Originally posted at CA Fwd.
By Christopher Nelson.

The way we sentence those who have committed crimes may be the single most important aspect of the criminal justice system we can change to reduce prison populations and recidivism.

Often times we limit our view domestically when looking for other examples to follow, but a series of articles talking about progressive approaches to sentencing in other countries compare starkly to a recent TIME magazine article about the travesties of mandatory sentencing here in America:

The cases documented in A Living Death are not necessarily typical, and many are the result of mandatory minimum sentencing laws, not the discretion of a judge or jury. But some of the stories of the 3,278 people the ACLU counts serving life without parole in federal prisons and the nine states that provided them with data are nonetheless shocking.

The number of U.S. prisoners who received life sentences without parole quadrupled between 1992 and 2012.

More than 18 percent of nonviolent offenders serving life without parole in the federal system are in for their first offense.

The piece goes on to detail extreme cases, such as a boy who removed a gun from an abusive father’s home only to be sentenced to life without parole because of a prior burglary conviction when the father reported him. Extreme as they may be however, they serve to highlight why the US has the world’s largest per capita prison population, especially when taken along side recent articles from the past week detailing how Germany, the Netherlandsand Sweden all have far lower incarceration and recidivism rates than the United States does.

The difference is in how they sentence and how they focus on rehabilitation over incarceration:

To understand America’s epidemic of over-incarceration, it helps to look to countries that don’t having our problem. In Germany and the Netherlands, for example, incarceration rates per capita are nearly 90 percent lower than in the U.S.: 79 per 100,000 residents in Germany and 82 per 100,000 residents in the Netherlands, compared to 716 per 100,000 residents in the United States.


“Resocialization” and rehabilitation are central to the Dutch and German models, whereas the American model focuses on retribution and isolation from society. In Germany and the Netherlands, this means prison conditions are more humane, fines are preferred over incarceration, solitary confinement is rarely used, and sentences are far shorter than in the U.S.

Here in California, realignment has been a step in the right direction, and hope for a sentencing commission has resurfaced in the Legislature.

First, on the subject of realignment. a recent Stanford study spearheaded by Dr. Joan Petersilia comprised of almost 130 interviews from all manner of county corrections stakeholders confirmed that despite some initial hiccups, most everyone is on board.

“Everyone said that we’re on the right path, that we’re inching forward in a positive direction, nobody wants to go back to where we were pre-realignment,” Dr. Petersilia told California Forward. “Not one person we interviewed said we needed to repeal the entire law.”

It’s a good thing considering the sheer magnitude of AB 109 and the fact that it wasn’t pilot tested in one or two counties and instead was thrust upon all 58 counties to expedite compliance with the three judge panel ruling. The law affords counties the opportunity to more closely mirror Germany, Sweden and the Netherlands in how they approach their realigned populations. Money from the state, if counties choose to use it this way, can place those with substance abuse disorders in rehabilitation programs and those with mental health issues in treatment. It allows for more post-release community supervision over incarceration for those who don’t pose a threat to society.

But dealing with those already sentenced only goes so far and doesn’t attack one of the main roots of the problem. At a recent meeting of the Assembly Select Committee on Justice Reinvestment, which was created via SB 105, the notion of creating a sentencing commission was resurrected and supported by Assembly Public Safety Committee chair Tom Ammiano.

As the Bee reports:

Ammiano said that past attempts to launch a sentencing commission have been thwarted by disagreements about who would sit on such a panel. But he said he is determined to try again, and suggested that prison realignment presents an auspicious backdrop.

“There’s a lot of fodder here not only in terms of prison overcrowding but the rehabilitative part, which we’ve neglected for a long time in sentencing,” Ammiano said, pointing to “a lot of imbalance around sentencing.”

Sentencing reform also entered the discussion on Wednesday as speakers mentioned the possibility of converting more crimes into “wobblers” that can be charged as either misdemeanors or felonies. Brown this year vetoed a bill that would have made simple drug possession a wobbler, saying in his veto message that the prison spending bill positioned California to “examine in detail California’s criminal justice system, including the current sentencing structure.”

One tool already in the hands of judges and prosecutors is the split sentence, but just as the there at roadblocks at the state level to wholesale sentencing reform, ones also exist at the county level that prevent split sentencing from being utilized as much as it could. Probation, which bears the lion share of offenders who aren’t in a jail bed, has seen a decade worth of budget cuts ahead of a law, AB 109, that places more demands than ever on the department.

In large counties with heavy caseloads already, this doesn’t inspire confidence in judges that probation departments can actually deliver on the promises of supervision and rehabilitation. In LA County, only about 5 percent of all sentences are split. Between the county and the state level, there are a lot of moving parts and much work to be done.

Dr. Petersilia shares the concerns about probation having to handle more serious offenders that should be kept on state parole. She also is eager to see a sentencing commission happen. But her most important warning is not one of policy but of patience:

“What is frustrating is that people are becoming very defensive or overly confident,” she said. “I think it will take 7 to 10 years to see real results from Realignment. We don’t want to be driven by the extremes of either ‘it’s working perfectly,’ or ‘it’s failing badly.’ We have to have a more nuanced discussion going forward, since those extreme views–favoring rehabilitation or punishment–is what got us into this mess in the first place. We have to have a more balanced sentencing and corrections system, one that balances both punishment and programming.”