Legislature Approves SB 81, Judicial Guidance on Sentence Enhancements

September 9, 2021

The California state Senate voted 23-11 today to approve Sen. Nancy Skinner’s SB 81, which would establish judicial guidance on the use of sentencing enhancements. SB 81 won approval yesterday in the state Assembly on a 46-24 vote. The legislation now goes to Gov. Gavin Newsom for consideration.

SB 81 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.

SB 81 stems from recommendations made earlier this year by the California Committee on the Revision of the Penal Code. The committee, of which Sen. Skinner is a member, was appointed by Gov. Newsom and the Legislature to comprehensively examine California’s Penal Code and issue recommendations for reforming it.

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

There are now more than 150 sentence enhancements in the California Penal Code. Sentence enhancements are not elements of a crime; rather, they 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, ex-Gov. Jerry Brown argued that California should “get rid of all of the enhancements” or steer judges toward not imposing them. Testimony before the committee also showed no evidence that sentence enhancements have improved public safety.

Judges currently have the authority to dismiss sentencing enhancements but rarely do so, in part because California law does not provide clear guidance. 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

These circumstances would not be factored if the judge concluded that dismissing the enhancement would endanger public safety.

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

 

Sen. Nancy Skinner represents the 9th Senate District, and is chair of the Senate Budget Committee, and vice chair of the Legislative Women’s Caucus.