The Emergence of Penal Extremism in California: A Dynamic View of Institutional Structures and Political Processes

This article examines legal and political developments in California in the 1970s and early 1980s that led to extreme changes in the state's use of imprisonment. It uses historical research methods to illustrate how institutional and political processes interacted in dynamic ways that continuously unsettled and reshaped the crime policy field. It examines crime policy developments before and after the passage of the state's determinate sentencing law to highlight the law's long-term political implications and to illustrate how it benefited interest groups pushing for harsher punishment. It emphasizes the role executives played in shaping these changes, and how the law's significance was as much political as legal because it transformed the institutional logics that structured criminal lawmaking. These changes, long sought by the law enforcement lobby, facilitated crime's politicization and ushered in a new era of frenetic and punitive changes in criminal law and punishment. This new context benefited politicians who supported extreme responses to crime and exposed the crime policy process to heightened degrees of popular scrutiny. The result was a political obsession with crime that eschewed moderation and prioritized prison expansion above all else.In a relatively short period, California lawmakers made a series of decisions that fundamentally transformed the state's approach to punishment and began a massive construction program that helped build one of the world's largest prison systems. At enormous cost, lawmakers and taxpayers agreed to borrow billions of dollars to build and operate an archipelago of prisons that now stretch across the state's hinterland. California's incarceration rate had ranked near the middle of all states in the United States (U.S.) in the mid-1970s, but by the mid-1990s, the Golden State imprisoned convicts at rates that rivaled many Southern states (Bureau of Justice Statistics 2000). Lawmakers from both parties abandoned whatever constraints might have moderated such a costly experiment, and ignored warnings that increasingly long prison sentences and bulging prison populations were unsustainable. By the 2010s, Cali- fornia's overflowing prisons had become an intractable problem, costing the state over $8 billion dollars a year to operate and consuming over 10% of the state's budget, up from 2% in 1981 (Anand 2012). The state continues to grapple with the consequences of federal court rulings that have condemned its prisons as unconstitutional.The path from a reconsideration of the state's response to criminal offending to a prisons-first approach emphasizing man- datory sentencing laws and stringent parole revocation was not obvious when lawmakers debated changes to the state's sentencing laws in the mid-1970s. In fact, even conservative lawmakers held positions that would be extremely moderate today (Nejedly 1975). Yet, by the early 1980s, politicians from both parties proposed and advanced increasingly radical legislation that extended sentences for a variety of offenses and limited discretionary mechanisms that might have moderated increases in time served. Lawmakers placed waves of bond measures to fund prison expansion on California ballots, and most passed easily. Lawmakers and financiers formu- lated risky and expensive borrowing practices that allowed the state to borrow aggressively and the state's governor pushed emer- gency status that allowed the state to avoid environmental plan- ning regulations to expedite prison expansion (Gilmore 2007). Expanding California's capacity to punish became a central politi- cal and state-building project in the 1980s and helped reshape California politics.Crime's hyper-politicization ultimately culminated in the passage of one of the most remarkably punitive legal changes of the "get tough" era-California's Three Strikes law, which drasti- cally increased sentences for certain repeat offenders. As Frank Zimring, Gordon Hawkins and Sam Kamin showed in their careful study of California's Three Strikes law, its rapid passage was "an extreme example of populist preemption of criminal justice policymaking" and that the processes that generated this legal change "produced structural changes in California's government that lessen the insulation between popular sentiment and specific criminal justice policy" (2001: 3). …