HARD TIME

This just might be the year in which Californians see relatively
substantial progress toward prison reform in the state as a number of
intensifying forces converge:

. The state has been notified that if something is not done to
alleviate prison overcrowding, federal judges may step in and impose
a cap on prison population by June.

. The California Correctional Peace Officers Association, the prison
guards union and a principal force behind the "three strikes" law and
long an advocate of harsh sentencing, has done something of an
about-face and come out for modest sentencing reform, including
establishing a sentencing commission.

. Although Gov. Schwarzenegger's "emergency" session on prison reform
last summer didn't produce much in the way of substantive action, he
says he is committed to prison reform this year.

. And state Senate Majority Leader Gloria Romero of Los Angeles
continues to push what has become her signature issue.

Some of those circumstances are political or artificial, but the
conditions in prisons that are moving them forward are real enough.
California now houses about 173,000 prisoners in facilities designed
for about 80,000. Between 16,000 and 19,000 inmates are assigned to
cots in hallways and gyms -- which means spaces designed for
rehabilitation and vocational programs are not available for those purposes.

James Tilton, appointed secretary of the Department of Corrections
and Rehabilitation in September, says the overcrowding amounts to a
powder keg of the sort that in other states has led to prison riots.

California has one of the highest recidivism rates in the country, at
70 percent, which means prison becomes a revolving door for a certain
sector of the population. The parole system loses track of about 20
percent of those supposedly under its control. According to former
Sacramento Superior Court Judge Roger Warren, scholar in residence at
the state's Judicial Council, "about half of those sentenced to
prison every year are nonviolent offenders previously sentenced to
prison but never for a violent crime."

If federal judges take control of the prison system in June,
taxpayers may not be pleased. Judges, according to a report released
in January by the state's Little Hoover Commission, "now control
inmate medical care and oversee mental health, use-of-force,
disabilities-act compliance, dental care, parolee due-process rights
and most aspects of the juvenile justice system." Their usual
methodology is to mandate higher spending. Federal receiver Robert
Sillen announced Feb. 23 that he was unilaterally raising the
salaries of prison doctors from $163,360 to $180,000-$200,000 a year
to attract more qualified physicians. He previously said that he
would "back up the truck to raid the state treasury" if that is what
it takes to bring prison medical care up to snuff.

Having aspects of the prison system under federal receivership (the
result of various successful lawsuits) has created a parallel
management structure between the courts and the California Department
of Corrections and Rehabilitation that has led to confusion and
plummeting morale. Two previous secretaries of the Corrections
Department resigned abruptly in 2006 before Tilton was appointed.
Mike Jimenez, who took over as president of the prison guards union
four years ago, told the Register Editorial Board last week that
morale among his members is so low that 4,000 authorized positions
are unfilled -- despite the union's success at increasing annual
salaries (from $14,440 in 1980 to $54,000 in 2002) and benefits and
becoming one of the most politically formidable forces in the state.

Origins of Today's Situation

All this is largely the product of decisions made some 30 years ago
to get tough on crime by imposing longer determinate sentences. As
the Little Hoover Commission report put it, however, "Despite the
rhetoric, 30 years of 'tough on crime' politics has not made the
state safer. Quite the opposite: today thousands of hardened, violent
criminals are released without regard to the danger they present to
an unsuspecting public."

The roots go back to 1976 when the Legislature, upset with
inconsistent sentencing by judges under what is known as an
indeterminate sentencing regime, set up a determinate-sentencing
system, with relatively narrow guidelines for punishment for crimes
and little discretion for judges. Like most reforms, however, it had
unanticipated consequences.

For one thing, California also kept its parole system, with
theoretically supervised parole of up to three years for every felon
released. Under indeterminate sentencing parole had offered an
incentive for prisoners to get out early if they behaved decently and
did things like participate in vocational training or drug
counseling. Under the current system every prisoner knows he or she
will be on parole after release, and early release is based more on
overcrowding issues than prisoner behavior. And because every
released prisoner is on parole, the potentially dangerous former
inmates who could use some supervision after release often don't get
extra attention -- or, in practice, any effective attention at all.

In addition, dozens of new sentencing laws have been passed since
1976, creating a confusing patchwork of sentencing laws rather than
the consistency the lawmakers desired. In hearings before the Little
Hoover Commission, Judge J. Richard Couzens of Placer County outlined
a hypothetical case in which a judge could have given a defendant
anywhere from supervised probation to a 25-to-life "third strike"
sentence and be in compliance with existing laws.

Sentencing Commission Proposed

Potentially the most significant step being proposed on all sides is
the creation of a sentencing commission. The governor, the guards
union and most Democrats in the Legislature have signed on to various
versions, and the Little Hoover Commission recommended it. The
federal government and 22 states now have such a commission.
Independent of all branches of government and permanent, it would be
tasked with reviewing all sentencing policies and proposals through
evidence-based analysis. Its proposals would become law unless
rejected by a majority vote in the Legislature.

Sentencing commissions are sometimes equated with shorter sentences,
but commissions in North Carolina and Virginia imposed longer
sentences for serious and violent crimes, with shorter sentences or
alternatives like community-based programs for less-serious
nonviolent crimes. The best sentencing commissions constantly
accumulate and analyze data on the real-world consequences of
sentencing policies so as to update policies based on evidence.

Other Proposed Reforms

State Sen. Majority Leader Gloria Romero of Los Angeles, perhaps the
most active legislator on prison reform issues, told me that in
addition to introducing a sentencing commission bill (SB110), she has
introduced a parole reform bill that would "shift resources to the
highest-risk parolees," and have gradations in parole length. Another
bill would allow some nonserious, nonviolent offenders to be
discharged directly, without parole.

She has also introduced a proposal (SB851) for new in-prison
rehabilitative programs based on a program for mentally ill homeless
people begun in 2000 that she believes has been largely successful
and holds lessons for prison management.

The Senate has passed SB40, a response to the U.S. Supreme Court's
Cunningham decision in January that declared unconstitutional one
aspect of California's sentencing system -- add-ons by a judge based
on information a jury had not heard or decided upon. So far the
Assembly has not scheduled hearings.

The Little Hoover Commission has presented a detailed set of
proposals for dealing with current overcrowding in prisons, including
selective early furlough and getting other agencies with different
kinds of expertise besides the Corrections Department involved.

Gov. Schwarzenegger last December offered a new $11 billion prison
reform package that included some of the elements that didn't pass
during his emergency session last summer and included 16,000 new beds
on existing sites, 5,000 to 7,000 secure re-entry beds, 10,000
medical and mental-health beds and 45,000 local jail beds. There is
talk of expanding Orange County's James A. Musick Facility near
Irvine. But we can't just build our way out of this crisis, especially by June.

When the Register Editorial Board met with Mike Jimenez and Chuck
Alexander, president and executive VP, respectively, of the
California Correctional Peace Officers Association, I was surprised
to find them backing several reform measures, including measures that
would reduce the prison population. "We don't need more prisoners to
bolster our union," Jimenez said. "We're already 4,000 authorized
positions short, and as long as California's population keeps growing
some of them will end up in prison."

The Little Hoover Commission suggested that if the governor and
Legislature don't have the political will to enact reforms, they
should turn the job over to "an independent entity modeled after the
federal Base Realignment and Closure Commission." That commission,
back in the 1990s, studied the question of which excess military
bases should be closed and came back to Congress to be voted up or
down, with no opportunity to offer amendments (as Congress members
are wont to do in response to local pressures). It was a fairly
drastic step, but it worked.

A More Fundamental Look

All these reforms would alleviate overcrowding and the dangers it
poses, but more serious reform should include more serious, even
radical rethinking of crime and punishment. It should start by
relearning St. Thomas Aquinas' distinction between malum in se (bad
in itself) and malum prohibitum (bad because prohibited) crime. A
real crime in this understanding is one that actually and concretely
hurts another human being, whether through force, violence, stealing,
fraud or deceit. Crimes created by statute that don't involve damage
to a victim are often statements about acceptable behavior that can
be better handled by families, churches and community pressure.

The most obvious example in our current society is drug laws, which
make the mere possession of certain substances illegal. This legal
prohibition creates black markets with huge potential profits that
encourage those most adept at concealment, intimidation and violence
to supply drugs to those who want them. In the process they create
all kinds of real crimes, from mugging to robbery to burglary, that
would almost certainly not occur in the absence of prohibitory drug laws.

Until we relearn Aquinas' ancient wisdom, however, legislators have
plenty of reason to get serious -- finally -- about the kinds of
incremental reforms the governor, Sen. Romero, Irvine Republican
Assemblyman Chuck DeVore and others have proposed. We'll be watching.