Archives for January 2010

Gov. Arnold Schwarzenegger has proposed a plan which would place the medical needs of the state’s 160,000 prison inmates in the hands of the University of California and its prestigious medical schools.
Schwarzenegger’s latest proposal, which officials claim could save the state as much as $12 billion over the next decade, would rely heavily on the use of telemedicine, a technique which links doctors with their patients through video hookups.
A study by NuPhysicia, a company affiliated with the University of Texas, also promotes centralized hospitals and electronic record-keeping as additional cost saving measures. The University of Texas took over prison healthcare during the 1990s.
The plan also calls for a special hospital designed to house and treat chronically ill patients in order to reduce the need for costly overtime paid to the guards of hospitalized inmates.
Dr. John Stobo, UC’s senior vice-president for health services, favors the governor’s proposal. Stobo is a former past chairman of NuPhysicia’s board of directors. The Board of Regents has countered conflict-of-interest concerns by pointing out that the position was non-paying, and Stobo cut all ties with NuPhysicia upon leaving Texas in 2007.
The university system’s Board of Regents have announced plans to form a special committee to study the feasibility of the governor’s plan, its costs, effects on labor relations and potential legal liabilities to the university system from inmate lawsuits.
The regents have made it plain that they are in no hurry to embrace the governor’s proposal, which calls for a UC takeover of dental and psychiatric services, as well.
“This is a very complicated issue, and we are going to have to spend a great deal of time to determine how and if the university is going to get involved,” said regents Chairman Russell S. Gould.

 “This is radical surgery on a broken system

that will save the state billions ” 

Schwarzenegger spokesman – Aaron McLane

The plan, which would likely result in a significant loss of jobs for prison healthcare workers, was opposed by the Union for Physicians and Dentists which represents more than 800 prison healthcare employees. The union that represents prison guards also opposes the plan.
According to a recent study done by a consultant, California currently spends more than $2.4 billion of it’s annual $11 billion prison budget on inmate health care, approximately $41 per day for each of its approximately 160,000 inmates.
New Jersey, which spends around $16 per day on healthcare for each of its inmates, has a similar arrangement with its university system, as do both Texas and Georgia which each spend about $10 per day.
A three-judge federal panel appointed a receiver in 2006 to make improvements in healthcare in the state’s prisons as a result of inmate’s lawsuits over inadequate care.
Federal receiver J. Clark Kelso has refused to comment on Schwarzenegger’s latest proposal which would require the approval of both he and the judges.
Schwarzenegger is fond of “rattling cages” with often wild proposals for solving the state’s continuing financial crisis.
The governor’s proposal would call for a phased UC takeover beginning at 11 northern California prisons before expanding to include all 33 prisons.

A federal appeals court for the western United Sates has issued a stunning decision upholding the rights of incarcerated felons to vote in Washington State. The ruling by a three-judge-panel of Ninth Circuit Court of Appeals in the case of Farrakhan vs. Gregoire in Seattle held that the disenfranchisement law denying incarcerated felons the right to vote violates the 1965 Voting Rights Act by disenfranchising minority voters.
The court’s finding represents a dynamic shift in America’s federal courts of appeals from a case that was booted between district courts and the court of appeals for 14 years. Last January the Ninth Circuit firmly placed the actions of denying incarcerated felons their right to vote with practices that violate the constitution under the Federal Voting Rights Act, such as literacy tests and poll taxes. Laws that prevent felons from voting in other Ninth Circuit states such as Alaska, Arizona, California, Hawaii,
Idaho, Montana, Nevada, Northern Mariana Islands and Oregon are now included.
The case was first filed in 1996 by Muhammad Shabazz Farrakhan while he was serving a three year sentence at Washington State Prison in Walla Walla. : As the case evolved five other inmates, all members of a racial minority group, joined the suit as plaintiffs. Evidence presented in the case included key research by a University of Washington sociologist who found that African Americans are nine times more likely to be incarcerated than whites. The plaintiffs demonstrated to the panel that minorities in Washington are stopped, arrested and ultimately convicted in higher disproportionate numbers than whites, thus making the bar against incarcerated felons voting inherently discriminatory.
The defendants also presented evidence which showed that the ratio of arrests for violent crime among African Americans and whites is less than four-to-one. One result of that is that 25 percent of African American men in Washington are disenfranchised from voting. The results also found that African Americans are 70 percent more likely, along with, Latinos and Native Americans 50 percent more likely than whites to be searched in traffic stops.
The studies “speak to a durable, sustained indifference in treatment faced by minorities in Washington’s criminal justice system. These disparities cannot be explained by ‘factors independent of race.’” Wrote Judge A. Wallace Tashima in his decision
 
State Attorney General Rob McKenna has said his office will appeal the ruling back to a larger 9th Circuit panel or perhaps to the United States Supreme “If upheld by the Supreme Court this decision would apply to all felons currently in prison and on parole all across America.” McKenna disputes two items; the analytical legal reasoning of the court and the research. “This is a misapplication of the Voting Rights Act by the 9th Circuit.”
It is an unarguable foundation that the 9th Circuit held its ruling on which is members of some minority groups are continuously imprisoned more than white people, and that this disparity cannot all be explained under the fact that minorities commit more crimes. Although in Farrakhan the lower court had found “compelling” evidence of bias in Washington’s criminal justice system. (From Crosscut Daily E-Mail By Daniel Jack Chasan.)The judges concluded it was the highly unequal rates of incarceration that had in fact, stopped minorities from voting.
But in the end the 9th Circuit blazed a different course of legal thought the majority surmised if a racially biased system kept minorities from voting, there was no need to look further.

Stanford Criminologist Joan Petersilia spoke recently to San Quentin prisoners concerning California’s current prison healthcare and overcrowding crisis and the federal court’s intervention into California’s prison operations. The court’s aim is to force development of a plan to end the Department of Correction and Rehabilitation’s (CDCR) violation of prisoners’ right to be free from cruel and unusual punishment.
Petersilia is currently Co-Director of the Criminal Justice Center at Stanford Law School. In her lecture she explored the complexities of California’s parole policy. She is the author of a report, “Understanding California Corrections,” that found that more than 70,000 parolees are returned to CDCR annually with approximately 17,000 “pure technical” violations. (Not arrested for a new crime but have violated a term or condition of parole.)
Petersilia’s report explained, this “… high return-to-prison rate for parole violators is creating a destructive situation by constantly cycling offenders in and out of prison…this churning or catch-and-release disrupts the inmate’s ability to participate in community-based rehabilitative programs, encourages the spread of prison-gang culture in communities and wastes parole processing resources.”
Petersilia focused on a plan authorized by Assembly Bill 900 that calls for building numerous re-entry facilities around the state to solve some of CDCR’s overcrowding problems.
However, this plan is contrary to the federal court’s stated finding that AB900 is “… essentially is a prison expansion measure which increases the number of prison cells without addressing the fundamental structural issues that have caused the crisis and that have created unconstitutional conditions within the prisons.”
The plan in AB900 runs counter to the court’s earlier decision that “…we are convinced that neither prison expansion, nor re-entry or medical facilities construction, nor any other construction effort offers a meaningful and timely remedy for the constitutional deficiencies in the delivery of prison medical and mental health care caused by crowding.”
During a question period some inmates asked Petersilia to address the court’s order that capped the prison population at 109,764 or 137.5% of designed capacity of 79,828. Petersilia said that the state has the capacity to expand and maintain a prison population of approximately 160,000 inmates, in spite of the court’s position.
As for causes of the growth in number of inmates, Petersilia said, “The expansive growth of the prison population in California is due, in part, to the state’s adoption of determinate sentencing in the 1970s…and the countless increases in criminal sentences enacted by the legislature or in initiative measures in succeeding years. In addition, California’s prison population has increased because of its post-sentencing practices. The   state has been widely criticized for not doing a better job of preparing inmates to return to society.”

For more than 10 years the California Innocence Project has fought to free innocent men behind prison walls, and it’s had some notable success.
The project is housed at the campus of the California Western School of Law in San Diego, where the organization held a reception and gala was attended by three of its successes and Justin Brooks and Jan Stiglitz, co-directors of the program.
The three exonerees are Timothy Atkins, Adam Riojas and John Stoll, who served time at San Quentin.
Stoll was convicted of 17 counts of child molestation and sentenced to 40 years. He revealed that his 20 years of imprisonment spent for crimes he did not commit were both scary and painful.
“It’s a mixture of emotions,” Stoll said. “I had never been in trouble or ever been arrested for anything and then there I was in San Quentin State Prison.” Stoll, 66, was convicted in Kern County. He is one of eight men California’s innocence project has vindicated.
Thousands of letters are read yearly from inmates family members and friends.
With 12 law students, Brooks and the “DNA dozen” sift through mountains of paper work until they find a letter that falls within their standards. That standard is believing in an inmate’s innocence. Then they set about methodically proving “actual innocence.”
Riojas was imprisoned for 13 years for second-degree murder, a crime that carries 15 years to life. Riojas, too, was exonerated through DNA.
Atkins, another DNA exoneree stated, “Every day, it eats at your heart. You’re there and you know you didn’t do it.” He was convicted in Los Angeles County and served 20 years of a 32 years-to-life sentence for first-degree murder and armed robbery.
San Diego County District Attorney Bonnie Dumanis said, “They do an important job, and I respect them for the work they do. The maturing science of forensics often compels second looks.”
“Bonnie will sit down with us, but everyone else, they fight with us for everything,” stated Brooks.
Dumanis credits the Innocence Project’s team for its focused efforts. “We don’t always agree, but at least we sit down and take a look at cases and evaluate them. Prosecutors and police are not eager to reopen cases.”
She added, “We may have evidence that has been preserved, but wasn’t useful in the past because the science hadn’t been developed. But is useful now, and can help in those cases when someone has insisted they were innocent.”
District Attorney Steve Cooley of Los Angeles County said, “It’s very commendable. But let’s have a reality check. Creating new theories or doubt about a case, the evidence is tainted – somebody else did it, doesn’t mean that they are necessarily innocent. It means the evidence changed, and sometimes changes occur after the key witnesses are dead, or their criminal associates are now deceased.”
He denied prosecutors or police deliberately resist relooking at cases. However, Brooks and Jan Stiglitz, his co-director and a Cal Western professor, remain frustrated with what they view as an absence of following-through after exoneration.
“The DAs very rarely give public notice when the wrongly convicted are found to be innocent or look for the guilty person,” Stiglitz said. Only a scant number of cases pursued by the Innocence Project involved DNA “In some older cases, the biological evidence has been destroyed,” said Jeff Chin, the Innocence Project’s assistant director. “Our staff looks for other pieces of evidence.”

The most important element for inmates preparing petitions to a court is “Telling your story so the person reading your case says, ‘This is different,’” according to JFK Professor of Law Stephanie Adraktas. Speaking to inmates at The New Leaf program on November 20, 2009, Prof.Adraktas said that the main mistake made by inmates preparing habeas petitions is putting the law first and not talking about the facts of the case.
“Front and center of the petition should be your story and why the Board (of Parole Hearings) got it wrong,” Prof. Adraktas said. She advised using examples of court decisions that grant petitions and talking about who the person was before they came to prison, what they did in committing their crime and what they did within the institution.
A law clerk working for a judge usually reads a petition that is filed and so Prof. Adraktas advised providing an explanation that the reader can relate to. “If you tell the story in a way that doesn’t emphasize why your case is different, it will blow past the reader,” she said. “Courts don’t read everything you write.”
Also, a petition doesn’t need to be written in stuffy language. Prof. Adraktas said that your story gets buried when you don’t state plainly the truth about your life. She counseled that it is better to speak to the Board of Commissioners in a “simple, plain way” because it is easier to understand and makes for a better transcript. She also advised to “get out quickly” from questions you can’t answer instead of giving long responses.
Getting the attention of the reader of your petition is more important because “the Board is not acting fairly and courts are reversing the Board with more frequency. Court cases are forcing the Board to work harder to rationalize the decision they make,” Prof. Adraktas said, adding, “The tide is turning away from the situation where the Board could say anything they wanted against you and it would stick.”
The California Supreme Court’s ruling in In re Lawrence 44 Cal. 4th 1181 (2008) requires that a Board’s decision denying parole be supported by some reliable evidence showing current dangerousness. Denial of parole based on “old facts” may not comport with the Lawrence standard, Prof. Adraktas said.
Prof. Adraktas advised that when structuring a petition for filing in state court, you must not only discuss rights under State law but also cite the U.S. Constitution and claim that both state and federal due process rights have been violated.
Prof. Adraktas advised that when preparing Board of Parole Hearings, you should review past transcripts to see where you could have given better responses. She also advised that it is important to document your parole plans in a convincing way.
Prof. Adraktas was accompanied by four law students who conducted workshops to assist inmates in the areas of preparing a petition for writ of habeas corpus, preparing for a board hearing and discussing issues relating to the three strikes law. Prof. Adraktas said that she anticipated that the ruling in the Hayward V. Marshall case now pending before an en banc panel in the Ninth Circuit Court of Appeals [Case Number 06-55392] will affirm that lifers in California have a federally protected liberty interest in parole. She speculated that the Ninth Circuit is taking time in order to draft “a bullet proof opinion that will not get reversed by the United States Supreme Court.”

Pre and post-sentencing credits went into effect Jan. 25, 2010. The new half-time from date-of-arrest time credits apply only to those sentenced or entering CDCR AFTER Jan. 25. The law IS NOT retroactive, although litigation has been initiated which could lead to a widening of the credit application.
At the present time, the only programs offered by San Quentin prison that qualify for enhanced credits, or Milestone Credits, which result in time being taken off of your term are the GED program, ABE, Patten College and the vocational machine and sheet metal shops. Up to 6 weeks off for each one-year period of incarceration may be earned. Inmates serving 85 percent are not eligible for the new credit-earning categories.
Despite several propositions and legislative bills that have proposed changes in the three strikes laws over the past several years, NO CHANGES IN THE 3 STRIKES LAWS have been adopted or are planned at this time.
On January 12, 2010 the 3-judge panel in the “over-crowding” case issued an order requiring the state of California to reduce its inmate population by 44,000 prisoners over the next two years. This order has been “stayed” pending an appeal to the U.S. Supreme Court. A decision from the Supreme Court in the case is not expected until later this year or perhaps early 2011.
The CDCR is continuing with its own plan to reduce the inmate population by approximately 6,300 inmates in 2010 in order to save money.
The state has officially closed the Herman G. Stark Youth Correctional Facility in Chino. The remaining 400 minors were transferred to other facilities. The CDCR plans to retrofit the 50-year-old lockup with an electric fence and other safeguards before moving in 1,200 adult prisoners.