‘We might have to look more holistically at the penal code to see if it makes sense, to see if some of the structures of sentencing are too harsh, especially with various kinds of enhancements’

A Stanford University law professor reaffirmed the need for further reform of California’s sentencing laws in an interview held on the anniversary of Proposition 36, the Three Strikes Reform Act of 2012.

California voters overwhelmingly approved Proposition 36 in November 2012. Proposition 36 amended the Three Strikes Law so a third strike, which carries a 25-year-to-life sentence, must generally be a serious or a violent felony. It also provides for petitions for reduction of sentence by prisoners who are serving life sentences for crimes that no longer qualified as third strikes.

“The interesting thing about Proposition 36 is that it was a major structural change in the penal code, in the sentencing law. I do think that, and the governor has indicated this, we might have to look more holistically at the penal code to see if it makes sense, to see if some of the structures of sentencing are too harsh, especially with various kinds of enhancements,” said Robert Weisberg in an interview with “The California Report” show on KQED last November. Weisberg is a professor of law and co-director of the Stanford Criminal Justice Center.

When Proposition 36 passed, it was the first time that voters, anywhere in the United States, passed a retroactive sentence reduction for inmates, according to Scott Shafer of “The California Report.”

“If you look around the nation over the last 15 years or so, there’s been what you might call a fair amount of political buyer’s remorse about the extremely harsh sentencing regimes that were instituted,” Weisberg said, “…and we’ve had a lot of initiatives that had led to reductions in incarceration in other places.”

Indeed, in recent years Congress has stepped up efforts to reform the federal mandatory minimum drug sentencing laws — having passed the Fair Sentencing Act of 2010 and introduced the Justice Safety Valve Act and the Smarter Sentencing Act of 2013.

Mandatory minimum drug sentences have significantly contributed to overcrowding and racial disparities in the federal Bureau of Prisons (BOP), according to the U.S. Sentencing Commission and a recent report by the Congressional Research Service. BOP is operating at about 140 percent of capacity.

Similarly, the California Blue Ribbon Commission in its 2005 report on corrections identified the draconian and confusing sentence enhancement laws as the primary cause of overcrowding in California’s prisons and urged the governor and the legislature to reform them. Not coincidentally, the state corrections system is running at about 140 percent capacity, dropping from over 180 percent after federal court orders.

Also interviewed on “The California Report” show was Bonnie Dumanis, district attorney of San Diego County. Of the more than 130 prisoners released to San Diego County under Proposition 36 only two have reoffended. Dumanis cautioned, however, “I’m really worried that with the Realignment, and the Three Strikes, and all that’s going on with limited resources, that there is a definite public safety risk.”

The U.S. Supreme Court has limited federal inmate lawsuits against privately operated prisons in federal courts, but the door is still open for suits in other courts.
The decision is “not a disaster for inmate rights,” said Alexander Volokh, associate professor at Emory Law School.
In 1971, the high court recognized a remedy, called the Bivens Doctrine, for litigants to sue federal officials for money damages for violating their constitutional rights. Federal prisoners have used the doctrine to sue federal prison officials for money damages for unconstitutional treatments and conditions of confinement.
Writing for the Akron Law Review, Volokh argues that the decision is “a lot less threatening to civil rights claimants than it may seem to be at first glance.”
The court ruled in Minneci v. Pollard that a federal prisoner can’t sue employees at a privately run federal prison for money damages under Bivens for violation of the Eighth Amendment, if traditional tort damages for the employees’ conduct are available under the state law.
The Bivens remedy continues to be available to federal prisoners confined in public prisons.
Volokh acknowledges that “Minneci is somewhat harmful to federal inmate litigants in that it removes a potentially useful cause of action” and that “it may have been wrongly decided as a matter of Bivens doctrine.” However, he believes it is “no doomsday” on prisoner rights.
There has consistently been a Supreme Court majority for limiting Bivens remedy when there have been alternative remedial schemes, Volokh points out.
As Volokh has noted, the standard for proving an Eighth Amendment violation is harder to meet than to prove negligence in state court, where supervisory liability is available, and where neither the private prisons nor their employees are entitled to immunity. Bivens prohibits suing supervisors for subordinates’ behavior.
Although Minneci has created an obvious disparity in judicial remedies concerning private and public prisons, Volokh doubts that it will “permit a Bivens cause of action to be contracted away by federal entities who outsource their responsibilities to private corporations.”
“Bivens itself can be contracted away, as Minneci shows,” Volokh reasons, “but that’s not the same as contracting away accountability.” Privatization will only subject federal inmates to the “relative attractiveness of state-law remedies,” he adds, and “Bivens might survive in other Eighth Amendment cases with no clear tort-law analogues.”
 

The California Court of Appeals ruled that a felon “physically” in possession of a firearm qualifies as a third strike under the state’s for Three Strikes law.
The news is a setback for the state’s 280 third-strikers whose third strike was possession of a firearm and who were attempting to be re-sentenced and released under Proposition 36, the Three Strikes Reform Act of 2012.
California voters overwhelmingly approved the Reform Act in November 2012.
The Act excludes defendants who were armed with a firearm or deadly weapon during the commission of a crime.
In California, possession of a firearm by a convicted felon is a felony, and under pre-Proposition 36 qualifies as a third strike.
Before the Reform Act, any felony could count as a third strike and required a minimum sentence of 25 years to life. After the Act, the third strike has to be a serious or violent felony.
With the passage of Proposition 36, Superior Court judges around the state began issuing conflicting decisions on whether defendants qualify for re-sentencing. The question, precisely, was whether someone convicted of simply possessing a firearm was in fact armed during the commission of the crime.
In Kern County, two judges rejected requests to resentence prisoners serving Three Strikes sentences for gun possession, while a third judge granted such a request, the Los Angeles Times reported.
According to the Times, a judge in Santa Clara County also made a ruling that being a felon in possession of a firearm did not disqualify a third-striker from a sentence reduction under Proposition 36.
Yet a San Diego Superior Court judge ruled otherwise and denied the re-sentencing request of Mark Anthony White.
In denying White’s request, the court found he was ineligible for re-sentencing because he was armed with a firearm during the commission of his current offense— possession of a firearm by a felon— within the meaning of the “armed with a firearm” exclusion set forth in the act.
On appeal, the superior court ruling stood. White has spent nearly two decades behind bars for felony gun possession.
The decision, however, suggests that constructive possession of a firearm by a felon (e.g., having a gun in the trunk of a car one is driving) may open a possibility for defendants whose third strikes were felony gun possession and whose records indicate they only constructively possessed the firearm.
The state Supreme Court will decide if it will hear an appeal of the ruling.

A federal court has ruled that two California parole laws are unconstitutional.
Proposition 89, amended the state’s constitution in 1988 and gave the governor the authority to review parole board decisions on inmates convicted of murder.
The court ruled that Proposition 89 was intended “to give the Governor ‘the power to block the parole of convicted murderers.’”
According to court records, from 1991 to 2010 California governors reversed more than 70 percent of the thousands of parole grants” by the parole board.
From 1991 to 2011, all previous governors reviewed only three decisions by the parole board that denied parole. However, the governor affirmed all three denials.
In 2005, Richard M. Gilman and a group of other California life prisoners filed a class-action lawsuit in the U.S. District Court for the Eastern District of California to challenge the practices of past governors and the parole board review process for inmates sentenced to life with the possibility for parole.
The court found Proposition 89 to be ex post facto and violated the rights of the life prisoners who committed their crimes before November 1988.
The other parole law that the court found unconstitutional was Proposition 9, commonly known as Marsy’s Law, which was passed by California voters in 2008.
Marsy’s Law amended California law and changed the periods between parole board hearings for inmates sentenced to life with the possibility for parole.
Before Marsy’s Law, the parole board was required to give hearings to inmates sentenced to life with the possibility of parole each year. However, under certain circumstances in murder cases, hearings could be put off for two to five years.
Marsy’s Law changed the law and authorized the parole board to deny parole to inmates sentenced to life with the possibility of parole for up to 15 years, with 10, seven, five, or three years as alternatives.
The determinate for which period to apply under Marsy’s Law says the parole board must defer for a longer period if it is not “highly probable” that the prisoner may be granted parole in lesser time.
The court ruled that Proposition 9 and 89 retroactively increased the punishment for inmates sentenced to life with the possibility of parole. “The court finds that both propositions, as implemented, have violated the ex post facto rights of the class members,” the final order read.

It seems the U.S. Congress rarely agrees on any issues these days. It has, though, agreed on one thing in recent years: mandatory minimum sentencing reform.
“Mandatory minimum sentencing is a costly and counterproductive cookie-cutter approach that removes a judge’s ability to apply a fairer sentence,” said Jasmine Tyler, deputy director of national affairs for the Drug Policy Alliance, a nonprofit which advocates for drug sentencing reform.
A number of members of Congress have introduced bipartisan bills to reform the federal mandatory minimum drug-sentencing policies. This follows the passage of the Fair Sentencing Act of 2010. It significantly reduced the disparity in crack and powder cocaine sentences and eliminated the first mandatory minimum penalty since the 1970s.
Congress enacted the Comprehensive Drug Abuse Prevention and Control Act of 1970 and the Anti-drug Abuse Act of 1986, under which federal judges are without discretion but to sentence federal drug offenders to statutory minimums.
Early in 2013, a bill was introduced to give federal judges the authority to impose a sentence below a mandatory minimum to prevent an unjust or irrational sentence. The measure, H.R. 1695, was presented by Reps. Bobby Scott, D-Va., Thomas Massie, R-Ky. and five others. It was a companion bill to S. 619, introduced a month earlier by Sens. Rand Paul, R-Ky. and Patrick Leahy, D-Vt. in the Senate, titled the Justice Safety Valves Act.
In July 2013, legislation was introduced to cut the length of some mandatory minimum drug sentences in half and expand access to the safety valve for federal drug offenders. It would also afford retroactivity for the Fair Sentencing Act of 2010. The measure, S. 1410, was proposed by Sens. Dick Durbin, D-Ill., Mike Lee, R-Utah, and Leahy. Titled the Smarter Sentencing Act, it was followed by a companion bill, H.R. 3382, introduced by Reps. Raul Labrador, D-Idaho, and Scott plus seven others in the House of Representatives on October 30, 2013.
Efforts at drug sentencing reform come as no surprise. According to the U.S. Sentencing Commission and a report by the Congressional Research Service, mandatory minimums have significantly contributed to overcrowding and racial disparities in the Bureau of Prisons (BOP).
The BOP operates at nearly 140 percent capacity—and is on track to use one-third of the Justice Department’s budget. More than half of the prisoners in BOP are serving time for a drug law violation.
“I am honored to join Congressman Labrador as a cosponsor of the Smarter Sentencing Act,” said Rep. Scott, “Granting federal judges more discretion in sentencing for nonviolent drug offenses is the right thing to do. Studies of mandatory minimums conclude that they fail to reduce crime, they waste the taxpayers’ money, and they often require the imposition of sentences that violate common sense.
“This bipartisan bill targets particularly egregious mandatory minimums and returns discretion to federal judges in an incremental manner. This legislation is an important step in updating sentencing policies that are not working, that are costing taxpayers too much, and do nothing to make our families and communities safer,” Scott added.
The U.S. leads the world in the incarceration of its own citizens, accounting for nearly 25 percent of the world’s prison population, reports the Drug Policy Alliance. Recently, Attorney General Eric Holder said there are too many people in prison and it is time for federal sentencing reform. In his remarks, Holder encouraged a partnership between the legislative and executive branches to work to solve the issue.