MOSK, J. I dissent.
Under existing law it is unquestionably the right of the trial court to exercise discretion in sentencing a defendant. And, as the majority correctly state, appellate courts presently have limited power to interfere with the sentence imposed by a trial judge who has exercised his discretion, absent an abuse of that discretion.
The problem in this case is that the record does not reveal the trial judge meaningfully reflected upon the several available sanctions, and by a process of eliminating less drastic alternatives, ultimately settled upon the severe prison sentence inflicted upon this defendant. The judge may well have carefully cerebrated, but I suggest that appeals such as that involved here would be avoided, or more readily resolved, if the consideration given the sentencing process were recounted in open court for the understanding of the defendant and for perpetuation in the record of the case.1
Prison sentences to run seriatim are the most draconian weapon in the trial judge’s arsenal. The record discloses they were imposed almost casually in this instance. Yet 'the American Bar Association, after an exhaustive study of several years’ duration, concluded, inter alia, that the “sentence imposed in each case should call for the minimum amount of custody or confinement which is consistent with the protection of the public, the gravity of the offense and the rehabilitative needs of the defendant.” (ABA Project on Min. Standards for Crim. Justice, Standards Relating to Sentencing Alternatives and Procedures (Approved [76]Draft 1968) § 2.2.) To apply the American Bar standard, a judge who determines consecutive prison sentences to be necessary for a defendant before him should be expected to explain why such sentences are the minimum amount of custody consistent with public safety, the nature of the crime and the rehabilitative potential of the defendant.
Admittedly this defendant is, by virtue of his frequent involvement with narcotics, an unsympathetic figure. Yet the first impulse of the judge was to give him straight probation; his ultimate order was consecutive state prison terms. Such disparate sentencing options are not uncommon to our penal code. Consider, for example, a defendant convicted of a first offense of second degree burglary. The judge may invoke any of the following sentencing devices in ascending order: (1) summary probation (Pen. Code, § 1203); (2) probation upon various nonpenal conditions; (3) probation with a fine as a condition thereof (Pen. Code, § 1205); (4) probation with time in the county jail as a condition; (5) imprisonment in the county jail up to one year; (6) imprisonment in the state prison not less than 1 or more than 15 years (Pen. Code, § 461). With such diverse sentences available, how can a reviewing court ascertain whether there has been an abuse of discretion if the trial judge merely intones the sentence selected without any explanation on the record as to why, in the exercise of his discretion, he rejected all the lesser alternatives?
Imprisonment is the maximum intrusion by society on an individual’s liberty. Unfortunately under some circumstances it is required. Professor Herbert Packer, in writing of “the inevitability ... of punishment,” stated that “In our present state of comparative ignorance about the sources and control of human conduct there is no escape from the use of punishment (whether criminal or not) as a device for reducing the/ incidence of behavior that we consider antisocial.” (Packer, The Limits of the Criminal Sanction (1968) p. 249.) While that is undoubtedly true, the history of crime control and penal methods should warn us that complacent conclusions about inevitability and the assumption that no alternatives exist have in the past all too often been taken to justify barbarity and inhumanity. (Zimring & Hawkins, Deterrence (1973) p. 41.)
While society looks to imprisonment as a source of protection, the record of prisons in solving or curbing the problem of crime is dismal. And, sad td- relate, progress in prison techniques over the past century has been negligible. Shortly after World War I George Bernard Shaw wrote that “Imprisonment as it exists today is a worse crime than any of [77]those committed by its victims.” (Shaw, The Crime of Imprisonment, p. 13.) At mid-century two of the nation’s most scholarly wardens, both Californians, warned us of their deep concern. Conditions at San Quentin were described by Warden Clinton T. Duffy as a “nightmare” (Duffy, The San Quentin Story (1950) p. 107), and Warden Kenyon J. Scudder declared we should use “prisons as a last resort” because, he wrote, “Most men come out of these prisons worse than when they entered.” (Scudder, Prisoners Are People (1952) p. 227.)
The lesson is still unlearned today. Tom Wicker, one of America’s most distinguished journalists, wrote in his chronicle of the recent Attica prison revolt: “Caging men as a means of dealing with the problem of crime is a modem refinement of man’s ancient and limitless inhumanity, as well as his vast capacity for self-delusion.” The 19th century penitentiary produced “more mental breakdowns, suicides and deaths than repentance.” It is a melancholy fact that “the nineteenth century reaches nearly to the twenty-first in its long and baleful influence on the treatment of offenders in America and in its legacy of self-delusion—the ingrained American idea that society can make better men and women by sending them to prison, by putting them in cages. However idealistic its origins, that delusion has produced a protracted record of senselessness, futility, dishonor and inhumanity.” (Wicker, A Time to Die (1975) pp. 59-62.)
There are few if any criminologists who do not believe that prisons breed, rather than curb, crime. It is not merely the antiquated penitentiary structures, but the tension, hostility, anger, homosexuality and violence necessarily indigenous to a way of life in which men are isolated from society, stripped of all dignity, privacy and status. “The idea of punishment as the law interprets it seems to be,” concludes Dr. Karl Menninger, “that inasmuch as a man has offended society, society must officially offend him.” (Menninger, The Crime of Punishment (1968) p. 71.)
In this context a collision of basic values is inevitable. On the one hand society demands protection from those who trespass upon its peace and security. On the other hand every individual, even a confirmed malefactor, has certain rights in a constitutional order. Use of the doctrine of “the least drastic alternative” is the best technique for the adjustment of such impact. Its rational application preserves both of the conflicting values: the needs of society and the integrity of the constitutional order.
[78]The doctrine of the least drastic alternative requires that the state—in this instance the sentencing judge—demonstrate a particular course to be the least drastic method of achieving a desired end. Professor Norval Morris calls it “parsimony.” He wrote, “The least restrictive—least punitive—sanction necessary to achieve defined social purposes should be chosen.” (Morris, The Future of Imprisonment (1974) pp. 60-61.)
The United States Supreme Court has often used the phrase “less drastic means” in a First Amendment context. (United States v. Robel (1967) 389 U.S. 258, 268 [19 L.Ed.2d 508, 516-517, 88 S.Ct. 419]; Shelton v. Tucker (1960) 364 U.S. 479, 488 [5 L.Ed.2d 231, 237-238, 81 S.Ct. 247]; Wormuth & Mirkin, The Doctrine of the Reasonable Alternative (1964) 9 Utah L. Rev. 254, 267-293; Note (1969) 78 Yale L.J. 464.) The high court used the same expression in Shapiro v. Thompson (1969) 394 U.S. 618, 637 [22 L.Ed.2d 600, 616-617, 89 S.Ct. 1322], and then spoke of methods that are “necessary” in Dunn v. Blumstein (1972) 405 U.S. 330, 342 [31 L.Ed.2d 274, 284, 92 S.Ct. 995]. Whatever the precise term adopted, the import of the several formulations is the same: the state must demonstrate that the infringement upon human liberties which occurs is unavoidable if the purpose of the state is to be achieved. (Singer, The Least Drastic Alternative (1972) 58 Cornell L.Rev. 51, 56.)
If the purpose of a one-year residency requirement for welfare is to avoid welfare fraud, the Supreme Court found in Shapiro v. Thompson, supra, 394 U.S. at page 637 [22 L.Ed.2d at pages 616-617], that the waiting period was too drastic and must be invalidated since the state may achieve its interest in a less onerous manner. If the purpose of a year’s residence requirement for voting is to assure that the voter has an interest in the election outcome, that requirement is also too drastic since the state may ascertain in other ways that the voter is a bona fide member of the community. (Dunn v. Blumstein, supra, 405 U.S. at p. 352 [31 L.Ed.2d at pp. 289-290].) If the state wishes to determine the competence of its teachers, it cannot do so by requiring them to list all organizations to which they belong, since investigation of their competence in the classroom would be a more direct and less intrusive method of reaching the same end. (Shelton v. Tucker, supra, 364 U.S. 479.)
While the least drastic alternative test has not yet been ordered in criminal cases, an emerging case law and commentary supports the principle. It would seem that if the doctrine applies to losses qf welfare benefits, voting rights and teachers’ tenure, a fortiori it would be relevant to loss of liberty.
[79]In Covington v. Harris (D.C.Cir. 1969) 419 F.2d 617 [136 App.D.C. 35], a commitment case, the Court of Appeals for the District of Columbia Circuit applied an aspect of the doctrine by requiring the state to demonstrate that less severe confinement was not justified. Chief Judge Bazelon wrote that “[B]efore a court can determine that the hospital’s decision to confine a patient in a maximum security ward is, within its broad discretion, ‘permissible and reasonable’ ... it must be able to conclude that the hospital has considered and found inadequate all relevant alternative dispositions----” (Id. at p. 624.)
A significant federal case in this area is United States v. Waters (D.C.Cir. 1970) 437 F.2d 722 [141 App.D.C. 289], In Waters, a young offender was eligible for sentencing under the federal Youth Corrections Act, which specifies that the purpose of that act is rehabilitation. He was instead sentenced by the trial court as an adult felon. On appeal the District of Columbia Circuit Court of Appeals declared that trial courts must in the future specify the reasons for not sentencing an otherwise eligible offender under the Youth Corrections Act. In effect, the court held that there was a presumption in favor of sentencing young offenders under the act and that the state, in this case the judge, bore the burden of demonstrating that such a rehabilitative sentence was not justified on the facts of the record.
Again in United States v. Alsbrook (D.D.C. 1971) 336 F.Supp. 973, a district court panel held that failure to sentence youthful offenders to Lorton Youth Center in Virginia on the sole basis that Lorton was overcrowded was an invalid exercise of sentencing power. Instead of approving a more drastic sentence, the court ordered the immediate relief of the overcrowded situation at that institution. The court spoke in terms of the need for rehabilitation and declared that “[t]he Constitution, the Youth Corrections Act, and the conscience of a civilized society require that youth offenders receive firm but effective opportunity for treatment and realistic rehabilitation.” The reference to the Constitution and to the “conscience of a civilized society” suggests possible future application of the Eighth Amendment. (See also Robinson v. California (1962) 370 U.S. 660 [8 L.Ed.2d 758, 82 S.Ct. 1417]; Ralph v. Warden (4th Cir. 1971) 438 F.2d 786; Fulwood v. Clemmer (D.D.C. 1962) 206 F.Supp. 370.)
It appears inevitable to me that courts ultimately will adopt, in one form or another, the doctrine of the least drastic alternative. The doctrine is hardly extreme. The American Law Institute has recommended a [80]presumption in favor of probation for every offender. (Model Pen. Code (1962) § 7.01.) The American Bar Association has declared that nonconfinement is to be preferred over total or partial confinement “in the absence of affirmative reasons to the contrary.” (ABA Sentencing Alternatives and Procedures, supra, § 2.3(c).) In a comment related to its conclusion, the American Bar Association said it “believes that the starting point for every sentence should be probation or some other sentence not involving commitment or confinement, and that the extent to which commitment or confinement is employed in a given case should turn on the appearance of specific reasons which seem to call for that disposition.” (Id at p. 72.)
Most conscientious trial judges anguish over the sentencing process. It is undoubtedly their least gratifying responsibility. Nevertheless what has been characterized as appellate laissez faire may have been misinterpreted by the trial bench as total freedom from accountability. The growing disenchantment with current methods of punition portend more, not less, responsibility on the shoulders of the sentencing judge. A concomitant of that responsibility is the obligation to forthrightly explain its exercise.
In my criticism of current sentencing procedures in California, I do not suggest our state lags behind other jurisdictions. Quite the contrary: California has generally blazed a trail in providing such protective devices as presentence reports, availability of the report to defendant and his counsel, and an opportunity for defendant to be heard at the time of sentencing. But the trail still falls far short of a salutary penological goal, i.e., to assure that the judge not only adequately reflects upon the sentence imposed but demonstrates on the record that he has done so. In short the record must affirmatively reveal that the judge has considered all other less drastic alternative sentences before concluding that which he elects to impose is most appropriate.
Sentencing today is an archaic process at best. By application of the rule of the least drastic alternative we can ameliorate somewhat the most flagrant abuses of the sentencing process by requiring the state, functioning through its trial judge, to articulate the rationale for the sentence imposed. If we cannot abolish prisons, as seems clear, we should in good conscience limit their use to the confinement of those errant members of society for whom no other alternative appears feasible.
[81]If the judge employed his discretion in that manner in the instant case, it does not appear from the record. I would send the matter back to the trial court for reconsideration.
Appellant’s petition for a rehearing was denied May 21, 1975. Richardson, J., did not participate' therein. Tobriner, J., and Mosk, J., were of the opinion that the petition should be granted.
The judge apparently believed he was being magnanimous in informing the defendant of the proposed sentence. At one point in the colloquy, he stated; “At least I am telling you what I propose to do. Perhaps I should not tell you anything and go ahead and do it.”