SENTENCING: COST V. MORALS

As lawmakers and prison guards consider the role of the sentencing commission Gov. Arnold Schwarzenegger has proposed as part of his
prison reform plan, academics are also chiming in on the debate.

Stanford law professor Robert Weisberg says the mere existence of a state sentencing commission would be “revolutionary.” He presented his unfinished paper (.pdf), “How Sentencing Commissions Turned Out To Be a Good Idea,” to a group of law professors and students at Boalt Hall School of Law on Friday at a symposium hosted by the Berkeley Center for Criminal Justice.

In December, Schwarzenegger asked lawmakers to create a 17-member commission that would evaluate the state’s sentencing laws, taking into account costs to the crowded prison system, and report to the Legislature annually with recommendations. For instance, it would analyze the possibility of shortening the state’s mandatory three-year parole period.

While some conservatives have argued against shorter sentences, the idea of a commission has attracted some support from stakeholders because it would be independent from the political pressure that legislators face to appear tough on crime.

California legislators don’t currently subject sentencing laws to a cost-benefit analysis because the criminal justice system is based on a sense of morality, Weisberg said at the symposium, adding that it needs “constitutional thinking” in a procedural sense. So the idea that the state sentencing commissions would be subject to cost considerations is novel.

Harvard law professor Carol Steiker added that in the current criminal justice system, district attorneys and sentencing judges have incentives to “over-sentence.”

Weisberg, who studied the history and outcome of existing state sentencing commissions, says in his paper that other states have come to a consensus that sentencing guidelines should not be considered permanent, that budgetary limits should be a key criterion for all decisions, and that commissions should avoid grand statements about purposes of punishment.

Sentencing commissions “should have some leeway to experiment with rehabilitative measures,” he wrote.

Although advocates disagree on whether the commission should be treated as an executive branch, an independent agency or a subset of the courts, they generally agree that the commission should be made up of some combination of all of them, Weisberg wrote.

Offering examples of states illustrating “exemplary stories of correctional reform,” Weisberg points to North Carolina. Similar to California, North Carolina owes the 1990 creation of its sentencing commission to prison overcrowding.

Today, Weisberg wrote, North Carolina has the second-lowest rate of incarceration in the South, and its crime rate dropped after 1993.

Millie Lapidario



DOGGING DAMAGES

People who get mangled by vicious dogs might have an easier time collecting damages thanks to a recent decision in San Francisco Superior Court.

On March 21, a jury in Judge John Stewart’s courtroom awarded nearly $520,000 to a 38-year-old woman who was attacked on a Mission District sidewalk by a pair of pit bulls. Plaintiff Susan Hertzfeldt suffered a severe laceration to her mouth, permanent nerve damage and scarring, according to one of her lawyers.

The jury assigned a portion of fault to each of the three defendants, in this case all members of the same family. In a negligence suit, that would ordinarily limit the amount of non-economic damages a plaintiff could collect against each of them.

The limitation on damages in cases with comparative fault stems from Proposition 51, a voter-backed initiative adopted in 1986.

But Hertzfeldt’s lawyers pointed to a section of the state’s Civil Code that says dog owners, regardless of their degree of fault, are strictly � that is, automatically � liable for injuries caused by their pets. So, Theo Emison III, a name partner at San Francisco’s Emison Hullverson Bonagofsky, argued that even though fault was apportioned, the limitations on each defendant’s liability did not apply.

As it turns out, the way that fault was divvied up may not be much of an issue when it comes to collecting.

“That may be the ultimate lesson in the case,” said John Hullverson, who tried Hertzfeldt v. Weinstein, 449460, with Emison. “If you have an option for strict liability, it may be a way to recover notwithstanding Prop 51.”

Matthew Hirsch