure to pay for the programs both inside

and outside of prison that might have reduced returns to prison. In turn, that

failure is due in part to a miscoordinated relationship between state and county

and between county and city—especially because the state runs parole but the

counties run probation, and neither talks often enough to the police. And these

miscoordinations are also manifested in the unforeseen and ineff‌icient externali-

ties of cost-shifting among criminal justice agencies, and the state’s abject failure

to f‌ind some way to identify the data most relevant to a convict or inmate and to

ensure that it gets to the right agencies across the state.

No doubt, all of these problems are due in part to governmental f‌laws at the

deepest foundational level, where California’s constitutional structure prevents leg-

is

lative majorities from making cost-benef‌icial decisions. But attributing the trag-

edies

of the criminal justice system to such foundational matters might wrongly

suggest

that only foundational changes can help us progress towards solutions. Our

Execu

tive Sessions also revealed how the political economy of criminal justice in

Califor

nia simultaneously manifests itself at the mundane ground level, where city

police do not bear enough of the cost when they decide how many people to send up

through the courts and to the prisons; where the state does not pay enough of the

cost when its parole system cycles offenders back through county jails and county

services; where prisons irrationally overcharge inmates for the phone calls that might

help their reentry; or when the system chooses to release parolees at downtown bus

stations Friday evenings as if to maximize their chances for quick failure.

As I review how our Executive Sessions helped to unravel these points in the

map of criminal justice, I also hope to convey our participants’ belief that attend-

ing to these ground manifestations of the ecology of a criminal justice system can

reveal highly feasible opportunities for reform that we can achieve while also un-

dertaking a longer-range contemplation of the foundational maladies.

In Part I, I review the particulars of California’s dysfunctionality, how its

strange parole system led to a federal judicial takeover, and how the deep struc-

tural fractures in California’s government have left the state with little f‌lexibility in

achieving reform. In Part II, I consider the case that has been made for establishing

a sentencing commission, a type of agency that has helped other states to f‌inesse

or overcome political obstacles to reform. Then I consider why the short-term