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.
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.
Brown also pushed a “Local Control Funding Formula” that removed the strings on billions of dollars in state aid to schools.
The consequences of both are still to be seen.
▪ Brown’s signature on collective bargaining for public employees four decades ago allowed their unions to become a very powerful political force, an unspoken but clearly intended consequence. Meanwhile, Proposition 13 had the unintended effect of reducing civic involvement in local government and school politics, because the agencies no longer had taxing power.
The result was that newly empowered public employee unions quickly filled the political void created by Proposition 13 and came to dominate politics in large cities, counties and school districts.
They also backed a 1984 ballot measure that loosened investment restrictions on government pension funds. Higher returns led to better benefits. But they later resulted in higher costs for taxpayers and immense “unfunded liability” debts when riskier investments tanked.
▪ The misnamed “deregulation” of the state’s electric power utilities, unanimously approved by the Legislature and then-Gov. Pete Wilson in 1996 on the promise of cheaper power, completely backfired. It led to bankruptcy of the state’s largest utility and ever-higher power bills.
The change passed unanimously because every “stakeholder” group involved gave its blessing, having been promised some benefit. But no one asked the pertinent questions about the policy’s downside risks, which turned out to be overwhelming.
Although deregulation was repealed, the Legislature and governors have been fiddling with the power system ever since, in part to compel a shift to “renewable” sources such as solar and wind.
▪ Supposed limits on legislative campaign contributions were passed by the Legislature’s Democratic majority to stave off tighter limits that political reform groups wanted.
However, they didn’t have any material effect on the flow of special interest money into campaigns. Rather, as political insiders expected but voters were never told, they fueled expansion of “independent expenditures” that could not be limited, thus driving the campaign financing process underground and making it more difficult for the public to know who was giving to whom and why.
Governors and legislators tinker endlessly with the rules of political campaigning, always claiming that they are just trying to improve the system. But in politics, as in sports, changing the rules often changes the outcome of contests, as those in politics know intimately.
Most recently, Democrats have been trying to make qualification of ballot measures more difficult – at least for those who might sponsor conservative measures the Democrats and their allies dislike.
▪ Voters also periodically change political rules by passing ballot measures. A classic example is a 1990 measure imposing legislative term limits, sponsored by Republican politicians such as Pete Wilson, who was running for governor that year.
It was aimed, sponsors said, at breaking the stranglehold of professional politicians, capitalizing on a recent pay-to-play scandal. The measure’s chief target appeared to be Willie Brown, the long-serving speaker of the Assembly and the self-proclaimed “ayatollah of the Legislature.”
It eventually forced Brown out of the Capitol and weakened legislative leadership. By ending legislative pensions, it also reduced professionalism.
Term limits also had another consequence, probably unintended. They helped women and nonwhite politicians crack what had been a mostly white male institution.
▪ Wilson also sponsored Proposition 187 in 1994, as he sought re-election, and voters passed it, seeking to eliminate many public benefits for illegal immigrants. However, the measure was eventually voided by the courts, and it drove a wedge between Republicans and the state’s fast-growing Latino population that continues to haunt Wilson’s party.
These few examples demonstrate that the consequences of a political act are not always what was intended, so a healthy skepticism about promised benefits is the best attitude.
That includes Brown’s new sentencing proposal. Some law enforcement officials, particularly prosecutors, say its consequence would be hindering their crime-fighting efforts and endangering the public.