A couple of kind readers separately sent me the link to this article on CA's growing seriousness about forming a sentencing commission to deal with The California Challenge. (And, of course, Doug Berman had a good post on it with several interesting comments, particularly one from a guy in KS.) I've said plenty about CA's Gordian Knot situation and don't really see reasons yet to believe that simply forming a traditional sentencing commission, a state body with constituency reps who have too much to lose with too substantial reform, will get the job done there. And its failure will likely prove even worse than a mere waste of time, as the KS guy points out.
I do realize that my idea of Marvin Frankel's original vision--a well-insulated commission with super-authority, chosen by a panel of reps of national professional organizations--can only become viable when the state realizes the extent of the problem it has. That a traditional commission is apparently all that's being considered publicly, even at this stage of the light bulb being on overhead, indicates not only that they're not there yet but also that they may never get there.
That said, what would a next best option to a Frankel Commission for CA be? Since modesty and lack of effect haven't slowed me in any way so far, let me suggest this. The key virtues their new policy must seek if their commission has any chance of success are: protection from internal and external political forces; recognition of the importance of solid, transparent, and well-provided data on both sentencing and its impacts; severability of functions; and permanence.
Whatever body they create must be carefully selected, its mission conspicuously spelled out with sanctions for obstacles, and policymakers with real power seriously engaged in reform, not camera-seeking. We've talked frequently about sentencing info systems which can provide findings beyond the usual "average sentence for a male burglar with two priors" and get into recidivism and the sentences that seem to best prevent it. Since sentencing commissions tend to be expected to do more than one thing but get hammered for varying ones, the new body should have legally severable parts so that, if one falls to politics or incompetence, the rest of the body doesn't dissolve with it. And finally, there should be no sunsets or such clear politics involved that players can believe the commission might not be there to have influence in the future. Placement of the commission in a buffering structure, such as a foundation, university department or school, or "neutral" state agency such as a dept of admin, with less dependent sources of continued resources, would be the best bets for this kind of outcome.
So what does that mean structurally for CA's possible commission? Let's work on an idea from the "What If a Sentencing Commission Won't Work in Your State?" on the right side there. I'd recommend a body with at least three severable parts, overseen by a "sentencing policy authority" composed of a small number of folks from each party and the three branches, with real power to make things happen (Appropriations chairs, Chief Justice, Governor's top policy staff, and NO proxies or delegates). Maybe give them a deadline to have something meaningful done. Day-to-day operations and coordination would be run by a foundation, university, or dept of admin (the state budget office, maybe). The staff wouldn't have to be any larger than that of a traditional commission if the evaluation/research function were contracted out (discussed below). It would also give the option (and threat) that, should policymakers dump on the "Authority" and its parts, the foundation or university might continue some or all of the functions anyway.
The first part would be an advisory commission, traditionally composed and authorized, regarding sentencing review and impact, only making recs to the "Authority" instead of pronouncements that may or (usually) may not have teeth. This would be the practitioner feedback loop on state sentencing policy that is needed.
The second part would be a council of statisticians and data gurus from relevant state agencies (corrections, courts, admin and budget, prosecutors, legis staff) to plan, implement, and oversee a thoroughly integrated sentencing and corrections policy data system TO WHICH ALL STATE AGENCIES ARE MANDATED TO CONTRIBUTE AS/WHEN REQUESTED BY THE "AUTHORITY." This system would remain available to issue basic stat reports even if the commission goes moribund (likely) or gets offed (less likely but possible).
Finally, the third part would be a research unit, composed of analysts and/or contract specialists signing on professional evaluators to produce quality, MANDATED evaluations and analyses of sentencing and corrections effectiveness as well as cost/bedspace/whatever projections and impacts of continued or proposed policies and programs. A "consortium" could be created of university and non-profit researchers (and their cheaper minions and drones) networked with the corrections sentencing community to set priorities and to direct timely research. This was done for a while in the late 90s in OK by its corrections department before it ran afoul of politics. [DISCLAIMER: I served on the consortium board so I'm not exactly unbiased. But it's still a good idea, even if I was associated with it.] This will help to bring light and transparency to inform good policy and brightly illuminate bad.
This "next best" proposal is, it seems to me, do-able if CA is willing to put its money (and not all that much, really) where its gaping, bleeding, desperate prison mouth is. The failure of one or two parts would still leave valuable part(s) behind, unlike what's happened with past commissions. Success of any one of them will produce better outcomes than the state is getting now, it appears. If all were to function optimally, the synergies (eek!!) of their interactions would provide rational, demonstrably effective options (which could include guidelines and/or "smart sentencing" and/or even something newer and better) maybe even superior to anything currently going on anywhere. And success there would very likely have the historical "CA Effect" and carry into other states facing the same problems on just slightly smaller scales, like CO and WI.
Judging by how well my "California Challenge" transformed that state so far, this is probably more howling at the moon. But, as I've said before, if CA can somehow get a grip, then the future of corrections sentencing looks better for all of us. That's worth a few howls, right?
Feel free to join in with some of your own.