Pubdate: Mon, 18 Dec 2006 Source: San Jose Mercury News (CA) Copyright: 2006 San Jose Mercury News Contact: http://www.mercurynews.com/ Details: http://www.mapinc.org/media/390 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. - --- MAP posted-by: Richard Lake