Prison Was For Punishment. Until 2017

California Penal Code section 1170 used to read as follows: “[t]he Legislature finds and declares that the purpose of imprisonment for crime is punishment.” The clarity of this finding is breathtaking. There are no references to incapacitation, rehabilitation, or anything else. In California, the reason for prison is punishment. Until 2017.

Former section 1170 stood in stark contrast with the Model Penal Code, the New York Penal law, and the prevailing ideas about criminal justice in American politics. These sources shy away from the idea of punishment. It’s almost a dirty word. Instead, they focus on ideas that are more palatable to the public, like rehabilitation. Even if there is overwhelming evidence that rehabilitation is a mirage, a concept that sounds good but doesn’t actually work. Restorative justice is equally vague and crowd-pleasing phrase, that I would describe as pablum if the stakes weren’t so high. No one can seem to agree on what it is: the Wikipedia article alone has at least three competing definitions. But most importantly (and unfortunately), there is no empirical evidence that it reduces crime or recidivism. Incapacitation is a concept that is commonly included in the purposes of punishment, but was also missing from section 1170. Up until 2017, punishment stood alone as the function of prison.

Assemblymember Shirley Weber

Penal Code section 1170 was amended on January 1, 2017 by AB2590. Assemblymember Shirley Weber sponsored the bill. She called it the “Restorative Justice Act.” Weber is a former professor of African-American Studies at San Diego State University. Chased out of Hope, Arkansas, her family moved to Los Angeles when she was child. She went to UCLA, where she earned a doctorate in communication in 1975. She is the widow of judge Daniel Weber and a mother of two.

That bill changed the legislative findings and declarations so that “the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice.” It also directed the California Department of Corrections to change its mission statement to conform to the new purpose of sentencing. The new section reads, “[t]he Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice.” (Pen. Code section 1170(a)(1).)

I think it’s worth noting that AB2590 did not actually change anything about how the criminal justice system works. Even though the bill is named after the concept of restorative justice, the bill didn’t actually implement any ideas associated with that concept. All AB2590 did was change the legislature’s mission statement and CDCR’s mission statement. It looks like a political gesture, not actual law-making, but then again, the legislature is a political place.

Before 2017, Penal Code section 1170 could’ve solved a lot of arguments. Especially arguments about mass incarceration, recidivism, and the purpose of prison. In California, before 2017, the purpose was brutally clear. Now, like many things in our justice system, this issue is up in the air.

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