Former Court of Appeal Presiding Justice J. Anthony Kline has this in today’s Daily Journal: “The enablement of mass incarceration by the California Supreme Court and the need for a legislative solution.” The long piece sharply criticizes the court’s decision in In re Butler (2018) 4 Cal.5th 728 (see here), which reversed a First District, Division Two, opinion that Justice Kline concurred in.
Butler — and Justice Kline’s column — concern parole for prisoners serving indeterminate sentences, which the court defined as terms “that run from a minimum number of years to life, making release possible before the end of their life.” The Butler court, in a unanimous opinion by then-Justice Mariano-Florentino Cuéllar, altered a settlement agreement that had required the Board of Parole Hearings to calculate the “base terms” of indeterminate sentences, terms that, before a statutory change, the court said, governed an inmate’s earliest possible release date.
The column argues that the “obvious problem” with indeterminate sentences is that they “do[ ] not punish offenses uniformly.” This is because, Kline states, an indeterminate sentence “focuses . . . on whether post-conviction conduct indicates continuing dangerousness,” predictions that are unreliable. Thus, he concludes, “[t]he wide range of prisoners’ post-conviction conduct often leads to situations in which prisoners who committed the same offense in the same way and in the same circumstances, and were therefore equally culpable, may nevertheless receive dramatically disparate punishments.”
The Butler opinion, Kline contends, “resurrects all the constitutional and other problems created by the structure of indeterminate sentencing” and it is partially to blame for current prison overcrowding because of its “validation of the Board’s refusal to acknowledge the constitutional limitations of its power to punish.”
[May 27 update: Ron Matthias, a retired California senior assistant attorney general who specialized in homicide appeals, has a letter in the Daily Journal that complements — and compliments — Justice Kline’s column. In “Predicting dangerousness and the dangers of disuniform sentencing,” Matthias writes that Kline “rightly rails against any sentencing scheme that ‘does not punish offenses uniformly.’ ” He then goes on to assert that the same underlying principle should apply to resentencing proceedings under Penal Code section 1172.1.]
