The enablement of mass incarceration by the California Supreme Court and the need for a legislative solution

Introduction: The endurance of mass incarceration in California

In 2010 California's prison population reached almost twice the capacity our correctional system was designed to hold, a population of about 156,000 in a system intended for 85,000. A year later the United States Supreme Court found that such overcrowding obstructed the provision of medical and mental health care causing prisoners cruel and unusual punishment. For this reason, it upheld the ruling of a three-judge federal court directing the state to reduce the prison population to 137.5% of design capacity. (Brown v. Plata (2011) 563 U.S. 493)

In 2013, claiming it was justifiably unable to comply with the reduction order, the state asked the federal court to vacate its order. The court refused because the state "failed to demonstrate a 'durable solution' [to the problem of prison overcrowding] that would justify vacating this court's prior order." (Coleman v. Brown (2013) 960 F.Supp.2d 1057, at p. 1064.) 

Today, a dozen years later, the state has neither proposed such a "durable solution," nor indicated an intention to do so; as a result, mass incarceration persists.

According to the Public Policy Institute of California, at the end of 2023 the overall population of California's 36 prisons was 117.6% of design capacity, and ten prisons then had populations exceeding 137.5% of capacity. That indulgent ruling was not intended to be lasting, but only to provide the state with the time to find the long-term solution the court sought. Treating a temporary ruling as permanent, as appears to be the case, has normalized mass incarceration in California.

The current overcrowding results from a variety of factors, the excessive use of sentence "enhancements," mandatory minimums,  and the three-strike law, among others, but it was exacerbated by three developments that have received little attention: 1) a major change in our sentencing system that dramatically expanded the discretion of the Board of Parole Hearings,  2) the erroneous advice of the Attorney General that a new law relieved the Board of Parole Hearings the need to comply with a judicial order to consider whether denial of parole might result in constitutionally excessive punishment, and 3) Supreme Court validation of the Board's refusal to acknowledge the constitutional limitations of its power to punish. These issues are addressed in turn.

The unfortunate resurrection of indeterminate sentencing

Repeal of the Indeterminate Sentence Law (ISL) and replacement with the Determinate Sentence Law (DSL) in 1975 shifted the power to punish from the parole board, an administrative agency, to the Legislature, a political body, which enabled the latter to regularly exercise the new power to increase punishment by, among other things, significantly increasing the number of offenses punishable by indeterminate life sentences. Initially, the DSL retained indeterminate sentences only for first- and second-degree murder and kidnapping for ransom; today fourteen offenses are punishable by indeterminate sentences; and certain other prisoners, such as second- and third strikers, are also serving indeterminate terms and eligible for parole hearings. According to the Department of Corrections and Rehabilitation on April 30, 2025, there were 15,566 more prisoners serving indeterminate terms than those serving determinate sentences. (Cal. Dept. of Corr. & Rehab., Office of Research, Offender Data Points (April 30, 2023).)Thus, paradoxically, the enactment of a nominally determinate sentencing law resurrected the serious problems that led to the repeal of indeterminate sentencing.   

The most obvious problem was that an indeterminate sentence does not punish offenses uniformly. Unlike a determinate sentence-- which is based on culpability for the commitment offense, it focuses instead on whether post-conviction conduct indicates continuing dangerousness. The wide range of prisoners' post-conviction conduct often leads to situations in which prisoners who committed the same offense in the same way and in the same circumstances, and were therefore equally culpable, may nevertheless receive dramatically disparate punishments.

 A problem of greater concern, and the one most responsible for repeal of the ISL, was increasing evidence that predictions of dangerousness are egregiously unreliable.

The unreliability of predictions of dangerousness

The most influential thinker about this problem in the nineteen sixties and seventies, was Norval Morris, then dean of the law school at the University of Chicago and America's most prominent criminologist. In 1974, the year before the ISL was repealed, Morris declared that the prediction of criminality was an unjust basis for imposing punishment because "it presupposes a capacity to predict future criminal behavior quite beyond our present technical ability." (Morris, The Future of Imprisonment (1974) at p. 62.) Morris based that statement on substantial empirical data, including studies of a California Department of Corrections research group showing that 86% of adults identified as potentially dangerous did not prove to be, nor did 95% of juvenile delinquents claimed likely to be violent on parole.

Predictions of dangerousness remain unreliable. As a leading expert recently noted, "accuracy is little better now than it was four decades ago."  "In Morris's time, the state of the predictive art was that two-thirds of individuals predicted to be violent were false positives, however the technology of violence prediction is now vastly more sophisticated than it was four decades ago. The early studies were based on clinical predictions by doctors, mental health specialists, judges, and correctional personnel. The contemporary literature is actuarial and is based on mathematical models; sophisticated statistical analyses, machine learning, and 'big data.' One might expect that violence predictions today would be vastly more accurate than in the 1970's. They aren't." (Tonry, Predictions of Dangerousness in Sentencing: Déjà vu all Over Again (2019) 48 Crime and Justice 439, at p. 450.)

 Acknowledging the wide use of  predictions of dangerousness in the criminal law and judicial acceptance, Morris ultimately accepted their use provided, however, that they were "statistical predictions," which he defined as those "based on membership in a group for which a consistent and tested pattern of conduct has been shown, and is the statement of a condition (membership in a defined group with possession of certain attributes) and not the prediction of a result" (of future violent acts in an individual case), and the question is "the justice of applying to each individual powers influenced by his membership in that group." (Miller & Morris, Predictions of Dangerousness: Ethical Concerns and Proposed Limits, 2 Notre Dame J. L. Ethics & Pub. Pol'y 393 (1987), at pp. 410-411)

The elimination of judicial review

A third problem presented by indeterminate sentencing is its resistance to judicial review.

The punishment imposed by an indeterminate sentence is known only when the prisoner is granted parole or dies, and the proportionality of an unknown punishment cannot be determined merely by the denial of parole. Further, because the purpose of indeterminate sentences is rehabilitation, the parole board places less weight on the factors that determine culpability than on whether the inmate is rehabilitated or remains dangerous, matters unrelated to culpability and the proportionality of punishment, that may depend on a variety of factors, some of which are speculative.

The absence of a fixed term and a reliable assessment of culpability with which to measure proportionality induced judicial rationalizations that the constitutionality of punishment imposed on an indeterminately sentenced inmate by the denial of parole cannot and should not be subject to judicial review.

People v. Wade (1968) 266 Cal.App.2d 918 is illustrative. The court in that case reasoned that "the indeterminate sentence is in legal effect a sentence for the maximum term [which was often life] and its purpose is to mitigate the punishment which would otherwise be imposed on the offender." Thus, the court was "unable to see how the indeterminate sentence law, which affords a person convicted of crime the opportunity to minimize the term of imprison by rehabilitating himself in such manner that he can again become a useful member of society can be held to constitute the infliction of cruel and unusual punishment." (Id. at p. 928.) According to the Wade court, "challenging application of the law on the ground it violates the right of the defendant would constitute a step backward in the treatment and rehabilitation of those convicted of crime." (Id. at pp. 928-929.)  In short, the concepts of culpability and proportionality were deemed irrelevant, as they had nothing to do with the paramount issue: whether the convicted person is rehabilitated or still dangerous. The effect of Wade and similar opinions effectively rendered the cruel and/or unusual punishment provisions of the state and federal constitutions effectively inapplicable to the punishment imposed on prisoners serving indeterminate sentences.

The aversion of indeterminate punishment to judicial review was first addressed by our Supreme Court in People v. Wingo (1975) 14 Cal.3d 169. Justice Mosk pointed out in that opinion that it was impossible to determine whether the punishment resulting from the denial of parole was disproportionate, because the offense covered a range of conduct, and the parole board made no assessment of the way the inmate committed his offense and the circumstances so crucial to the assessment of culpability. Therefore, Justice Mosk said, the proportionality of the punishment imposed on a prisoner eligible for parole could not be ascertained unless the parole board first assessed culpability by examining the facts and circumstances of the individual case and on that basis determined the maximum term that could be constitutionally imposed. Because the Board had not done that, the Supreme Court concluded it was "premature to decide whether defendant's term would be disproportionate to his offense." The opinion added that if the parole board failed or refused to fix a constitutional term for a prisoner within a reasonable time, the prisoner's conduct "will be measured against the maximum term," which was often life and the punishment therefore more likely to be found excessive.

Several weeks after Wingo was decided, the Supreme Court issued In re: Rodriguez (1975) 14 Cal.3d 639), prescribing the way in which culpability was to be measured and proportionality determined. The parole board was directed to assess culpability promptly after a convict entered prison, when the evidence of inmates' criminal conduct and culpability was fresh, and on that basis set the maximum term that could be constitutionally imposed. By granting parole, the board could reduce the maximum term in recognition of the prisoner's "readiness to lead a crime-free life." (Id. at p. 652.)

The maximum term that could be constitutionally imposed was called the "primary term," which consisted of a "base term" assessing the culpability of a prisoner based on the facts and circumstances of the commitment offense in the manner prescribed by In re: Lynch (1972) 8 Cal.3d 410 at page 425), and an "adjusted base term, which considered prior and/or in-prison offenses. Culpability does not derive solely from commission of the elements of the offense, because an offense is not always committed in the same way and in the same circumstances. There is a range of conduct and circumstances that may warrant conviction of most felonies, and therefore also a range of culpability among those who commit the same offense.

The parole board calculated the base term by using biaxial matrices. The horizontal axis related to the ways in which a given offense could have been committed, and the vertical axis related to the different relationships there might have been between the inmate and victim. For example, the horizontal axis of the matrix for second degree murder specified degrees of culpability ranging from cases in which the victim died of causes only indirectly caused by the inmate, as where a crime partner killed the victim, to cases in which death was caused from severe trauma inflicted with deadly intensity. The vertical axis for that offense specified degrees of culpability based on the relationship of the inmate to his or her victim, ranging from cases in which the victim was a crime partner to those in which the inmate had little or no relationship with the victim or the motivation was related to another crime, as where the killing occurred during a robbery. The first step in the calculation is to determine the intersection of the horizontal and vertical axes most like the circumstances of the prisoner's crime. Each intersection lists a lower, middle, and upper base term. The Board selects the middle term unless it finds mitigating or aggravating circumstances.

Significantly, though it is unclear whether it was intentional, base term calculations provided more than just a means of determining proportionality and enabling judicial review, they also ameliorated the unreliability of predictions of dangerousness, as base terms produce the "groups" Norval Morris advised: inmates who committed the same offense in much the same way and in much the same circumstances whose level of culpability was the same or similar, and whose recidivism rate was known and more predictable. The base term calculation that resulted from Rodriguez amounts to what Norval Morris described as a "statistical, or actuarial, prediction;" that is, a prediction based on a determination of how similarly situated individuals who committed the same offense in the same way in similar circumstances behaved in the past. Morris considered such a prediction "reasonably reliable," provided it does not rely on information "like poor employment records, educational deficiencies, residential instability--that more commonly characterize minority communities." (Id. at pp.404-405, 421 and fn. 25.)

Unfortunately, the salutary effect of Rodriquez did not have a very long shelf life.

The consequential mistake of the Attorney General

In 1978 Attorney General George Deukmejian created the so-called "Morrisey 8" committee to advise him on whether changes in state law might be required by the recent opinion of the United States Supreme Court in Morrissey v. Brewer (1972) 408 U.S. 471, which specified the due process required at parole proceedings.

On July 26, 1979, the Committee reported its recommendations in a memo stating, in part, that "The basis for the Rodriguez decision lay in the judicial branch's obligation to examine terms as fixed by the parole board, to determine whether they were cruel or unusual. In light of the fact that the [Board] has no term fixing power [after enactment of the DSL] it was the unanimous conclusion of all members of the Committee present that Rodriquez is "no longer applicable."

On August 22, 1979, the "Office of the Attorney General" transmitted a copy of the July 28 report to "All Criminal Deputies," declaring that the Morrissey 8 Committee's conclusion "fully sets out the Attorney General's position statewide."

The conclusion -- which derived solely from the opinion of eight deputy attorneys general -- was based on a fallacy. The DSL did not specify determinate sentences for all offenses. As earlier noted, prisoners convicted of first- or second-degree murder continued to be indeterminately sentenced, as did those convicted of kidnapping for ransom. For the many thousands of inmates convicted of those offenses the parole board uninterruptedly continued fixing base terms and the maximum term that could be constitutionally imposed.

Though the Attorney General's erroneous opinion was never made public[1], its consequences were phenomenal. The Board immediately ceased complying with the requirements of Rodriguez, which included not only the calculation of base terms (without which an inmate cannot support a constitutional claim) but also the "primary term," the maximum punishment that can be constitutionally imposed by the denial of parole. Unsurprisingly, since 1979, when the Board ceased complying with Rodriguez, no California appellate court has entertained a writ petition challenging the denial of parole on constitutional grounds. (The only Supreme Court opinions since 1979 even touching on the prohibition of cruel and/or unusual punishment were Butler (in which the inmate was paroled as part of a settlement) and In re: Palmer (2011) 10 Cal.5th 959, an opinion reversing a ruling that a youthful offender serially denied parole ten times after serving 30 years was entitled to immediate release without parole supervision.)

During that 46-year period lifers could challenge the denial of parole only via a pro per habeas petition claiming the Board relied on insufficient evidence of dangerousness, a claim easy for the Board to defeat because it did not need to have relied on "clear and convincing" or "substantial" evidence" but merely "some evidence," the most indulgent standard of review. The absence of base and primary term calculations also undoubtedly increased the unreliability of the Board's predictions of dangerousness for decades.    

It is noteworthy that although the Board ceased assessing culpability before prisoners became eligible for parole, as Rodriguez required, it continued fixing base terms after Attorney General Deukmejian's 1979 Memo but did so only for prisoners who had been  granted parole. This was done to eliminate disparity in the punishment of prisoners with the same or a similar base term when, after Rodriguez was decided, the Legislature added uniformity as a sentencing goal. (Use of the base term to ensure uniformity does not usually conflict with its original use to ensure proportionality in punishment, as explained in the Court of Appeal opinion awarding Butler public interest attorney fees. (In re: Butler (2015) 236 Cal.App.4^th 1222, at pp.1235-1237, which the Supreme Court cites but does not discuss.)

 The consequential mistake of the California Supreme Court

In 2012 Roy Butler, a parole-eligible life prisoner, challenged the constitutionality of the parole process on the ground that deferring the calculation of the base term until after the inmate is deemed eligible for release eliminated any meaningful consideration of proportionality in sentencing during the most crucial portion of the process and therefore facilitated imposition of constitutionally excessive punishment. He also claimed that the parole process was racially discriminatory. While the case was pending in the Court of Appeal the parties settled their dispute. The Board agreed to set the base and adjusted base terms at the initial parole hearing or, if that has already taken place, at the next parole hearing and in return Butler agreed not to pursue his claim of racial discrimination. The terms of the settlement relating to the Board's duty to promptly set base and adjusted base terms were set forth in a court order and stipulated judgment. (The order and judgment did not require the Board to fix the maximum term that could be constitutionally imposed, which Rodriguez referred to as the "primary term.")

The settlement, in which the parole board acknowledged the mandate of the Supreme Court fifty years ago in Wingo, was a breakthrough event for the tens of thousands of lifers eligible for parole, because if the base term showed that denial of parole imposed disproportionate punishment, they had the benefit of probative evidence.

In a stunning ruling that goes far beyond the issue the Board presented (the alleged conflict between the terms of the stipulated judgment and new laws), the California Supreme Court vacated the stipulated judgment seven years ago. (In re: Butler (2018) 4 Cal.5^th 728.) Acknowledging that "the settlement did not require the Board to do anything it was legally unable to do," and that the post-settlement legislation the Board relied upon  "did not create an actual conflict the settlement," ((Id. at p. 739.) the opinion nevertheless concluded that "California's current and mostly determinate sentencing laws, along with statutory reforms to the parole process," render it "unnecessary" for the Board to assess the culpability of  applicants for parole  to determine whether denial of parole might result in the imposition of constitutionally excessive  punishment.

The opinion rests on false assumptions regarding the policies and practices of the Board of Parole Hearings, mischaracterization of the prison population, and the unacknowledged repudiation by the Supreme Court of its own past rulings and reasoning in seminal and materially indistinguishable cases. As will be seen, Butler resurrects all the constitutional and other problems created by the structure of indeterminate sentencing.

The incoherence of the Butler court's reasoning that review was needed arises from the court's theory that "the settlement agreement presupposes that base terms form part of the framework for parole release date calculations" and the new statutes advancing the eligibility of some prisoners (youthful and elderly offenders) for parole might require different release dates for them than base terms, "which therefore "no longer control the release date."

In fact, the settlement had nothing to do with "release date calculations."

The factor the Butler court failed to grasp is the dual purposes of base terms. Their initial purpose, mandated by Rodriguez, was to ensure constitutionally proportionate punishment. The second and later purpose was to prevent disparity in the punishment of equally culpable prisoners. After Rodriguez was decided an amendment to the DSL made uniformity in sentencing also a sentencing goal. (Pen. Code., sec. 1170, subd. (a)(1).) Accepting the Board's view, the court assumes the most important aspect of the settlement agreement is its prescription of release dates that may differ from those prescribed by the new laws.  What the Supreme Court missed is that the new laws only applied to prisoners who had been granted parole and could be released; whereas the settlement and stipulated judgment applied only to prisoners denied parole, who could not be released, and who were the only prisoners affected by the terms of the settlement.  The new laws surely did not make the settlement "unnecessary."

Furthermore, Justice Cuellar's statement that the Board had a "statutory duty to calculate base terms (Butler, supra, at p. 743) is false; the Penal Code never mentions base terms. The Board adopted their use voluntarily as a convenient means of diminishing disparity in the punishment of prisoners who committed the same offense and are equally culpable. The Board had the ability to fix base terms whenever it wanted to, or dispense with them entirely, as it did in 1979 on the advice of the Attorney General.

The third new law relied upon by the court to justify the grant of review provided that prisoners granted parole shall not be released until they have served the greater of seven years or the minimum term set by a statute. However, like the two other new laws, this one also applied only to lifers granted parole, not those ineligible for release, who are the only prisoners affected by the stipulated judgment.

The extravagant statement of the Supreme Court that the new laws are so "sufficiently material not only to permit, but in this case to require, modification of the judgment" (Butler, supra, at p. 741.) is groundless.

The central point of Butler - that the constitutional protections provided by Wingo and Rodriguez are no longer necessary - is also based on false assumptions.

At the outset of his opinion Justice Cuellar recognizes "that an inmate sentenced to an indeterminate term cannot be held for a period grossly disproportionate to his or her individual culpability [citing In re  Dannenberg (2005) 34 Cal.4^th 1061, 1077) but adds that, "Rodriguez's prophylactic measures"  are "not necessarily required in the state's current, "mostly determinate sentencing regime," for the 'narrower category' of serious offenders who receive indeterminate sentences under current law. (Butler, supra, at p. 745.)  Butler states that because of their culpability, there is a "diminish[ed] possibility that these serious offenders will suffer constitutionally excessive punishment."  Furthermore, Butler says, "inmates who believe the denial of parole imposed constitutionally excessive punishment may bring their claims directly to court through petitions for habeas corpus." (Ibid.)

None of these statements are true.

As previously noted, prisoners serving indeterminate terms ceased being a "narrow category" decades ago. Except for condemned prisoners and lifers denied the possibility of parole, virtually all state prisoners are now eligible for parole. (Moreover, the indication that denial of the constitutional right of a member of a "narrow category" may for that reason be permissible is novel.)

The statement in Butler that base terms "are not designed or obviously suited as a tool for avoiding unconstitutionally long terms of incarceration, is an ipse dixit indifferent to the facts that such terms were mandated by the Supreme Court itself for that very purpose and have been employed by the Board for almost half a century without complaint of any deficiency.

The court's statement that base terms ignore ''the centrality in the parole process of public safety considerations" seems to refer to the failure of the base term matrices to take post-conviction conduct into account which, as earlier explained, is proper because culpability refers exclusively to the offense, and post-conviction conduct is considered by the adjusted base term and at the parole hearing. The statement also seems to question the constitutional principle that prisoners cannot be held for a period disproportionate to culpability "even for reasons of public safety." (In re Dannenberg, supra, 34 Cal.4^th 1061 at p. 1096, italics added, citing Rodriguez).

Justice Cuellar's statement that base terms are unnecessary because indeterminately sentenced prisoners "retain the ability to perform the base term calculation or something equivalent to it and submit it to the Board for consideration"" cannot be taken seriously.

As Chief Justice Wright explained in Rodriguez, inmates cannot be expected to calculate their own base term or "something equivalent," because they "understandably lack perspective as to the propriety of their continued incarceration and also lack the ability to marshal the facts and applicable law in support of their claims." (Rodriquez, supra, 14 Cal.3d at p. 654, fn. 18.). And even if a prisoner serving an indeterminate term had the benefit of counsel and a strong constitutional claim, submitting it to the Board for consideration would remain quixotic because, as Justice Cuellar stated in Butler and Palmer, "the Board is not ever required to consider . . . whether an inmate's, punishment has become constitutionally excessive." (In re Palmer, supra,10 Cal.5^th 959 at p. 968.)

The statement that base terms are unnecessary because prisoners serving indeterminate sentences "are protected against disproportionate punishment through other means, such as provisions ending indeterminate sentences when individuals have served the minimum term and have been found suitable for release" (Id. at p. 732) assumes lifers are ordinarily found suitable for release when they have served their minimum term. Another assumption repudiated by the facts.

Penal Code section 3041 states that the parole board "shall normally grant parole" one year before an inmate's minimum eligible parole date. (Pen. Code,§ 3041). However, an in-depth study of the California parole process published by the Stanford Criminal Justice Center shortly before Butler filed his habeas petition showed that only 2.2 % of initial parole hearings resulted in a grant of parole. (Weisberg, Life in Limbo: An Examination of Parole Release for Prisoners Serving Life Sentences with the Possibility of Parole in California Stanford Criminal Justice Center (Sept 15, 2011) at p 18.) 

Nor are lifers "normally" found suitable for parole at subsequent hearings. Between 1980 and 2010 the grant rate for lifers at all parole hearings never reached 20%, and for all but the last two years of that period it never reached even 10%. The Stanford study found that at that time a lifer stood only an 18% chance of being granted parole and noted that the grant rate fluctuated during the previous 30 years "nearing zero percent at times and never arising above 20%." (Life in Limbo, supra, at p. 3.) The study found this low grant rate incongruent with the fact that, due to their advanced age when most become eligible for parole, the recidivism rate of lifers during the fifteen years between 1995 and 2010 was around 1 or 2 % which was "miniscule" compared to the 47 % recidivism rate of the overall prison population. Serial denials of parole have long been the rule for indeterminately sentenced prisoners, not the exception, and the Board may delay subsequent hearings for as long as 15 years. In recent years the California release rate (14%) has been barely above those of South Carolina (13%) and Mississippi (10%), the lowest in the nation.

The injustice of the parole board's unconstitutional practices and judicial inattention to those practices is not solely the fault of the Board, Attorney General Deukmejian, and the judiciary, it also results from the absence of attention from the legal profession. In 1975, the year Wingo and Rodriguez were decided, Jerry Brown signed a measure creating the Office of the State Public Defender, which represented prisoners and monitored the parole process. After Brown left office and was replaced by George Deukmejian the new Governor cut more than half the budget of the OSPD, rendering it unable to continue that work. Today, the number of lawyers primarily devoted to the representation of prisoners denied parole can be counted on the fingers of one hand.                               Many of those concerned about the endurance of mass incarceration in California hoped reports of the Stanford Criminal Justice Center, the California Public Policy Institute, the Criminal Law & Justice Center at UC Berkeley and other organizations would stimulate legislative reform; unfortunately, they have not. Nor has the Legislature been stimulated to act by a recent report of the non-partisan Office of the Legislative Analyst calling legislative attention to the danger that the "overly broad discretion" of the parole board the Board may be leading to "inequitable" outcomes" and racial bias and recommending that discretion be reduced and the standard the Board must meet to deny parole be increased. (Office of the Legislative Analyst, Promoting Equity in the Parole Hearing Process, (January 5, 2023)

The Committee on Revision of the Penal Code, created by Jerry Brown in 2020 to reduce the size of the prison population, is aware of the problems created by the parole board and Butler but has not put them on its agenda due to the belief that asking the Legislature to countermand a unanimous opinion of the Supreme Court would be "too heavy a political lift."

It may be a heavy lift, but legislators take same oath as judges to "support and defend the Constitution of the United States and the Constitution of the State of California" and to "bear true faith and allegiance" to those constitutions. The Legislature is now called upon to demonstrate its allegiance, and doing so should not offend the Supreme Court. The mistake in Butler was not the result of indifference to the constitution but the court's unfamiliarity with the policies and practices of the Board of Parole Hearings, which are not transparent.

The need for a sentencing commission

Respect for constitutional principles is not the only reason for legislative attention. Stanford law professor Robert Weisberg, Co-Director of the Stanford Criminal Justice Center, who has most thoroughly studied our parole process, has described it as "by many measure the most dysfunctional incarceration system in the nation." (Robert Weisberg, California's De Facto Sentencing Commissions" 64 Stan.L.Rev. 2 (Nov. 2011) , https//stanfordlawreview.org/article), claiming California's failure to establish a state sentencing commission ceded the power to two federal district courts and county sentencing agencies created by state law.)  Though reconsideration of Butler by the Supreme Court would certainly be worthwhile, the Supreme Court cannot be asked to address the systematic dysfunction of the parole process and the problems presented by the structure of indeterminate sentencing and the vulnerability of determinate sentencing to politicization.

A different approach, successfully adopted in many other states and urged by Professor Weisberg and others, deserves serious consideration: a formal and bi-partisan sentencing commission that could update sentencing guidelines, collect data regarding the effectiveness of sentencing practices, and assess whether reforms affect recidivism rates. Such a body might also predict, as some do, how many additional prisoners a sentencing proposal would likely produce.

There is no better way to provide the "durable solution to prison overcrowding" the three-judge federal court has yet to receive.