In summary

We wholeheartedly support the recommendation to establish clear guidelines for when courts should apply sentencing enhancements.

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By Peter Espinoza

Pete Espinoza, a former judge in Los Angeles Superior Court, is a member of the California Committee on Revision of the Penal Code.

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Michael Romano, Special to CalMatters

Michael Romano, who teaches criminal law and policy at Stanford Law School, is chair of the California Committee on Revision of the Penal Code,

One of the basic tenets of our criminal justice system is that punishment is supposed to be proportionate to the crime. But in the wave of “tough on crime laws” passed in the 1990s, California turned that longtime legal standard on its head, instead adopting many sentencing enhancements, which add years to a person’s prison term, often doubling it. 

California’s Penal Code is now weighed down by more than 150 separate sentence enhancements, ranging from add-ons for possible gang association, having a prior conviction or being on probation. Such enhancements are now routinely applied in nearly every criminal case in the state. 

In fact, 80% of people in state prison are serving a term lengthened by a sentence enhancement, and more than 25% of those incarcerated are serving sentences extended by at least three enhancements.

Enhancements, which can add a decade or more to a person’s prison term, have also played a significant role in causing prison overcrowding and have traditionally disproportionately impacted people of color. For example, more than 97% of people sentenced to prison for a gang enhancement in the state are Black, Latinx, Asian Pacific Islander or Native American.

Last September, former Gov. Jerry Brown, while testifying to California’s Committee on Revision of the Penal Code, argued that it was time for the state to “get rid of all enhancements” or reform state law so that judges are given stronger guidance on how and when to apply enhancements. 

Prominent prosecutors, including Santa Clara County District Attorney Jeff Rosen, also testified to the committee that the use of sentence enhancements in California are out of control, and that in many trials, the application of enhancements has become more of a focus for both the prosecution and defense than the actual crime itself. The committee also heard testimony and reviewed research showing that the lengthening of prison sentences has not improved public safety. 

We agree, which is why, as a former judge and someone who teaches criminal law and policy at Stanford Law School who are current members of the Committee on Revision of the Penal Code, we wholeheartedly support the committee’s recommendation to establish clear guidelines for when courts should apply sentencing enhancements. 

And we firmly support Senate Bill 81, by Sen. Nancy Skinner, a Democrat from Berkeley, who is also a member of the Penal Code Revision Committee, because the legislation stems directly from the committee’s recommendation.

California needs clear guidelines for sentencing enhancements due to the fact that current law can lead to arbitrary use of enhancements. Judges technically have the ability to dismiss sentencing enhancements but only if the dismissal meets an undefined and unclarified concept. Even the state Supreme Court has noted that the question of when judges should dismiss enhancements is an “amorphous concept.”

SB 81 will provide clarity and certainty by guiding judges to apply sentencing enhancements when there is clear and convincing evidence that not doing so would endanger the public. SB 81 guides judges to factor in the following circumstances and not utilize an enhancement when these circumstances apply:

  • The underlying conviction is a nonviolent offense or did not include a loaded firearm;
  • Enforcing the sentencing enhancement would result in a disparate racial impact;
  • The enhancement is based on a prior conviction that is more than five years old;
  • The underlying conviction is connected to mental health issues or to prior victimization or childhood trauma;
  • The defendant was a juvenile when they committed the underlying offense or prior offenses; and
  • Multiple enhancements are alleged in a single case or the total sentence is more than 20 years 

SB 81 mirrors current legal guidance provided to judges on how to exercise their sentencing discretion when it comes to probation. It also builds on existing California Rules of Court that give guidance to judges on what to consider when determining the length of sentences for underlying crimes.

SB 81 retains the authority of judges to impose sentence enhancements in order to protect public safety. And it follows in the footsteps of at least a dozen other states that have reformed their use of enhancements.

Most importantly, SB 81 will allow California to finally restore the bedrock legal standard, ensuring the punishment fits the crime.

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