The Sacramento Bee comes out for sensible, workable prison policy solutions, including an independent sentencing commission, that would reduce our prison budget and actually make the state safer.

That leaves the biggest issue that legislators need to tackle: California’s jumble of complicated, inconsistent and confusing sentencing laws. Other states have resolved the mess by creating an independent, professional, nonpartisan sentencing commission. The time is ripe for California to do the same.

In other states, successful sentencing commissions collect past and current sentencing information and analyze the impact of sentencing changes on prison populations, budgets and crime rates. They recommend an organizing framework for sentencing. Details on who makes appointments and who serves (judges, district attorneys, law enforcement, etc.) get worked out on a bipartisan basis.

Assembly Speaker Karen Bass and Senate President Pro Tem Darrell Steinberg have shown interest in getting a bill passed. Assembly Bill 1376, which passed the Assembly and is now in the Senate, is the vehicle.

These prison solutions have been discussed for three decades; it’s time to act.

It’s about time this was recognized.  As General Barry McCaffrey has written, we have an addiction to prison in this country, and in particular in this state.  An all-too-prevalent “out of sight, out of mind” attitude has blinded the political leadership to the consequences of warehousing prisoners without giving them the tools to pay their debt to society and move on in a positive, successful fashion.  The sentencing commission bill has languished for years; it’s time to ignore fear and get this done.

In between budget posts, I’ve lately been in a bit of a tiff with Chris Kelly, an Attorney General candidate and former Chief Privacy Officer at Facebook, over his stale, predictable fearmongering about potential early prison releases.  There are a bunch of other estimable candidates in the Attorney General’s race, one who did himself a ton of good yesterday by leading the fight against the offshore drilling proposal.  So maybe I shouldn’t take too much time on Kelly.  But there’s a short-term policy fight coming up next month to determine how to implement $1.2 billion in cuts to the corrections budget, and with some good activism and common sense we can stare down the Tough on Crime crowd and post a needed victory for sensible criminal justice policies.  Therefore it’s worth looking at Kelly’s latest post:

The prison release plan is supposed to save $1.2 billion, but that’s just accounting trickery. In fact, a Federal Bureau of Justice Statistics study finds that nearly 70% of early-released inmates are rearrested within three years, 20% of them for violent crime. That will mean more than $3 billion in increased costs from crime while causing serious harm to hundreds of thousands of innocent victims.

I’ve spoken to police chiefs, law enforcement groups and civic associations throughout California about the issue, and they’re deeply worried about the crime wave this scheme will unleash. It will be hard enough to make San Jose a safer community in tough economic times without the problems caused by early release.

Obviously, Kelly hasn’t talked to the California Police Chiefs Association, which endorsed the plan as a smart step to begin to move away from the failed prison policies of the last thirty years.  Foremost among these new ideas is the concept of targeting resources – instead of warehousing the terminally ill or blanket strict supervision on everyone released regardless of determining possibility of recidivism, we can put resources into programs that provide opportunity for prisoners to pay their debt to society and move on.  This deal doesn’t do all of that, but it does, for example, put ill and infirm prisoners under home detention or in a care facility, which doesn’t impact public safety and saves money.  It offers incentives for prisoners to complete rehabilitation plans.  It reviews the cases of illegal immigrants in jails instead of just tossing them in the lap of the ICE to deal with, which would actually be the kind of misguided policy Kelly warns against.  And most important, it includes an independent sentencing commission, outside of politics, which can look at our sentencing laws and make recommendations for the legislature to adopt on an up-or-down vote.

Using the buzzword of “early release” of “dangerous prisoners” is an old Tough on Crime ploy from way back, evoking memories of the Willie Horton ad in the 1988 Presidential race.  It’s irresponsible and not relevant to what is being discussed.  We have the perfect Tough on Crime prison policy right now – and it’s not working in every respect, to the extent that federal courts have stepped in to take control of it.  Overcrowded prisons cannot fulfill their core mission of rehabilitating those jailed, and that’s especially true where nonviolent offenders who need medical treatment for addiction and not incarceration are concerned.  Brute force has not worked in making the state safer and has certainly caused our budget to skyrocket.  And the truth is that more sensible policies can save money and create better prisons at the same time.

We need real reform in prison and parole policy, through concentrated resources, community corrections, and maintaining manageable prison capacity for those who really need to be there, and what will get decided in the legislature next month represents an important step.  It can be easily derailed by fearmongering from the likes of Chris Kelly, trying to win an election on the backs of the poor and disenfranchised, on whom such brute-force policies typically rain down.

Over the next month I’ll be looking far more closely at this issue, as it’s the first big battle in regaining control of our state.  And it’s a winnable fight.

Very interesting stuff going on.

This afternoon we got the Leak of the Week from Capitol Weekly – a look at Dennis Hollingsworth’s letter to his entire caucus.  It’s in budget-ese, but Zed is positively giddy about all the cuts to social services, all the denial of fee increases, and he’s basically telling his caucus they got everything they wanted.  It was good to see the inside thinking, especially if Yacht Party members turned around and voted against the budget.  They know that their preferred option is deeply unpopular, and would rather distance themselves from this solution and make the Democrats own the budget.  So this was a key document counteracting that.

Then at around 2:30, Michael Rothfeld changed his original process story about legislators building support for the deal into this bombshell:

The state budget deal negotiated by Gov. Arnold Schwarzenegger and legislative leaders would reduce the population of California prisons by nearly 27,000 inmates in the current fiscal year.

That would be done with a combination of new measures, including allowing some inmates to finish their sentences on home detention, creating new incentives for completion of rehabilitation programs and scaling back parole supervision for the least serious offenders.

The proposal, details of which were obtained by The Times, would save a total of $1.2 billion in the coming year.

It is unclear whether Republicans will vote for a budget plan that includes reduction of the state prison system, which now houses 170,000 inmates. Some GOP votes are needed to pass a budget in California.

If Republicans demur, the Democrats who dominate the Legislature could approve the prison proposal as separate legislation with a simple majority vote, which would not require GOP support […]

The budget plan also would create a sentencing commission to reexamine the state penal code, which would not save money immediately but would advance plans under discussion by lawmakers for years. The commission would be charged with establishing new sentencing guidelines by July 1, 2012.

Prisons are slated for $1.2 billion in cuts in the budget, and most stories last night claimed that included no early release.  Clearly Republicans – and possibly the Governor – saw those cuts as best employed by turning the prisons into Public Storage units, cutting all drug treatment and vocational training programs and reducing corrections officer overtime.  So this looked to be a bait-and-switch by the Democratic legislature.

Except nobody seems to know how the LA Times got this story.  And less than an hour later, Sam Blakeslee alerts the media:

Throughout budget negotiations we insisted that Republican votes would never be provided for a budget deal that included early release of prisoners.

Our caucus and staff developed a cut strategy for corrections that provided the necessary savings to close the deficit without risking public safety.

We had a clear understanding with the democrats that NO corrections bill would be a part of the budget and that we would have an honest chance to contest the policy issues in the light of day in August.  

Just two hours ago I learned from staff that Senate democrats are concocting a radioactive corrections bill that includeds the worst of the worst _ sentencing commission and release of 27,000 prisoners, etc

When I spoke with Dennis he was as surprised and upset as I was regarding what appears to be a serious breach of the agreement in the Big 5.

I have called and personally told both Karen and Darrell that their will be no republican votes for any portion of the budget if they allow such a bill to be part of the package.

This seems just a little too neat to me.  This report was leaked to the Times anonymously, after a separate email from the Senate GOP gets leaked showing what a great snow job they think they got over the Democrats.  And then Blakeslee has an email out to his caucus – within less than an hour of the story leak – that comes up with a credible reason to shut down the deal, blaming those double-crossing Democrats.

FWIW I’d love a sentencing commission/early release of nonviolent offenders bill to become a reality, but I hardly believe that Senate Democrats, who as a caucus have participated in 30 years’ worth of sentencing increases, and who scuttled a sentencing commission bill from Gloria Romero just last year, would sneak this into a budget bill out of nowhere, with complete language less than a day after a deal was reached.  It would be completely out of line with prior history.  It doesn’t scan at all.  

But it’s sure a bonne chance for Republicans to have this fall in their lap…

…Discussion in OC Progressive’s diary.

…OK, so the Governor’s Corrections Secy is briefing reporters.  And will you look at that, the Times’ story was wrong, as was Asm. Blakeslee!  The report of 27,000 released is misleading, says the Secretary, but the Administration is interested in some reforms, including a sentencing commission.  Wow, that’s great, at least in theory.  They are offering early release credits that would maybe release 1,700 total.  This looks more and more like a coordinated hissy fit laundered through a compliant media.

Chris Kelly, who thinks he’s running for Attorney General next year, has responded to my criticism of his perpetuation of fearmongering “tough on crime” policies with an email to supporters:

The politics-as-usual crowd is attacking my opposition to the early release plan — even saying that “Chris Kelly is making a fool out of himself” for standing up for safe California communities.  Well, releasing 20,000 convicted felons early might be Sacramento’s idea of prison reform, but it isn’t one that will keep California safe — and it won’t save a single dollar in the process, which was the whole rationale for doing it in the first place!

I’m apparently part of the “politics-as-usual” crowd for arguing against the mentality that has produced 1,000 sentencing laws in the last thirty years that increased sentences.  But some facts throughout this would help.  First of all, the 20,000 number from the Governor came in part from releasing all imprisoned undocumented immigrants to Immigration and Customs Enforcement, a provision that was long ago scaled back, since ICE showed no interest in taking the responsibility, and the Governor circumscribed that proposal with so many caveats that only 1,400 of the more than 18,000 undocumented qualified.  In reality, the scale of release will be lower than initially proposed.  So Kelly is engaging in the familiar tactic of arguing against something that won’t happen so he can post a “win” after the fact.  

But the real danger of Kelly whipping up opposition to this is how it impacts any sensible sentencing or parole reform.  Here, Kelly shows that he has no idea what he’s talking about with respect to criminal justice policy:

Instead of protecting California communities, the politics-as-usual crowd ignores the fact that early release of more than 10% of the state prison population won’t just include “terminally ill, nonviolent drug offenders and people returned to prison for the crime of technical parole violations” — many dangerous felons will be back on the streets too.

The critics seem to have forgotten that a man with a technical parole violation shot and killed four officers in Oakland just months ago, and they also conveniently ignore that releasing 20,000 prisoners will disproportionally impact some of California’s most vulnerable communities.

The ignorance of this comment is stunning.  As Berkeley law professor and parole policy expert Jonathan Simon illustrated a couple months back, the Lovelle Mixon shooting was an example of what’s WRONG with our parole system, not what’s right.  The incident has been used to raise the fear of crime and the dangers of releasing felons.  What is not mentioned is that Mixon’s violation of ridiculously stringent parole policy, which meant a sure trip back to jail, arguably CAUSED the shooting, as Mixon vowed not to return to prison and chose to shoot his way out of the problem.  That’s aberrant behavior, and using it to make any larger point about how frightening it is to release prisoners is Willie Horton-izing to the extreme.  But it’s a function of the extreme pressure of three years of supervisory parole on everyone who walks out of California prisons.

But unlike many other states that also eliminated early release through parole, California continued to require parole supervision in the community for all released prisoners. And that, I think, is a big part of what’s broken. People are sent to California prisons for a determinate amount of time, based upon the seriousness of their crime. After they’ve served this sentence, it’s neither justified nor effective to add up to three years of parole supervision for each and every ex-offender – without making any distinction between those whose criminal record or psychological profile suggest they’ll commit a crime that will harm the community, and those who pose no such threat.

So the parole system has little real capacity to monitor and protect us from those who pose a danger of committing serious new crimes. And it exposes ex-offenders – many of whom pose little threat of committing such crimes – to the likelihood of being sent back to prison. (This is a really big problem, when you think of our prison overcrowding and our budget crisis).

Parolees are required to consent to searches of their person and property. If officers stop a car in Oakland, and somebody in that car is on parole, police have a lot of leeway to disregard normal constitutional limits on search-and-seizure authority. They can use any evidence collected in this situation against the parolee – and also, of course, can attempt to use the coercion of plea bargaining to get evidence against other people in the car.

In recent years, as many as 70 percent of those on parole in California have been sent back to prison – only a small percentage of whom have committed a new crime (14 percent in 2007); more than half were sent back for what are called “technical” parole violations. These parolees are “returned to custody” by the Board of Prison Terms, very often for conduct that would not earn them (or other California citizens) prison time in a court. Turning in a positive drug test is an example; even missing an appointment with parole staff can result in re-imprisonment.

Kelly asked his fans of the Protect California Communities Facebook cause to comment on my post about him, which has yielded a whopping 0 negative comments.  Maybe that’s because his Cause has attracted an almost-as-whopping 225 members, clearly a social networking firestorm rippling through the state.  Actually that number wouldn’t be so bad if it didn’t come from a Cause promoted by THE FORMER EXECUTIVE FROM FACEBOOK.  The $175 raised on Facebook shows massive Web 2.0 acumen as well.

It’s also hilarious that Kelly thinks stopping release of nonviolent offenders harms public safety, not eliminating drug treatment and vocational training in prisons, or forcibly taking local government monies so they have to slash their public safety budgets, but that’s for another time.

Today’s LA Times story about a handful of prisoners released with 60 days or less remaining on their sentences probably raises hackles on the backs of the necks of the Tough on Crime crowd, but it really shows how fundamentally broken the state’s prison system remains.  Because look what the charges were on all of the prisoners released.

Reporting from Sacramento — California prison officials, facing severe overcrowding and a financial crisis, have been granting early releases to inmates serving time for parole violations.

State officials said the dozens of prisoners set free from the California Institution for Men in Chino and from lockups in San Diego and Shasta counties had 60 days or less left on their terms, or had been accused of violations and were awaiting hearings. The releases were approved by the state parole board.

At least 89 inmates have been freed or approved for early release during the last two months. Others have been sent to home detention, drug rehabilitation programs or similar alternative punishments.

It’s not an anomaly to see just 89 inmates charged with parole violations.  In fact, more than two-thirds of all prisoners admitted to state prisons in 2007 commit the crime of violating parole guidelines.  This is at least twice as many as virtually any other state.

On average, the nation’s state and federal prisons took in almost two new offenders for every parole violator, but in California, the reverse is true. In 2007, California prisons took in 139,608 inmates and 92,628 of them were parole violators, almost a 2-1 ratio. In only one other state, Washington, did parole violators outnumber those being jailed by the courts, and that was only by 126 inmates.

If Arnie Antionette were truly talking about reform instead of policies that destroy the social safety net, he’d talk about completely overhauling a parole system that is clearly too constrictive, that fails Californians and makes us all less safe.  When you warehouse 170,000 inmates in jails that only fit 100,000, you turn them into institutes of higher learning for violent crime instead of rehabilitation centers.  In addition to the cost of overtime for parole officers and prison guards, the costs to the criminal justice system naturally increase with the revolving door for inmates, not to mention the societal and human costs.

Unfortunately, we don’t have a reform agenda in this state, just a bunch of lawmakers trying to get across the line to the next budget, to the next election.  If there was such a thing as innovation and leadership we would have revamped this failed parole policy long ago.

Here’s an excellent Q&A, really a must read, with UC Berkeley Law Professor Jonathan Simon, an expert on parole policy.  Using the killing of four Oakland police officers by Lovelle Mixon, who was on parole at the time, Simon sets aside the myths about parole and looks at the hard facts – that this is an unbelievably broken system, particularly in California, one that really cannot fulfill the mission set out for it 100 years ago.  Parole was something of an employment agency upon its inception, supervising ex-convicts at their workplace and letting them go on with their lives.  In today’s environment of social Darwinism, ex-cons are sent back onto the streets with no money and no skills to get a job, and so they devolve into homelessness or drug abuse, making it nearly impossible for parole officers to even find parolees, let alone keep them out of trouble.  

It really can’t work – which you’ll see if you look at the category of parolees who are simply of unknown whereabouts. These parolees are described as PAL, for “parolee at large,” in official California statistics.

Statewide, 14.6 percent of all parolees were PAL in 2005; in large cities like Oakland and Los Angeles it’s probably closer to 25 percent. This sounds alarming, although authorities have little basis for knowing the status of these people. Is the parolee-at-large wandering around homeless and has he forgotten to come in for an appointment, or to take his medications if he or she is on psychiatric treatment? Or, as with Lovelle Mixon, has the person gone back to doing some very serious crimes and is he evading detection? We’re fooling ourselves if we think that this century-old method of surveilling people in the community, through periodic contacts, can work with a population as isolated and marginalized as the one upon which we now focus our penal attention.

Simon theorizes that California’s parole system works even worse than most states because we eliminated early release through parole, but maintained the strict supervision requirements that invariably send parolees back to prison:

But unlike many other states that also eliminated early release through parole, California continued to require parole supervision in the community for all released prisoners. And that, I think, is a big part of what’s broken. People are sent to California prisons for a determinate amount of time, based upon the seriousness of their crime. After they’ve served this sentence, it’s neither justified nor effective to add up to three years of parole supervision for each and every ex-offender – without making any distinction between those whose criminal record or psychological profile suggest they’ll commit a crime that will harm the community, and those who pose no such threat.

So the parole system has little real capacity to monitor and protect us from those who pose a danger of committing serious new crimes. And it exposes ex-offenders – many of whom pose little threat of committing such crimes – to the likelihood of being sent back to prison. (This is a really big problem, when you think of our prison overcrowding and our budget crisis).

Parolees are required to consent to searches of their person and property. If officers stop a car in Oakland, and somebody in that car is on parole, police have a lot of leeway to disregard normal constitutional limits on search-and-seizure authority. They can use any evidence collected in this situation against the parolee – and also, of course, can attempt to use the coercion of plea bargaining to get evidence against other people in the car.

In recent years, as many as 70 percent of those on parole in California have been sent back to prison – only a small percentage of whom have committed a new crime (14 percent in 2007); more than half were sent back for what are called “technical” parole violations. These parolees are “returned to custody” by the Board of Prison Terms, very often for conduct that would not earn them (or other California citizens) prison time in a court. Turning in a positive drug test is an example; even missing an appointment with parole staff can result in re-imprisonment.

By the way, no other state has the recidivism rate of California, and certainly no other state sends as many people back to prison for technical violations of their parole appointments.  And due to the three-strikes law as well as increased sentences over 30 years, we have more Californians in prison on life sentences – about thirty thousand – as there were TOTAL PRISONERS in 1977.  The parole board is theoretically supposed to monitor the “lifers” and let out those who served their mandatory minimums and can be reasonably seen as representing no risk to the community, but in reality we let out something like 5 per year.  Meanwhile more life sentences are given to thousands of prisoners every year, and the problem simply grows.

Even Arnold Schwarzenegger’s supposedly bold plan to release all undocumented immigrants from prison and deport them – something he hasn’t bothered to run by the Immigration and Customs Enforcement arm of the federal government – has so many strings on what type of prisoners should be allowed to go free (one felony conviction, nonviolent and nonsexual crime, etc.) that only 1,400 out of 18,000 would qualify.  

Tough on crime policies have very simply destroyed California, leaving every lawmaker looking over his or her shoulder trying to be crueler toward criminals than their opponents.  In the end, we all suffer, as scarce resources get taken up by a prison-industrial complex that is the fastest-growing sector of the state budget.  These policies have been discredited, and other states have proven that you can maintain the peace and provide for public safety while not stuffing prisons with a seemingly endless amount of criminals.  We can bring the idea of corrections, and rehabilitation, back to the corrections process, if we only shake off the fear that practically every politician exudes when promoting these terrible policies.

Nobody likes the road that the budget appears to be going down, but one side benefit, perhaps the only one, is that we might yet have a conversation about the unjust and costly prison crisis that has deeply impacted the current situation.  Here’s Asm. Jim Beall (D-Campbell) yesterday:

We’ve got to reduce spending on our highest cost-drivers, prisons and health care. The prison budget has doubled in the past decade to $10 billion. The state has 173,000 inmates… Yet, California has a 70 percent recidivism rate. We aren’t producing the results for the money we spend… For over half of the prisoners, drugs or alcohol played some role in their crimes. A 2006 UCLA study said 42 percent of our inmates needed alcohol treatment and 56 percent needed drug treatment. It’s clear: The state should emphasize alcohol and drug treatment programs and prevention education.

Absolutely.  Now, the way that the Governor is going about this, by just trying to dump undocumented immigrants in prison on the ICE and mass release without restructuring and treatment and rehab, is of course dicey.  He will be helped by the Administration’s effort to identify every undocumented immigrant and ready them for deportation, but that’s a years-long process.

However, there are signals that the powerful prison guard’s union knows exactly what could be coming – and they’re trying to get out in front of it by voluntarily offering well over $6 billion in cuts.  Most of it goes to capping prison health care, which has already been found to be Constitutionally inadequate, and halting prison expansion through AB900, which I think is spent through bond issues and not the General Fund.  But there are other interesting recommendations in there:

2. Save up to $500 million by trimming CDCR administrative staff, which has ballooned by 400 new positions in recent months and more than doubled two of the department’s administrative divisions […]

7. Save potentially hundreds of millions of dollars ($20,000 per parolee) by embracing our past recommendation to expand Drug Court, Mental Health Court, Reentry Court and Revocation Court.

9. Save millions by no longer providing CDCR managers and headquarters staff with state vehicles and mileage allowances for commuting to work.

10. Conduct annual performance audits to determine which parole and rehabilitation programs are achieving their goals.

Remember, these are the prison guard’s union’s recommendations.  They have an interest in keeping jails packed and ensuring overtime for their employees to manage the overcrowding.  And even they understand both the need for cost-cutting and the need to expand the role of drug treatment and mental health rather than defaulting to incarceration.  They’re behind the curve and still modest in their goals,  but significantly, the ball is moving in the direction of reducing prison costs for the first time in a long while.  Obviously, jumping from this to reforming sentencing and keeping nonviolent offenders out of prison and into treatment won’t be easy, and the residual “tough on crime” stance still predominates among the political class.  But finally, we’re having the conversation as a crisis forces the issue.  Democrats ought to take this and run with it, and demand the kind of sane prison policies here that we see in Kansas and Texas.

…incidentally, buried within the Legislative Analyst’s cost-cutting proposals was one recommending “altering California’s three-strikes law.”  We’re starting to get serious.

Lost amidst the union-busting and efforts to destroy public schools in Arnold’s budget proposal is maybe the first serious, legitimate attempt to sensibly manage the prison crisis in decades, with a reform plan that would save the state $1 billion by boarding up the revolving door between jail and parole for nonviolent offenders.

Gov. Arnold Schwarzenegger’s latest budget proposal would reduce by tens of thousands the number of criminals behind bars and under community supervision.

Parole would be eliminated for all nonserious, nonviolent and non-sex offenders. The proposal would cut the parole population by about 65,000 by June 30, 2010, or more than half of the Christmas Eve count of 123,144.

At the same time, the corrections plan calls for increasing good-time credits for inmates who obey the rules and complete rehabilitation programs. Combined with the new parole policies that would result in fewer violators forced back into custody, the proposal would reduce the prison population by 15,000 by June 30, 2010. It stood at 171,542 on Dec. 24.

It is insane and wrong, particularly during this budget meltdown but really in general, that 2/3 of all prisoners entering the system in 2007 were parole violators.  These are minor, possibly technical offenses with little bearing on public safety that clog up the jails, creating constitutional crises.  California is the worst state in the union when it comes to parole policy, and these changes would simply bring the state in line with the rest of the country, all of which are able to manage without a perpetual crime wave.

Now, it may anger tough on crime advocates, as well as those who have a self-interested stake like the prison guards, but I have to say that they are the right people to anger.

The California Correctional Peace Officers Association, still at odds with Schwarzenegger over a new contract, blasted the plan.

“What it means is residual costs to all citizens of California and higher insurance rates and more crime,” said CCPOA spokesman Lance Corcoran, whose union represents about 30,000 correctional officers and parole agents. “These are individuals who do not take advantage of opportunities for change, and they are not going to change,” he said of the offenders who stand to benefit from the proposals.

More scaremongering isn’t going to work.  There is no reason for tough on crime policies to continue to rule the day.  Those days are over.

The proposals on rehabilitation and time credits for prisoners, which would accrue in county lockups and get advanced if detainees take drug, vocational and educational programs, are already in the work-around budget passed by the Legislature.  Arnold could go ahead and sign that, and put us on a more responsible criminal justice path immediately.  

This is a major, if tentative, victory for criminal justice reform advocates.

California’s three-strikes sentencing law suffered a blow Tuesday when a federal appeals court struck down as unconstitutional a 28-years-to-life sentence for a sex offender who failed to register with local police at the correct time of year.

The U.S. 9th Circuit Court of Appeals sent the case of Cecilio Gonzalez back to federal district court in Los Angeles for resentencing after finding his 2001 penalty constituted cruel and unusual punishment, which is prohibited by the 8th Amendment.

Gonzalez’s harsh sentence was grossly disproportionate to his “entirely passive, harmless and technical violation of the registration law,” the appeals court said.

This case represented the unintended consequence of three-strikes carried out to its most ridiculous extreme.  28 to life for registering, but not at the right time of year?  Nuts.  This isn’t a crime in 11 states, and the maximum sentence allowed by customary law in California is three years.

In case the “tough on crime” absolutists start shieking about “activist liberal judges” overturning the will of the people, consider who wrote this opinion: Jay Bybee.  Nominated by George W. Bush Jay Bybee.  Writer of the fucking torture memo Jay Bybee.  Even a guy who justified the torture of prisoners considers this cruel and unusual punishment.  There is no indication whether or not Jerry Brown would carry this to an appeal, but considering the opinion of this very conservative jurist, I would imagine the US Supreme Court would at least potentially rule the same way, although they struck down a similar challenge to three strikes in 2003 on a 5-4 vote.  Put it this way, I don’t see Bybee as more conservative than Anthony Kennedy.

This does not invalidate three strikes entirely, but it certainly gives a ray of hope to those locked up for a minor third crime to challenge their sentencing.  And it provides a framework to show how unjust and counter-productive these stringent mandatory sentences are.  Three strikes is more of a symptom than the entire problem – the legislature has approved over 1,000 higher sentences in the past 30 years.  But this is an important start, to end the tyranny of “tough on crime” absolutism that has contributed to busting the state budget and making this the worst state in the union when it comes to the corrections system.