The Wild West of Sentencing Reform: Lessons from California

Abstract

As the United States became notorious for mass incarceration, California received outsized attention. Not so much for the sheer volume of California imprisonment but because of its chaotic operation. Populist political mood swings led to Eighth Amendment violations that caused a federal court to declare the whole system unconstitutional, a decision ultimately upheld by the US Supreme Court in Brown v. Plata, 563 U.S. 493 (2011). The state responded with innovations commonly referred to as realignment, which include a dramatic devolution of incarcerative power from state to county, among other major changes. Disaster has been avoided, thanks to clever low-level and low-visibility workings of legal and political mechanisms to control populist democracy. But the DNA of California’s mode of governing cautions that nothing remains stable without foundational reform.