Academic journal article Stanford Law & Policy Review

The Origins of Back-End Sentencing in California: A Dispatch from the Archives

Academic journal article Stanford Law & Policy Review

The Origins of Back-End Sentencing in California: A Dispatch from the Archives

Article excerpt

I. INTRODUCTION

In recent years, leading criminologists including Joan Petersilia and Jeremy Travis have identified parole policy as a significant yet hidden driver of mass incarceration. (1) By 2000, over a third of prison admissions nationwide were the result of parole revocations, not new criminal convictions. (2) In California, which has long kept a higher percentage of released prisoners under parole supervision than any other state, parole policy has played an especially important role in the growth of the prison system. (3) Returning parolees have been the largest group of offenders entering California state prisons since 1987, and made up over sixty percent of prison admissions by 2005. (4)

To understand why so many California ex-offenders return to prison on parole violations, it is important to understand California's distinctive approach to parole. (5) While the word "parole" is often used as shorthand for early release conditioned upon supervision by a parole officer, in California parole has long had a different meaning for most inmates. Because California switched from an indeterminate to a determinate sentencing scheme in the late 1970s, the vast majority of its inmates do not have the possibility of discretionary early release. (6) Rather, they have been sentenced by a judge to a fixed term of years from a statutory menu, and must be released upon completion of that term (less any good-time credits). Around the same time that California switched to determinate sentencing, however, it also implemented legislation requiring every ex-prisoner, upon release, to submit to the supervision of a parole officer for up to three years. That legislation, the Public Protection Bill of 1978, is the subject of this Article, and will be discussed in more detail later. For now, however, it is only necessary to understand that California was unique among the states in combining determinate sentencing with mandatory post-release supervision. This unique choice explains why California has long had a much larger pool of "parolees" than other states.

In addition, California has also made it easier than other states for parole officers to return parolees to prison, even for minor violations such as missing a meeting or failing a drug test. During his parole term, a parolee must comply with a long list of conditions: He must tell his parole officer if he gets a new job or moves to a new house; he must secure his parole officer's approval to travel more than fifty miles away from home, or leave the county for more than two days; he can't be around a gun or a knife longer than two inches. He must sign an agreement consenting to be searched at any time, with or without cause. He must not only obey the law, but also "[his] parole agent's instructions." (7) And if he is found to have violated any of these conditions, the state may send him back to prison, even without new criminal charges. (8) As of 2009, the odds that a California parolee would be returned to prison at least once during a three-year parole term were 70%. (9)

California has an immediate impetus for reducing the number of parolees sent back to prison: its prison system is dramatically overcrowded and under a federal court order to reduce its inmate population. (10) But even if California's prisons were not overcrowded, its parole policies might be troubling for deeper legal-philosophical reasons. Until recently, the parole revocation process, or "back-end sentencing," (11) had not received the same intensive attention that politicians, voters, and scholars alike have focused upon the "front-end sentencing" that occurs in the criminal courts. (12) As Jeremy Travis has observed, the "truth-in-sentencing" reforms of the 1980s and 1990s made front-end sentencing decisions more public (often involving victim testimony), transparent, and legally constrained. In contrast, back-end sentencing through parole revocations retains all the much-maligned features of the pre-"truth-in-sentencing" regime: it occurs behind closed doors and free of many legal constraints. …

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