Viewpoints: On prison overcrowding, it is up to the judges

Published: Tuesday, Sep. 24, 2013 - 12:00 am

Imagine you are a judge faced with a young robber who beat up a stranger and took his Rolex. You have ruled out probation because of the seriousness of the conduct.

The California Penal Code authorizes three possible sentences: two, three or five years in prison. The district attorney wants three years, the public defender wants two. You could justify either sentence: On the one hand, the defendant has previous convictions for similar conduct; on the other, the convictions occurred more than 10 years ago, and he’s been clean since, until now.

The District Attorney’s Office is unhappy with your recent sentencing decisions. If you impose the low term in this case, the D.A. may file “affidavits of prejudice” against you in all future cases under California’s unique “peremptory challenge” statute, putting you out of business.

And a deputy district attorney may run against you when you come up for re-election next year, characterizing you as soft on crime. Your instinct for self-preservation kicks in; the robber goes off to prison for three years.

Prison overcrowding in California is a disgrace and will continue to be until someone does something bold. In 2009 the inmate population in our prisons was almost 200 percent of capacity. And aside from three gutsy federal judges, no one who mattered seemed to care enough to do more than fiddle around at the margins. Today, our prisons are still bulging at the seams, at 146 percent of capacity.

Gov. Jerry Brown and legislative leaders have ruled out “sentencing reform” (a euphemism for mitigating the harshness of present sentencing laws) and “early release” (releasing low-risk inmates on parole before their terms expire). I favor both, but I understand that neither will happen in the present climate.

I was part of the problem for 40-plus years: A career prosecutor when Brown appointed me to the bench in 1979, I was a hawk on crime. I still am. I have great sympathy for crime victims, and I believe that many of the people confined in our prisons are dangerous and incorrigible. But I also believe that many are not.

It’s not just the nonviolent drug offenders who don’t belong in prison. There are low-level felons of all kinds who should be on the streets. Those who rule out “early release” seem to assume the inmates’ sentences were arrived at in the first place by some magic formula, as if each crime and each statutory “factor in aggravation” has some universally agreed upon value.

The fact is that sentencing is a highly subjective process. In my 32 years on the bench I sentenced hundreds of people to jail and prison under our “determinate sentence” law – a misnomer. I paid attention to the sentences my colleagues imposed in comparable cases.

There were remarkable variations. At statewide judicial sentencing seminars, judges from different counties broke into groups of 10 or 15 and “sentenced” a series of hypothetical defendants.

When we compared notes, we found we were all over the lot. The sentence for a given defendant might vary from probation with no time to probation denied and two years in state prison.

In my experience, the great majority of California judges are decent, hardworking people who are dedicated to figuring out, in each case, the right thing and doing it without regard to crass political considerations. But they’re human.

The thought process I posited in the first paragraph doesn’t occur with all judges, but I believe it occurs, consciously or subconsciously, with a great many, and often enough that sentencing patterns are skewed upward; such sentences have become part of the sentencing gestalt.

Most people would like to see everyone sentenced to the maximum possible time because “they’re just going to commit more crimes when they get out.” And they’re right. Until the root causes of crime are effectively addressed – which, given present fiscal constraints, is not likely to happen any time soon – the fact is that most people released from prison will reoffend. But they will do so whether they’re released from prison in two years or three years. According to social science research, a genre I instinctively distrust, offenders given a mitigated sentence are less likely to reoffend.

Retired judges like me ought to come together and call for a dialogue among sitting judges on prison overcrowding and sentencing. Judges, mindful of conditions in our prisons – a legitimate consideration – can and should, where justifiable under the law and the circumstances of the particular case, select the less severe sentencing option. Prison overcrowding would be solved in short order.

Would the crime rate go up? Probably, but, I think, only marginally. It comes down to costs (marginal increase in crime) against benefits (restoration of credibility and creditability to sentencing). As I see it, the benefits have it by a wide margin.

Ronald Tochterman served as a judge of the Superior Court in Sacramento from 1979 until 2010. Before that he was a deputy district attorney and an assistant chief deputy district attorney.

Read more articles by Ronald Tochterman

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