TIME TO FIX OVERCROWDING

Governor Backs One Good First Step: A Sentencing Commission

A federal district court judge would have been justified last week in
moving toward capping the number of inmates in the state's prisons and
ordering some of them released.

The state's cramped and wasteful prisons are a mess, and the governor
and legislators have proven incapable of fixing them. Gov.
Schwarzenegger in effect admitted as much when he declared an official
emergency in October and ordered that some inmates -- only a handful
of volunteers so far -- be transferred to private, out-of-state prisons.

There are now 173,000 inmates in 33 prisons built to hold 100,000.
Suicides are up and violence is flaring. That's all Judge Lawrence
Karlton needed to know.

Karlton gave state officials a stern warning and a six-month reprieve,
but two other federal judges, who will hear separate motions in the
next few weeks, needn't be so patient.

The decade-old federal Prison Litigation Reform Act makes it hard, but
not impossible, for courts to act on their own to relieve prison
crowding. Doing so would goad Schwarzenegger and the Legislature to
act on long-term fixes: a combination of constructing new medical and
geriatric facilities and establishing a sentencing commission to
reform the state's convoluted sentencing laws and to control prison
admissions. In the most encouraging news to date, Corrections
Secretary James Tilton announced Friday that Schwarzenegger is
four-square behind a commission.

Judicial intervention would not result in prematurely freeing rapists
and killers. The state would probably be ordered to do what it could
have been doing on its own: diverting non-violent parole offenders who
should be put into drug rehab or on electronic home confinement
instead of being shipped back to prison by the thousands for technical
violations and failed urine tests. California has the nation's highest
recidivism rate. The churn of parolees is clogging prisons,
compounding a dangerous environment.

Parole policies are one area a sentencing commission would study.
Sentencing laws are another.

Twenty-two states have sentencing commissions and, with
Schwarzenegger's support, the plan to create one in California should
quickly gain momentum. Legal experts, including Kara Dansky of the
Stanford Criminal Justice Center and Hastings College of Law Professor
Evan Lee, agree that if the state already had a commission in place,
the inmate population would not have grown topsy-turvy. Priorities
would have been set and resources better managed; non-violent
offenders would have been sentenced to local jails and community-based
programs.

Prosecutors, defense attorneys, victims' rights advocates, retired
judges and academicians would comprise a sentencing commission, which
the governor and the Legislature would appoint. It would start by
analyzing the hundreds of laws enhancing sentences that voters --
through initiatives -- and legislators have passed since the 1980s,
often in hyped reaction to sensational crimes. They would then
establish guidelines, which could be either advisory for the
Legislature or mandatory for judges.

Former Govs. George Deukmejian and Pete Wilson vetoed bills to create
a sentencing commission, out of misplaced fears that it would have
marked a return to indeterminate sentencing, giving judges too much
discretion over time behind bars. That has not been the case in North
Carolina and Minnesota, where commissions have set sound policies.

The U.S. Supreme Court may soon force California's hand. In coming
months, it will rule in Cunningham vs. California, a case challenging
the sentencing judge's ability to weigh aggravating or mitigating
factors not presented to a jury. If the high court overturns the
system, as some legal experts predict, the time will be right for
broad reforms.

In calling for a sentencing commission, Schwarzenegger is indicating
he understands that courts are closing in on several fronts.