Today’s order from the three-judge panel overseeing the standing federal court order to reduce the state’s prison population to 137.5 percent of capacity gives the state an additional two-year extension to comply, and plaintiffs’ attorneys’ are justifiably concerned about ongoing constitutional violations inside the prisons due to the continued overcrowding. But today’s order is based upon important concessions by the state, including immediate changes to good-time credit and parole rules, a promise not to ship any additional prisoners out of state, an agreement not to seek further appellate review and an express commitment to front-end sentencing reform. It also contains significant new enforcement provisions, including mandatory benchmarks and the appointment of a compliance monitor with power to order prisoners released if the benchmark deadlines aren’t met. This all adds up to create the most specific, structured and enforceable inducement for the state to come up with sustainable population reductions since this litigation was initiated more than a decade ago.
In the two-plus years since the California legislature passed the California Prison Realignment Act – which shifted responsibility for people who commit low level, non-violent, non-serious crimes from the state prison system to county jails – the ACLU of California has consistently said that much more needs to be done. We have said repeatedly that comprehensive criminal justice reform must be part of any sustainable plan to achieve a lasting reduction in the number of people who are kept behind bars for far too long who don’t need to be locked up to keep the public safe.
Finally, the Brown administration is on record agreeing, with a federal court watching closely. Now, it’s time for our political leaders in Sacramento to roll up their sleeves and get to work.  The long history of the law enforcement lobby killing even incremental attempts to reduce sentences (like Mark Leno’s bill seeking to make personal possession of drugs a misdemeanor) must come to an end. If a sentencing commission is appointed, it cannot be dominated and controlled by the same interests that have blocked reform efforts for decades. It also must have “teeth” – a sentencing commission relegated to merely “advisory” status can be worse than no commission at all, because all other proposals for changing sentencing laws will be put on hold for the months or years the commission operates and the ultimate outcome may be no sentencing reform. Just ask Professor Gerald Uelman, who directed the California Commission on the Fair Administration of Justice, created by the State Senate in 2004 to “study and review the administration of criminal justice in California, to determine the extent to which that process has failed in the past” and to examine safeguards and improvements. After four years of exhaustive research and multiple public hearings, the Commission issued a comprehensive final report containing specific recommendations, and supported numerous pieces of legislation introduced in 2006, 2007, 2008 and 2009. Of all of these bills, only two were passed by the legislature but both were vetoed by then-Gov. Arnold Schwarzenegger. Twice. Ultimately, of all the commission’s recommendations, a single bill became law, modifying the way in which capital defense attorneys are compensated.
A similarly fruitless sentencing commission is unacceptable. One idea worth considering is to set up any sentencing commission so that its recommendations become law unless a two-thirds vote of the legislature and government overturn them.
Today’s order is a significant step in the right direction. Now, it’s time to put politics and law enforcement obstruction aside and get to work.
Allen Hopper is criminal justice and drug policy reform director of ACLU of California. Follow him on Twitter.