California's Determinate Sentencing Law: An Analysis of...

ARTICLES

California's Determinate Sentencing Law:An Analysis of its Structure*

Andrew von Hirsch**Julia M. Mueller***

Contents

I. INTRODUCTION ....................................... 254II. RATIONALE .......................................... 257

A. The Case for Commensurable Punishments ........ 258B. The Neopositivist Alternative: "Selective"

Incapacitation ................................... 260C. DSL's Declaration of Purpose .................... 263

III. DECISIONMAKING FRAMEWORK OF DSL .................. 263A. Choice of Rulemaker ............................ 264B. Reach of the Standards; Need for Considering Prison

Capacity ....................................... 267IV. THE LAW'S STANDARDS FOR LENGTH OF PRISON TERMS ... 270

A. Parity: Penalty Groupings and Offense CategoryBreadth ........................................ 271

* This article is based in part on an unpublished analysis of the California law by

Andrew von Hirsch and Kathleen J. Hanrahan. That analysis was written for the Projecton Strategies for Determinate Sentencing, funded by grants (Nos. 78-NI-AX-008 )from the National Institute of Justice of the United States Department of Justice. Pointsof view stated in this article are those of the authors, and do not necessarily representthe official position or policies of the funding agency.

We have profited from the valuable suggestions of several of our colleagues: MartinForst, Barry Krisberg, Sheldon Messinger, Peter Ozanne, Richard Sparks, Brian Taugherand Pamela Utz.

This article was written during 1982 and early 1983. The descriptions of the Californiasentencing law herein is the law as it was in effect in 1982, except where otherwise noted.

** Professor, School of Criminal Justice, Rutgers University, Newark, N.J. HarvardUniversity, A.B., 1956; LL.B., 1960.

*** Instructor, Niagra University, New York. Rutgers University, B.A., 1979; M.A.,1981.

CRIMINAL AND CIVIL CONFINEMENT

1. Penalty Groupings ........................... 2712. Breadth of Statutory Offense Categories ....... 274

B. Parity: Variations for Special Cases ............... 2761. The List of Aggravating/Mitigating Factors .... 2772. Amount of Variation ......................... 280

C. Rank Ordering of Penalties ...................... 282D. Prior Criminal Record ........................... 286E. Good-Time Credits .............................. 289

V. PAROLE SUPERVISION .................................. 291VI. THE LAW AS APPLIED ................................. 293

A. The Law in Action .............................. 293B. DSL and Prosecutorial Discretion ................. 294

VII. POLICY IMPLICATIONS ................................. 295A. Should DSL Be Emulated? .. . . . . . . . . . . . . . . . . . . . . 295B. Further Reforms in California .................... 297

I. INTRODUCTION

In criminal sentencing policy, as in so much else, California has beenbold and controversial. During the era of dominance of the rehabilita-tive ideal, California was the state which adopted perhaps the mostsweeping version of the indeterminate sentence. When an offender wascommitted to prison, no term was specified by the judge at all. Instead,the offender was committed for an indefinite duration within thebroadest statutory limits. The time of his release from prison (and theduration of his supervision on parole) were fixed at a later time by theparoling authorities.1

When support for rehabilitatively-oriented sentencing eroded in theearly 1970's,2 it was California that acted firstA--in characteristicallyuncompromising fashion. The old indeterminate sentencing statute wasreplaced in 1976 by a new Determinate Sentencing Law (DSL).4 Thelaw rejected the traditional rehabilitative rationale as the basis for sen-

1. Messinger & Johnson, California's Determinate Sentencing Statute: History andIssues, in NATIONAL INSTrruTE OF LAw ENFORCEMENT AND CRiMINAL JusTICE, DETERMI-NATE SENTENCING: REFORM OR REGRESSION? 13-58 (1978).

2. Rothman, Decarcerating Prisoners and Patients, in SENTENCING 130-147 (H. Gross& A. von Hirsch, eds., 1981). For further bibliography, id. at 186. See also F. ALLEN, THEDECLINE OF THE REHABILIrATIVE IDEAL 1-59 (1981); von Hirsch, Recent Trends in Ameri-can Criminal Sentencing Theory, 42 MARYLAND L. REV. 6, 10-14 (1983).

3. Maine had earlier enacted a law abolishing parole release, but the California lawwas the first statute that enacted specific standards for sentence duration.

4. CAL. PENAL CODE § 3040, §§ 1170, 3000 added by 1976 Cal. Stat. 1139. Except whereotherwise noted, the California DSL provisions cited in this Article are those reflectingup to the 1982 amendments.

[Vol. 10:2

DETERMINATE SENTENCING

tencing. It regulated durations of imprisonment in detail, specifyingpresumptive prison terms for various felonies and providing how thoseterms could be increased or decreased on account of aggravating ormitigating factors, and on account of certain "enhancing" elements.Except for prisoners with life terms, 5 the statute eliminated the paroleboard's releasing authority entirely-and provided that the term fixedby the judge would determine the duration of the offender's actualconfinement, after a specified deduction for good behavior. In concep-tion and detail, the new law was the antithesis of the old.'

Considerable work went into the writing of DSL. The drafters of thecode adopted an explicit statement of purposeJ and conscientiouslytried to develop sentencing norms that reflected these purposes. Thestatute is nothing if not elaborate and detailed. The legislature alsoresisted pressures for wholesale escalation of penalties when draftingthe original statute.8

Yet matters have not been smooth since the passage of the law. Themost pressing problem has been that DSL has not succeeded in keep-ing the use of imprisonment within available resources. While the stat-ute prescribes durations of imprisonment, it does not effectively regu-late judges' "in-out" choice of whether or not to commit offenders toprison.9 With intake into the prison system uncontrolled, there hasbeen a large rise in the rate of prison commitments. 10 Yet the systemcan no longer respond to this higher inflow by accelerating outflow: be-cause parole release is eliminated, prisoners cannot be released earlywhen the system is threatened with overcrowding." The problem hasbeen compounded by legislative amendments that have lengthened theprescribed terms for various major offenses. 1 2 The legislature has notmatched these increases with appropriations for more prison space.13

5. And cases arising before the effective date of the new law.6. Messinger & Johnson, supra note 1; Cassou & Taugher, Determinate Sentencing in

California: The New Numbers Game, 9 PAC. L.J. 5 (1978).7. See infra text accompanying note 22.8. Messinger & Johnson, supra note 1, at 30, 38-49.9. See infra text accompanying notes 67-74.10. This rise in prison commitment rates has been observed by Brewer, Beckett &

Holt, Determinate Sentencing in California: The First Year's Experience, 18 J. RE-SEARCH IN CRIME & DELINQ. 200 (1981); R. Sparks, Sentencing Before and After DSL:Some Statistical Findings (1981) (unpublished report for Strategies for Determinate Sen-tencing Project, available at Center for Study of Law and Society, University of Califor-nia, Berkeley).

11. Foote, Deceptive Determinate Sentencing, in NATIoNAL INsTrrrurs OF LAW EN-FORCEMENT AND CRIMINAL JUSTiCE, supra note 1, 133-41.

12. See infra text accompanying notes 51-52.13. Although the legislature did not appropriate funds to deal with prison overcrowd-

ing, a bond issue allocating $495,000,000 for prison construction and remodeling was

19841


Difficulties such as these make a reconsideration of DSL likely in thenear future.14 We can expect policymakers in California to be askingwith increasing urgency: How good is DSL? How fundamental are thechanges that are needed? What kinds of changes?

To answer such questions, evaluations of the law should be helpful.There already have been a number of studies of DSL in operation: ofits impact on the severity and variability of penalties,15 and its influ-ence on prosecutorial practice.16 Besides studies of the law in opera-tion, however, an analysis of its structure is needed.

California's Determinate Sentencing Law has certain stated pur-poses: primarily, to make imprisonment more equal and proportionate.It needs to be asked how well the law, as it is written, achieves theseobjectives. To what extent does the DSL prescribe sanctions that arefair and proportionate? To what extent does the law contain structuraldefects that impede consistent and just results? This will be the topicof our article.

Such a structural analysis should, in our view, serve several func-tions. First, it bears on the debate over sentencing policy in California.To the extent the state is or may in future be considering altering orreplacing DSL, it is worth scrutinizing the law to see which featuresmight be worth preserving, and which might best be altered. Second, itbears on sentencing policy in other jurisdictions that are consideringthe adoption of standards for sentencing. California, along with Minne-sota, have the most elaborate and widely discussed sentence-reformschemes that have been enacted to date, and hence those most likely toinfluence reform efforts elsewhere. One of us has already examinedMinnesota's system;17 California's law needs similar analysis.

passed by popular initiative in June, 1982. Expenditure of the proceeds was still in theplanning stages at the time of this writing, however. The problem of overcrowding doesnot seem likely to be resolved in the near future (Conversation between Martin L. Forstand Julia Mueller in May, 1983).

14. For some of the options for changing DSL, see T. RooNEY, SENTENCING GUIDELINESCOMMISSIONS: How DOES A COMMISSION FUNCTION AND WOULD SUCH A COMMISSION WORKIN CALIFORNIA? (1983).

15. Brewer, Beckett & Holt, supra note 10, A. LIPSON & M. PETERSON, CALIFORNIAJUSTICE UNDER DETERMINATE SENTENCING; A REvIEw AND AGENDA FOR RESEARCH (1980);J. CASPER, D. BRERETON, & D. NwA, THE IMPLEMENTATION OF THE CALIFORNIA DETERM-NATE SENTENCING LAW (1982); Casper, Brereton & Neal, The California Determine Sen-tence Law, 19 CRIM. L. BULL. 405 (1983).

16. P. Utz, Determinate Sentencing in Two California Courts, (1981) (unpublished re-port for Strategies for Determinate Sentencing Project, available at Center for Study ofLaw and Society, University of California, Berkeley).

17. von Hirsch, Constructing Guidelines for Sentencing: The Critical Choices for theMinnesota Sentencing Guidelines Commission, 5 HAxLNE L. REv. 164 (1982) [hereinaf-ter cited as von Hirsch, Constructing Guidelines for Sentencing].

[Vol. 10:2


The final reason concerns the ongoing debate about the philosophyof sentencing. While that debate is concerned with principles, it is in-fluenced by their application. The California indeterminate sentencewas long assumed to be the paradigmatic implementation of the reha-bilitative ideal-and that ideal lost support in part because of dis-enchantment with California-style indeterminancy.'8 Because the DSLhas been so visible as the first major determinate19 sentencing law,some commentators have treated it as a paradigmatic application ofideas of desert and control of sentencing discretion.2 0 But is that as-sumption justified? We need to examine whether DSL makes intelli-gent use of the ideal of commensurate, deserved punishments, andwhether it seeks to constrain discretion in sensible ways. Perhaps thedifficulties that have been encountered with DSL stem not from theideas that underlie it, but from the manner in which those ideas havebeen translated into law.

We shall not attempt to summarize the provisions of the DSL. Manyreaders are familiar with the law already, and good summaries havebeen published.21 However, we shall provide enough description to en-able someone unfamiliar with the law to follow our argument.

II. RATIONALE

The California legislation, unlike the determinate-penalty statutes ofsome other states, has an explicit statement of purpose. The first twosentences of Penal Code § 1170(a)(1) read:

The Legislature finds and declares that the purpose of imprison-ment for crime is punishment. This purpose is best served by termsproportionate to the seriousness of the offense with provision foruniformity in the sentences of offenders committing the same of-fense under similar circumstances.22

18. See, e.g., J. MrFoRD, KwND AND USUAL PUNISHMENT (1973).19. We define a "determinate" penalty system as one which (1) provides explicit and

detailed standards specifying how much convicted offenders should ordinarily be pun-ished, and (2) has procedures designed to insure that imprisoned offenders are informedearly of their expected date of release. Such a system qualifies as determinate, irrespec-tive of whether the rulemaker is the legislature, a sentencing commission, a judicially-appointed body or the parole board. For fuller discussion of the definition of determi-nacy, see von Hirsch & Hanrahan, Determinate Penalty Systems in America: An Over-view, 27 CRmE & DELINQ. 289, 294-96 (1981) [hereinafter cited as von Hirsch & Hanra-han, Determinate Penalty Systems].

20. See, e.g., M. FEELEY, COURT REFORM ON TRIAL: WHY SMPLE SOLurIONs FAn- 139-55(1983); Orland, From Vengeance to Vengeance: Sentencing Reform and The Demise ofRehabilitation, 7 HoFSTRA L. REv. 29 (1978).

21. See, e.g., Cassou & Taugher, supra note 6.22. CAL. PENAL CODE § 1170(a)(1).

1984]


The orientation of this statement toward the idea of desert is apparentenough. The statement in substance requires that durations of impris-onment be governed by the principle commensurate deserts: thosedurations are to be proportionate to the gravity of the criminal con-duct.23 We might begin, therefore, by discussing the merits of this idea.

A. The Case for Commensurable Punishments

It is our opinion-not surprisingly so, considering the previous writ-ings by one of us on the subject 2 4-that the commensurate-desertsprinciple is a sound basis for constructing a body of sentencing norms.Let us begin, therefore, by stating the case for that principle briefly.

The commensurate-deserts principle rests on the condemnatory im-plications of punishment. Punishment is a censuring institution: ittreats the act as reprehensible and the actor as someone to be blamedfor the act. The more severe the penalty, the greater the resulting re-proof. That is why the severity of punishments should be proportion-ate to the gravity of the criminal conduct. 25 Stringent punishmentsshould be limited to crimes that are seriously blameworthy; as thegravity of the criminal conduct diminishes, so should the severity ofthe punishment. The more one downgrades the role of the gravity ofthe defendant's criminal conduct-and the more, for example, one em-phasizes instead the likelihood of future criminality on his part-theless the blame being visited through punishment will fairly reflect theblameworthiness of the offender's criminal behavior.26

23. A. VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS 66-76 (1976) [herein-after cited as DOING JUSTICE].

24. Id.25. Id. at 71-76. By resting the argument for proportionate sanctions on the blaming

overtones of punishment, we do not address the question: why not have a different kindof sanctioning institution which lacks these blaming overtones and hence which wouldnot be required to be allocated according to actors' blameworthiness? One of us has dis-cussed this latter question in von Hirsch, "Neoclassicism," Proportionality and the Ra-tionale for Punishment: Thoughts on the Scandinavian Debate, 29 CRIME & DELINQ. 52,64-69 (1983) [hereinafter cited as von Hirsch, Neoclassicism].

26. The principle of commensurate deserts addresses the question of allocation ofpunishments: that is, how much to punish convicted offenders. The allocation question isdistinct from the issue of the general justification of punishment- namely, why the legalinstitution of the criminal sanction should exist at all. In arguing that the commensuratedeserts principle is a requirement of justice, one need not adopt the view that reproba-tion of wrongdoing is the only reason for the criminal sanction's existence. That institu-tion exists, no doubt, to help discourage victimizing conduct as well as to censure asdeserved. Id. at 65. But punishment-once established for whatever reason-necessarilyconnotes blame. Therefore, it ought to be distributed among convicted offenders in amanner that comports with those overtones of blame. For fuller discussion of the ration-ale for the existence of punishment, see id., 63-69. This article modifies its author's ear-

[Vol. 10:2


The commensurate-deserts principle addresses two issues that oughtnot to be confused. The first concerns the internal structure of a pen-alty scale: how different types of crimes should be punished relative toeach other. Here, the principle requires that equally blameworthy con-duct be punished equally, and that penalties be ranked in severity tocorrespond to the relative seriousness of the criminal behavior.2 7 It isthese requirements that are infringed when one uses criteria other thanthe gravity of the criminal conduct to decide the relative severities ofpunishment.

The second issue concerns the cardinal magnitude of a penaltyscale: that is, how the scale should be anchored in terms of its absolutelevels of penalties. Here, the commensurate-deserts principle is lessprecise: it is easier to discern manifest disproportion than to establisha particular relation between crime-seriousness levels and the absolutelevel of penalties. In deciding cardinal magnitudes, it may therefore beappropriate (as one of us has elaborated elsewhere) 28 also to take intoaccount other factors, including the resources that the jurisdiction hasavailable and wishes to devote to the punishment of offenders.

However, once the overall magnitude issue is decided-withwhatever sense of uncertainty that decision involves-desert shouldbecome a determining principle in matters of the internal structure ofthe penalty scale. Suppose that one resolves the cardinal magnitudequestion by deciding that offenses of a stated seriousness-level andhigher warrant the severe sanction of imprisonment and that offensesof a gravity below that level do not. Then the choice to imprisonshould depend upon whether the defendant's offense qualifies as hav-ing at least that high a degree of gravity, not on his predicted likeli-hood of offending again or on other utilitarian grounds unconcernedwith the defendant's blameworthiness.29

For a full defense of a desert rationale for sentencing, a great dealmore would have to be said-but we shall resist the temptation to sayit here. We refer the reader to the growing literature on the subject.'

lier-stated view on the subject in DOING JUSTICE, supra note 23, 45-55.27. von Hirsch, Commensurability and Crime Prevention: Evaluating Formal Sen-

tencing Structures and their Rationale, 74 J. CRns. L. & CRIMINOLOGY 209, 213 (1983)[hereinafter cited as von Hirsch, Commensurability and Crime Prevention].

28. Id. at 214, 219-26.29. Id. at 226-30.30. For the philosophical basis of a desert rationale, see von Hirsch Neoclassicism,

supra note 25; J. KLEINIG, PUIisHMENT AND DESERT (1973). For the construction andevaluation of a desert-oriented sentencing scale, see von Hirsch, Commensurability andCrime Prevention, supra note 27; von Hirsch, Constructing Guidelines for Sentencing,supra note 17. For further bibliography, see SENTENCING, supra note 2, at 300-01.

1984]


B. The Neopositivist Alternative: "Selective" Incapacitation

A number of writers on sentencing policy"' have been urging thatthis desert-oriented rationale be rejected; and that we return, instead,to an emphasis on predictive restraint (or as it sometimes now istermed, "selective" incapacitation): selecting out groups of convictedoffenders deemed to constitute higher risks, and incapacitating suchpersons by confining them. Sentences would, on this view, chiefly bebased not on the gravity of the offender's criminal conduct but on theoffender's estimated risk of future criminality. Proponents offer a vari-ety of arguments in support of this view, some philosophical, and someinvolving the promises of reductions in crime rates.

The Philosophical Claim: Proportionality as a Mere Limit. Neoposi-tivist theorists sometimes assert that desert, properly understood, ismerely a "limiting" principle.2 It should, supposedly, merely bar pun-ishments that are grossly disproportionate in severity or leniency tothe gravity of the crime. Within these broad upper and lower limits,the severity of the sentence should be based on utilitarian considera-tions, including the offender's predicted likelihood of futurecriminality.

The objections to this view of desert as a mere outer limit have beenelaborated elsewhere,"3 but may be summarized as follows. It is true, aswe mentioned earlier,' 4 that desert does not offer a unique solution tothe problem of establishing the cardinal magnitude of a penalty scale.The scale might, on the whole, be somewhat more or less severe with-out infringing on the requirement that its penalties be commensurablewith the gravity of the offenses. But once the scale's overall dimensionsand anchoring points are decided upon, desert has a defining (and notmerely limiting) role to play in the internal structure of the penaltyscale: equally blameworthy conduct should be punished equally, andpenalties should be graded to correspond to the relative gravity of the

31. See, e.g., M. SHERMAN & G. HAWKINS, IMPRISONMENT IN AMAERICA: CHOOSING THEFUTURE (1981). For a critique of these authors' views, see von Hirsch, Book Review, 131U. PA. L. REv. 819 (1983).

32. AMERICAN BAR ASSOCIATION, TASK FORCE ON SENTENCING ALTERNATIVES AND PRO-CEDURES, SENTENCING ALTERNATIVES AND PROCEDURES (1976). The report claims to drawheavily on the view of Norval Morris, particularly Morris, Punishment, Desert and Re-habilitation, in SENTENCING, supra note 2, 257-71. Morris, however, has subsequentlycriticized the A.B.A. Task Force Report in N. MORRIS, MADNESS AND THE CRIMINAL LAW202-03 (1982).

33. von Hirsch, Utilitarian Sentencing Resuscitated: The American Bar Association'sSecond Report on Criminal Sentencing 33 RUTGERS L. REv. 772 (1981) [hereinafter citedas von Hirsch, Utilitarian Sentencing].

34. See supra text accompanying note 28.

[Vol. 10:2


criminal conduct.The neopositivist view simply overlooks the critical role of the idea

of proportionate punishments in determining the scale's internal struc-ture. If desert is treated merely as a rule against outrageously severe orlenient punishments, and if sentences in other respects are predictivelydetermined, then persons whose crimes are equally serious can receivesubstantially unequal punishments. Severities will not even be rank-ordered to reflect the reprehensibleness of offenders' criminal conduct.The defendant who commits the lesser crime, under the neopositivistscheme, may receive the larger penalty if his crime or criminal recordhappens to be of the kind associated with high recidvismrates-subject only to the limitation that the penalty cannot be mani-festly excessive or trivialized in relation to the gravity of the conduct.In such a scheme, penalties will be distributed relatively to each otherin a manner that pays too little heed to their blaming implications.35

Crime Control Claims. It has long been known that it is possible todevelop predictive instruments-using such factors as the offender'sage, criminal record, employment record and drug history-that have alimited success in spotting offenders who represent higher recidivismrisks.3 6 They typically do so, as is also known, at the cost of misidenti-fying a large number of false positives-that is, persons mistakenlyclassified as future recidivists.3 7 Recent prediction studies are not par-ticularly novel in the predictive factors they use; and have not beenparticularly successful in reducing false-positive rates."

What is novel about some of the recent prediction studies is pre-cisely what is most dubious: the claim of being able to work strikingreductions in crime rates. A RAND study by Peter Greenwood, for ex-ample, has developed an index for spotting "high-risk" robbers, basedon prisoner self-reports.39 The use of the index in the sentencing ofrobbers, he asserts, would make possible a fifteen percent reduction in

35. von Hirsch, Utilitarian Sentencing, supra note 33, at 783-89. For a fuller state-ment of the argument, see von Hirsch, Equality, "Anisonomy" and Justice: An Analysisof Norval Morris' Madness and the Criminal Law, 82 MICH. L. REv. 1093 (1984); andvon Hirsch, The Ethics of Selective Incapacitation: Observations on the ContemporaryDebate, 30 CmRm & DELINQ. 175 (1984).

36. See, e.g., Gottfredson, Assessment and Prediction Methods in Crime and Delin-quency, in PRESIDENT'S COMI.SSION ON LAW ENFORCEMNT AN CRIMINAL JUsTICE, TASKFORCE REPoRT: JUVENILE DELINQUENCY AND YOUTH CRIME 171-87 (1967).

37. von Hirsch, Prediction of Criminal Conduct and Preventive Confinement of Con-victed Persons, 21 BUFFALO L. RUE. 717 (1972).

38. See von Hirsch & Gottfredson, Selective Incapacitation: Some Queries About Re-search Design and Equity, 12 N.Y.U. REv. L. & Soc. CHANGE 1 (1984) [hereinafter citedas von Hirsch & Gottfredson, Selective Incapacitation].

39. P. GREENWOOD, SELECTIvE INCAPACrrATION (1982).

1984]


the rate of robberies-and could achieve this even while reducingprison populations by five percent!40 Having examined that study insome depth elsewhere, 41 we shall not repeat all our objections to ithere. Suffice it here to say that Greenwood's assertions of being able toreduce the overall incidence of robbery are in our view unsound: theyare based on improper extrapolations from the reported behavior of asmall sample of incarcerated robbers to the supposed behavior of rob-bers generally in the community. 42

Claims of being able to reduce prison populations through predictivesentencing are equally precarious.43 A sentencing strategy that pur-ports to identify and isolate dangerous offenders is, on the contrary,likely to be particularly vulnerable to demands for escalated punish-ments and thus to require increased use of prison resources. Everytime such a system "misses" (i.e., fails to imprison) persons who subse-quently commit serious criminal acts, demands will be heard to makethe definition of dangerousness more inclusive.44 A rulemaking bodywriting sentencing standards, if it opts for a selective incapacitationapproach, is likely to face the same public response as parole boards

40. Id. at xix.41. von Hirsch & Gottfredson, Selective Incapacitation, supra note 38.42. Id. Greenwood has studied a sample of incarcerated robbers. On the basis of their

self-reports of past crimes committed, he types robbers into low, medium and high-rateoffenders; then, using these rates and available figures on the total number of robberiesreported, he estimates the number of high-rate robbers committing robberies in the com-munity. He thus claims to find that a small number of high-rate robbers are responsiblefor a large share of the total robberies-so that incarcerating such individuals when theyare caught and convicted would produce a large reduction in the incidence of robbery.One manifest defect of his projection method is that he has made no effort to study theactivity of robbers in the community. He has merely studied the robbery rates of a lim-ited, and almost certainly unrepresentative sample-namely, those who happened to bein prison and who thus could readily be interviewed. The robbers not included in hissample may well have wholly different rates of committing robberies, so his projectionsmay be inaccurate by wide margins. the statement stresses the need for retaining super-vision "in the interest of public safety."184

Nevertheless, mmunity. He has merely studied the robbery rates of a limited, and al-most certainly unrepresentative sample-namely, those who happened to be in prisonand who thus could readily be interviewed. The robbers not included in his sample maywell have wholly different rates of committing robberies, so his projections may be inac-curate by wide margins.

43. It is true, obviously, that a sentencing scheme that is selective in sending felons toprison will use less confinement resources than one that imprisons all or most felons. ButGreenwood fails to establish that prediction is, in its impact on prison resources, superiorto alternative selection criterion such as desert. For fuller discussion, see von Hirsch &Gottfredson, Selective Incapacitation, supra note 38.

44. Id. According to Greenwood's own calculations, a substantial number of those pre-dicted to be good risks would be "misses"--i.e., would have high rates of robbery in fact.Id.

[Vol. 10:2


now face when they release prisoners who then commit violent acts:they will be held responsible for failing to perform their self-pro-claimed function of protecting the public from recidivists; and effortswill be made to mandate imprisonment for an enlarged class ofoffenders.

C. DSL's Declaration of Purpose

With this thumbnail sketch of sentencing aims in mind, let us lookagain at California's legislative declaration of purpose, quoted above. 45

The declaration does embody the main desert ideas of parity in pun-ishment among those whose criminal conduct is equally serious, andproportionality of punishments to the gravity of crimes. However, thedeclaration refers only to "terms" of "imprisonment." It is thus notapparent if the rationale is intended to apply to the "in-out" choice ofwhether to imprison, as well as to durations of imprisonment. Non-prison sanctions, in any event, do not seem to be covered.4" The issuehas not been a pressing one, because the details of DSL deal primarilywith durations of imprisonment.47 But were California to seek to regu-late the "in-out" choice in a systematic fashion- a matter which weshall address below-then the declaration of policy would need to becoextensive with the decisions to be regulated.

Despite being thus limited in its scope, the declaration of policy isone of the best features (perhaps, the best) of the statute. It provides acoherent-and in our view, defensible-rationale by which the specificprovisions of DSL may be judged. Even with a substantial restructur-ing of California's sentencing law, the principles embodied in thisstatement ought to be preserved as a guide to sentencing policy.

m11. DECISIONMAKING FRAMEWORK OF DSL

Let us next examine the law's decisionmaking framework. What

45. See supra text accompanying note 22.46. Certain decisions, moreover, are explicitly governed by a different statutory ration-

ale. With respect to retroactive application of the law, the statute contains the following"finding and declaration" of the legislature: "that the necessity to protect the publicfrom repetition of extraordinary crimes of violence against the person is the paramountconsideration." CAL. PENAL CODE § 1170.2(b).

A similar incapacitative purpose is found in the statutory section governing release ofprisoners sentenced to life terms. There, the legislation directs the Board of PrisonTerms to set a release date pursuant to criteria the Board develops, unless the Boarddetermines that the gravity of the current offense or prior offenses or their timing "issuch that consideration of the public safety requires a more lengthy period of incarcera-tion" and hence that a date cannot be set. CAL. PENAL CODE § 3041(b).

47. See infra text accompanying notes 67-74.

1984]


body writes the sentencing standards, and is that body suited to itstask? What aspects of sentencing decisions are and are not addressedby the standards? These framework issues vitally affect, as we shallsee, the workability of California's sentencing scheme.

A. Choice of Rulemaker

When establishing guidelines or standards for sentencing, a criticalchoice is that of the rulemaker: which agency should write the stan-dards? A variety of rulemakers is possible, and has been tried in differ-ent jurisdictions: the legislature, the judiciary, the parole board, or asentencing commission specially established for the purpose.48 Califor-nia has relied chiefly, albeit not entirely, on legislative rule-making: thelegislature has set the presumptive prison terms, the amount of per-mitted deviation for aggravating and mitigating circumstances, and theadded terms for special and general enhancements.

When called upon to write detailed standards for sentencing, a legis-lature tends to have two major vulnerabilities. First, it does not havemuch time to spend. Writing adequate standards involves developing acoherent rationale, comparing penalties for consistency, projecting thenew penalties' impact on sentencing practice and on the limited re-sources of the correctional system, and monitoring how the system isbeing implemented in practice. A legislature, given its other pressingduties, tends to have little time, interest or resources available fordrafting sentencing standards or monitoring their application. Second,the politics of sentencing become particularly troublesome in a legisla-tive forum. Once a legislature begins debating specific penalties, theremay be strong incentives to inflate punishments, or to give the appear-ance of doing so, in order to demonstrate tough attitudes on crime tothe electorate; and there may be few political benefits from urging fair-ness, caution or realism in setting sentence levels.49

How serious have these problems been in California? The legislatureperformed better than one might have expected in 1976, when DSLwas enacted. Time was devoted to working out the complex provisionsof the law; and the legislature successfully resisted pressures to inflatepenalties over previous averages of time served.50 Since then, however,matters have deteriorated. Numerous bills have been enacted to raisethe prescribed terms for selected crimes, and to widen the ranges be-

48. von Hirsch & Hanrahan, Determinate Penalty Systems, supra note 19.49. A. VON HIRSCH & K. HANRAHAN, TmE QUESTION OF PAROLE: RETENTION, REFORM OR

ABOLITION? 83-86 (1979).50. For discussion of the legislative debate over severity when DSL was enacted, see

Messinger & Johnson, supra note 1, at 23-31.

[Vol. 10:2


tween the presumptive and aggravated terms. 1 These piecemealchanges have been made with little visible concern for their consis-tency with the penalties otherwise prescribed by the statute for compa-rable crimes. And the legislature has largely ignored the impact ofthese changes on the state's limited prison resources.52

The legislature is not the only standard-setter under DSL. The stat-ute calls upon the state's Judicial Council to write norms for judges'"in-out" choices of whether or not to imprison.53 The Council, unhap-pily, has proven itself even less suitable as rule-maker than the legisla-ture. Its in-out "standards" are so imprecise as to provide virtually nomeaningful guidance.5 4 The Council's failure leaves the "in-out" deci-sion mainly to the discretion of individual judges5 5 and renders the De-terminate Sentencing Law into a statute that controls only the dura-tion of imprisonment if the judge chooses to commit to prison.

The Council was also directed to write standards on two issues thataffect duration of imprisonment. One is the choice between concurrentand consecutive sentences in cases involving multiple convictions.5

Here again, the Council's rules are so vague as to offer no significantlimits on judicial discretion.57 The other area is the definition of aggra-vating and mitigating circumstances. 58 The Council's rules provide

51. In 1979, for example, the crime of rape (CAL. PENAL CODE § 264) had its base termsincreased from 3, 4, and 5 years to 5, 7, and 9 years. First degree burglary (§ 461) alsohad increases in its base terms from 2, 3, and 4 years to 2, 4, and 6 years.

52. See infra text accompanying notes 75-76.53. CAL. PENAL CODE § 1170.3(a).54. The Judicial Council offers several criteria concerning the decision to grant or

deny probation: the defendant's social and criminal history, the danger to the commu-nity, factors related to the crime committed, and existing statutory provisions. The coun-cil does not assign "weight" to any given factor, and in fact admits that "the sentencingjudge's discretion to grant probation is unaffected by the Uniform Determinate Sentenc-ing Law." (CAL. R. CT., tit. 2, Div. I-A, § 414; comment).

55. The California Legislature, however, has in a piecemeal fashion passed several lawseither mandating or establishing a presumption in favor of imprisonment for certaincrimes. Among these are certain sex crimes (CAL. PENAL CODE § 1203.065, as added by1979 Cal. Stat. 944), the commission of great bodily injury in certain crimes (§ 1203.075,as added by 1979 Cal. Stat. 671), first degree burglary (§ 461, as added by 1980 Cal. Stat.42), crimes committed on or at public transit vehicles (§ 1203.055, as added by 1982 Cal.Stat. 297), and possession of cocaine for sale (§ 1203.04, as added by 1982 Cal. Stat.1283).

56. CAL. PENAL CODE § 1170.3(a)(3).57. The Judicial Council offers criteria affecting the decision to impose consecutive

rather than concurrent sentences; but again, they are quite vague and offer little guid-ance in decision-making. The factors listed relate to the independence of the crimes inquestion and the number of victims, as well as any circumstances in aggravation or miti-gation (CAL. R. CT., tit. 2 Div. I-A, § 425).

58. CAL. PENAL CODE § 1170.3(a)(2).

1984]


some guidance for judges, but (as will be apparent below)59 those rulesare scarcely models of conceptual or drafting clarity.

The experience with the Judicial Council shows that when a non-legislative body is chosen to write sentencing standards, the characterof that body is critical. The Council had the seeming advantages ofmore time at its disposal, and less vulnerability to law and order pres-sures than the legislature. But the Council was closely identified withthe interests of the judiciary, and had shown no previous interest indeveloping norms for judges' sentencing decisions.6 0 It thus would haverequired considerable fortitude on the Council's part to have writtenguidelines that significantly circumscribed judges' discretion, and nosuch fortitude was shown.

Given the disappointing experience with the legislature and the Ju-dicial Council, one can expect interest to grow in transferring the re-sponsibility for setting the sentencing standards to a new specializedbody-namely, a sentencing commission."r

The sentencing commission is a device having undeniable attrac-tions. The commission can devote time and care to fashioning the stan-dards and, as a non-elective body, may be better situated to resist de-mands for draconian measures.62 The State of Minnesota has faredreasonably well with its sentencing commission: the commission's sen-tencing guidelines are carefully drafted, reflect a reasonably coherentphilosophy, and take the availability of correctional resources intoaccount.6 3

The device is not foolproof, however. Much depends on the qualityand professionalism of the commission's staff, and on the commitmentof the commission's members to their standard-setting task. While thelegislature delegates the writing of standards to the commission, itsown attitudes remain critical-because the commission will be depen-

59. See infra text accompanying notes 110-18.60. Messinger & Johnson, supra note 1, at 27, 32.61. A notable example of this growing interest is Senator Presley's bill to create a

sentencing commission, S.B. 56. For discussion of that bill, see T. ROONEY, supra note14.

62. See M. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER 118-23 (1972); Tonry,The Sentencing Commission in Sentencing Reform, 7 HOFSTRA L. REV. 315 (1979).

63. Minnesota's sentencing commission was established by the state legislature in 1978by 1978 Minn. Laws, ch. 723. The guidelines of the commission, and the commission'scommentary thereto, are set forth in 5 HAmLiNE L. REv. 395 (1982). That issue has asymposium of several articles on the guidelines, including von Hirsch, ConstructingGuidelines for Sentencing, supra note 17. The impact of the guidelines on sentencingpractice, as well as the guidelines' rationale, are also addressed in MINNESOTA SENTENC-ING GUIDELINES COMMISSION, PRELIMINARY REPORT ON THE DEVELOPMENT AND IMPACT OF

THE MINNESOTA SENTENCING GUIDELINES (1982).

[Vol. 10:2


dent on the legislature for funding, and because the standards will re-main subject to being overridden by legislative action. There must atleast be a willingness on the part of the legislature to let the guidelinesstand if the commission does its work with care. No standards canwithstand legislative scrutiny if the legislature uses its powers to blockthe commission's rules in order to adopt postures of toughness oncrime. The experience of Pennsylvania" is illustrative of such pitfalls.The Pennsylvania sentencing commission's initially-proposed guide-lines were rejected by the legislature. The commission had to increasethe guidelines' severity and water down their constraints on judicialdiscretion in order to have them survive legislative scrutiny. 5 The his-tory of the Pennsylvania guidelines illustrate what can go wrong whena commission's work is not backed by a sufficient legislative consensus,and when the commission is not successful in marshalling supportwithin the criminal justice community.

B. Reach of the Standards; Need for Considering Prison Capacity

Among the most glaring defects of DSL are its failure to regulatejudges' "in-out" decisions and its failure to take correctional resourcesinto account. The two failures are linked. Without limits on judges'power to commit offenders to prison, the system has been unable tocontrol the inflow into the prisons. Because sentencing policymakersdid not consider the availability of prison resources, conversely, theyfelt under less compulsion to develop "in-out" standards. The Minne-sota guidelines, by contrast, address both issues: the guidelines regu-late judges' decisions whether or not to imprison; and the SentencingGuidelines Commission expressly drafted the guidelines so that theprescribed aggregate use of imprisonment would not exceed availableprison capacity.68

The absence of meaningful "in-out" standards drastically restrictsthe extent to which California's determinate sentencing scheme canachieve its stated goal of proportionate punishments. Disproportionateseverity is one manifest risk. Judges are free to invoke the severe sen-tence of imprisonment against offenders convicted of lesser offenses;67

64. Pennsylvania established its sentencing commission in 1978, 1978 Pa. Laws ch.319. The commission, after having its initially proposed sentencing guidelines rejected bythe legislature in 1981, proposed revised guidelines which recently have survived legisla-tive scrutiny. 12 PA. ADMIN. BuLL. 431 (1982).

65. See Martin, The Politics of Sentencing Reform: Sentencing Guidelines in Penn-sylvania and Minnesota, in 2 RESEARCH IN SENTENCING: THE SEARCH FOR REFORM 265 (A.Blumstein, J. Cohen, S. Martin & M. Tonry eds. 1983).

66. See von Hirsch, Constructing Guidelines for Sentencing, supra note 17, at 176-90.67. An example is the two-year presumptive term authorized for any theft over $200.

1984]


and have been doing so with increasing frequency."s This problem iscompounded because the drafters of DSL failed to anticipate it in theirstructure of prison terms. Oregon has a system that, like California's,regulates the duration of prison terms-only it does so through parolerelease standards."9 The Oregon Commission on Prison Terms and Pa-role Standards, which was responsible for writing the standards, wasquite aware that judges' "in-out" decisions were not being regulated, sothat it could expect the commitment of some offenders convicted ofrelatively non-serious criminal conduct. Accordingly, the Oregon pa-role-release guidelines provide short terms for offenders convicted ofcrimes given a low seriousness-rating-including terms well below a.year for the least serious of these crimes.1 0 This somewhat mitigatesthe harshness with which such offenders are treated. The drafters ofDSL, however, apparently expected the Judicial Council to live up toits responsibilities of writing workable "in-out" rules. It tailored itsprison terms on the assumption, apparently, that only those convictedof more substantial crimes would be imprisoned. The shortest normallyrecommended prison term provided DSL is two years71 -which means(or meant until 1983) sixteen months' actual confinement after deduc-tion of good time.7 2 When the Judicial Council failed to impose signifi-cant limits on "in-out" decisions, the DSL had already been enactedand its prison terms fixed. Thus the system not only allows the impris-onment of lesser offenders, but requires that those sent to prison mustremain there for substantial periods.

Disproportionate leniency can also result. Without "in-out" stan-dards, offenders convicted of serious criminal conduct can, at thejudge's discretion, receive non-custodial sentences. The legislature hassince been trying to remedy this by mandating imprisonment, or estab-lishing a presumption in its favor, for various major felonies.73 But

CAL. PENAL LAW §§ 16, 487, 489. See infra text accompanying notes 90-92.68. Sparks, supra note 10, for example, notes an increase in the commitment rate for

certain less serious crimes from the ISL to DSL years. For offenders convicted of fraud,for instance, there was an increase of twelve percent in the number of offenders going toprison; the increase for burglary was seven percent, and for drug offenses, eight percent.

69. The Oregon parole guidelines are sketched in von Hirsch & Hanrahan, Determi-nate Penalty Systems, supra note 19, at 309-12. See also A. VON HiRSCH & K. HANRA-HAN, supra note 49, at 92-97; Taylor, In Search of Equity: The Oregon Parole Matrix, 43FED. PROBATION 52 (1979); Blalock, Parole Guidelines in SENTENCING REFORM: EXPERI-MENTS IN REDUCING DIsPARrry 91-109 (M. Forst ed. 1982).

70. Blalock, supra note 69, at 108.71. See Table lb at infra text accompanying note 92.72. Until that year, the good-time rules of the statute provided for a one-third deduc-

tion. See infra text accompanying notes 166-75.73. See supra note 55.

[Vol. 10:2


those provisions have been developed on an ad hoc, crime-by-crime ba-sis. California lacks any systematic, internally consistent rule for judg-ing when criminal conduct becomes serious enough to warrant a pre-sumption in favor of imprisonment.

The most urgently needed reform in California's sentencing system,then, is the establishment of "in-out" standards that restrict the use ofthe prison sanction to offenders convicted of more serious felonies. Apolicy of proportionate punishments cannot be implemented merely byregulating durations of confinement, if the decision to confine remainsa discretionary one. "In-out" standards are also necessary in order toprevent overcrowding in the prisons. The most striking change in sen-tencing practice since enactment of DSL has taken place just wherethe system has provided no standards: namely, the large increase in therate of prison commitments.74 It is that increase which appears to belargely responsible for the crowding in California's prisons today.

This brings us to California's failure to take systematic account ofthe availability of prison resources in setting sentencing policy. Whilethe prison terms in the original DSL purportedly were based on previ-ous averages of time served,7 5 the law contains no explicit statement ofpolicy requiring prison capacities to be taken into account in the set-ting of sentencing standards. When the legislature subsequently ap-proved amendments increasing prison terms for various crimes, the po-tential impact on prison populations was largely disregarded, and thelegislature did not appropriate money for additional prison space.76

Taking prison capacity" into account when writing sentencing stan-dards is an important incentive to realism. Given public anxietiesabout crime, it is tempting for the rulemaker to resolve all doubts infavor of imprisoning offenders. When availability of prison resources istaken into account and population projections systematically used inwriting the guidelines, this compels an awareness that one is dealingwith a system of limited resources. One cannot possibly imprison alldefendants whom various constituencies might prefer to see confined.It becomes clearer that the choice is one of whom it is most important

74. See supra notes 10, 68.75. Messinger & Johnson, supra note 1, at 30-31.76. Despite numerous term-increasing amendments occurring since the law went into

effect in 1976, the first major step to fund additional facilities was the 1982 prison bondissue. See supra note 13.

77. This requires the establishment of consistent criteria for determining prisons' ca-pacity. M. SHERmAN & G. HAwKINs, supra note 31, at 27-37, have warned that if thedefinition of "capacity" is left to the discretion of institutional managers, the conceptbecomes highly plastic.

1984]


to imprison among the possible candidates for confinement.1 s If onewishes to confine offenders convicted of serious crimes of violence, onecannot also routinely incarcerate convicted burglars and car thieves. Ifone wishes to lengthen the term for one offense category, that may re-quire shortening the terms for others. In Minnesota, making the guide-lines stay within available prison capacities became an important disci-pline for the Sentencing Guidelines Commission in writing itsstandards, and a useful explanatory device for the commission in ex-plaining those standards to the legislature and the public. 9

A more fundamental reason for considering prison capacity is ethi-cal: it is simply immoral to sentence people to overcrowded facilities.80

Overcrowding makes prison conditions unbearable: the daily discom-forts of prison life become much worse; services deteriorate; and fric-tions among prisoners that can lead to violence are exacerbated. Nocivilized society ought to send offenders to institutions which lackroom for them, and the courts have recognized this by treating over-crowding as evidence of unacceptable prison conditions under theEighth Amendment."' If those responsible for the sentencing standardsfeel that existing prison capacity is insufficient to give convicted of-fenders the punishment they ought to receive, then the only appropri-ate choices are (1) to recommend an increase in capacity, or else (2) ifthe state chooses not to make funds available for that purpose then towrite the standards so that they are consistent with available space.

IV. THE LAW'S STANDARDS FOR LENGTH OF PRISON TERMS

The DSL's main feature is its standards on duration of prison terms.For each offense category, the law provides a triad of prison terms. Forexample, the prescribed sentence for robbery is "two, three or fiveyears." ' The middle term of this triad-known as the middle baseterm-is the term prescribed for ordinary cases. The other twoterms-the upper and lower base terms, respectively-are the sanc-tions prescribed when aggravating or mitigating circumstances arefound present. In addition, the law provides for "specific" and "gen-eral" enhancements, which add specified numbers of years to the appli-cable base terms. The specific enhancements are additions based oncertain features of the offense: namely, the carrying or use of a weapon,infliction of serious bodily injury, or large financial loss. The general

78. von Hirsch, Constructing Guidelines for Sentencing, supra note 17, at 178-79.79. Id.80. For fuller discussion, see A. VON HIRsCH & K. HANRAHAN, supra note 49, at 39-41.81. Ruiz v. Estelle 679 F.2d 1115 (5th Cir. 1982).82. CAL. PENAL CODE § 213.

[Vol. 10:2


enhancements are additions to the sentence on account of the of-fender's previous criminal record-particularly, any prior im-prisonments.8 -

How sensible and fair are these standards? Because the law purportsto carry out a policy of proportionate punishments,8 and because sucha policy is one which we ourselves support,8 5 we shall examine suchstandards from the viewpoint of desert.88 Does the law provide forequal treatment for equally blameworthy conduct? Does it establishproportionately scaled penalties for crimes of different degrees of grav-ity? How defensible is the law's treatment of offenders' prior criminalrecord? How are the predictability and fairness of the prescribed termsaffected by the law's good-time credits and provisions for parole super-vision and revocation?

A. Parity: Penalty Groupings and Offense Category Breadth

In scaling penalties relative to each other,87 the principle of commen-surate-deserts imposes two requirements. The first is parity: defen-dants whose criminal conduct is equally blameworthy should betreated with equal severity.88 The second is rank ordering: the relativeseverity of penalties should reflect the relative gravity of the criminalconduct involved.89 Let us begin with parity.

The idea of parity, in the desert sense, means not only treating theequally deserving equally, but also distinguishing among those whosedeserts are unequal. How well does DSL achieve this requirement ofparity?

1. Penalty Groupings

When the legislature enacted DSL in 1976,90 it provided for onlyfour main penalty groupings. The prescribed base terms, and some of

83. For fuller description of the law, see Cassou & Taugher, supra note 5.84. See supra text accompanying notes 22-23.85. See supra text accompanying notes 24-30.86. In a recent article, one of us has suggested some techniques for evaluating sentenc-

ing standards on the basis of a desert rationale. von Hirsch, Commensurability andCrime Prevention, supra note 27. We shall draw on these techniques in the analysis tofollow.

87. We are speaking here of desert as it relates to the internal structure of the penaltyscale-not of the more difficult question on the bearing of desert on the scale's cardinalmagnitude. See supra text accompanying notes 27-28.

88. von Hirsch, Commensurability and Crime Prevention, supra note 27, at 212-13,226-27.

89. Id. at 213, 227-30.90. 1976 Cal. Stat. 1139.

1984]


the offenses involved, are set forth in Table la.

Table la. The Four Major 1976 Penalty Groupings and Their Prescribed Base Terms,With Some Offenses Shown

Offense Lower Base Term Middle Base Term Upper Base Term

I Theft over $200Receiving stolen propertyBurglary (other than

nighttime residential) 16 mos 2 yrs 3 yrs

II Nighttime residentialburglaryRobberyAssault w. deadly weaponArsonSale of marijuanaManslaughter 2 yrs 3 yrs 4 yrs

III RapeKidnapping (not for

ransom)Sale of Narcotics 3 yrs 4 yrs 5 yrs

IV Murder H 5 yrs 6 yrs 7 yrs

The basis for grouping penalties in this fashion was a simple one: theaverage time served for different offenses in the past served as a guidefor how penalties would be arranged under the new statute.91 Possibledistinctions in seriousness of offenses within these groupings were notexamined systematically.

Perhaps the most striking feature of the penalty groupings shown inTable la is the diversity of the offenses contained in each grouping.Crimes that are markedly different in character-and that seem to dif-fer substantially in seriousness-receive the same level of punishment.This is glaringly apparent in the second penalty grouping, carrying apresumptive prison term of three years. Under DSL as originally en-acted, this group includes nighttime residential burglary, robbery, ar-son, assault, sale of marijuana, and manslaughter!

Recent amendments have raised the penalties for various offenses, insuch a manner that there are now six main penalty groupings, asshown in Table lb. However, the six groups still embrace rather heter-ogenous offenses.92 Group H, for example, embraces crimes that rangein gravity from sales of small quantities of marijuana to robbery andaggravated assault.

91. Messinger & Johnson, supra note 1, at 30.92. See also infra text accompanying notes 141-43.

[Vol. 10:2


Table lb. The Six Major Current Penalty Groupings and Their Prescribed Terms, With

Some Offenses Shown

Offense Lower Base Term Middle Base Term Upper Base Term

I Theft over $200Receiving stolen propertyBurglary (other than

nighttime residential) 16 mos 2 yrs 3 yrs

11 RobberyAssault w. deadly weaponSale of marijuana 2 yrs 3 yrs 4/5 yrs

I Nighttime residentialburglaryVoluntary manslaughterSale of narcotics 2/3 yrs* 4 yrs 5/6 yrs*

IV Kidnapping (not for 3 yrs 5 yrs 7 yrsransom)

V Rape 3yrs 6yrs 8yrs

VI Rape while acting in 5 yrs 7 yrs 9 yrsconcert

*Where two numbers are shown, the upper or lower term varies with the offense. For

example, in Group II, the upper term is 5 years for robbery, but 4 years for assault witha deadly weapon.

The handling of the penalty groupings illustrates some of the majorshortcomings of DSL. One deficiency is the absence of offense-serious-ness ratings. The Minnesota sentencing guidelines grade crimes in seri-ousness from 1 to 10;es the new Washington state guidelines have afourteen-point seriousness rating system."s Having seriousness grada-tions permits the rulemaker to check whether crimes that seem to dif-fer in seriousness are being distinguished or are being lumped together.Both Minnesota and Washington give distinct seriousness-ratings tononforcible crimes such as burglary, to takings involving threatenedforce such as robbery, and to crimes involving actual use of force suchas assault with a deadly weapon.95 California, by contrast, has no ex-plicit system at all for rating the gravity of crimes. That may havefacilitated giving similar penalties to crimes that, on any common-sense assessment, differ in their seriousness.

This problem is compounded in California by the absence of "in-out" standards. The Minnesota sentencing guidelines, for example,prescribe a presumptive "out" (non-prison) disposition for offendersconvicted of offenses with intermediate or low seriousness-ratings (i.e.,

93. von Hirsch, Constructing Guidelines for Sentencing, supra note 17, at 193-99.94. 1983 Wash. Laws 115, § 3.95. See supra notes 93-94.

1984]


seriousness-ratings of "6" or lower), except where those offenders havelengthy prior records.96 Because there are no meaningful "in-out" stan-dards in California,97 the lesser offenses which in Minnesota or Wash-ington would call for an non-prison disposition are grouped togetherwith crimes for which short prison terms may well be appropriate.

2. Breadth of Statutory Offense Categories

The offense categories used in DSL tend to be extremely broad. Forinstance, the statutory definition of robbery does not distinguish be-tween armed and unarmed takings."8 The statutory definition of first-degree burglary includes any nighttime (after 1982, any nighttime ordaytime) residential burglary, regardless of the amount taken, thepresence or absence of occupants at the time of the crime, or the occur-rence of confrontation. Under the old law, the breadth of the statu-tory offense category made little practical difference, because each cat-egory had such wide statutory upper and lower limits of permissiblepunishment. Under the new law, however, the statutory categoriesmake a great deal of difference, because they determine the presump-tive term. The legislature could have chosen to subcategorize the broadoffense categories into distinct crimes that could receive distinct terms.Instead, the legislature retained, and in some instances broadened, 100

the scope of the statutory offense categories that existed previously.The result is the existence of major categories that do not embracereasonably homogeneous conduct.

The question of breadth of offense categories is no easy issue: toofine a breakdown of statutory categories may unduly complicate thesystem, or give the prosecutor excessive bargaining leverage in choosingthe subcategory, as Franklin Zimring has pointed out in his well-knowncritique of the Twentieth Century Fund's sentencing proposal. '01 Butat least, one could try to avoid lumping together behaviors that are of

96. von Hirsch, Constructing Guidelines for Sentencing, supra note 17, at 193-96.97. See supra text accompanying notes 66-74.98. CAL. PENAL CODE § 211.99. CAL. PENAL CODE § 460. A 1982 amendment extends the category to any residential

burglary, whether at night or in daytime. 1982 Cal. Stat. 1297.100. The statutory definition of robbery (CAL. PENAL CODE § 211) for instance, was

changed upon enactment of DSL so that no distinction was made between strongarmand armed robbery (1976 Cal. Stat. 1139).

101. Zimring, Making the Punishment Fit the Crime: A Consumer's Guide to Sen-tencing Reform, 6 HASTING CENTER REP. 13 (Dec. 1976): See also TWENTIETH CENTURYFuND, TASK FORCE ON CRIMNAL SENTENCING, FAIR AND CaRTAIn PUNISHMENT (1976). TheZimring article is reprinted in full, and the Twentieth Century Fund's report in part, inSENTENCING, supra note 2, 318-35: See also id. 306-08.

[Vol. 10:2


grossly distinct degrees of apparent blameworthiness. The Minnesotapenal statute, for example, attempts this: it distinguishes betweenarmed and unarmed robbery; between armed burglary, residential bur-glarly with occupants present, and other burglaries.1 0 2 This has enabledthe Minnesota Sentencing Guidelines Commision to assign distinct se-riousness-ratings-and hence distinct penalties-to these sub-categories.2

03

Given California's wide offense categories, only two techniques areavailable under the statute for making within-category distinctions.One is the use of so-called "specific enhancements," the other the useof aggravation and mitigation. Neither of these techniques is verysatisfactory.

The specific enhancements do allow for some within-category dis-tinctions to be made. They permit one, for example, to distinguish be-tween armed and unarmed robbery. An unarmed robber would get thenormal base term (three years); a robber who carries a gun in commit-ting the crime would (if possession of the weapon were pleaded andproven) get the base term plus a one-year enhancement for weaponspossession; a robber who threatens the victim with the gun would getthe base term plus a two-year enhancement for weapons use.0 4 Butthere are deficiencies in this method of distinguishing seriousnesswithin a broad statutory category.

The specific enhancements focus only on three features of the con-duct: carrying or use of weapon, serious personal injury, and largeproperty loss. Other important distinctions are thus ignored, including(1) the amount of drugs sold, in cases of narcotics sales; (2) the amountof property taken in theft felonies (unless the theft was over $25,000 inwhich event the enhancements do apply);10 5 (3) the presence or ab-sence of confrontation with or threat to the victim in burglaries (exceptwhere a weapon was carried or used); and so on. Such omissions arenot surprising. No one was looking carefully at each major offense cate-gory to see what distinctions might be made within it. Rather, the leg-islature was considering broad aspects of criminal conduct that gener-ally might warrant added punishment.

Moreover, the enhancements allow one to introduce only distinctionsthat make conduct more serious, not distinctions that make it less so.

102. von Hirsch, Constructing Guidelines for Sentencing, supra note 17, at 193-96.Such distinctions were already made in the state's penal code when the sentencing com-mission law was enacted in 1978.

103. Id.104. CAL. PENAL CODE §§ 12022, 12022.5.105. The enhancement is one year if the property loss is over $25,000; and two years if

the loss is over $100,000. CAL. PENAL CODE § 12022.6.

1984]


The worst residential burglaries-those involving gun carrying oruse-can be given extra punishment. But those typically the least seri-ous-e.g., those in which the occupant was absent, no weapon of anytype was carried, or the property loss was small-still receive the(rather high) base term 00 that the broad category of residential bur-glary carries under the statute.

What about invoking mitigating circumstances in such cases, and se-lecting the lower base term? One difficulty here is that the JudicialCouncil did not draft its list of aggravating and mitigating circum-stances with such issues in mind. Consider, again, the just-cited casesof less serious burglaries. What makes this subspecies of crimes lessserious is that there is less harm and less risk of harm. Yet among theCouncil's list of mitigating factors, few address such situations of re-duced harm.107

There is a more fundamental reason why invoking mitigation is not asatisfactory solution. Where a broad offense category such as residen-tial burglary has been subdivided according to its seriousness, the lessserious sub-species of burglary get lower presumptive dispositions.This is so in Minnesota, where burglaries of an unoccupied dwellingoccupy a different place in the sentencing grid than do burglarieswhere the occupant is present.108 This means that the judge must pun-ish the lesser burglary less severely, unless he finds that there werespecial circumstances of aggravation. In California, any reduced harmor risk from such lesser burglaries would (at best) be one mitigatingfactor to be weighed alongside a host of other possible circumstances ofaggravation or mitigation. The result is to give the judge far more dis-cretion not to reduce the penalty.

The problem of excessively broad offense categories is particularlyworrisome in California, because it occurs for the crimes that are themost frequent. Robberies, burglaries, thefts and drug offenses consti-tute the bulk of prison commitments. Yet it is precisely among thesemajor offense categories where there has been a failure to make reason-able distinctions among diverse types of conduct.

B. Parity: Variations for Special Cases

Any scale of penalties-even one with compact and carefully drafted

106. Of four years. See supra Table lb.107. In the case of the less serious burglary described in text accompanying note 106,

only mitigating factor #6 listing in Table 2a, infra, might be applicable. This factor,however, only addresses a few of the circumstances that might be related to reducedharm, and is rather vague (e.g. what is "exercised caution"?).

108. von Hirsch, Constructing Guidelines for Sentencing, supra note 17, 194-96.

[Vol. 10:2


offense categories-will confront unusual cases where the harm or riskof the conduct, or the culpability of the actor, is uncharacteristicallyhigh or low. Here, the desert principle calls for variations from the nor-mally-applicable punishment, to reflect the variation in the degree ofblameworthiness involved." 9 A scheme of aggravation and mitigationshould serve, not to try to compensate for excessively broad andloosely-drawn offense categories, but to deal with such special circum-stances. Let us look, then, at California's aggravation/mitigationscheme.

1. The List of Aggravating/Mitigating Factors

Under DSL, the definition of aggravation/mitigation has been dele-gated to the Judicial Council, and the Council has drawn up a list ofaggravating and mitigating factors.110 Of the Council's list, a substan-tial number relate to characteristics of the current offense. These arelisted in Table 2a. These factors are consistent with notions of de-sert."1 They relate either to degree of harm or risk of harm of theconduct (e.g., Aggravating Factor #4, the crime involved multiple vic-tims); or else, to the degree of culpability involved in the act (e.g.,Mitigating Factor #2 concerning contributory fault by the victim).

Table 2a. Aggravating and Mitigating Factors Relating to Characteristics of theCurrent Offense.

Aggravating1. Crime involved great violence, great

bodily harm, threat of great bodilyharm, or other acts of cruelty,viciousness or callousness.

2. Defendant was armed with or used aweapon at the time of thecommission of the crime.

3. The victim was particularlyvulnerable.

Mitigating1. The defendant was a passive

participant or played minor role incrime.

2. Victim was an initiator, willingparticipant, aggressor or provoker ofincident.

3. Crime was committed because of anunusual circumstance, such as greatprovocation, which is unlikely to recur.

109. DoING JusTIcE, supra note 23, 99-101.110. CAL. PENAL CODE § 1170.3(a)(2); CAL. R. CT., 421-22.111. Note that Mitigating Factor #3 appears to reflect a hybrid rationale. Provocation

is desert related. DoINo JusTcC, supra note 23, at 80. "Circumstances unlikely to recur"is of course predictative in character.

1984]


4. The crime involved multiple victims.5. Defendant induced others to

participate in the commission of thecrime.

6. Defendant was convicted of othercrimes for which consecutivesentences could have been imposedbut for which concurrent sentencesare imposed.

7. The planning, sophistication orprofessionalism with which crime wascarried out indicate premeditation.

8. Defendant used or involved minors.9. Attempted or actual taking or

damage of great monetary value.10. Crime involved a large quantity of

contraband.11. Defendant took advantage of a posi-

tion of trust or confidence to committhe offense.

4. Defendant participated in crime undercircumstances of coercion or duress.

5. A defendant with no apparentpredisposition to do so was induced byothers to participate in the crime.

6. Defendant exercised caution to avoidharm to persons or damage toproperty, or the amounts of money orproperty taken were deliberately small,or no harm was done or threatenedagainst the victim.

7. Defendant believes he had a claim orright to the property taken, or forother reasons mistakenly believed hisconduct was legal.

8. Defendant was motivated by a desireto provide necessities for his family orhimself.

9. Defendant was suffering from a mentalor physical condition that significantlyreduced his culpability.

Some of the listed factors, however, are vaguely worded-such as Ag-gravating Factor #10 (what is "a large quantity" of contraband?). Andthere is also a problem that some of the aggravating factors (Aggravat-ing Factor #2 concerning use of a weapon, and Aggravating Factor #1concerning great bodily harm) overlap with the statutory specificenhancements.

The remainder of the Judicial Council's list of factors address, forthe most part, the defendant's criminal record. 112 These are set forth inTable 2b:

112. Aggravating Factors #1 through #5, and Mitigating Factors #1 and #2 relate tothe defendant's record. Aggravating Factor #6 (threat to witnesses) concerns protectionof the criminal process. Mitigating Factors #3 (early acknowledgement of wrongdoing)and #5 (restitution) might be viewed as concerned with desert in some larger sense.Mitigating Factor #4 is an attempt to reduce the harshness of the mandatory prisonsentences referred to in note 55, supra.

[Vol. 10:2


Table 2b. Aggravating and Mitigating Circumstances Relating to the Defendant's PriorRecord.

Aggravating

1. Defendant has engaged in a pattern ofviolent conduct which indicates aserious danger to society.

2. The defendant's prior convictions asan adult or adjudications ofcommission of crimes as a juvenile arenumerous or of increasing seriousness.

3. The defendant has served prior prisonterms.

4. The defendant was on probation orparole at the time he committed thecrime.

5. The defendant's prior performance onprobation or parole was unsatisfactory.

6. Defendant threatened witnesses,unlawfully prevented or dissuadedwitnesses from testifying or illegallyinterfered with the judicial process.

Mitigating

1. Defendant has no prior record or aninsignificant report of criminal conductconsidering the recency and frequencyof prior crimes.

2. Defendant's prior performance onprobation or parole was good.

3. Defendant voluntarily acknowledgedwrongdoing prior to arrest or at anearly stage of the criminal process.

4. Defendant is ineligible for probationand but for the ineligibility wouldhave been granted probation.

5. Defendant made restitution to thevictim.

We shall discuss later 113 whether, and to what extent, consideration ofa defendant's prior record can be squared with ideas of commensuratedeserts. But even assuming it can, the list has specific problems. One isimprecision again: consider Aggravating Factor #2 (what suffices tomake the offender's convictions qualify as being of "increasing serious-ness"?). Another problem is the overlap of Aggravating Factor #3 withthe statutory enhancements for prior imprisonments. Finally, two fac-tors on the list seem particularly troublesome: Aggravating Factor #5and Mitigating Factor #2, to the effect that the defendant's prior per-formance on probation or parole was "unsatisfactory" and "good," re-spectively. The conceptual basis of these factors is uncertain: insofar asthe defendant's past performance under supervision relates to his ob-servance or nonobservance of technical release conditions rather thanto the commission of new crimes, are these factors addressed to the

113. See infra text accompanying notes 144-49.

1984]


blameworthiness of past conduct or purely to predictive or rehabilita-tive concerns? 114 Moreover, the two factors are mirror images of eachother. For the substantial number of imprisoned offenders that werepreviously under supervision, the judge can decide either that the rec-ord of supervision was "good" or that it was "unsatisfactory." Giventhe vague and plastic nature of the quoted adjectives, this pair of fac-tors comes uncomfortably close to permitting judges to invoke mitiga-tion or aggravation whenever they would prefer to avoid the middlebase term.115

Two features are conspicuously missing from the Council's rules.First, there is no statement that this is an exhaustive list; nor even, asin Oregon, that it is a list of the "usual" factors.116 The Council's rulesmerely state that circumstances of aggravation and mitigation "in-clude" the listed factors. 1 7 This may leave open the invocation of ag-gravation and mitigation for a variety of unlisted grounds, reflectingany of a variety of rationales for sentencing.

Second, there is no statement of how strong the presumption is infavor of the middle term. Minnesota establishes a strong presumption:departures from the prescribed grid range are permitted only for "sub-stantial and compelling" reasons."" California has no explicit standard,thus leaving it largely up to the judge to decide how strongly he mustbe persuaded in order to invoke the upper or lower base terms.

These omissions, coupled with the imprecise wording of the Coun-cil's list of factors, mean that judges have quite wide discretion to in-voke aggravation or mitigation when they see fit. Few constraints areplaced on whether the judge may depart from the middle term.

2. Amount of Variation

The rules of the amount of variation, when aggravation or mitigationhas been found, constitute a striking contrast: they are quite rigid. Foreach offense, as we stated, a triad of base terms is prescribed: for as-sault, for example, the triad is "two, three, or four years.""1 If thejudge finds mitigation he must opt for the lower base term of two

114. A. VON HIRSCH & K. HANRAHAN, supra note 49, 67-70.115. Richard Singer has warned against use of such mirror-image factors. R. SINGER,

JUST DESERTS: SENTENCING BASED ON EQUALITY AND DESERT 76 (1979).116. OR. ADM. R. ch. 254 § 30-033.117. CAL. R. CT., tit. 2, Div. I-A §§ 421-22.118. MINNESOTA SENTENCING GUmELINES COMMISSION, SENTENCING GUIDELINES § H.D.,

set forth in 5 HAMLINE L. REV. 395, 410 (1982). See also von Hirsch, Constructing Guide-lines for Sentencing, supra note 17, 210-13.

119. CAL. PENAL CODE § 245(a)(1).

[Vol. 10:2


years. 120 Even if he finds that the mitigating circumstances are moreweighty for one assaulter than another, he cannot depart from the mid-dle term by less than, or by more than, the prescribed amount. Yethow much penalty-reduction an offender deserves on account of miti-gating circumstances should depend, surely, on the character of thosecircumstances. Consider, for example, the mitigating circumstance ofprovocation by the victim. Some species of provocation are more griev-ous than others: the victim of repeated batterings who finally assaultsher husband would seem to have a claim for a larger adjustment in herpunishment than the participant in a barroom fight who was punchedby his victim. Yet judges in California are not permitted to take suchdifferences into account in deciding length of prison term. When themitigating claims are of modest strength and seem worthy of only amodest penalty-reduction, the judge is forced either to ignore thoseclaims and impose the presumptive penalty, or else invoke a larger re-duction than seems appropriate in the circumstances. Where the miti-gating claims seem unusually strong, on the other hand, the lower baseterm may still be too severe. Here, the judge will be faced with thechoice either of not imprisoning at all or else of imposing a prison sen-tence that fails adequately to take the mitigating claim into account.

The drafters of DSL had understandable concerns about the amountof variation from the presumptive term that should be permitted.Without some workable limits, the power to aggravate/mitigate mighthave reintroduced sweeping discretion throughout the entire system.The drafters of DSL could not expect the appellate courts to supplythose limits through case law, since the statute did not create strongappellate review powers such as were established in Minnesota."'1 For-tunately, the drafters did not delegate the problem to the JudicialCouncil-given the quality of that body's performance elsewhere. Thusthe law itself had to address the issue. Nevertheless, one wondersabout the rigidity of the particular solution adopted.122

The standards on amount-of-variation have also developed an up-ward bias: the upper base terms are further away from the presump-

120. CAL. PENAL CODE § 1170(a)(2).121. Compare the limited advisory review powers given the California Board of Prison

Terms under CAL. PENAL CODE § 1170(f) with the strong powers of appellate review ofsentence given the Minnesota Supreme Court under Mn*N. STAT. § 244.11 (1980).

122. A variety of alternate solutions are conceivable. A possible solution-albeit onethat could reintroduce a great deal of discretion-would be to have the upper and lowerbase terms represent boundaries on permissible variations, rather than take-it or leave-itamounts. Taking the example of aggravated assault, this would give the judge authority,if he decided to deviate from the three year base term, to impose a sentence up to thefour year limit, or down to the two year limit.

1984]


tive middle terms than are the lower base terms. An example is rob-bery. This has a middle presumptive term of three years. Originally,the upper and lower base terms were equidistant from this middleterm: two and four years respectively.128 Since 1979, the upper baseterm has been raised to five years, or double the distance from themedian than the lower base term. 124 Judged by a desert rationale, it isdifficult to see any warrant for this upward bias. One can readily envi-sion circumstances of mitigation that would warrant as great a penaltyreduction as the increase warranted by aggravating circumstances.

The widening of the gap between the presumptive and upper baseterm has also worsened another problem: that of the overlap betweenaggravation and enhancement. Consider robbery by someone who isarmed. Possession of a gun bears, under the statute, a one-year en-hancement-but the facts must be "pleaded and proven" by the prose-cution.2 5 However, arming is also an aggravating circumstance; andthe upper base term for robbery is now two years above the middlebase term.' The burden of proof for establishing aggravation is lessstringent than the "pleaded and proven" requirement for enhance-ments.127 Thus by claiming the fact of the defendant's being armed asan aggravating factor instead of enhancement, the prosecution needsnot only to meet lower evidentiary standards, but can win more time:five years instead of four!

C. Rank Ordering of Penalties

Let us turn, now, to the other requirement which the commensuratedeserts principle imposes for the internal structure of a penalty scale.It concerns the rank ordering of offenses and penalties: the relative se-verity of penalties should reflect the relative gravity of the criminalconduct involved. 2 " As one moves from less to more serious conduct,the severity of penalties should increase. To the extent that lesser con-duct is punished as much as or more than worse conduct, this require-ment of ordinality is infringed.

To assess whether California's scheme meets the demands of rankordering, we need to make judgments about the seriousness of crimes.

123. 1976 Cal. Stat. 1139 § 138.124. CAL. PENAL CODE § 213.125. CAL. PENAL CODE § 1170.1(f).126. See supra text accompanying note 124.127. CAL. R. CT., tit. 2, Div. I-A, § 439(b) requires that circumstances in aggravation or

mitigation be established by a preponderance of the evidence.128. von Hirsch, Commensurability and Crime Prevention, supra note 27, at 213, 226-

[Vol. 10:2


Seriousness, as has been discussed elsewhere, 129 has two major compo-nents: harm and culpability. Briefly, harm refers to the amount of in-jury done or risked by the act.2 0 Culpability refers to the factors ofintent, motive and circumstance that bear on the ascription of blameto the actor.' 3 ' The two factors interact: ordinarily, the injury oneshould consider should only be the forseen or forseeable injury wroughtby the actor's own conduct. The harm wrought by other actors overwhom the actor has no control, or the unforseeable harm wrought bythe actor himself should not be taken into account, as that is not con-duct for which one can fairly be held to blame. 3'

Desert theorists are only beginning to analyze the concept of offenseseriousness further,'3 3 so we cannot offer the reader formal criteria bywhich to judge crimes' relative gravity. Nevertheless a penalty scalecan be scrutinized for rank ordering by asking two simple kinds ofquestions about it. First, has the rulemaker made a conscientious effortto assess the relative gravity of offenses, and to grade penalties to cor-respond to its judgments of seriousness? Second, are any of therulemaker's prescribed penalties "out of line" when the apparentharmfulness and culpability of the conduct are compared?' 3 In Minne-sota, for example, the sentencing commission did make a systematiceffort to rate the relative seriousness of crimes. 35 When one looks atMinnesota's scale, it is evident that (holding the offender's prior crimi-nal record constant) penalties are rank-ordered to reflect the rated se-riousness of the conduct."' When one scrutinizes Minnesota's scale,moreover, one cannot readily find penalties that defy a common-sensescaling of the gravity of the crimes involved. 37 While such a rough-and-ready kind of inquiry may be no guarantee that the requirementsof rank ordering are satisfied, one can conclude that they are morenearly satisfied than in a system that fails these simple tests.

What of California, then? The first question can readily be answeredin the negative. The California Legislature did not explicitly ratecrimes according to their gravity' 38 -and that is a major deficiency ofthe scheme. This means that the legislature did not place itself under

129. DOING JUSTICE, supra note 23, at 78-83.130. Id.131. Id.132. von Hirsch, Desert and White-Collar Criminality: A Response to Dr.

Braithwaite, 73 J. CRiM. L. & CRIMINOLOGY 1164, 1167 (1982).133. von Hirsch, Commensurability and Crime Prevention, supra note 27, at 214-17.134. Id. at 227-231 (elaborated in).135. von Hirsch, Constructing Sentencing Guidelines, supra note 17, at 197-99.136. Id.137. Id.138. See supra text accompanying notes 93-95.

1984]


the discipline of having, in systematic fashion, to gauge the gravity ofoffenses, or of ascertaining whether its proposed penalty rankings cor-respond to those seriousness gradations.

That leaves us with the second question. We can examine Califor-nia's penalty scale to determine if problems manifest themselves in theway offenses and their corresponding penalties are arranged. By in-specting the penalty rankings visually and by identifying and scrutiniz-ing the seemingly anomolous rankings, we can make a tentative-if notconclusive-judgment of the ordinal proportionality of the structure.

Let us begin with the penalties that were originally enacted whenDSL became law in 1976. To ascertain the punishment levels that thelegislature evidently intended, let us take into account the applicableenhancements as well as the base terms, so that, for example, an as-sault with serious injury would receive the three-year base term forassault, plus the three-year enhancement for serious injury-or sixyears.18 These 1976 penalties are set forth in Table 3a.

Table 3a. 1976 Presumptive Penalties for Various Offenses.

Offense Presumptive Term*Assault with serious bodily injury 6 yrsRape with gun displayed 6 yrsRobbery with gun displayed 5 yrsRobbery with gun carried 4 yrsAssault with knife 4 yrsNighttime residential burglary with gun carried 4 yrsSale of any narcotics 4 yrsStrongarm robbery 3 yrsNighttime residential burglary (no gun) 3 yrsManslaughter 3 yrsSale of any marijuana 3 yrsDaytime or nonresidential burglary 2 yrsTheft over $50 2 yrs*The middle base term prescribed in the statute, plus any applicable enhancements

The ranking of these penalties corresponds, to some degree, to acommon-sense notion of the relative seriousness of offenses. Actual vio-lence with serious injury-the most serious non-lethal violence-getsthe most time. Next comes crimes with a very high potential for injury,such as armed robbery. Next come a group of crimes where there is asubstantial (but not quite so high) potential of serious injury such asnighttime burglary with gun carried. Crimes which invade privacy but

139. CAL. PENAL CODE §§ 245, 12022.3.

[Vol. 10:2


have relatively small potential for injury-such as burglary with nogun carried-follow next. Pure theft offenses receive the least time.There are, however, anomalous features in the 1976 scale, such as thecomparatively low penalty given manslaughter; and the large sanctiongiven to narcotics sales, irrespective of the amount involved. (This lat-ter is attributable to the failure to subcategorize such broad offensecategories, of which we spoke earlier.)140

If we look at the current penalty scale in California, the pictureworsens considerably. The most important amendment to thelaw-S.B. 709, which took effect in 1979 14-sharply increased the pen-alties for some offenses, while leaving others of apparently comparableseriousness unchanged. This in turn, upset the rank ordering of thescale. The current penalties 42 are set forth in Table 3b.

Table 3b. Current Presumptive Penalties for Various Offenses.

Offense Presumptive Term*

Assault with serious bodily injury 6 yrs

Rape with gun carried 8 yrs

Robery with gun displayed 5 yrs

Robbery with gun carried 4 yrs

Assault with knife 4 yrs

Nighttime residential burglary with gun carried 5 yrs

Sale of any narcotics 4 yrs

Strongarm robbery 3 yrs

Nighttime residential burglary (no gun) 4 yrs

Voluntary manslaughter 4 yrs

Sale of marijuana 3 yrs

Theft over $50 2 yrs*The middle base term prescribed in the statute plus applicable enhancements

Various anomalies are apparent here. The most glaring is the treat-ment of burglary as compared with robbery. Residential nighttime bur-glary committed by an unarmed offender, receives more punishmentthan strongarm robbery, as much punishment as robbery by one who isarmed, and nearly as much punishment as robbery involving display ofa firearm. Even allowing for the invasion of privacy in burglary, theseare puzzling results-considering the much greater risk of personal in-jury involved in the robberies.

The propriety of such rankings depends, of course, on what priorities

140. See supra text accompanying notes 98-103.141. 1978 Cal. Stat. 579.142. Le., the 1982 penalty schedule. See Note 4 supra.

1984]


are assigned to different interests of persons. If one treats property andprivacy interests as important enough, and puts sufficiently low valua-tion on threats to life, California's treatment of burglary versus rob-bery might be defended. But assuming one ranks human life and safetyabove other interests, such results are difficult to defend. 14 3

When DSL was originally adopted in 1976, there appears to havebeen some effort made to compare penalties for various offenses witheach other.14 4 When later amendments were adopted, this concern ap-pears to have been lost, and little or no consideration given to how thenew penalties compared with those for analogous offenses. The absenceof any explicit gradations of seriousness made it easier to ignore suchissues of comparative gravity.

D. Prior Criminal Record

California's penalty scheme gives much emphasis to an offender'sprior criminal record. When the offender has previously been impris-oned for a felony, he is (if that fact is pleaded and proven)145 to receivea one-year enhancement of his sentence for each such prior imprison-ment. 146 When that felony, and the current crime, are violent crimes(and the statute specifies which felonies qualify as violent), then he isto receive three additional years for each such prior violent felony.147

Is this stress on prior criminality consistent with notions of deservedpunishment? The commensurate-deserts principle seeks to make pun-ishments justly proportionate to the blameworthiness of the defen-dant's criminal conduct. That conduct is, in the first instance, thecrime for which the defendant is currently being sentenced. What sig-nificance, if any, should be accorded to prior convictions has been amatter of debate among desert theorists. George Fletcher and RichardSinger have argued that previous convictions should not be consideredat all in determining how much punishment an offender deserves.1 48 Ina recent article, one of us (von Hirsch) developed another view: thatthe presence or absence of prior criminality should to a limited extentbe considered in assessing the blameworthiness of the defendant's

143. For fuller discussion of this issue of the comparative seriousness of robbery andburglary, see von Hirsch, Commensurability and Crime Prevention, supra note 27, at228-29.

144. Messinger & Johnson, supra note 1.145. CAL. PENAL CODE § 1170.1(e).146. CAL. PENAL CODE § 667.5(b).147. CAL. PENAL CODE § 667.5(a).148. G. FLETCHER, RETHINKING CRIMINAL LAW 460-66 (1978); R. SINGER, supra note

115, at 67-74. See also, Fletcher, The Recidivist Premium, CRIM. JUSTICE ETHICS 54-59(Summer-Fall 1982).

[Vol. 10:2


criminal conduct." 9 As space does not permit us to rehearse the rathercomplex arguments for these positions here, we refer the interestedreader to that literature. For present purposes, suffice it that these po-sitions are in agreement that if prior record is utilized at all, it shouldbe used only to the extent it bears on the attribution of blame to thedefendant, and should in any event carry much less weight than thegravity of the current offense. 50

Existing guideline systems in this country all give at least someweight to the prior record.15' The question is how much weight, rela-tive to that given the seriousness of the current crime.152 California'senhancement rules permit the prior criminal record to have a greatdeal of influence. Thus:

- When the defendant's current crime is a lesser felony calling for alower presumptive term, the enhancement for prior imprisonments canhave a large relative impact. This is because prior commitments do notcall for any kind of pro rata adjustment of sentence, but rather for afiat, one-year add-on for each such prior.153 Offenders convicted ofcommon offenses such as grand theft (which carries a two-year middlebase term) may thus have their penalties increased by one-half if theyhave one prior felony imprisonment. With two prior imprisonments,the penalty doubles.1'5

- When the defendant's current crime is one of the "violent" felo-nies listed in the statute,1 55 the enhancement increases to three years

149. von Hirsch, Desert and Previous Convictions in Sentencing, 65 MINN. L. Rv.591 (1981) [hereinafter von Hirsch, Desert and Previous Convictions]. In that article, itsauthor revised the arguments developed earlier in DOING JUSTICE, supra note 23, 84-88.

150. von Hirsch, Constructing Guidelines for Sentencing, supra note 17, 182-83.151. von Hirsch & Hanrahan, Determinate Penalty Systems, supra note 19 at 305,

308.152. For discussion of this issue, see von Hirsch, Desert and Previous Convictions,

supra note 149, at 617-29.153. California's prior-record rules requires not only conviction but imprisonment for

the prior felony, before the one year add-on is imposed. This helps take the quality ofthe prior record into account: the offender is more likely to have been imprisoned whenthe prior crime is of a more serious nature. But this safeguard (if it is that) is far fromfoolproof: since California has no systematic standards for regulating the "in-out" choice,relatively minor prior felonies (especially if more frequently repeated) could have led toimprisonment-and hence can trigger the one year add-on.

154. Usually, it cannot do more than double: the sentence is not allowed, after inclu-sion of enhancements, to exceed twice the base term. CAL. PENAL CODE § 1170.1(g). How-ever, this limit does not apply if the current crime qualifies as a "violent" felony under §667.5(c). It so qualifies whenever the use of a firearm has been charged and proved in thecurrent offense.

155. The listed violent felonies include murder, voluntary manslaughter, forcible rapeand related sex offenses, and any other felony in which use of a firearm has been chargedand proved. CAL. PENAL CODE § 667.5(c).

1984]


for each prior violent felony imprisonment. This again can give theprior record large leverage. Armed robbery-a common crime in Cali-fornia's prison-bound caseload-qualifies as a "violent" crime.15 6 Thusa convicted armed robber may, in addition to his five year presumptiveterm, 157 receive three additional years for each prior armed robberycommitment. Thus a robber with one prior armed robbery confinementmay have his term increased by 60%; a robber with two such priorsmay have his term increased by six years, or 120%.158

- With sex offenses, the prior-record adjustment becomes largerstill. A 1979 amendment 59 provides that, for rape and other violent sexoffenses, a five-year enhancement is applicable for each conviction forsuch an offense. Thus an offender convicted of rape, carrying a six-yearterm, could have that term increased to 11 years for a prior convictionfor that crime-which is nearly a doubling.160

It seems to us implausible to assert that such prior record adjust-ments-which can be so large relative to the penalty for the currentcrime-are concerned with the offender's deserts.16 ' The operating ra-tionale seems to be one of dangerousness."6 2 A prior felony comitmentincreases the risk posed by the defendant by a specified extent, andtherefore warrants keeping him out of circulation for a specified addi-tional period; violent felony convictions increase that risk-or are be-lieved to do so by the legislature-and therefore warrant keeping theperson out of circulation longer.

On the other hand, the prior-record adjustments can have a differentimpact. Where the current crime is more serious and hence carries alonger term, and where the prior commitments were for crimes otherthan those few that qualify as "violent" under the statute, then theimpact of the criminal-history enhancements can be much smaller.Consider the case of the offender convicted now of armed robbery, car-rying a five-year presumptive term. Suppose he was confined once

156. See supra note 155.157. Robbery carries a three year base term, and use of a firearm results in a two year

enhancement-bringing the term to five years. CAL. PENAL CODE §§ 213, 12022.5.158. Since the current crime qualifies as "violent", the sentence after inclusion of the

prior-record enhancements may exceed twice the base term. See supra note 154.159. CAL. PENAL CODE § 667.6, as added by 1979 Cal. Stat. 944 § 10.160. Under the same provision, when the offender has two or more prior commitments

for rape, a ten year enhancement is to be added for each commitment. Thus the term fora convicted rapist with two prior rape imprisonments would be 26 years: six years for thecurrent crime and ten years each for the prior prison terms.

161. See supra text accompanying notes 148-150; von Hirsch, Commensurability andCrime Prevention, supra note 27, at 239-42.

162. For discussion of the use of prior record under an incapacitation rationale, see id.;von Hirsch, Desert and Previous Convictions, supra note 149, at 621-29.

[Vol. 10:2


before for burglary or for robbery involving carrying but not display ofa gun. As these prior crimes do not qualify as "violent" under the stat-ute, there would be only a one-year increase in sentence-amounting toonly 20%. 16 Here the seriousness of the crime carries considerablymore weight than the prior record, as a more desert-oriented rationalewould require.

This, however, raises another problem: the erratic character of theprior-record adjustment. Sometimes-as when the current crime is notserious, or when both the current crime and the prior commitment arefor a "violent" felony-the adjustment becomes large relative to thepresumptive term for the current offense. Yet at other times-as whenthe current crime is more serious and yet the prior convictions do notqualify as "violent"-the adjustment becomes proportionately muchsmaller. California's DSL does not provide consistent, proportionateincreases in its treatment of prior record.

The situation has been aggravated by the electorate's approval in1982 of Proposition Eight. This provides, inter alia, that "habitualcriminals"-persons convicted of offenses defined as "serious" whohave previously been convicted of a serious felony-receive a five-yearincrease in term for each such prior conviction. Offenses ranging frommurder to robbery and burglary make up this list of "serious" of-fenses.'" Thus the impact of the prior conviction on the sentencelength will vary drastically, depending on the character of the currentconviction. A convicted rapist with a prior conviction of robbery wouldhave his sentence increased 83% on account of this provision, while aconvicted strongarm robber with the same prior robbery convictionwould have his sentence increased due to the prior offense by 167 %! Ofcourse, this Proposition (if it has any substantive purpose other thanto vent public anger at criminals)16 5 scarcely is aimed at ensuring pro-portionate punishments, and it is not part of DSL itself.

E. Good-time Credits

DSL, until 1982, provided for good-time reductions of the court-im-posed term by one-third. Three of the four months per year reductionwere for good institutional conduct, and the remaining month was forsatisfactory program participation. 66

163. CAL. PENAL CODE § 667.5(b).164. CAL. PENAL CODE § 1192.7(c).165. The Proposition is a virtual shopping list of "get tough" measures, including ab-

rogation of various procedural rights of accused persons, steep increases in sentence forpreviously convicted offenders, and prohibitions against plea-bargaining.

166. CAL. PENAL CODE §§ 2930-2932.

1984]

CRIMINAL AND -CIVIL CONFINEMENT

These good-time provisions were designed so as not to diminish thedefiniteness of the sentence. Good-time could be forfeited only for rela-tively few, more serious infractions of prison discipline 6 7 (not for thepetty infractions encountered in some states' good-time regulations..).The prescribed losses of good time were low-none over 45 days perinfraction.' The statute contained procedural safeguards as well.Before good-time could be forfeited, there were two levels of review ofthe decision-the first within the Department of Corrections, and thesecond by the Board of Prison Terms.170 And good-time credits becamevested-that is, previously earned credits could not be forfeited."7

These provisions had the attraction of ensuring that the duration ofconfinement would be determined chiefly by the character of the of-fender's criminal conduct, not by discretionary decisions about histractableness in prison. A prisoner with a clean disciplinary recordcould expect the full one-third deduction; and one who had committeddisciplinary infractions could expect only modest losses of good-time.These rules were consistent with the principles some desert theorists'2 'have proposed for use of good-time-to wit, that good-time loss shouldbe limited to the more substantial breaches of discipline; that theamount of such loss should be modest; and that more substantial pen-alties for crimes committed in prison should require a new convictionwith its more stringent requirements of proof.

Recent California legislation has made significant changes in thegood-time provisions. 73 Beginning in January, 1983, credits are to beearned primarily through participation in prison work assignments andeducational programs rather than for good institutional behavior; andthey may reduce the court-imposed term by one-half. There is no pro-vision for the vesting of earned credits, and the amount of time whichmay be forfeited for the most serious infraction has been increased to180 days. Credits previously forfeited may also be restored if the of-fender remains free of disciplinary infractions for a specified period oftime.2

7 4

167. CAL. PENAL CODE § 2931(b).168. In Indiana, for example, any disciplinary violation can result in loss of good time.

See von Hirsch, The New Indiana Sentencing Code: Is It Indeterminate Sentencing? inAN ANATOMY OF CRIMINAL JUSTICE: A SYSTEMS OVERVIEW 143-55 (C. Foust & D. Webster,eds., 1980).

169. CAL. PENAL CODE § 2931(b).170. CAL. PENAL CODE § 2932(a).171. CAL. PENAL CODE § 2932(a).172. A. VON HIRSCH & K. HANRAHAN, supra note 49, at 41-44. But see R. SINGER, supra

note 115, at 101-104.173. CAL. PENAL CODE §§ 2931-2935, as added by 1982 Cal. Stat. 1234, §§ 2-6.174. Id.

[Vol. 10:2


The increase in the good-time allowance wrought by this amendmentcould reduce durations of confinement significantly-by a further 16%.Much as one might welcome such a reduction, the manner in which itis done troubles us. The amendment would make an offender's dura-tion of confinement depend heavily on ostensible rehabilitative consid-erations-his participation in work and treatment programs in theprison. Such a reversion to rehabilitative sentencing seems hard tosquare with the law's desert-oriented statement of aims:17 5 and itseems a strange step to take today, given the problems of effectivenessand fairness from which the rehabilitative penal ethic is known to suf-fer.176 Diluting the law's previous safeguards-by eliminating the vest-ing of good-time credits and by increasing the amount of good-timethat may be forfeited per infraction-could also make the duration ofconfinements less predictable in California. The manner in which thischange in good-time rules is implemented will be worth monitoring.

V. PAROLE SUPERVISION

DSL provides a period of parole supervision for all released prison-ers.177 Under the original 1976 law, the maximum period of supervisionwas one year. After passage of a 1978 amendment, the maximum pe-riod was extended to three years.17 8 There is still a presumption ofsorts for discharge from supervision after one violation-free year, butthe Board of Prison Terms may disregard this rule "for good cause.' 7 9

The statute provides no standards that guide the decision whether torevoke a parole violator's parole; that decision remains discretionarywith the Board of Prison Terms. If the Board chooses to revoke parole,however, the duration of the reconfinement is limited by statute.

175. See supra text accompanying notes 22-23, 45. The inconsistency with desert con-ceptions should be apparent. If offender X and offender Y both receive the same prisonterm for the same offense, X will serve double the time that Y does if he refuses toparticipate in prison programs: he will lose his entire good-time credit, whereas Y willobtain the credit through compliance with a rehabilitative regime and thereby have histerm reduced by 50%. It is difficult to see any relationship between the blameworthinessof the criminal conduct of these individuals and the resulting differences in punishment.

The amendment does take a step toward not making the grant of good-time purelydiscretionary, by providing that an offender who declares himself willing to participate ina program is eligible for a portion (but not all) of his credits, if the prison authoritiesdecide not to enroll him in any programs. CAL. PENAL CODE § 2933(a). However, theamendment contains no clear safeguards against officials' denying credits to participatinginmates, on grounds that their program performance is unsatisfactory. Id.

176. For a bibliography on these problems, see SENTENCING, supra note 2, at 186.177. CAL. PENAL CODE § 3000.178. CAL. PENAL CODE § 3000, as amended by 1978 Cal. Stat. 582.179. CAL. PENAL CODE § 3001(a).

1984]


Under the orgininal 1976 law, the limit was six months; now, it hasbeen raised to a year. s0

There is some argument among desert theorists of whether retentionof parole supervision is consistent with a desert rationale."" Our ownview, discussed elsewhere, 82 is that (1) parole supervision would not beappropriate under a pure desert model; (2) parole supervision withmodest sanctions against parole violators would be permissible under a"modified" desert model; (3) parole supervision with onerous condi-tions, or with potentially severe revocation sanctions, could stand onlyon a utilitarian penal philosophy.'8

The California parole supervision provisions do not, however, pur-port to reflect desert principles. The statute contains a separate state-ment of purposes on supervision, having a strong social control flavor:the statement stresses the need for retaining supervision "in the inter-est of public safety.'1 s4

Nevertheless, the one-year limitation on reconfinements for paroleviolations is an important safeguard. It means that parolees may not bereconfined for long periods for technical parole violations that do notconstitute criminal behavior.8 5 It also means that parolees cannot bereconfined for such long periods for alleged new criminal behav-ior-where the basis of finding that the behavior occurred is a parolerevocation hearing, with its lower standard of proof and its abbreviatedhearing safeguards, rather than a new conviction.8 8 When the pro-posed sanction involves substantial deprivations of liberty, allegationsof new criminal conduct should call for the full safeguards of a criminaltrial-to minimize the risks of penalizing those innocent of the offensescharged.1

8 7

We have not, in this Article, examined the pros and cons of Califor-

180. CAL. PENAL CODE § 3057, as amended by 1978 Cal. Stat. 582.181. Compare R. SINGER, supra note 115, at 118-121 with A. VON HIRSCH & K. HANRA-

HAN, supra note 49, at 49-72.182. A. VON HIRSCH & K. HANRAHAN, supra note 49, at 59-72.183. Id.184. The statute (CAL. PENAL CODE § 3000) states the purpose of release supervision to

be as follows:The Legislature finds and declares that the period immediately followingincarceration is critical to successful citizenship. It is in the interest of pub-lic safety for the state to provide for the supervision and surveillance ofparolees and to provide educational, vocational, family and personal coun-seling necessary to assist parolees in the transition between imprisonmentand discharge.

185. A. VON HIRSCH & K. HANRAHAN, supra note 49, at 59-72.186. Id. at 49-58.187. Id.

[Vol. 10:2


nia's decision to abolish parole release in most cases. On that subject,there exists extensive discussion on both sides of the question. 188

VI. THE LAW AS APPLIED

A. The Law in Action

Our structural analysis of DSL has identified some areas where, wefeel, the law falls short of its professed aim of providing equal and pro-portionate punishments. How serious these problems are, however,cannot be determined solely through a jurisprudential analysis; the lawas it has actually been applied needs to be examined.

There have been a number of studies of sentencing practice in Cali-fornia since enactment of DSL. The studies show that there has been amarked trend-albeit one that began sometime before passage of thelaw-toward higher prison commitment rates.18 9 DSL has not beenable to control commitment rates because, as we have seen, 90 the lawdoes not regulate the decision whether or not to imprison. In the firstyears following enactment, there has been a decrease in average timesserved for most offenses 9 1-although one can expect this effect to di-minish as the longer terms prescribed by S.B. 709 and similar amend-ments begin to influence judicial decisionmaking. There is some evi-dence, also, that durations of confinement in various offense categorieshave become more compactly distributed-i.e., less dispersed. 92 Thiswould suggest that the law may have had at least limited success inmaking punishment outcomes more predictable and consistent thanthey were under the old law.

The studies suggest that, in some important areas, the law as appliedoperates somewhat differently from the law as written. Enhancementsrelated to prior record are an example. Such enhancements tend to beimposed rather infrequently: for robberies, for example, they were so inonly 4% of cases during the first year of the lw's operation.19 3 Theemphasis on prior record is thus, in practice, not nearly as strong asthe statute permits-thus reducing the problems related to the treat-

188. For bibliography, see SENTENCING, supra note 2, at 369.189. See, e.g., Brewer, Beckett & Holt, supra note 10, at 210-13. However, the trend

has not been uniformly upward: in three counties examined in one study, commitmentrates began declining somewhat after 1978. See Casper, Brereton and Neal, supra note15, at 415-20.

190. See supra text accompanying notes 67-74.191. See, e.g., Brewer, Beckett & Holt, supra note 10, at 218.192. Id. at 219-23.193. Id. at 223.

1984]


ment of prior criminality of which we spoke earlier. 94 However, thislast point ought not be overstated. Even if the offender's current of-fense is usually given primary emphasis, the statutory prior-record en-hancements-with the large increases they potentially involve-canstill be invoked in some cases; and where invoked, still present theproblems of proportionality and consistency we discussed.

B. DSL and Prosecutorial Discretion

There is no doubt that DSL has changed the role of prosecutors.Because the duration of the offender's confinement is now determinedby the judge at sentencing rather than by the parole authorities at alater time, and because definitely-prescribed terms have replaced thehuge sentence ranges of the earlier law, the prosecutor now enjoysmuch more power over the sentence, as his choice of charge and hischoice to accede to a bargained plea more nearly determines sentenceoutcome.

The potential impact of this increased prosecutorial power has beena matter of debate in recent years. Albert Alschuler and FranklinZimring 95 have argued that it will nullify the benefits of determinatesentencing: discretion is not reduced, but merely shifted from thejudge to the prosecutor. Others 96 have suggested, however, that whiledeterminate sentencing laws may increase prosecutorial power, theymay also give prosecutors guidance during the negotiation process.

Which of these hypotheses does California's experience with DSLsupport? Here, we refer to a recent in-depth study of plea-bargainingunder DSL in two California counties, by Pamela Utz.' 9

7 The experi-ence of one of these counties, Alameda, is of considerable interest; Utzfound that although in Alameda prosecutorial power has clearly beenenhanced by DSL, the result has been a more "rational" practice ofplea-bargaining. There is less posturing by plea-negotiators than ex-isted under the old law, and a clearer understanding of what featuresof the offense or the offender's history are germane to the negotia-tions. 98 Utz's conclusions concern only Alameda-and suggest less sat-isfactory results in the other county, Sacramento. 99 But her study sug-

194. See supra text accompanying notes 145-63.195. Alschuler, Sentencing Reform and Prosecutorial Discretion: A Critique of Recent

Proposals for "Fixed" and "Presumptive" Sentencing, 126. U. PA. L. REv. 550 (1978);Zimring, supra note 101.

196. von Hirsch & Hanrahan, Determinate Penalty Systems, supra note 19, at 312-15;Hyman, Bargaining and Criminal Justice, 33 RUTGERS L. REV. 3 (1980).

197. Utz, supra note 16.198. Id.199. Id.

[Vol. 10:2


gests that reality may be more complex, and somewhat less damning,than Alschuler's and Zimring's conjectures suggest.

Proposition Eight attempts to curtail plea bargaining. It providesthat no charge-bargaining or sentence-bargaining may take place inany case involving a charge of a "serious" felony. 00 The charging prac-tices of prosecutors are unlikely to be affected by this provision, asmost negotiations under DSL center around the defendant's sen-tence.20 1 Whether sentence bargaining will be effectively restricted ormerely will be made less visible is something we cannot surmise, andmust await empirical studies.

VII. POLICY IMPLICATIONS

A. Should DSL Be Emulated?

Should DSL be emulated in other jurisdictions? The statute pur-ports to implement the idea of proportionate punishments. 20 2 Thatidea, as we have suggested, is a sound one.203 Unfortunately, the man-ner of its implementation by the drafters of DSL is flawed. The statutesuffers from the following structural defects:

1. Choice of Rulemakers. California's legislature wrote the standardsfor duration of confinement itself, rather than delegating that task to amore specialized rulemaking body. The legislature has not been wellsituated to cope with law-and-order pressures, and has made piecemealchanges in the law that has inflated terms for certain offenses on an adhoc basis.204

2. Failure to Regulate "In-Out" Decisions. DSL has not effectivelyregulated judges' choice of whether or not to commit offenders toprison.20 5 This has seriously interfered with the scheme's capacity tomete out proportionate sanctions-as judges retain broad discretion toimprison offenders for lesser crimes or (subject to a patchwork ofmandatory-sentence rules) to grant probation or jail for those con-victed of serious felonies.

3. Failure to Consider Prison Capacities. California's system has leftno one responsible for matching prison commitments to available ca-

200. CAL. PENAL CODE § 1192.7.201. See CAL. PENAL CODE § 1192.7 for a listing of those felonies defined as "serious".

Included in the list are offenses ranging from murder and voluntary manslaughter, torobbery and burglary.

202. Or, more precisely, it purports to do so with respect to duration of imprisonment.See supra text accompanying notes 45-47.

203. See supra text accompanying notes 24-30.204. See supra text accompanying notes 48-52.205. See supra text accompanying notes 66-74.

1984]


pacity.20 6 This contrasts unfavorably with the Minnesota and Washing-ton systems, where the rulemaker must explicity consider the availabil-ity of space in devising the rules for whether and how long toimprison.201

4. Broad Offense Categories. The offense categories used in DSL areexcessively broad, leaving insufficient means for distinguishing amongcrime types of differing seriousness. 20 8 The rules on variation for aggra-vation and mitigation suffer from too much looseness in the definitionof aggravating and mitigating circumstances, and too much rigidity inthe rules determining the amount of variation from the presumptiveterm permitted on account of such circumstances.209

5. Failure to Rate Seriousness of Offense. The DSL has developedno explicit ratings of the seriousness of offenses.21 0 The absence of suchrating has made it easy to ignore questions of ordinal proportionalityin the setting of penalties. The post-1976 amendments of the statutehave, in fact, resulted in anomalous orderings of sanctions.21

6. Prior Criminal Record. DSL treats the prior criminal record in amanner that does not comport well with notions of proportionate pun-ishment. Particularly troublesome is the fact that the enhancement is aflat amount that can either be very large or quite small in relation tothe prescribed term for the current crime.21 2

These defects, in our view, are serious ones. They substantially inter-fere with the law's ability to accomplish what it purports to-namely,to impose fair, proportionate sanctions. They also reduce the workabil-ity of the system-particularly with respect to problems ofovercrowding.

It is our conclusion, therefore, that DSL should not be emulated.While we strongly support the aim of developing sentencing standardsbased on the idea of commensurate deserts, the manner in which thoseaims have been carried out in California are so deficient as to makeDSL a poor exemplar. Better models are available elsewhere. As a gen-eral matter, we would recommend legislation that (1) creates a sentenc-ing commission to set guidelines for sentencing,2 3 (2) calls upon the

206. See supra text accompanying notes 75-81.207. Minnesota's approach to the problem is discussed in von Hirsch, Constructing

Guidelines for Sentencing, supra note 17, 176-80. The Washington statute likewise, re-quires consideration of prison capacity. 1981 Wash. Laws ch. 137, § 4.

208. See supra text accompanying notes 98-108.209. See supra text accompanying notes 109-127.210. See supra text accompanying note 138.211. See supra text accompanying notes 141-44.212. See supra text accompanying notes 145-63.213. See supra text accompanying notes 62-65. See also A. VON HIRsCH & K. HANRA-

HAN, supra note 49, at 86-88. For the problem of how to phase out parole release if it

[Vol. 10:2


commission to apply the principle of commensurate deserts in devisingthose standards,2 14 (3) requires the commission to regulate the in-outdecision of whether to imprison as well as durations of imprison-ment,215 (4) calls upon the commission to take the availability of prisonresources into account in fashioning the standards, 216 and (5) gives thestate's appellate courts ample powers to review sentences for compli-ance with the guidelines.21 7 Once the commission has been created, wewould recommend that it go about its standard-setting task by (1)adopting a firm population constraint whereby aggregate confinementsunder the guidelines may not exceed available prison capacity,2 18 (2)grading offenses according to their seriousness, and (3) adopting pre-sumptive penalties in such a manner that the use of imprisonmentwould be limited chiefly to serious crimes and that the seriousness ofthe crime would carry more weight than the prior criminal record. 219 Ifone is looking for a model in existing law, the Minnesota sentencingguidelines (despite some deficiencies) would be a better starting pointthan DSL. 220

B. Further Reforms in California

What should be done in California? There now is growing interestreforming DSL-or more particularly, in replacing it with a sentencingcommission system.22

1 Let us suggest a few tentative thoughts aboutthe potentials and pitfalls for change.

1. DSL, with all of its problems, has instituted some worthwhile poli-cies that ought to be preserved. One is that of having definite stan-dards for sentencing decisions. California was one of the first jurisdic-tions to introduce rules that provide explicit and detailed norms on

exists in the jurisdiction, see id. at 92-101.214. For possible language, see the 1977 sentencing-commission bill introduced in the

U.S. Senate by Senators Gary Hart and Jacob Javits, S. 208, 95th Cong., 2d Sess. § 6, setforth in A. VON HiRsCH & K. HAmAHAN, supra note 49, at 117.

215. See supra text accompanying note 74.216. See supra text accompanying notes 77-81. For discussion of the question whether

existing prison capacities reflect the desirable aggregate use of imprisonment, see vonHirsch, Constructing Guidelines for Sentencing, supra note 17, at 179-80, and vonHirsch, Commensurability and Crime Prevention, supra note 27, at 222-26.

217. Such strong appellate review powers are essential if the sentencing commission'sguidelines are to be enforcible. See Ozanne, Bringing the Rule of Law to Criminal Sen-tencing: Judicial Review, Sentencing Guidelines and a Policy of Just Deserts, 13 Loy.U. Cm. L.J. 721, 744-53 (1982).

218. von Hirsch, Constructing Guidelines for Sentencing, supra note 17, at 176-80.219. See supra text accompanying notes 148-50.220. See supra von Hirsch, Constructing Guidelines for Sentencing, note 17.221. T. ROONEY, supra note 14.

1984]


how severely convicted offenders should be punished. The law employsa useful mechanism to that end: the presumptive sentence, whereby adefinite quantum of punishment is prescribed as the normally-recom-mended sentence, with authority to deviate for aggravating or mitigat-ing circumstances. One might wish to tinker with this mechanism-forexample, to use instead Minnesota's "point-range" device, whereby adefinite quantum of punishment is prescribed as the presumptive sen-tence, but a narrow range around that point is also prescribed as thepermitted normal disposition.222 However, the introduction of widesentencing ranges, such as those found in the Pennsylvania 22 or li-

nois224 sentencing standards, may erode any meaningful guidance of ju-dicial discretion.

Another valuable feature of DSL is, as we have suggested, 225 itsadoption of the principle of deserved, proportionate sentences. Anychange in the law should preserve this principle as the guiding ration-ale for deciding the relative severity of punishments.

2. There should be a full awareness of the potential hazards of at-tempting comprehensive sentencing reform in California at this time.The DSL has its admitted deficiencies, but if the attempt is now madeto repeal it and create a whole new sentencing scheme, the productcould be still worse. Any far-reaching change in the state's sentencingstructure-including a shift to a sentencing-commission sys-tem-would have to be approved by the legislature, and penal policymay now be a still more volatile issue in that body than it was whenDSL was written nearly a decade ago. Considering the California elec-torate's recent approval of draconian Proposition Eight, one wondershow propitious a time this is to try a complete rewriting of the state'ssentencing law.

Were the entire structure of DSL reopened to debate in the legisla-ture, a variety of pitfalls can readily be imagined. (1) The principle ofproportionate punishment, perhaps the best (even if imperfectly real-ized) feature of present law, may not survive. (2) The legislature mayconsider and reject creation of a sentencing commission, and try tofashion a new set of standards itself in a highly-charged political envi-ronment. Or else (3), the legislature may create a sentencing commis-sion, but give it insufficient authority to deal adequately with the is-sues it is charged with addressing. The sentencing-commission billrecently reported by a committee of the legislature suffers, in our judg-

222. von Hirsch, Constructing Guidelines for Sentencing, supra note 17, at 208-10.223. Id. at 213, n.182.224. von Hirsch & Hanrahan, Determinate Penalty Systems, supra note 19, at 297.225. See supra text accompanying notes 22-47.

[Vol. 10:2


ment, from the latter problem.2 21

3. What conditions, then, would have to be met in order for a sen-tencing commission to have any prospects of success in California? Aconfident answer would require greater familiarity with the politics ofcriminal justice in the state than we would profess to have; but tenta-tively, we would list these minimum conditions.

(a) The commission would need adequate standard-setting powers. Itrequires a clear mandate to prescribe standards on whether or not toimprison; and to prescribe presumptive durations of imprisonment, ornarrow recommended ranges of imprisonment. The latter power shouldinclude that of changing the present durations in DSL-at least inthose instances where the commission finds the present durations raiseproblems of ordinal proportionality.2 27 Without a clear directive towrite "in-out" standards, the most pressing practical problem of thepresent law-the unchecked flow of persons convicted of lesser feloniesinto the prisons22 8-cannot be solved. Without powers over duration ofimprisonment, the anomalies in the prison-term standards we dis-cussed earlier 2 2 cannot be alleviated.

(b) The legislation needs to include an unequivocal directive that thecommission, when writing its standards, consider systematically and belimited by the availability of prison space.23 0 In the absence of such aprovision and a sufficient legislative consensus to back it, any reasona-ble scheme which the commission develops may face rejection oncesubmitted for legislative review. The problems Pennsylvania faced inobtaining legislative approval for its commission's guidelines 21 illus-trate the difficulties of fashioning workable guidelines in the absence ofany legislative understanding about what overall levels of prison-usemight be acceptable. (In California, of course, a further problem exists:

226. This is Senator Presley's bill, S. 56, which has attracted considerable interestsince its introduction in early 1983. Problems of the bill include: (1) a statement of pur-pose that seems to stress selective-incapacitation rather than proportionate, deservedpunishments; (2) an insufficiently clear mandate to the commission that it prescribe "in-out" standards on whether to imprison; (3) excessively wide ranges of duration, whereprison is recommended as the sentence; (4) insufficient authority to adjust presently pre-scribed durations that seem anomalous to the commission; and (5) an unwieldy commis-sion size-eighteen members. For discussion and text of bill, see T. RooNEY, supra note14.

227. See supra text accompanying notes 128-43.228. See supra text accompanying notes 66-74. To deal with this problem, the legisla-

tion will also have to provide for the repeal of at least some of the various ad hoc statu-tory presumptions favoring imprisonment for particular crime categories (e.g., burglary),when the guidelines take effect. See supra note 55.

229. See supra text accompanying notes 128-43.230. See supra text accompanying notes 77-81.231. Martin, supra note 65.

19841


even if the sentencing commission's standards should survive legisla-tive scrutiny, they can still be overturned or nullified by popular initi-tive. The experience of Proposition Eight illustrates the ominous po-tentials there.)

(c) Finally, the commission's standards need to be backed by astrong appellate review mechanism. Sentencing guidelines written by acommission are not self-enforcing, and do not have the visibility andprestige of legislation. Guidelines can too easily be ignored unless devi-ating sentences can be appealed to an appellate court, and unless thatcourt has a clear mandate to police the guidelines' implementation.The courts in Minnesota are implementing that state's sentencingguidelines, because the enabling legislation calls for direct appeals ofsentences to the supreme court; and because the court has not beenhesitant in reversing noncomplying sentences, and has been buildingup a body of case law interpreting the guidelines. 22 Without effectiveappellate review, sentencing guidelines will become largely precatory.

If it is possible to establish a sentencing commission having thesesubstantial powers, there is some hope (albeit by no means certainty)that it could develop a better body of standards than those of DSL.But if foregoing conditions cannot realistically be met, a sentencingcommission with insufficient powers is likely to perform no better, orquite possibly worse, than the current law. It may instead be necessaryto defer any comprehensive solution until a more favorable politicalatmosphere develops, and concentrate on admitted stopgaps to currentproblems such as reductions in some of the prescribed terms,2 33 andemergency overcrowding legislation.234 Ultimately, dealing rationallyand fairly with sentencing decisions is a question of a jurisdiction's po-litical will-and its political self-restraint in dealing with the emotion-ally charged issue of punishing convicted criminals.

232. MINNESOTA SENTENCING GUIDELINES COMMISSION, supra note 63, at 53-61.233. A candidate for such reduction would, for example, be the high presumptive term

for the common offense of burglary. See supra text accompanying notes 141-43.234. See, e.g., S. 50 in the 1983 legislative session, set forth in T. RooNEY, supra note

14, at Appendix E. See also Note, Relief for Prison Overcrowding: Evaluating Michi-gan's Accelerated Parole Statute, 15 McH. J. L. REFORM 547 (1982).

[Vol. 10:2

California's Determinate Sentencing Law: An Analysis of...

Documents

Transcript of California's Determinate Sentencing Law: An Analysis of...