Predicting dangerousness and the dangers of disuniform sentencing

Whatever merit there might be to J. Anthony (Tony) Kline's particular criticisms of In re Butler (2018) 4 Cal.5th 728 and the state's parole machinery generally ("The enablement of mass incarceration by the California Supreme Court and the need for a legislative solution," Daily Journal, May 19), he rightly rails against any sentencing scheme that "does not punish offenses uniformly." As Kline correctly observes, an "obvious problem" emerges whenever a prisoner's length of confinement is made to hinge not on his "culpability for the commitment offense" but on "whether post-conviction conduct indicates continuing dangerousness"―especially given "that predictions of dangerousness are egregiously unreliable."

The problem Kline identifies is not confined to parole determinations, but could potentially arise in other contexts that bear on how long a prisoner is confined. One such context is that presented by Penal Code section 1172.1, a provision that authorizes superior courts to recall and reduce previously imposed terms of imprisonment under certain circumstances. 

As Dolores Carr and I explain in a recent article appearing in the quarterly journal of the California District Attorneys Association ("Penal Code Section 1172.1 and Capital Cases: An Analysis," Prosecutor's Brief, Spr. 2025), section 1172.1 contains confused and conflicting language concerning the criteria on which sentence-reduction proposals are to be resolved:

On the one hand, section 1172.1(a)(1) directs the court to "resentence the defendant in the same manner as if they had not previously been sentenced," "apply the sentencing rules of the Judicial Council" [§ 1172.1(a)(2)], "provide an opportunity for the victim to be heard" [§ 1172.1(a)(8)(B)], strive "to eliminate disparity of sentences and to promote uniformity of sentencing" [§ 1172.1(a)(2)], and above all, act in the interest of justice.

On the other hand, section 1172.1(a)(5) directs the court to conduct an interest-of-justice inquiry that seemingly focuses singularly on whether "continued incarceration is no longer in the interest of justice" by reference to a non-exclusive list of "postconviction factors." These factors include "whether age, time served, and diminished physical condition, if any, have reduced the defendant's risk for future violence." In addition, section 1172.1(b) (2) purports, in cases when the request for re-sentencing is made by any of several specified executive officers, to create a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant currently poses an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18." (Emphasis added)

Our piece goes on to explain that the presumption described above "must be construed narrowly, i.e., in a manner that does not broadly impinge on traditional judicial discretion, nullify the force of the statute's other specific commands, or raise doubts about its own constitutionality." In the related discussion that dominates our piece, we explain why section 1172.1 is wholly inapplicable to death penalty cases. But for present purposes the more important point made by our article is this: "[A] court would assuredly create, not reduce, systemic sentencing disparity and disuniformity if it blinds itself to the heinousness of particular murders and instead focuses singularly on the murderer's risk for future violence years or even decades later." That, of course, is exactly Kline's point as well.