In January, while defiantly declaring the end of California’s prison crisis, Gov. Jerry Brown insisted further reductions in prison overcrowding “cannot be achieved without the early release of prisoners serving time for serious or violent felonies,” a move he said would “jeopardize public safety.”
In other words, now that Realignment is sending low-level offenders to local custody instead of state prison, those who remain in prison must remain there to protect the public.
This sentiment reflects the state’s myopic reliance on incarceration for controlling crime and treating society’s problems.
Brown’s Realignment plan addresses one major source of the state’s unnecessary incarceration: Most people who commit low-level offenses should not go to prison. But he rejects one that is just as important: Many people who committed serious or violent offenses do need to serve some time in prison to protect the public, but we keep them there for far too long. And the terms are getting longer.
If California wants a sustainable solution to its prison crisis, it needs to rethink its increasingly harsh sentencing policies across the gamut of offenses — not just the low-level targets of Realignment and Proposition 36.
A recent study by the Pew Center on the States found that Californians who committed violent crimes can expect to serve an average of seven years in prison; in 1990 they would have served less than three.
Looking at people who committed murder, those who were released in 2009 served an average of 16 years; now they can expect to serve more than 50. This lengthening of sentences for violent crimes is a major reason California’s prisons are overflowing and will continue to do so.
In 2009, nearly 100,000 of the state’s prisoners were doing time for violent crimes, a number that will only grow as the exit door continues to recede.
A significant driver of these long sentences is sentencing enhancements — additional prison time for circumstances such as using a gun, gang involvement, and repeat offending. Although Three Strikes has received the most notoriety, an equally draconian California sentencing enhancement is 10-20-Life — “Use a Gun and You’re Done.”
Under 10-20-Life, anyone older than 13 who uses a gun while committing a serious felony (including robbery, homicide, kidnapping, and many sex crimes) will serve harsh sentences on top of the “base” sentence for the crime: 10 extra years for brandishing a gun, 20 for firing the gun, and 25-to-Life if firing the gun results in serious injury or death. These enhancements are often longer than the time served for the crime itself.
For example, a person who commits or attempts second-degree robbery would serve, at most, five years if no gun was present. If the person fires a gun during the robbery, he will serve 25 years, an enhancement four times longer than the base sentence.
A person convicted of first-degree murder with a gun will be sentenced to at least 50 years to life, twice the sentence of one who killed using another method, like strangulation, poison or an ax.
The enhancements are mandatory and cannot be struck by a judge; the only way to avoid them is to waive your right to a trial and plea bargain. The law is one of the most punitive gun enhancement policies in the nation. Fresno photographer Mike Reynolds, who drafted both Three Strikes and 10-20-Life, has said the latter “makes Three Strikes look like a piker.”
Gun enhancements are appealing alternatives to gun control because they purportedly take out only the “bad guys” who use guns – not the “good guys” who merely shoot guns for healthy fun and games. Extremely harsh enhancements are thought to enhance public safety by: 1) deterring people from committing crimes with guns, which are much more likely to result in serious injury or death, and 2) incapacitating criminals who use guns, who are purportedly more violent individuals.
This logic is not supported by evidence, and comes at a high cost to California citizens.
Research shows that the deterrent effect of punishment is linked to the certainty, not the severity, of punishment. Incapacitation is less theoretical — a person is not likely to commit additional crimes against the community while incarcerated — but the number of crimes prevented by confining such a diverse group of people is difficult to estimate.
Incapacitation also offers diminishing returns as the prisoner ages, as criminal behavior rises throughout the teenage years, peaks in the mid-20s, and then drops precipitously after 30. Recidivism rates also drop steadily throughout life.
Moreover, a report by the National Research Council found no clear evidence that gun enhancements affect gun-related crimes, and concluded that those that had found any crime reductions were “difficult to interpret.” Other studies have come to similar conclusions.
For the prisoner, longer is certainly not better: As the years go by, prisoners often become more distant from their families and communities, less employable, and more deeply ingrained in prison culture (becoming “institutionalized”), all factors that hamper reentry.
Though the public is not likely to see less crime due to 10-20-Life, they are footing what will soon be an enormous bill as the enhancements keep people confined well into old age.
California already spends an average of $52,000 per year to house each state prisoner, and that figure doubles for those aged 50 and older. A 2003 estimate (which assumed prisoners would cost a quaint $35,000 per year) predicted that by 2025 the CDCR would pay at least $4 billion per year for elderly prisoners alone. That’s money that could be better spent on rehabilitation, addiction treatment, and community-based programs, with a far greater payoff in public safety.
The striking irrationality of these laws demonstrates the need for a sentencing commission that can help California ground its sentencing laws in solid research. San Francisco is leading the way with its own Sentencing Commission, which is developing evidence-based sentencing policies founded on principles of justice, proportionality, and a commitment to public safety.
If the state does not follow suit, we will be stuck with unjustifiable and costly enhancements that result in, as criminologist Peter Greenwood writes, “thousands of defendants serving unusually long terms because somebody came up with a theory and a good bumper sticker title that captured the public’s fancy.”
Lizzie Buchen is an adviser to the San Quentin News
