Time For Sentencing Reform


Across the U.S., prosecutors can chart a new path on public safety by championing at both local and state levels one of the biggest ways we can transform our justice system in this generation—sentencing reform.

Right now, the U.S. puts more people in prison and jails than any other nation in the world. The costs associated with incarceration are staggering. California alone spends more than $9 billion per year on prisons.

Despite all of these costs—economic, social, and systemic—the rate of people returning to a life of crime even after serving time remains all too high, with almost 65 percent of California’s prison inmates re-offending after being released.

While California’s Realignment effort represents a major change in our state’s sentencing practices, it is primarily intended to impact system costs and incarceration rates— not public safety.

So further change is needed.

Sentencing reform is one of the most important ways we can reduce recidivism and keep our communities safe. We can use two innovative strategies—sentencing commissions and alternative sentencing practices—to achieve our goals.

Most criminal law is developed legislatively through the political process, with mandatory minimum sentences and sentence enhancement laws changing every year. Often, this process is influenced by political reactions to high-profile cases or attempts to be “tough on crime.”

The challenge of politically driven sentencing schemes is that the resulting hodgepodge of criminal laws is largely disconnected from the most effective strategies to prevent or reduce crime. If, for example, reducing recidivism were a major goal of the development and design of sentencing schemes, they would look very different than they do now.

Other states are using nonpartisan governmental entities, called sentencing commissions, to assess existing sentencing schemes and propose alternate approaches. Several of these commissions have succeeded at revamping major penal code sections and bringing consistency and clarity to the jurisdictions’ approach to sentencing.

In San Francisco, the District Attorney’s office led an effort to establish the first county-level sentencing commission in California, with the explicit purpose of assessing the impact on recidivism of current approaches to sentencing.

Our commission can serve as a model for other state and local efforts.

While the commission is not empowered to change state law, it will be able to make recommendations and build consensus among criminal justice agencies, service agencies, victims, and other stakeholders about the most effective strategies to reduce recidivism among various categories of offenders and offenses.

By holding these important discussions in a public forum, the commission can demystify sentencing laws and practices.

In addition to pushing for meaningful legislative change, prosecutors also can innovate our sentencing practices. Across the country, prosecutors evaluate criminal cases at three stages: charging, securing a plea or verdict, and sentencing.

At this third stage, prosecutors must determine what they think the case is “worth” in order to determine the punishment they will advocate for in the plea bargaining process or in court. This assessment traditionally involves focusing on the strength of the evidence in the case and the maximum allowable punishment.

Often, what’s missing is an assessment of the most appropriate punishment in order to reduce the likelihood the offender will reoffend. A “recidivism reduction analysis” asks questions that go beyond the strength of the evidence and the penal code punishment guidelines. In other words, this analysis focuses on not just the offense, but also the person who committed it.

Studies on recidivism show that the longer a medium- to low-risk person is incarcerated, the higher the chance they will reoffend. So, if we are committed to improving public safety, understanding the risk level of each offender is critical to determining the most appropriate length of incarceration for that person.

The emerging science on recidivism reduction is a sea change in the criminal justice system.

It identifies what is known about behavioral and situational patterns and how they relate to the frequency of re-offending. Reducing recidivism then becomes an exercise in identifying an individual’s “risk and protective” factors, from the offender’s criminal history to alcohol and drug issues, mental-health issues, family history of involvement in criminal activity, and other factors such as employment, education, parenthood or other family responsibilities, and stable housing.

Prosecutors then can pinpoint the sanctions that most likely can motivate that person, to eliminate the risk factors and enhance the protective factors. Studies on a wide variety of programs point to sanctions, both punishment- and rehabilitation-oriented, that work better or worse with individuals at different risk levels.

This new alternative approach to sentencing—taking the science of recidivism into consideration—already is underway in the San Francisco DA’s office.

We recently created the nation’s first “alternative sentencing planner” position in a district attorney’s office to support prosecutors in court. The ASP evaluates cases to review what is known about the risk level and protective factors of the offenders and then makes sentencing recommendations that will reduce the likelihood that the person reoffends.

In addition, the ASP acts as an investigator, conducting site visits to programs to determine their effectiveness in reducing recidivism, and also provides training for all staff so that the recidivism reduction approach can be integrated into the fabric of all case prosecutions.

Applying this surgical approach to our most scarce and expensive resource—jail—has allowed us the space in our system to properly deal with the violent and serious offenders.

As law enforcement leaders, we must have the courage to face the fact that locking everyone up is not winning. Recognizing that jails and prisons are not the answer to every crime or every offender is a paradigm shift that flies in the face of assumptions that we have built upon for many years.

Yet by grounding our work in a commitment to improving public safety, prosecutors can lead the way in reforming our sentencing laws and practices.

George Gascón is District Attorney of San Francisco, and an occasional columnist for The Crime Report. He served as chief of the San Francisco Police Department from 2009-2011. This essay originally appeared in Justice in California, a publication of the Rosenberg Foundation. Mr. Gascón welcomes comments from readers.

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