By Christopher Zoukis

Midway through his first term as governor of California, in 1976 Edmund G. “Jerry” Brown Jr. signed into law a strict mandatory sentencing measure. The “determinate” sentencing bill set fixed lengths of time that had to be served before an inmate could be considered for parole.

Now, almost 40 years later, Governor Brown has announced he’ll work to get a ballot initiative before state voters this November to undo parts of the law he signed, allowing earlier parole eligibility and consideration of a prisoner’s behavior behind bars. In making his announcement, Brown estimated the change could give new hope of early release to thousands of prisoners now incarcerated.

Like California governors before him, Brown is under orders from federal judges, who had already taken control of the corrections system’s medical and mental health care, to reduce the state prisons’ population. Numerous lawsuits had attacked the corrections system, which usually housed twice as many inmates as the system was designed to hold, as violating civil rights laws and the Eighth Amendment constitutional guarantee against “cruel and unusual punishments.”

Plaintiffs in those cases asked the courts to order reductions in the size of California’s prison population; as early as 2009, a three-judge panel of the federal Ninth Circuit ordered the state to reduce its inmate population by about 40,000 of its 150,000 inmates. When the state’s efforts — which included transferring prisoners from state prisons to county jails — did not satisfy the judges, California unsuccessfully sought to persuade the U.S. Supreme Court to intervene, but by a 5-4 vote, the high court rebuffed that attempt.

Speaking for the majority in the sharply split court’s 2011 Brown v. Plata decision was Justice Anthony Kennedy, a California native; he was joined by the court’s four liberals. Kennedy recounted the corrections system’s many shortcomings and upheld the panel’s order that the state reduce its prison population.

The court’s four dissenters produced two separate minority opinions attacking that action on jurisdictional and constitutional grounds. A stinging opinion from Justice Antonin Scalia criticized the panel’s open-ended order as leaving management of the state’s corrections system to the “policy preferences” of the review panel judges.

The ballot initiative announced by Brown on Jan. 27 would amend the fixed-sentence law Brown signed in 1976, to make prisoners found guilty of a non-serious, non-violent and non-sexual crimes eligible for parole; the governor estimated this might make as many as 7,000 inmates eligible to seek parole.

The governor’s plan also calls for creation of a new system of time off for good behavior, to be run by prison officials, which might affect even more inmates than would the changes in parole eligibility. The governor’s plan does not spell out the specifics of that credit system, leaving it to me detailed in regulations (which would be written later by the corrections system, if the initiative passes).

To get the measure on this fall’s election ballot, initiative supporters will have to collect almost 600,000 valid signatures from state voters. If the sentencing initiative makes the Nov. 8 ballot, it could join initiatives on such other subjects as gun control, the death penalty, and marijuana legalization – although Gov. Brown says the sentencing proposal is the only one he is proposing.

He admits a major cause of prison overcrowding stems from what he calls the “unexpected consequences” of earlier get-tough proposals, including some he backed. He argues laws restricting the chance of parole, or sentence reductions for inmates’ good behavior, are counter-productive, since they remove incentives for prisoners to improve themselves.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.comPrisonEducation.com and PrisonLawBlog.com

About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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