He will give the lawmakers practical ideas for alternative sentencing and reform of conveyor belt laws that have resulted in inhumane overcrowding.  This will not be a watered-down speech, I can assure you!  Here's his bio. 

Michael Vitiello is a Professor of Law at University of the Pacific, McGeorge School of Law Professor. Vitiello has been a member of the Pacific law faculty since 1990. His wide range of legal expertise and teaching interests extends from criminal law to appellate advocacy and civil procedure.

A prolific contributor to law journals, Professor Vitiello has written extensively on California's "Three Strikes Law"  and his articles were cited in a recent U.S. Supreme Court decision on that 
subject and by a concurring opinion by California Supreme Court Justice Moreno. He was elected to the American Law Institute in 2002.   Professor Vitiello taught at Loyola University Law School for more than a decade and has also been a visiting professor at Tulane University and the University of Mississippi. While at Loyola, he helped found the Loyola Death Penalty Resource Center. He also was involved in pro bono litigation in Louisiana on behalf of appellants and indigent defendants. 

Professor Vitiello directed an expansion of Pacific's Appellate Advocacy program that won praise from legal educators.  Pacific Professor David W. Miller and he are the co-authors (with Michael 
Fontham) of Persuasive Written and Oral Advocacy: In Trial and Appellate Courts. Professor Vitiello received his B.A. from Swarthmore College.  He earned his J.D. from the University of 
Pennsylvania. 

I don’t have to tell those of you who have family members in California’s prisons about what California has done over the past 10 to 20 years. You are aware that California has dramatically increased prison sentences. Instead of seeking alternatives to prison, the state has engaged in a massive prison construction business. The union representing prison guards has courted politicians from both parties. And for most of that period of time, few politicians had the courage to be labeled as soft on crime.

At the same time, some of our politicians have spread a popular myth that extreme laws like the Three Strikes law has caused a reduction of crime. They do so despite the fact that really good studies show that Three Strikes did not cause the reduction in crime. It is easy to get discouraged when you listen to the debate about crime. 

But I want to share some good news about changing attitudes about crime. I have been writing about Three Strikes for almost a decade. In my first article, I predicted that we could eventually return to our senses. Among things that had to take place, I argued that a budget crisis would help to bring us to our senses. I am not sure that I cannot promise without qualifications that “hope is on the way,” I think that those of us who are interested in decent and fair criminal sentences and parole policies have some reasons to be more optimistic today than we have been in decades.

Let me describe some of the factors that give me cause for hope: many of you know that we spend too much money simply to warehouse prisoners: that money goes primarily to bricks and mortar and to prison guards salaries. Punitive attitudes have led to reduced services for prisoners, like education and related services. The prison construction boom appears to be at an end. The budget crisis has forced politicians to look for solutions.

California’s budget does not give cost cutters many options. Our budget requires certain spending that is beyond the budget-cutting ax. The general fund is a relatively small percentage of the total budget. So where can politicians go to find savings? One of those areas is the prison system, roughly a $6 billion dollar budget, and one that unlike other budgets receives little oversight. Prisons routinely exceed their budgets without consequences.

The challenge then becomes how we can convince politicians that they can reduce the prison budget and not endanger public safety. For a moment, remember when California was a trendsetter. In the area of prison reform, California is well behind the curve. I want to discuss briefly some positive developments that have taken place elsewhere.

Some of you may be aware that the United States Supreme Court had before it two Three Strikes cases during its 2002 term. In one of those cases, the 9th Circuit had found that the imposition of a Three Strikes sentence violated the United States constitutional protection against cruel and unusual punishment. The Supreme Court was closely divided with Justice Kennedy joining the justices who rejected the prisoners’ claim. But shortly thereafter, at last year’s ABA convention, he delivered a speech in which he gave a national call to action bringing attention to our prisons, both to conditions of confinement and to the use of mandatory minimum sentences. He bemoaned decades of misallocation of resources for prisons while we gut funding of our public schools. He also argued in favor of reinvigorating pardon and clemency processes.

The American Bar Association responded to his call by setting up what came to be known as the Kennedy Commission, whose representatives held hearings around the country. We were able to host a session at McGeorge Law School where various people interested in prison policy including recently appointed head of the CYAC, Rod Hickman, testified.

Justice Kennedy’s speech can be found at  abanet.org/media/kencomm/amkspeech03.html . You can find a link that the speech on U.N.I.O.N.’s Index page. In June, the Commission published its report. Many of its recommendations would lead to more sensible sensitive sentencing policies that would focus more carefully on the individual circumstances of particular defendants. It also highlighted greater study and availability of alternatives to prison. Its recommendations are guided by two primary principles: 

(1) Lengthy periods of incarceration should be reserved for offenders who pose the greatest danger to the community and who commit the most serious offenses. 

(2) Alternatives to incarceration should be provided when offenders pose minimal risk to the community and appear likely to benefit from rehabilitation efforts. 

Its specific recommendations include a recommendation that we get rid of mandatory minimum sentence statutes and that we allow judges to consider each individual’s specific circumstances when judges decide on prison sentences for defendants. Among other recommendations, the report recommends greater use of alternatives to prison sentences. It also recommends more sensitivity to racial disparity of our criminal sentencing policies.

Justice Kennedy immediately endorsed the commission’s recommendations. The ABA’s adoption of the commission’s recommendations should go a long way towards putting sentencing and parole policy on the agenda in the near future.

Another reason that may give hope for relief is an unintended consequence of the recall of Governor Gray Davis and the election of Arnold Schwarzenegger. Davis counted on the support of California’s most influential union, the California Corrections and Peace Officers Association. Its influence was so great that even faced with a severe budget shortfall, Davis agreed to a pay increase for members of the union. The new governor promised to “blow up boxes,” and to go about the business of politics in a new way. Signals are mixed on whether he really will do so and whether he has the political courage to take on the CCPOA. He did appoint a commission to study reforming our prisons. 

The governor appointed former governor Deukmejian to head the commission. To show how far the pendulum has swung back towards rationality, even though Deukmejian was responsible for some of the legislation that has led to longer prison sentences with fewer opportunities for prisoners, his commission’s report contains some good news.

Among its proposals is the endorsement of POPS.  POPS, a program begun in the late 1980’s in Louisiana, has been adopted in several states. It focuses on a number of things: students from law schools in states with these programs work up a report on older prisoners. The goal is to identify prisoners who represent a low risk of repeating criminal conduct upon their release from prison. In addition, POPS works to get better medical care for aging prisoners by lobbying to have special geriatric units created in prison where they can be segregated from younger, more violent prisoners who prey upon them. POPS also lobbies to have physicians and other health care personnel trained in taking care of older prisoners. We know about the crisis in health care in prisons generally but older prisoners present special problems because of the normal health care problems of aging, combined with how rapidly their health deteriorates when their conditions go untreated. My hope is that McGeorge will set up a POPS program if the legislature follows up on the recommendation of the Deukmejian report.

The report also recommends a number of other significant reforms, including shifting resources from warehousing offenders in prisons to more intensive parole supervision and community-based sanctions, including in-home detention and close monitoring and increased use of drug treatment, education, and rehabilitation for some offenders. 

Some of these recommendations are also consistent with Little Hoover Commission report, Back to the Community: Safe & Sound Parole Policies (Nov. 2003) The Little Hoover Commission is considered a non-partisan group. It avoids taking political positions and tries to make practical recommendations for better government. Its report concluded that California’s parole program is an extraordinarily expensive failure that, despite large expenditures, fails to adequately protect public safety. The report notes the lack of accountability within the system and notes the need for proper evaluation of current programs. The report further observes that California’s narrow focus on punishment has led the system to release inmates ill-prepared to assume productive and safe roles in the community, and has created a system too reliant on incarceration, the most costly alternative in a spectrum of possibilities for parole violators. The report offers specific, concrete suggestions on how to carry out its recommendations at all necessary levels: state correctional, local law enforcement, community-based programs, legislative support, and with the parolees themselves. Recurrent notions, such as cost-effective alternatives to incarceration for parole violators, the use of individual risk assessment to create programs tailored to individual parolees, as well as repeated evaluation of the system as a whole, run throughout its recommendations, aimed toward creating a more comprehensive and effective parole system), available at 
 http://www.lhc.ca.gov/ lhcdir/172/ report172.pdf .

For many years, I have opposed Three Strikes especially two features of the law. One is the inclusion of residential burglary among the crimes that qualify for the first two strikes and more importantly because of the fact that any felony, even minor offenses like petty theft with a prior or person drug possession offenses may qualify to send someone away for twenty-five years to life. I have come to believe that we need to do a great deal more than reform three strikes before we can have a sane and humane sentencing scheme. In April, a colleague at McGeorge and I organized a two day discussion of reforming the entire sentencing scheme. We are currently drafting a report in which we make our specific recommendations.

In all of these reports and in more and more discussions about how we can reform prisons, saving money without increasing the risk to the public, the common thread is that we must look to alternatives to prison, especially for non-violent prisoners. You know that we can’t continue to pile more prisoners into single cells, that we have to adopt better conditions in prisons, that we have to find real treatment for mentally ill patients. 

I hope that you can see that there are people interested in sentencing reform and in finding alternatives to the constant march towards longer prison sentences, more prisons, and fewer and fewer opportunities for those in prison. I will close with one final thought: I was delighted when Cayenne Bird invited me to speak at this event and I have gotten to meet some of the people who have the real human stories. I want to encourage you to continue to hope for meaningful reform. For over twenty years, victims rights groups have made headlines and have become an organized and powerful force in California politics. But policy makers need to understand the human cost of the one-way policies that have led to a prison system that is bursting at its seams. You provide that voice with your individual stories and the stories of your loved ones. We need to hear those stories; don’t let your voices be silenced.