Sentencing Policies and Practices in California: Michael Vitiello

Oxford Handbook Topics in Criminology and Criminal Justice
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https://doi.org/10.1093/oxfordhb/9780199935383.001.0001
Published: 2012 Online ISBN: 9780199935383 Print ISBN: 9780199935383
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CHAPTER
Sentencing Policies and Practices in California 

Michael Vitiello
https://doi.org/10.1093/oxfordhb/9780199935383.013.154
Published: 12 November 2015
Abstract
This chapter traces sentencing policies and practices in California, including the decision to abandon
indeterminate sentencing and the enactment of a sentencing reform statute called Realignment. It rst
discusses California’s sentencing policies and practices from 1970 through the sentencing reductions
driven by litigation in the federal courts and by initiatives that have signaled the voters’ rethinking of
California’s approach to punishment. It then considers how California has reversed the trend toward
longer prison sentences, along with its Three Strikes legislation and its e ect on California’s prison
overcrowding crisis. It examines the declining crime rates in California and whether Three Strikes is
responsible for that downturn; the national trend that has questioned the overuse of incarceration; the
shift of prisoners from state prisons to county jails; and California’s failed e orts to adopt a
sentencing commission in the past and prospects for future reforms. It concludes by looking at
California’s death penalty.
Keywords: sentencing policies, California, Realignment, litigation, prison sentences, Three Strikes, prison
overcrowding, crime rates, incarceration, death penalty
Subject: Penology and Punishment, Courts and Procedure, Criminology and Criminal Justice
Series: Oxford Handbooks
Collection: Oxford Handbooks Online
1. Overview of Californiaʼs Sentencing Policy and Procedure
This essay reviews almost 40 years of sentencing policies and practices in California. Beginning in 1976,
California was among the leaders in abandoning indeterminate sentencing, which had been the prevailing
sentencing policy across the nation for a substantial period (Tonry and Zimring, 1983). At the time, a broad
coalition rejected indeterminate sentencing and the rehabilitative model. In theory, an o ender could be
released from prison when the parole board decided that the o ender was rehabilitated. That could lead to
very long sentences for o enders who committed relatively minor o enses and very short sentences for
o enders who committed serious felonies (Ball, 2009). Many supporters of determinate sentencing
expected a reduction in prison sentences. That did not happen (Dansky, 2008).
As happened elsewhere, rejection of indeterminate sentencing was one of a number of factors that led to the
dramatic rise in the nation’s prison population. Between 1982 and 2000, California’s prison population
increased 500 percent (Gilmore, 2006, p. 7). Even before the great recession, many legislators in other
states recognized that high incarceration rates could not be sustained. Postrecession, the trend away from
mass incarceration has accelerated. Many states, including some deep “red” states, have reformed their
sentencing policies and practices with an eye toward lowering incarceration rates and reducing recidivism.
Outside of California, a broad political consensus has again emerged, now calling for sentencing reforms to
limit high incarceration rates (Vitiello, 2011).
The situation in California is more complicated. For years when crime rates increased, the California
legislature created what one commentator has called “drive by” sentencing laws (Dansky, 2008). Whenever
the media highlighted a particularly heinous crime, the legislature added a new sentencing enhancement in
response to press coverage (Dansky, 2008). California’s sentencing scheme is now so complicated that
many lawyers and judges use a computer program to determine the correct sentence (Vitiello and Kelso,
2004). California’s Three Strikes law is only the most famous of those kinds of sentencing enhancement
laws. Less than a decade ago, California’s prisons were at 200 percent of their capacity (Cohen, 2011). They
so exceeded capacity that even the powerful prison guards’ union recognized the risk to their members and
to inmates. In sheer numbers, the state’s total prison population exceeded 160,000 inmates and the state
spent more on prisons than on higher education (Shelden, 2010).
In recent years, California has seen a drop in its prison population (Mauer and Ghandnoosh, 2014). Whereas
some states have reduced prison populations through coherent sentencing reforms, California’s sentencing
reductions have been driven by litigation in the federal courts and by initiatives that have signaled the
voters’ rethinking of California’s approach to punishment. Governor Brown and the legislature have been
slower to respond (Vitiello, 2014).
Governor Brown and Democrats in the state legislature nally enacted a sentencing reform statute, called
Realignment, shortly before the Supreme Court supported a three-judge federal court order forcing the
state to reduce its prison population to 137.5 percent of capacity. Brown and the legislature have resisted
further changes to California’s sentencing policies and practices, despite pressure from the three-judge
panel to create a more permanent solution (New York Times, 2014a; Los Angeles Times, 2013).
At the same time, the voters have approved initiatives modifying the Three Strikes law and recharacterizing
some felonies as misdemeanors. While the voters seem open to sentencing reform, to date, voter initiatives
have exacerbated the complexity of California’s sentencing scheme (Taibbi, 2013).
Part two of this chapter discusses California’s sentencing policies and practices since the abandonment of
indeterminate sentencing between 1976 and recent years when California has reversed the trend toward
longer prison sentences. Because California’s Three Strikes legislation has been such an important
subchapter in mass incarceration in California, part three describes that legislation and its e ect on
California’s prison overcrowding crisis separately. Part four discusses declining crime rates in California
and explores whether Three Strikes (and incarceration generally) is responsible for that downturn. Part ve
deals with the national trend that has questioned the overuse of incarceration that has led to mass
incarceration. Part six explores the federal litigation that has resulted in the reduction of the state’s prison
population. Part seven includes a discussion of the state’s modest reforms in response to the federal
litigation. That discussion includes a brief description of a number of voter initiatives that have modi ed
some severe sentencing laws, leading to an even more byzantine sentencing scheme. It also examines one of
the e ects of Realignment, the shift of prisoners from state prisons to county jails. Part eight discusses
California’s failed e orts to adopt a sentencing commission in the past and considers prospects for future
reforms. Part nine addresses California’s death penalty. At least as of the date of publication of this chapter,
California remains resistant to wholesale sentencing reform and continues to spend a great deal on a system
that seems not to produce good results.
2. 1970 Through the Federal Court Litigation
In 1976, Governor Brown signed the Determinate Sentencing Law (Johnson, 1977). For many o enses, the
law created three de ned terms of imprisonment for each o ense. The court was to pronounce the medium
term unless facts suggested reasons to give the lower or higher term of imprisonment. For example, an
o ender convicted of rst degree burglary is to be imprisoned for two, four, or six years; an o ender found
guilty of certain rst degree robberies is subject to a term of imprisonment of three, four, or six years (Cal.
Penal Code sec.1170-1170.91).
The law was premised on what was then the emerging view that the goal of prison was punishment, not
rehabilitation, the goal under indeterminate sentencing. The new penological philosophy was re ected in
Section 1170 of the California Penal Code, the legislation that put determinate sentencing in place. Not only
was the purpose of a criminal sentence punishment, but also the law focused on the o ense, not the
o ender. In addition, proponents believed that determinate sentencing would advance other important
goals, including eliminating unwarranted disparity in sentencing, increasing transparency in sentencing,
and eliminating the e ects of class and race on the length of prison sentences. Many proponents of
determinate sentencing believed that the law would lead to shorter prison sentences (Dansky, 2008).
The goals of proponents of determinate sentencing were not achieved. Over at the least the next two
decades, the legislature made numerous changes to the California sentencing that lengthened prison
sentences. During a period when crime rates were rising, or when the public believed that crime rates were
rising, legislators attempted to outdo one another by appearing toughest on crime. They lengthened
sentences in a number of ways: most frequently, the legislature enacted sentence enhancements, often
responding to a high-pro le crime. For example, the legislature created a special sentence enhancement for
o enders who shot at an intended victim from a vehicle. Over a 7-year period, between 1984 and 1991, the
legislature passed over 1,000 crime bills, with many of them enhancing criminal sentences (Vitiello and
Kelso, 2004, p. 921). The legislature also created new crimes based on high-pro le cases, often with severe
punishments. Car-jacking provides just one example (Cal. Penal Code sec. 186.22; 12022.53).
Further, the legislature also limited judges’ discretion in imposing sentences; for example, certain
enhancements are mandatory. In 1996, supporters of California’s Three Strikes law successfully backed
California’s 10-20-life law, which demonstrates both an extreme sentence enhancement law and a
mandatory minimum sentence provision (Cal. Penal Code sec. 12022.53). The law imposes a mandatory
minimum of 10 years if an o ender used a gun in the commission of a crime; it adds a mandatory minimum
sentence of 20 years in prison if the o ender discharged the weapon during the crime; nally, the law adds
an additional 25-years-to-life to an o ender’s sentence if the o ender was convicted of a crime in which a
weapon was red and the victim was seriously injured or killed (Cal. Penal Code sec. 12022.53).
People v. Brown demonstrates how California’s sentence enhancements can lengthen an o ender’s sentence.
There, a 17-year-old with no prior criminal record was charged with shooting a weapon at the victim. The
victim received a relatively minor wound, a shot in the buttocks, resulting in the loss of three or four days of
work. The defendant was convicted of assault with a semiautomatic rearm. His sentence was for a term of
5 years, but because the prosecution charged the juvenile as an adult and invoked a provision of the 10-20-
life law the judge was required to impose an additional term of imprisonment of 25-year-to-life (Cal. Penal
Code sec. 12022.53). The mandatory minimum sentence must run consecutively, leading to a minimum term
of 30 years in prison (People v. Brown, Cal. App. Unpub. Lexis 8154 [2013]).
One e ect of enactment of so many sentencing enhancements has been to make sentencing ridiculously
complex. Judges and attorneys often resort to a computer program to determine the correct sentence for a
particular o ender (Vitiello and Kelso, 2004). Sentencing errors by trial courts has been wasteful, resulting
in frequent appeals, often resulting in the reversal of the sentence by an appellate court (Vitiello and Kelso,
2004).
Even without consideration of Three Strikes, the e ects of all of the legislative activity were several.
Importantly, California’s sentencing seems to have no overarching theory of punishment. Enhancements
for one kind of conduct may have been premised on the belief that longer sentences would deter that
particular conduct (Zimring, Hawkins, and Kamin, 2001). But enhancements often lead to anomalies: for
example, in People v. Brown, had the o ender gotten out of his vehicle, walked up to his victim, and shot him
to death impulsively, he would be subject to a term of 25-years to life for second degree murder. Similar
examples of anomalous results under California’s sentencing scheme are not hard to nd (Zimring, 2014).
The e ect of California’s resort to sentence enhancements not only led to increasingly long sentences for
o enders, but it also has had signi cant e ects on California’s budget. Lengthening sentences led to a
larger prison population and forced construction of many new prisons (Lagos, 2011).
Yet another less visible e ect of prison construction was the need for more prison guards. Their union, the
California Correctional Peace O cers Association (CCPOA), would become a force to reckon with during the
1980s under union leader Don Novey. As the union expanded, so did it nancial resources that union
o cials used e ectively to in uence criminal justice policy, including sentencing laws (The Economist,
2010).
Even without Three Strikes, a law that Frank Zimring, Gordon Hawkins, and Sam Kamin have called “the
largest penal experiment in American History,” California’s experiment with determinate sentencing led to
longer prison sentences, increased prison population, and more prisons (Zimring, Hawkins, and Kamin,
2001, p. 22). The cost of corrections was taking up an extraordinary percentage of undedicated funds in the
state’s annual budget. But then, along came Three Strikes.
3. Three Strikes in California
Habitual o ender statutes have a long history in the United States (Zimring, Hawkins, and Kamin, 2001).
Despite questions about such statutes, including their e cacy and, at least in limited instances, their
constitutionality, a particular version of habitual o ender statutes took the nation by storm in the early
1990s. Driven by concern about high crime rates and recidivism rates, Washington adopted its version of
three-strikes legislation in 1993. Over the next decade, over half of all states and the District of Columbia
had such laws on the books. No state’s law, however, compared to California’s law in several respects
(Zimring, Hawkins, and Kamin, 2001).
The legislative history that led to the passage of California’s Three Strikes provides a glimpse into the law’s
staying power and some of its draconian provisions.
In 1992, a career criminal murdered Kimber Reynolds during a robbery. Mike Reynolds, the victim’s father,
solicited the help of James Ardaiz, a Fresno area appellate justice in drafting the original version of
California’s Three Strikes law. Despite sponsorship by Fresno Republican Assemblyman Bill Jones, the
legislation, A.B. 971, went nowhere (Vitiello, 1997).
Even with backing from the National Ri e Association and the CCPOA, Reynolds’ e orts stalled. But an
unrelated event would change that. Richard Allen Davis, a repeat o ender, kidnapped Polly Klaas from her
home. Her family was able to draw attention to her case before her fate was discovered. Her case gained
national attention; when the public learned that her murderer was a repeat o ender, passage of Three
Strikes was almost guaranteed. Prior to the discovery of her murder, Reynolds had been able to secure only
about 20,000 signatures to get Three Strikes on the ballot. That changed quickly after her death was
discovered and after Polly’s father signed Reynolds’ petition (Vitiello, 1997).
The legislature had under consideration other versions of the Three Strikes, which were less sweeping than
was the Reynolds’ ballot initiative. For example, the California District Attorneys’ Association backed a
more modest bill, more in line with Three Strikes law(s) elsewhere. Instead of exposing themselves to the
claim of being soft-on-crime, the legislature sent Governor Pete Wilson ve bills, thereby giving him the
choice of which bill to sign. He signed Reynolds’ bill into law. Distrustful of the legislature, Reynolds refused
to withdraw his ballot initiative. It passed overwhelmingly. Both the initiative and AB 971 include a
provision requiring a supermajority in case the legislature hopes to modify the law (Vitiello, 1997).
Despite being part of a trend, California’s law adopted the most extreme version of a three-strikes law. Less
visible was the fact that California’s law is a two-strike law as well. Under the second strike provision of the
law, many o enders have their prison terms doubled if they are being sentenced as repeat o enders. As
observed in Punishment and Democracy, “Ninety percent of the prison sentences imposed under the
authority of Three Strikes law were second-strike sentences” (Zimring, Hawkins, and Kamin, 2001, p. 219).
The e ect on the prison population has been signi cant.
Even a comparison of the third-strike provisions in California’s law with those in other states demonstrates
the severity of California’s law as originally written. Most notably, most states require that the o enses
qualifying as strikes be violent felonies. By contrast, California included residential burglary as a strike-
o ense. Its inclusion expanded signi cantly the number of o enders who would become eligible for a
third-strike sentence. Unlike the laws elsewhere, California law provided that an o ender with two
qualifying o enses could be sentenced to a minimum term of 25-years-to-life upon conviction of any
felony (Vitiello, 1997, p. 430).
While California’s law includes other unique provisions, the three provisions described above led three
commentators to describe California’s law as “the biggest penal experiment of its kind in modern American
history” (Zimring, Hawkins, and Kamin, 2001, p. 22). Within two years of the passage of Three Strikes,
California already had 26,074 prisoners sentenced under its law, by comparison to Washington, the rst
state to adopt a three-strikes law (Zimring, Hawkins and Kamin, 2001, p. 19). Washington had 85 prisoners
sentenced under its law (Zimring, Hawkins and Kamin, 2001, p. 19).
4. Declining Crime Rates
Given the obvious e ect that California’s Three Strikes’ law had on the prison population, its proponents
needed to justify the law. As described by a number of commentators, the law lacks a coherent penal theory.
The initiative’s proponents advertised the law as a way to put “rapists, murderers and child molesters
behind bars where they belong” (California Ballot Pamphlet, 1994; Vitiello, 1997). Seemingly, the law was
aimed at violent o enders, whose long sentences under the law would be proportionate to their crimes. That
is not how the law works in many instances.
As argued in Punishment and Democracy, third-strike sentences are often inversely disproportionate to the
o ender’s culpability (Zimring, Hawkins, and Kamin, 2001, p. 121). Zimring and his coauthors made the
point as follows: a person sentenced for rape under California’s determinate sentencing law would receive a
term of 6 years in prison, the middle term provided by the law. The sentence under the Three-Strikes law
for a third-time felon—a minimum term of 25 years—would be about four times as long as it would have
been but for the new law. Contrast that to an o ender whose third strike was a second-degree burglary. That
o ender’s sentence would be a year in prison. His sentence under Three Strikes would be 25 times the
length of his sentence under the determinate sentencing law (Zimring, Hawkins, and Kamin, 2001, p. 121).
Even more extreme than those examples was the case of a felon whose third felony was petty theft. Under
California law in e ect at the time, a prosecutor had discretion whether to charge petty-theft-with-a-prior
as a misdemeanor or as a felony. Thus, as counsel for Leonardo Andrade argued before the Supreme Court,
his client could have been sentenced to as little as six months in jail or, because he was charged with two
acts of theft, as much as 50-years-to-life, the sentence actually imposed (Vitiello and Kelso, 2004).
By comparison, the two-strikes provision is based on a principle of proportionality: the second-strike

sentence doubled the available sentence for the underlying o ense. Hence, a burglar receives a sentence
twice the length of a rst-time burglar. Hence, the second-strike o ender who committed a second-degree
burglary would receive a two-year prison term. A repeat o ender who committed a second rape would
receive a twelve-year term of imprisonment (Zimring, Hawkins and Kamin, 2001, p. 17).
Beyond a lack of coherent theory of punishment within the law, Three Strikes violated California’s
determinate sentencing law. Section 1170 of the California Penal Code provides that imprisonment should be
for punishment, which is best served “by terms proportionate to the seriousness of the o ense with
provision for uniformity in the sentences of o enders committing the same o ense under similar
circumstances” (Zimring, Hawkins, and Kamin, 2001, p. 113). A number of cases that were widely reported
after the passage of Three Strikes made clear that the very long prison terms imposed on third strike
o enders had little to do with the seriousness of the o ense. Thus, in cases like the one involving the theft
of a slice of pizza, courts were imposing sentences of 25-years-to-life on o enders whose third strikes
involved felonies that were, in the hierarchy of criminal conduct, quite minor (New York Times, 1995).
The law’s proponents promised massive savings because of projected reductions in crime. Critics suggested
that the proposed savings were illusory. But the proponents seemed to have won the debate when they were
able to point to what seemed like sharp declines in crime rates that seemed to be a result of the passage of
the law. Indeed, e orts to reform the law have been made more di cult because of the perception that the
law led to the decline in crime rates (Zimring, Hawkins, and Kamin, 2001).
Three Strikes was supposed to work by targeting the group of high-rate o enders who commit an
extraordinary number of crimes. In theory, incapacitating those o enders causes a sharp decline in the
crime rate. Further, increased sentences should deter o enders who are contemplating committing more
crimes. The early data seemed to support the proponents’ view. Anecdotal evidence suggested that the law
got the attention of inmates, who understood the risk of ever-increasing sentences under the law. Bill Jones,
the Secretary of State, who as an Assemblyman had introduced Mike Reynolds’ bill, pointed to data that
showed that more parolees were leaving the state than were entering the state. By 1998, the Attorney
General’s o ce published a report nding that a sharp decline in six major violent crime categories
(Zimring, Hawkins, and Kamin, 2001, p. 86). In fact, according to that o ce, that was California’s “largest
overall drop in crime in any four-year period in history with double digit drops in every major crime
category between 1994 and 1997” (Zimring, Hawkins, and Kamin, 2001, p. 86).
Three Strikes’ most visible proponents claimed that the new law was the cause for most, if not all, of the
drop in crime rates. Justice James Ardaiz, the judge who helped Mike Reynolds in drafting the law, summed
up the e ects of the law as follows: “Where there are a number of explanations for a given result, the
simplest explanation is usually correct. The Three Strikes Law is that explanation” (Ardaiz, 2001, p. 36).
Importantly to supporters of the law, declining crime rates in California led the decline in crime rates
elsewhere. Thus, it was the severity of the Three Strikes—not other factors that might be in play—that
caused the decline in crime (Zimring, Hawkins, and Kamin, 2001).
Empirical evidence actually suggested otherwise. Even at the time, the nationwide comparison was not as
convincing as argued by the Three Strikes’ proponents. For example, New York had the sharpest decline in
crime rates. Years later, as New York City’s crime rates continued to decline, one prominent commentator
observed that nding the explanation for its crime decline did not lend itself to a single simple explanation
(Zimring, 2012). But even in the late 1990s, New York’s drop in crime could not be explained by increased
incarceration rates. For example, it was one of the states that did not adopt a Three Strikes’ approach (US
Department of Justice, 1995).
Also challenging the proponents’ good news about the e ects of Three Strikes was an examination of
county-by-county data within California. The law gave local prosecutors discretion as to whether to charge
an o ender under the law. Counties have from the beginning varied in their use of Three Strikes. Data
showed that the six counties that used Three Strikes least frequently experienced a drop in crime in excess
of 21 percent by comparison to the counties using it most aggressively. The latter experienced a decline in
crime of only 12.7 percent (Vitiello 2002, p. 2).
The Three Strikes’ proponents’ explanation would be more seriously eroded by an extensive empirical
research e ort of three researchers and reported in Punishment and Democracy. The authors of Punishment
and Democracy rebutted the central claim of Three Strikes’ proponents, who argued that crime rates were
rising until the enactment of Three Strikes, when crime rates turned downward precipitously. The authors
observed that the Attorney General’s report had aggregated four-year periods: thus, the report found that
crime was rising through the years 1990–93 and then, with the passage of Three Strikes in 1994 (and from
1994–97) the crime rates began their sharp decline. By disaggregating those four-year periods and looking
at six-month intervals, the authors found that crime rates peaked in 1992 and even before passage of Three
Strikes had started their decline. Further, the rate of decline did not change with the passage of Three
Strikes (Zimring, Hawkins, Kamin, 2001, p. 88).
Punishment and Democracy examined an assortment of other data, for example, comparing major cities in
di erent regions of the country (Zimring, Hawkins, and Kamin, 2001). Each comparison suggested that the
decline in crime rates in California preceded passage of Three Strikes and paralleled trends in states that did
not adopt the three-strikes approach to crime control.
Examination of arrest data for felons in three major cities in California also led the authors of Punishment
and Democracy to question the claims of the law’s supporters. Their ndings indicated the law did not lead to
imposition of second- and third-strike sentences on felons committing violent crimes. Instead, no-strike
or one-strike felons were more likely to be arrested for violent o enses than were o enders within the
law’s provisions. Given that California already had in place long sentences for many of the most serious
crimes, the net e ect of the Three Strikes law was that the law most likely applied to aging felons who were
not particularly violent o enders (Zimring, Hawkins, and Kamin, 2001).
Punishment and Democracy also considered whether incapacitation could explain whatever decline in the
crime rate might have resulted from enactment of the law. The authors rejected that conclusion: after all,
many of the o enders in prison on third-strike sentences would have been in prison even without the law in
place. They concluded that any deterrent e ect of the law would have been modest at best (Zimring,
Hawkins, and Kamin, 2001).
Other studies raised questions about the e cacy of the Three Strikes law. Many commentators raised
serious questions about the law and argued that the law was bad as a matter of philosophy and policy
(Domanick, 2008; Staples, 2012; Gross, 2013). Despite strong reasons to question the law and California’s
overuse of incarceration, reform e orts have been slow to take e ect. Indeed, only two years after passage
of Three Strikes, the coalition that got Three Strikes enacted successfully lobbied for passage of California’s
10-20-life law, discussed earlier (Zimring, Hawkins, and Kamin, 2001, p. 140).
For many years, Californians did not have to make hard choices about whether to expand its prison
population. Its economy was strong enough to absorb the rapidly increasing prison budget. Despite
academic criticism, the widely held view was that the law was working. Some Californians did take note of
the fact that the prison budget was about to exceed California’s budget for higher education. By the mid-
2000s, its prison population was about 170,000. At a cost of over $45,000 to house each inmate, by 2010 the
cost of the prison system was about $8 billion, a billion more than the budget for higher education (Shelden,
2010).
One might ask why the legislature did not take action to stem the increased cost of California’s prison
system, especially in years when California began to experience budget di culties. That question is
explored in more detail in the next section. During the 2000s and 2010s, the legislature considered various
proposals for sentencing reform. For example, in 2003, a Senate committee conducted hearings on the
state’s aging prison population (Senate Committee on Public Safety, 2003). Through the years, the
legislature has considered various proposals to adopt a sentencing commission and sentencing guidelines.
Those e orts have gone nowhere. The reasons for California’s resistance to change are also explored.
As will be shown, the trend towards increased use of incarceration has slowed in California. But unlike
developments in other states, reform has not been smooth in California.
5. Overuse of Incarceration: A New National Trend
The movement that led to the abandonment of indeterminate sentencing spanned a broad political
consensus. But by the late 1980s, when the federal sentencing guidelines were in place, critics recognized
that sentencing reform had led to the lengthening of prison sentences, contrary to the expectations of many
participants in the reform movement. The consensus unraveled at around the time that President Reagan’s
War on Drugs led to lengthening sentences and to even more racial disparity in sentencing (Vitiello, 2011, p.
1276).
Further, many who urged abandonment of indeterminate sentencing and the rehabilitative model pointed
to the widely held view that rehabilitation did not work. That conclusion was supported by the work of
prominent sociologist Robert Martinson, which was often cited for the view that, when it comes to
rehabilitation, “nothing works” (Martinson, 1974). Apart from the fact that his 1974 essay was miscited for
that view, by 1979, Martinson published an article in which he retracted some of his earlier conclusions and
pointed to programs that did seem to work (Martinson, 1979). Other scholars weighed in as well, pointing to
successful programs around the country (Vitiello, 1991).
Not only were scholars rethinking the new model retributive criminal sentencing, so, too, were
policymakers. Even before the recession, many states were rethinking sentencing policy. Some
policymakers recognized that they needed to make better use of limited prison resources by assuring prison
space was available for younger violent felons, rather than older nonviolent felons (Senate Committee on
Public Safety, 2003). Others recognized a crisis posed by the aging prison population: older felons are far
more expensive to warehouse because of their medical needs than are younger felons, and felons usually
represent a lesser social threat as they age (Vitiello and Kelso, 2004, p. 946). Diverse states like Minnesota,
Virginia, and North Carolina developed e ective sentencing commissions and guideline systems. Often,
those states were able to reduce prison costs while maintaining public safety (Weisberg, 2011).
Liberal and centrist organizations began raising concerns about sentencing policy. Representative of the
change in the debate in the early 2000s is the American Bar Association’s Kennedy Commission. In 2003,
Justice Kennedy delivered a speech to American Bar Association members at the association’s annual
meeting. Kennedy argued that the nation spent too much on prisons; that punishments were too severe and
sentences too long. He criticized mandatory minimum sentences and reduced judicial discretion in
sentencing. The ABA appointed the Kennedy Commission to study the issues that the justice raised. The
commission made recommendations, adopted by the ABA. Among the recommendations are the
abandonment of mandatory minimum sentences; the adoption of alternatives to incarceration for some
o enders; and the assessment of the nancial impact of proposed criminal justice legislation (American Bar
Association, 2004).
Over the past decade, similar reports have proliferated. By the mid-2010s, reports critical of mass
incarceration have become commonplace. Organizations like the Vera Institute for Justice and the PEW
Charitable Trusts have published studies about sentencing issues. Both institutions have joined the growing
majority of observers who urge reform and point to reforms that have worked around the country (PEW
Charitable Trusts, 2014; Subramanian and Delaney, 2014). In 2014, the National Academy of Sciences
published its widely praised report The Growth of Incarceration in the United States: Causes and Consequences.
Its ndings and recommendations demonstrate overlap with recommendations advanced by other
prominent organizations (Travis et al. 2001).
A consensus across a broad coalition has formed calling for sentencing reform, similar to the broad coalition
that supported adoption of determinate sentencing. Indeed, the call for reform also comes from prominent
conservatives. Right on Crime is a website calling for many reforms urged by liberals and centrists. Its
membership includes many prominent conservatives, including Newt Gingrich, Ed Meese, Rick Perry, Jeb
Bush, and Grover Norquist (Right On Crime, 2015). Presidential candidate Rand Paul has called for
sentencing reform, as has President Obama (Simons, 2010; New York Times, 2014b) More recently,
Republican Presidential candidate Carly Fiorina urged that the government stop overreacting to illegal
drugs. She contends that three-strikes laws don’t work and has expressed concern about the
disproportionate e ect of drug laws on the African American community (Jacobs, 2015).
Elsewhere, recession has accelerated the call for sentencing reform at a time when it is politically feasible.
Crime rates are at historic lows in many communities; voters no longer include crime as a top priority. Many
policymakers now seem genuinely committed to the concept of smart-on-crime, rather than tough-on-
crime (Petersilia and Cullen, 2015).
Reforms have occurred in states across the political spectrum. Deep red states like Texas and Georgia have
adopted a variety of reforms intended to reduce incarceration and recidivism. New York has revisited its
mandatory minimum sentencing laws, including applying changes to the law retroactively to bene t
prisoners sentenced prior to the reform (Can eld, 2009). The federal government adopted the Second
Chance Act in 2008, providing increased funding for reentry programs, and the Fair Sentencing Act in 2010,
reducing the disparity between sentences for powder and crack cocaine (Pub. L. No. 110-199, 110th Cong.,
April 9, 2008; Pub. L. No. 111-220, 111th Cong., August 3, 2010).
Most recently, the Alabama legislature overwhelmingly passed legislation to address prison overcrowding
with greater resources for parole, probation, and other changes designed to reduce its prison population
from 186 percent of capacity to 138 percent by 2020 (Lyman, 2015).
Not all states have experienced a reduction in their prison populations. But some have made signi cant
progress. Between 1999 and 2012, New York and New Jersey reduced their prison populations by 26 percent.
Encouraging for those supporting prison reform generally, those states reduced their prison populations
and their crime rates at the same time. The crime rates in both states dropped at a rate faster than the
national average (Mauer and Ghandnoosh, 2014, p. 1).
New York and New Jersey are hardly unique though in reducing prison population. According to the PEW
Charitable Trusts, more than half of all states have reduced prison populations between 2007 and 2012 (PEW
Charitable Trusts, 2014). Several states have closed prisons. According to Professors Petersilia and Cullen,
these trends are signi cant because they re ect true changes in policymakers’ beliefs about the use of
prison as the only response to criminal conduct. They believe that the nation has reached the “tipping
point” toward real change: “For so long, mass imprisonment had been the governing policy of
corrections…. Seemingly overnight, its hegemony was shattered, and downsizing quickly emerged as its
replacement” (Petersilia and Cullen, 2015, pp. 6–7).
Commentators have written about the media’s role in ramping up the public’s fear about crime, even in
periods when crime rates are down. After all, crime sells (McShane and Williams, 2007). But a measure of
the change in perceptions about the overuse of incarceration can be seen in the number of articles appearing
in prominent media outlets, highlighting mass incarceration. Anyone who subscribes to the Feedblizt, a site
that features articles about sentencing law and policy, routinely nds such articles. For example, on May 7,
2015, the site featured three articles dealing with the issue: one article was entitled Mass Incarceration: “The
Silence of the Judges”; a second, “Unequal Justice: Mobilizing the Private Bar to Fight Mass Incarceration”; and a
third, “Inspector General Report Highlights Problems Posed by Aging Federal Prison Population” (Berman, 2015;
Rako , 2015; Ryan, 2015).
These developments invite a question: What about California? After all, at various times, it has had the
largest prison population in the United States. As developed next, California has only tepidly joined the
national trend toward reform.
6. The Federal Court Litigation
According to a report published by The Sentencing Project, California is doing a good job in reducing its
prison population. California is among the leaders in reducing its prison population while its crimes rates
continue to decline at rates exceeding the national average. But the state’s elected o cials cannot take
much credit for those gains. Also, whether California has achieved a long-term solution to prison
overcrowding is an open question (Mauer and Ghandnoosh, 2014).
Unlike other states that are putting in place prison reforms, California’s reforms have been driven by a panel
of three federal judges. Faced with a ballooning prison population and a growing corrections’ budget, over
time, the legislature has considered several proposals to adopt a sentencing commission. Those proposals
have gone nowhere. Even after conducting hearings about the projected costs of warehousing its aging
prison population, the legislature has done little to ameliorate that problem—it refused to adopt a
signi cant early release-program for older prisoners, despite proven success of such programs elsewhere
(Senate Committee on Public Safety, 2003).
In 1990, attorneys for mentally ill prisoners led a class action suit against the state. The suit claimed that
the delivery of mental health care in the state prison systems was so poor that it amounted to a violation of
the Eighth Amendment’s prohibition against cruel and unusual punishment. The district court adopted
most of a magistrate’s ndings in favor of the plainti s in 1995. At the core of the ndings was a
determination that much of the inadequate care resulted from chronic understa ng of health care
professionals. The court also appointed a special master to oversee the remedial phase of the litigation. Over
the course of about a decade, until 2006, the state made small gains, followed by reversals of those gains
(Coleman v. Schwarzenegger, 922 F. Supp. 2d 882, 898 [2009]).
The mental health litigation would eventually be consolidated with a second class action suit led in 2001.
That suit alleged that prison medical care also violated the constitution, as well as violating the Americans
with Disabilities Act. The parties agreed to a stipulated injunction requiring new policies and procedures to
be implemented on a staggered basis (Coleman v. Schwarzenegger, at 891).
The state failed to meet its obligations under the settlement. According to the district court, by 2005, not a
single prison was in full compliance with the agreed-upon plan. As a result, the court appointed a receiver to
take over the prison health care system. Despite appointment of the receiver, overcrowding got worse,
culminating with a prison population of over 170,000 in 2007. The plainti s in both suits moved for
appointment of a three-judge panel. That panel eventually ordered the state to reduce the prison population
to 137.5 percent of design capacity. A divided Supreme Court a rmed that order (Coleman v. Schwarzenegger
at 1003–1004).
Since the order was a rmed, the state has made progress toward meeting the court’s order. In light of that
progress, the state has gotten an additional extension of time in which to meet the court’s order (Brown v.
Plata, 131 S. Ct. 1910 [2011]).
Prior to a rmance in the Supreme Court, but largely in anticipation of the Court’s decision, California
enacted Realignment (Cal. Penal Code § 17.5(b) [West 2014]). As developed next, some politicians heralded
Realignment as a bold step toward addressing California’s prison crisis (Smith, 2011). But the jury is still
out. The three-judge panel has urged the state to adopt a more permanent solution to address the long-
term issues. Presumably, that might include a sentencing commission. California has thus far not done so.
That leaves open a di cult issue: the three-judge panel may dissolve the injunction once the state is in
compliance with its order; but once that occurs, what assures future compliance with the order? Without a
more permanent system in place, will California merely slide back into overuse of incarceration? Those
questions are explored next.
7. Californiaʼs Modest Reforms
California’s voters have signaled that they are interested in sentencing reform. After one e ort to reform
Three Strikes failed in 2004, the voters adopted a more modest initiative in 2012. Proposition 36 narrowed
the sweep of Three Strikes by requiring in most cases that the third strike be a serious or violent felony, as
long as the o ender’s rst two strikes did not involve rape, murder, or child molestation (Cal. Penal Code
sec. 667, 667.1, 1170.25, 1170.126 [West Supp. 2014]). In 2014, they adopted Proposition 47. That law
reclassi ed certain non-serious, non-violent felonies as misdemeanors, unless the o ender has prior
convictions for murder, rape, certain sex o enses, or certain gun crimes (Cal. Gov’t Code 7599-7599.2;
Penal sec. 1170.1; and codi ed as amended Penal sec. 459.5, 473, 476a, 490.2, 496, 666, 8; Health and Safety
sec. 11350, 11357, 11377 [West Supp. 2014]). As developed next, these initiatives, while demonstrating a new
attitude among voters, have not led to overall sentencing reform. Politicians might interpret these
initiatives as signaling a new mood among California voters, now more open to reform.
The legislature’s primary response to its sentencing crisis has been the adoption of Realignment. But has
Realignment improved California’s sentencing scheme? Governor Brown called the statute that “boldest
move in criminal justice in decades” (Smith, 2011). Nonetheless, many commentators remain skeptical
(Breton, 2014; Vitiello, 2014).
The law has three goals: it hopes to reduce recidivism, to reduce the costs of maintaining the prison system,
and to maintain public safety. Despite misperception by some members of the public, the law did not require
release of any felons currently in state prison. Instead, it stemmed the ow of inmates to state prison. Most
non-violent and low-level o enders, if incarcerated, serve time in county jails. Shifting incarceration of
drug and property o enders to the counties means that over half of all o enders avoid state prison time
(California Department of Justice, 2010).
Realignment is supposed to do more than merely shift o enders from state prisons to county jails. It is
supposed to limit recidivism by expanding resources available for rehabilitation. As stated by the statute,
“The purpose of justice reinvestment is to manage and allocate criminal justice populations more cost-
e ectively, generating savings that can be reinvested in evidence-based strategies that increase public
safety while holding o enders accountable” (Cal. Penal Code sec. 3450.7). Moving prisoners closer to home
should, according to the law, make rehabilitation more likely (Medina, 2011; St. John, 2014).
Each county is required to create a Community Corrections Partnership. That group, consisting of various
stakeholders (including law enforcement, public defenders, and prosecutors), must develop a
comprehensive plan to achieve the goals of Realignment. The law leaves a great deal to the discretion of
each county (Cal. Gov’t Code sec. 30026[a] [West Supp. 2014]). Thus, San Francisco County has adopted
policies aimed at nding alternatives to incarceration. (In fact, San Francisco County reports available jail
space where prior to Realignment those cells were lled; City and County of San Francisco, 2014). By
contrast, other counties are free to use Realignment funds to build more jail cells. Some of the more
conservative counties have predictably done so (Lin and Petersilia, 2013).
Realignment has led to an immediate decline in the state prison population. As mentioned previously, the
Sentencing Project Report indicates that California accounts for over half of the nationwide decline in prison
population (Mauer and Ghandnoosh, 2014). The sharp decline probably explains the willingness of the
three-judge panel to give the state more time to comply with its order. Despite early positive returns,
whether the law can deliver on its long-term goals is less certain.
Depending on how a county uses its Realignment funds, the net e ect of the law may merely be the
movement of prisoners from state to local facilities. Despite the overall decline in prison population, the
total number of jailed o enders in California has not (unsurprisingly) dropped nearly as sharply when jailed
inmates are counted (Bureau of Justice Statistics, 2013).
In the long term, the federal judges overseeing the prison system do not seem overly impressed with the
law. In its February, 2014 order, which extended the date for compliance with the earlier order of reducing
the total prison population to 137.5 percent of capacity, the judges wrote:
In the four and a half years between our 2009 order and the date of this opinion, defendants have
instituted only one signi cant measure to relieve overcrowding in California’s prisons:
“Realignment,” … . Apart from Realignment, defendants have taken no signi cant steps toward
reducing the prison population and relieving overcrowding despite repeated orders by this Court
requiring them to do so.
(Coleman v. Brown, court order February 10, 2014, p. 2)
That is not a ringing endorsement of the law.
At issue also is whether the law really can work by shifting responsibility to the counties. In theory, counties
will experiment and develop best practices for reducing costs and recidivism, thus leading other counties to
follow suit. That conclusion seems overly optimistic. The experience with Three Strikes suggests that law-
and-order counties will opt for jail cells, not rehabilitation, thus leading to continued overuse of
incarceration as the answer to crime. Public o cials who have run on a strong law-and-order platform are
highly unlikely to admit the error of their ways and confess that tough-on-crime does not work (Yoder,
2011).
Data have started to emerge and suggest that, while the overall e ect of Realignment is a signi cant
reduction in the state prison population, the problem of overcrowding has shifted to the counties. County
jails have become more populated since the implementation of Realignment. Although the state prison
population declined, the population in county jails increased because county jails absorbed the
responsibilities for many lower-level o enders. The Public Policy Institute of California reported that
“between September 2011 and September 2013, the state prison population declined by roughly 27,000
inmates. Concurrently, the population of county jails throughout the state increased by roughly one-third
this amount, or about 9,000 inmates” (Lofstrom and Raphael, 2013, p. 3). Realignment has decreased
California’s overall incarceration rate by 9 percent (prisons and jails combined; Lofstrom and Raphael. 2013,
p. 3). “On average a county’s jail population increases by one for every three felons no longer assigned to
state prison” (Lofstrom and Raphael, 2013, p. 3).
The overall reduction seems like good news, but the picture is more complicated. County jails are now facing
problems of overcrowding. “As of June 2014, the statewide average daily jail population was about 3,428
inmates over the rated capacity of 79,855, set by the California Board of State and Community Corrections.
Of the state’s 123 jails, 75 were at 90% rated capacity or above—and 51 were above rated capacity. Also, 38
facilities across 20 counties were under court-ordered population caps. To address these capacity
constraints, counties released 8,294 pre-sentenced inmates and 5,708 sentenced inmates in June 2014;
these monthly numbers were up 1,507 and 2,127 inmates, respectively, from September 2011” (Lofstrom
and Martin, 2015a). Many counties have had to release prisoners because of court orders imposing
limitations on capacity (Lofstrom and Martin, 2015a). Thus far, counties that have decided to build jail cells
with state funds provided to implement Realignment have not been able to get cells built fast enough to
stem release of some o enders. The net e ect is the reduction in the state’s total number of detainees
(Lawrence 2014, g. 1).
In a recent May 2015 report, Magnus Lofstrom and Brandon Martin stated that
California’s average daily jail population (ADP) increased signi cantly by the end of the rst year
of realignment (from about 71,800 to 80,900). California’s jail incarceration rate increased from
about 191 per 100,000 residents before realignment to 214 a year later. Since then the rate has not
changed much and now stands around 216. Although the county jail population has continued to
rise, it is increasing at a much slower rate. The monthly average daily population increased by
1,800 in the second year of realignment and by an additional 350 in the rst nine months of the
third year. In other words, about 80 percent of the post-realignment increase in the jail population
took place in the reform’s rst year.
(Lofstrom and Raphael 2015)
Proposition 47, which reclassi ed some low-level felonies, now making those misdemeanors, has already
had an e ect on the jail population: “After realignment, the jail population began to rise; as of June 2014—
four months before the passage of Proposition 47—it stood at 83,280 inmates, a gain of 20% from May
2011” (Lofstrom and Martin, 2015a). In a February, 2015 blog post for the Public Policy Institute of
California, Magnus Lofstrom stated that “since realignment shifted responsibilities of many lower-level
felons and parole violator to the counties, the county jail population has increased by about 11,500, as of
June 2014 (the numbers may have come down some since then because of Proposition 47)” (Lofstrom and
Martin 2015b).
Proposition 47 may ease some overcrowding. The law allows low-level property o enders and some drug
o enders to apply for resentencing. If courts grant a signi cant number of petitions for resentencing, the
prison and jail population may show a decline. New data are not available yet (Lofstrom and Martin, 2015a).
A lingering concern about Realignment is the lack of broad-based support for the law. No Republican voted
for the law; Republicans set up a website to collect horror stories that they could use against supporters of
the law. In some counties, the shift in population has overwhelmed the local jails, resulting in immediate
release of some o enders. If such o enders commit serious crimes, reports of such criminal conduct may
erode con dence in the new law (St. John, 2014).
Despite Governor Brown’s claim that Realignment was a bold move, he did not take on wholesale reform of
California’s sentencing scheme. The jury is out on whether allowing each of California’s 58 counties to
develop its own approach to sentencing will produce good results. No doubt, California will lack uniformity
from region to region. Add to that the patchwork quilt of sentencing laws that have been adopted through
the initiative process (Taibbi 2013). Laws like Proposition 47 address small pieces of the overall sentencing
scheme but lead to anomalies (Cal. Penal Code sec. 1170.18). For example, in an earlier Proposition 36
(passed in 2000), voters approved of drug treatment instead of jail for some o enders (Cal. Penal Code sec.
1210, 3063.1). Now under Proposition 47, at least according to some early news accounts, police are making
fewer drug arrests, arrests that might have gotten o enders into drug treatment (Chang and Sewell, 2015).
Yet another, and larger, problem with the haphazard method of enacting sentencing laws is that Three
Strikes remains largely in place. Even though the 2012 proposition narrowed its scope, Proposition 36 left
intact many of the troubling aspects of the law, including mandatory minimum sentences for many third-
strike o enders and the second-strike provisions that have led to many of the longer prison sentences (Cal.
Penal Code sec. 1170.126).
That leads to the next section: What does the future hold for California?
8. Failed E orts in the Past and an Uncertain Future
Realignment invites counties to develop best practices to solve problems of cost and recidivism. But
California does not have to look far for creative e orts to address problems with the overuse of prison. As
demonstrated by increasingly frequent reports, many states are achieving reform (Vitiello, 2014).
One obvious reform would be to adopt a sentencing commission with authority to prescribe guidelines. As
has happened elsewhere, e ectively developed guidelines have led to better use of resources without
sacri cing public safety. And yet, in Professor Robert Weisberg’s view, California has been “the glaring
outlier” when it comes to sentencing reforms (Weisberg, 2007, p. 210). California’s history raises questions
about the future of wholesale reform. As Professor David Ball has observed:
California’s sentencing system is ripe for reform … California could use a number of di erent
examples as a template for this sentencing commission. The changes would be economically viable
because a sentencing commission could help control costs, ensuring that prison use is e cient,
rational, and justi able. The changes would be desirable because California sentencing is at the
very least, incredibly complex, and today resembles a house with a thousand additions, each made
without regard to how the parts relate to the whole.
(Ball, 2014, p. 818)
And yet, as the same author has commented, “If a sentencing commission is such a good idea, though, why
has it failed over and over again [in California]?” (Ball, 2014, p. 819). On at least a dozen occasions,
commissions have been proposed and failed each time (Ball, 2014).
When rst proposed and passed by Democratic legislatures, the bills were vetoed by Republican Governors
Deukmejian and Wilson. In 2007, when the federal litigation gave the legislature an incentive to reform its
sentencing system, each house of the legislature passed a bill that would have created a commission.
Neither bill could garner enough votes in the other chamber. Apart from territorial in- ghting among
Democrats, the stated explanation for rejecting the bills was concern about placing sentencing discretion in
the hands of unelected commissioners. Enough Democrats agreed with law enforcement groups on that
issue (Weisberg, 2011).
Again in 2009, Governor Schwarzenegger supported a bill that passed with enough votes in the Senate. The
bill failed in the Assembly: a dozen Assembly Democrats who were up for reelection or running for higher
o ce refused to support the bill. As recently as 2009, they still felt compelled to appear tough on crime. By
the time the Assembly did pass a prison bill, the commission had been eliminated from its provisions.
Governor Schwarzenegger called out members of the Assembly. He stated that members were “more
worried about their safe seats, rather than their safe streets,” and that they did not “have the guts” to enact
the commission (Yi, 2009).
In recent years, even with substantial majorities in both houses of the legislature and a Democratic
Governor, Democrats have not been able to enact sentencing reform beyond Realignment. But given the
trend elsewhere, even in “red” states and among many conservatives and even as re ected in initiatives like
Proposition 36 and 47, one must ask why Democrats in California have been so slow to join what would
appear to be a national trend to sentencing reform.
Commentators have identi ed a number of factors at play in California that have made reform di cult.
Some of those factors include the special strength of victims’ rights groups in part because of their close ties
with CCPOA (Page, 2011). As or more important is the political strength of the CCPOA. The growth of the
union (a 600 percent increase in membership from 1982 through 2001) meant that the union had ample
funds to back law-and-order legislation and candidates (Page, 2011, p. 48). After Pete Wilson backed Three
Strikes, he received $1 million in donations from the CCPOA. The union is nonpartisan; for example, both
Governors Davis and Brown have received signi cant support as well. In one year, 2010, the union backed
107 candidates for o ce around the state; 104 of them won (Seiler, 2011).
Some speculate that victims’ rights organizations are especially powerful in California because of their close
relationship with the CCPOA. That support has been strong with regard to Three Strikes (Jacobson, 2005). It
contributed $100,000 to Mike Reynolds’ campaign in 1994 and has lobbied against many of the e orts to
reform Three Strikes subsequently. That support included $750,000 to defeat Proposition 66 in 2004 (Page,
2011).
Law enforcement organizations, including the California District Attorneys Association (CDAA), have
worked against sentencing reform. Originally supportive of a less extreme version of Three Strikes, the
CDAA has fought attempts to reform the law. Despite signi cant empirical evidence to the contrary, the
CDAA continues to insist that Three Strikes is “a valuable, essential, and proven tool in the ght against
crime” (Totten, 2004, p. iii). When moderate-conservative Republican Los Angeles District Attorney Steve
Colley backed a ballot initiative to reform Three Strikes, leaders of the CDAA forced him to withdraw from
that organization’s board. With a few exceptions, that organization has opposed other e orts to reform
criminal sentencing outside the area of the Three Strikes (Vitiello, 2014).
Elsewhere, even in deeply conservative states, politicians have overwhelmingly adopted sentencing reform.
And yet California’s best e ort at reform is Realignment. One must ask why reform is so hard in California.
In recent years, the CCPOA has softened its opposition to reform. For example, the organization, now under
new leadership since the retirement of its prime mover Don Novey, took no position on Proposition 47. It
also did not contribute to e orts to oppose Proposition 34 in 2012, an initiative that would have gotten rid of
the death penalty in California. The union’s softer position on reform should make reform e orts easier in
the legislature (Vitiello, 2014).
Elsewhere, I have speculated on a number of reasons for why that has not happened in California. For years,
Democrats have feared the soft-on-crime label in California. Tarring Democrats with that brush has been
an unusually successful strategy for years, dating back at least to the mid-1980s, when the voters opposed
retention of three liberal state Supreme Court justices who routinely opposed the death penalty (Hoting,
2009).
Term limits may also contribute to Democrats’ hesitation to take on wholesale reform. A member of the
Assembly—say from a liberal, even from a progressive San Francisco district—who faces term limits may
seek a position in the Senate. That district is likely to encompass surrounding suburbs with more
conservative voters. Or a member of the legislature may see statewide o ce as the next step; again, such a
politician might balance the risk of taking on sentencing reform against the risk of appearing soft on crime
(Vitiello, 2011).
California Republicans have not jumped on board either. The Republicans’ position on Proposition 47 in the
2014 election demonstrates how di erent California Republicans are from their counterparts elsewhere
(Percival 2013). Newt Gingrich published an op-ed exhorting voters to adopt Proposition 47, a position
consistent with the views of conservatives who have signed on to the Right on Crime organization. By
contrast, California Republican politicians have called for even harsher sentencing laws. The best
explanation for this disconnection is that the Republicans, as a distinct minority in the legislature, have
little to gain by cooperating with Democrats. Instead, they can let the Democrats take the lead on sentencing
reform and wait until crime becomes a front page issue again when they can use law and order as a powerful
wedge issue (Walsh, 2015).
Even as new bills that would reform California’s sentencing scheme are placed in the hopper, Governor
Brown may not be interested in further reform. He has expressed willingness to consider a sentencing
commission. That is not surprising in light of urging by the three-judge panel. But he may have some
dissonance in supporting wholesale sentencing reform; in his own words, Realignment was a “bold” move
(Vitiello, 2014, p. 701). Whether he can acknowledge that his signature legislation did not go far enough is an
open question (Vitiello, 2014).
At the time of writing, Lieutenant Governor Gavin Newsom is to be Brown’s heir apparent. He seems open to
sentencing reform. That leaves open the possibility of broader reform if Newsom wins in 2018 (Gallegos,
2015). The risk with delaying wholesale reform until after the 2018 election is that the desire for sentencing
reform may have changed. For example, an uptick in crime rates might change the voters’ apparent desire
for reform. Continued pressure from the three-judge panel may keep the issue on the agenda; but how long
the three-judge panel will keep its injunction in place is uncertain. Compliance with the order to reduce the
prison population to 137.5 percent of capacity could lead the court to enter a nal order, ending the litigation
(Lovett, 2015). Were that the case, incentive to enact wholesale reform may diminish even further.
9. Californiaʼs Death Penalty
The California Supreme Court struck down its death penalty law in the 1970s; that decision was overturned
by a ballot initiative in 1978 (New York Times, 2012). The basic structure of its death penalty law requires a
nding that an o ender committed rst-degree murder with statutorily listed special circumstances. The
list is extensive, with some circumstances added by initiatives through the years. For example, special
circumstances include such aggravating facts as murder for nancial gain, multiple murders as part of the
same transaction, the intentional killing of a police o cer, and the intentional in iction of torture (Cal.
Penal Code sec. 190.2). Upon a unanimous nding of a special circumstance, the trial moves to a second
phase at which point the issue is the appropriateness of the death penalty (Cal. Penal Code sec 190.4). In
sentencing hearings, the parties have broad discretion about the kinds of aggravating and mitigating
evidence to put before the jury. The jury must be unanimous in its recommendation of death; the trial court
can overturn that verdict; and the case is automatically appealable to the state Supreme Court (Cal. Penal
Code sec. 190.4).
The American Spectator published an article in 2015 entitled “Yes, California, There Is a Death Penalty.” The
article highlights several aspects about the death penalty in California. It is still on the books, but despite a
growing death row population (as of January 2015, almost 750 inmates), executions do not take place often.
Indeed, none has taken place since 2006 when a federal judge ruled that the then-used three-drug lethal
injection protocol violated the Eighth Amendment to the United States Constitution. Since the Supreme
Court upheld the protocol, California has yet to carry out a death sentence (Saunders, 2015).
In 2012, Governor Brown directed the California Department of Corrections and Rehabilitation to develop a
new protocol. As of 2015, it had not done so (Dolan, 2015). As is the case outside of California, nding the
necessary drugs for any protocol has become increasingly di cult. The painful death su ered by Arizona
death row inmate Joseph Wood has raised questions about the single drug protocol used by Arizona o cials
(Schwartz, 2014).
Currently before the United States Court of Appeals for the Ninth Circuit is an appeal by the state of
California attempting to overrule a district court judge’s nding that California’s administration of its death
penalty violates the Eighth Amendment’s prohibition against cruel and unusual punishment (Dolan and
Kim, 2014). The thrust of Judge Cormac Carney’s opinion striking down the death penalty was as follows: of
more than 900 o enders sentenced to death in California since 1978, only 13 have been executed. For every
executed inmate, seven have died from other causes, mostly natural ones. The review process now takes an
average of 25 years and the delay in carrying out the death penalty is getting longer. Such a system cannot
hope to deter crime through the threat of the death penalty. Further, its imposition has become arbitrary,
based on factors having nothing to do with any penological purposes that the state could advance (Eckholm
and Schwartz, 2014).
Predicting how the Ninth Circuit or the Supreme Court might resolve the issue is risky. That is so especially
in light of how deeply divided the Supreme Court justices have been in recent death penalty cases. Media
reports frequently cite the fact that Judge Carney is a George W. Bush appointee, thus suggesting how deeply
dysfunctional California’s death penalty system must be (Dolan, 2014).
10. Conclusion
Writing in the 1990s and then again in the 2000s, I predicted that California would eventually adopt
wholesale sentencing reform. My premise seemed unassailable: an economic downturn and the recognition
that very long prison terms are unnecessary in many cases to maintain public safety would force the state to
reform its sentencing scheme (Vitiello and Kelso, 2004). I have proven a poor prognosticator.
Despite that, the national consensus toward wholesale reform continues to build. Whether California joins
that trend may depend on whether the three-judge panel continues to monitor the prison health care
system and on how long the downward trend in crime makes reform reasonable political position.
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Oxford Handbook Topics in Criminology and Criminal Justice

Oxford Handbooks Editorial Board

Sentencing Policies and Practices in California 

1. Overview of Californiaʼs Sentencing Policy and Procedure

2. 1970 Through the Federal Court Litigation

3. Three Strikes in California

4. Declining Crime Rates

By comparison, the two-strikes provision is based on a principle of proportionality: the second-strike

5. Overuse of Incarceration: A New National Trend

6. The Federal Court Litigation

7. Californiaʼs Modest Reforms

(Coleman v. Brown, court order February 10, 2014, p. 2)

That is not a ringing endorsement of the law.

(Lofstrom and Raphael 2015)

8. Failed E orts in the Past and an Uncertain Future

(Ball, 2014, p. 818)

9. Californiaʼs Death Penalty

Bureau of Justice Statistics. 2013. “Jail Inmates at Midyear 2012—Statistical Tables.”

California Ballot Pamphlet, General Election 1994 (November 8).

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