Dan Walters

By Dan Walters
February 21, 2016 9:35 AM

  • Jerry Brown cites ‘unintended consequences’ of 1977 law
  • Nearly all major political decisions have such effects
  • We should be skeptical of promised benefits of legislation

When Gov. Jerry Brown unveiled a criminal sentencing reform measure last month, he cited the “unintended consequences” of a law he had signed nearly 40 years earlier.

Brown said he didn’t foresee that the 1977 law, setting rigid sentences for felons, would remove “incentives for inmates to improve themselves” and discourage them from working toward earlier release through rehabilitation.

The “determinate sentence law” that Brown signed reflected the political angst that sharply rising crime rates were creating in the 1970s.

At the time, felons were generally sentenced to the prison system without fixed terms. Republicans were critical of paroling inmates who had served short sentences and were attacking Democrats for being “soft on crime.” At the same time, however, some liberals were critical of indeterminate sentences for placing felons at the mercy of prison officers.

That uneasiness produced legislation fixing terms for crimes and giving correctional officials little leeway – the law Brown now wants to reverse.

Political decisions are often made in the heat of the moment, and it’s not uncommon for them to have unintended consequences.

After determinate sentences were decreed in 1977, crime continued to rise, at least for a few years, and the Legislature and voters continued to pass tougher sentencing laws, culminating in 1994’s “three strikes and you’re out” measure, which added more bodies to an already overcrowded prison system.

Eventually, tougher laws and attitudes by prosecutors and judges resulted in an eightfold increase in the prison population, a tenfold increase in prison costs and federal court intervention to stop prison overcrowding, even though the state had built 22 new prisons in the 1980s and 1990s.

Tougher laws and attitudes by prosecutors and judges resulted in an eightfold increase in the prison population, a tenfold increase in prison costs and federal court intervention to stop prison overcrowding.

Eventually, too, voters soured on the resulting consequences. In recent years, they’ve endorsed measures to soften sentencing laws – a trend Brown hopes to continue.

What’s known as the “law of unintended consequences” is attributed to sociologist Robert K. Merton and his 1936 essay, “The Unanticipated Consequences of Social Action,” that explored “the wide field of human activity where things do not go as planned, and paradoxes and strange outcomes are seen.”

It would be fair to say virtually every major policy decision in California of the past half-century had unintended consequences, often negative:

▪ Proposition 13, passed by voters in 1978, was one of 20th-century California’s most famous – or infamous – political acts, reducing local property tax rates, limiting growth of individual tax bills and raising the vote threshold for state tax increases. And it continues to reverberate, financially and politically. Its two-thirds vote requirement for new taxes, for example, complicates current efforts by Brown to increase taxes for medical care and highway maintenance.

Proposition 13 was followed a decade later by Proposition 98, which was aimed at stabilizing school finance. The combined, albeit unintended, effect of both measures was to centralize budgetary policy in Sacramento, which has proved to be an unhealthy change.

Brown now wants to unring that particular bell with what he calls “subsidiarity” – returning authority to locally elected city, county and school district boards.

He and the Legislature enacted “realignment,” which gave counties billions of extra sales tax dollars, along with authority over certain social services and responsibility for more low-level felons – the latter to reduce the state’s bloated prison population.

To read expanded column, click here.