Lawmakers OK California bill to create judicial guidelines for sentencing enhancements

SACRAMENTO, Calif. - A California bill to create a set of guidelines for courts that would curb the use of sentence enhancements in nonviolent offenses unless a judge determines that they are necessary to protect public safety has passed both the Assembly and Senate.

Now, SB 81, authored by Sen. Nancy Skinner (D-Berkeley), is headed to Gov. Gavin Newsom's desk. 

The bill is designed to address the proliferation of sentence enhancements in California, which can often double the length of years of a prison term and have been disproportionately applied to people of color and those suffering from mental illness. 

"If sentence enhancements were applied fairly, this wouldn’t be an issue," Skinner said. "However, data shows that in California, you are much more likely to receive a sentence enhancement if you are Black. SB 81 tells our courts: Let’s stop unfair sentences and use enhancements only when necessary to protect the public."

Roughly 80% of people in prison are serving a sentence term that includes extra time added on by a sentencing enhancement, data shows. 

In some cases, the amount of prison time added due to sentencing enhancements is five to 10 years or more — longer than the term for the underlying conviction, according to Skinner's office. The committee’s report also noted that "enhancements are applied disproportionately against people of color and people suffering from mental illness."

Plus, research reviewed by the Penal Code Revision Committee showed no evidence that the proliferation of sentencing enhancements in California has made the state safer.

Judges currently have the authority to dismiss most sentencing enhancements but rarely exercise that discretion, in part because California law does not provide clear guidance on what judges should do. 

There are now more than 150 sentence enhancements in the California Penal Code. 

Sentence enhancements are additional circumstances that increase the penalty, or time served, of the underlying crime. 

At a hearing last year in front of the Penal Code Revision Committee, former Gov. Jerry Brown argued that California should "get rid of all of the enhancements" or steer judges toward not imposing them. 

SB 81 would establish guidance when a judge is deciding whether to dismiss an enhancement by requiring judges to give "great weight" to evidence that proves certain mitigating circumstances, such as: 

• The underlying conviction is not a violent felony.
• Application of the enhancement would result in a discriminatory racial impact.
• Underlying conviction is connected to mental illness, prior victimization, or childhood trauma.
• Defendant was a juvenile when they committed the current offense or prior offenses.
• Enhancement is based on a prior conviction that is over five years old.

If signed into law, SB 81 would go into effect Jan. 1, 2022. The provisions of the bill are not retroactive.