San Quentin News

Written By Incarcerated - Advancing Social Justice

Ruling makes more prisoners eligible for parole hearings under Proposition 57

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A new court ruling makes more prisoners eligible for parole hearings, according to the Second Appellate District’s recent decision.

The ruling makes persons with violent convictions eligible for parole consideration under Prop. 57—if their crimes include a non-violent offense.

Previously, inmates with violent offenses were not given parole consideration even if they had a nonviolent offense that they were also serving time for. CDCR Title 15, subsection 3490(a) describes a “determinately-sentenced non-violent offender” through a system of exclusion. Six case factors are listed, which make an inmate ineligible for non- violent parole consideration. Factor #5 excludes an inmate from Prop. 57 eligibility if he or she is “currently serving a term of incarceration for a ‘violent felony.’”

The court’s ruling now al- lows violent offenders parole consideration if they were also convicted of a non-violent felony offense and had served the full term of their primary offense.

Mohammad Mohammad was convicted of nine counts of second degree robbery, which are violent felonies under PC 667.5©. He was also convicted of six counts of receiving stolen property, which are non-violent felonies. He was deemed ineligible for pa- role eligibility due to his violent felony convictions.

Mohammad filed an unsuccessful administrative appeal to grieve his lack of eligibility. He then filed a writ of habeas corpus with the superior court. It was denied. He then petitioned the court of appeals with a writ of habeas corpus arguing that he should be eligible for Prop. 57 parole due to his base term being a receiving stolen property conviction. His petition was granted.

Section 32(a)(1) of the California Constitution makes early parole hearings available to “any person convicted of a non-violent felony offense”

upon completion of “the full term of his or her primary offense.”

“The phrase ‘a’ nonviolent felony offense takes the singular form, which indicates it applies to an inmate so long as he or she commits ‘a’ single nonviolent felony offense-even if that offense is not his or her only offense,” the court of appeals stated in their Nov. 26 publication.

The court relied heavily upon the text of Prop. 57. The plain meaning of the law’s words compelled their decision.

New regulations are on the way. The Mohammed decision may set a precedent for cases throughout the state.

However, it’s important to note that just because a per- son is eligible for a parole hearing under this new interpretation of the law does not mean he will be paroled. The parole board will take into account that person’s full criminal history when determining whether he poses a risk to public safety.

Some law enforcement and victim advocates oppose Proposition 57

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Some police and victim advocates claim a recent court ruling could lead to the early release of many violent and sex offenders, reports the Times Herald.

The case involves Gregory Gadlin, serving 35 years to life for assault with a deadly weapon. He was also convicted previously of forcible rape in 1984 and forcible child molestation in 1986.

The 2nd District Court of Appeals ruled in January that Gadlin should be considered for early release under terms of Proposition 57, the voter- approved initiative aimed at reducing prison overcrowd- ing, the Feb. 1 story noted.

“The ruling means more sex offenders and violent criminals will be applying for early release back into our neighborhoods,” Paul Kelly, president of the San Jose Police Officers Association, told the Times Herald.

In November 2017, Gadlin petitioned the Superior Court, challenging CDCR’s application of Proposition 57, which excluded him from early parole consideration. The court denied the petition, but the appellate court reversed the denial.

The California Department of Corrections and Rehabilitation (CDCR) maintained Gadlin was a third-strike offender and a registered sex offender and both factors make him in- eligible for early release under Proposition 57.

Proposition 57, which passed in 2016, allowed prison officials to decide which non-violent felonies could be reduced to misdemeanors (under Proposition 47).

The court concluded that CDCR’s interpretation and application of Proposition 57 does not override the “plain text of the initiative,” which reads “Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.”

“The regulations promulgated by the California Department of Corrections and Rehabilitation (CDCR) are unconstitutional as applied to bar early parole consideration based on two prior sex offenses committed in the 1980s for which petitioner Gadlin has already been imprisoned and released.”

INMATES SPEAKS ON PROP. 57

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A group of non-violent sex offenders is suing the California prison system for excluding them from potential parole under voter-approved Proposition 57.

The proposition liberalized parole consideration for non-violent offenders, but the California Department of Corrections and Rehabilitation adopted rules excluding all sex offenders, including for non-violent crimes.

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“By excluding such individuals, CDCR’s regulations nullify the vote of the majority of Californians, who approved Proposition 57 with full knowledge that its early parole consideration provision applies to all nonviolent offenses, including nonviolent registrable offenses,” said the suit filed April 27 by the Alliance for Constitutional Sex Offense Laws.

Attorney Janice Bellucci, who brought the suit, said only the State Legislature has the authority to amend the measure, not CDCR, reported Courthouse News Service.

“The easiest (offense) for people to understand is possession of child pornography which is a non-contact, nonviolent offense,” Bellucci said in a phone interview. “How does the department think they get to change the definition of what is a violent felony?”

California voters passed Proposition 57 by nearly 64 percent. It was placed on the ballot by Gov. Jerry Brown and supported by the California Democratic Party and the American Civil Liberties Union. Nearly $14 million was put into the measure, the majority of it coming from Brown’s gubernatorial war chest, the report said.

The new law allows early parole consideration for nonviolent offenders, provides incentives for inmates who participate in rehabilitation programs, and gives judges — not prosecutors — the authority to decide whether a minor will be tried as an adult.

Disqualified are prisoners serving life sentences without the possibility parole or on Death Row, and people convicted of a violent felony are excluded from the nonviolent parole process.

After the election, an emergency regulation was drafted. It excluded non-violent sex registrants from parole consideration under the new law. The Chief Probation Officers Association praised the decision.

“We are especially pleased with how well the department worked with us during this process and listened to our input as the leaders of rehabilitative programming in public safety,” the probation officers said in a statement. “These regulations reflect what we know is most important in programming and will have the greatest positive impact on the safety of our communities.”

However, Larry Rosenthal, a professor at the Dale E. Fowler School of Law at Chapman University, in an interview with The Daily Journal said, “The plaintiffs appear to have a strong case based on the plain language of the initiative. The suit could be an interesting and early test of new Attorney General Xavier Becerra, who could choose not to defend the lawsuit.”

Rosenthal also said that if the Legislature “forgot to put a truly violent felony on the list, and rectified that omission subsequently, Proposition 57 wouldn’t stand in the way.”

CDCR ordered to rewrite regulations for Prop. 57

Prop 47 savings underestimated


 

CDCR ordered to rewrite regulations for Prop. 57

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Sacramento County Superior Court judge Allen Sumner preliminarily ordered prison officials to rewrite the early parole regulations consistent with Proposition 57’s language.

https://www.cdcr.ca.gov/

https://www.cdcr.ca.gov/

Sumner ruled the state of California erred when writing regulations that didn’t specifically exclude some non-violent sex offenders from  early parole consideration, reports The Associated Press. The voter-approved Proposition 57 allows many California prisoners  to be considered for early release.

However, during the 2016 general election, Gov. Jerry Brown told voters that all sex offenders would be excluded from consideration under the proposition, according to the article.

In his Feb. 9, 2018 decision, Sumner said CDCR does not have broad authority to exclude certain inmates from parole consideration. Specifically, the judge said the exclusion exceeded CDCR’s authority, which had to be consistent with the language in Proposition 57.

“If the voters had intended to exclude all registered sex offenders from early parole consideration under Proposition 57, they presumably would have said so,” said the judge.

Janice Bellucci, attorney and president of Alliance for Constitutional Sex Offense Laws, who filed a lawsuit on behalf of non-violent sex offenders, said the ruling could allow early parole for half of the 20,000 sex offenders incarcerated in state prison.

Bellucci argued in her suit that the regulations written by CDCR conflicted with the proposition’s language and the voters’ intent. She further argued that only those crimes defined under the penal code as violent offenses, such as murder, kidnapping and forcible rape, are excluded.

According to the AP report, that  could potentially allow early parole for those convicted for crimes not defined as violent under the penal code, such as raping an unconscious person, inappropriately touching someone who is unlawfully restrained, incest, pimping a minor, indecent exposure and possessing child pornography.

Sumner said corrections officials may make the case for excluding these offenders as they rewrite the regulations, even though they are not on the violent felony list (Penal Code 667.5(c)). Bellucci said she will sue again if the rewritten regulations go too far.

“Until they figure something else out, they have to consider anybody convicted of a nonviolent offense even if it was a sex offense,” said Bellucci. “We believe we’ve won a battle, but the war continues.”

Mark Zahner, chief executive of the California District Attorneys Association who opposed the Prop. 57 initiative, told the AP, “There’s a great danger of truly violent people being released early and people who commit, in this case, sex offenses that involve violence being released early.”

Karen Pank of the Chief Probation Officers of California countered that she still  believes the measure does exclude sex offenders.

“We hope the issue will be more fully vetted on appeal,” said Pank.

Currently the California Public Safety Partnership is sponsoring a 2018 ballot initiative (entitled: “Reducing Crime and Keeping California Safe Act of 2018”).

Asked how this new initiative might affect Sumner’s  recent ruling, Attorney Milena Blake of the Stanford Three-Strike Project told the San Quentin News that it would reduce the number of crimes that would qualify for the Proposition 57 early parole consideration.

“If the November initiative qualifies for the November ballot and passes, it will supersede any future court ruling in favor of nonviolent offenders and eliminate the number of people who qualify,” Blake said.

http://sanquentinnews.com/ca-supreme-court-rules-juvenile-sentence-cruel-unusual-punishment/

New Sex Offender Registry limits

Proposition 57: THE PUBLIC SAFETY AND REHABILITATION ACT OF 2016

Court aids sex offenders seeking early parole

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California’s latest attempted to regulate who qualifies for early parole consideration hit a snag when its Superior Court ruled that the state cannot automatically exclude sex offenders from the list of eligible people.

https://www.cdcr.ca.gov/

https://www.cdcr.ca.gov/

Under Proposition 57, voted into law in November 2016, the California Department of Corrections and Rehabilitation (CDCR) can make nonviolent offenders eligible for parole consideration after they complete the full term for their primary offense. Now, CDCR needs to determine what constitutes a violent crime, a definition that varies across state, federal and CDCR regulations.

25 percent of millennial-age American men think asking a woman who is not a romantic partner to go for a drink is harassment, according to a recent survey by The Economist/YouGov reports The New York Times 1-17-18.

More than a third of millennial say that if a man compliments a woman’s looks it is harassment, according to a recent survey by The Economist/YouGov reports The New York Times 1-17-18.

Sacramento Superior Court Judge Allen Sumner ruled that the regulation’s definition of all sex offenses as violent crimes is too broad. Sumner sent the case back to prison administrators to define “nonviolent crime.”

The CDCR defines a nonviolent offender as someone who, among other things, has not been convicted of a sexual offense requiring registration.

The case before Sumner was brought by the Alliance for Constitutional Sex Offense Laws and an incarcerated person identified as John Doe.

They argued that CDCR’s definition is in conflict with the California penal code, under which some sex offenses are not listed as violent crimes.

According to the writ filed, the Alliance also argued that CDCR’s regulations are also overbroad because they “preclude early parole consideration for any one ever convicted of a registerable sex offense, even if the person is not currently incarcerated” for such a crime.

“Some 70 million Americans have a criminal record – a number equal to Americans with a college degree,” according to the Brennan Center for Justice. NEW YORK TIMES July 27, 2018 “Zero Tolerance for Zero Tolerance”

Though some sex crimes requiring registration aren’t listed in the penal code as violent crimes, some people may agree that they are violent. Those crimes include: rape of a drugged or unconscious person; touching the intimate part of another person while that person is unlawfully restrained; pimping a minor; incest; sodomy with a person confined to state prison; sending or exhibiting certain harmful (i.e., sexual) matter to a minor; sexual penetration with a foreign object while the victim is unconscious; and advertising or possessing child pornography.

Still, some of those registerable sex offenses which the Legislature has not designated “violent felonies” may not be violent, for example indecent exposure.

The court also found that CDCR did not point to any “language in Proposition 57” that barred a person serving time for a current nonviolent offense for a past sex offense.

Superior Court remanded the case back to CDCR to define what a nonviolent offender is under Proposition 57 (see Alliance for Constitutional Sex Offense Laws, et al., v. California Department of Corrections and Rehabilitation, case number 34-2017-80002581).

New Sex Offender Registry limits


http://sanquentinnews.com/states-sex-offender-registry-low-recidivism-rate/

Inmate locator allows public to access prisoner information

How lifers get better parole board deal

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Justicia rota

Justicia rota

For decades, lifers were rarely found suitable for parole. Now more than 20 percent are being paroled.

Why? Thanks to changes at the legal, executive, as well as an initiative petition and administrative levels.

Many more prisoners will now have access to parole because of the passage of Proposition 57 in November 2016. It will likely allow thousands more inmates to go before the parole board.

That’s great news for the men in San Quentin who yearn to go home. Now they just need to understand how to take advantage of the changes.

In this first of three articles, which are based on a ground-breaking Stanford University study published in the April 2016 Federal Sentencing Reporter (Stanford Report), we’ll see how the system works.

Today about 35,000 individuals are serving life sentences with the possibility of parole in California’s prison system. These “indeterminate” life sentences used to be called “life means life” by the incarcerated because few were ever found suitable. The reasons for their “unsuitability” were unclear to the denied. That is because the Board of Parole Hearings’ (BPH) decision-making process and suitability determinations “are largely invisible to the public eye,” according to the Stanford Report.

Fewer than 50 state employees handle the caseload equal to one-third of U.S. inmates serving indeterminate terms.  There are 12 governor-appointed commissioners and 30-plus civil service deputy commissioners. One commissioner and one deputy commissioner preside over each lifer parole hearing.

Before each hearing, the prison prepares a board packet for the BPH hearing participants. This packet includes key documents from the inmate’s central file (C-File), a summary of the applicant’s crime, criminal record, psychological evaluations, post-conviction progress report, and any prior parole decisions.

A lifer inmate’s initial suitability hearing takes place one year before the minimum eligible release date.

Sacramento, California
State’s Capitol

There were virtually no parole grants resulting in release prior to two 2008 California Supreme Court rulings. Between 1979 and 2007, less than three percent of all BPH hearings resulted in an inmate being found suitable for parole. The vast majority of these were then reversed by the sitting California governor, according to the Stanford Report.

There were few parole grants even though a BPH hearing begins with a legal presumption that an inmate is suitable for release unless “consideration of the public safety requires a lengthier period of incarceration” (California Penal Code 401(b)).

The process has the board consider 15 factors listed in the California Code of Regulations (CCR), Tit. 15, 2402(a).  Six factors relate to unsuitability for release. They are exceptionally callous life crime, violent history, psychological problems, institutional misbehavior, previous record of violence or sadistic sexual offenses, and the presence or absence of exit plans. The remaining nine demonstrate suitability. They include evidence of remorse, absence of a juvenile record, and stable social history.

The grant rate for lifer inmates has risen dramatically from eight percent in 2008 to 30 percent in 2015.   The increase occurred because the BPH granted more “suitable for parole” rulings.  While the governor revoked a fifth of these, there were still close to 25 percent of those who had a parole hearing in 2015 and earned their freedom.

In future articles, we will consider trends in parole and suitability decisions, and variables that have a statistically significant impact on odds of release.

A copy of the above-mentioned Stanford Report is available through Prison University Project.

Higher age, fewer write-ups boost parole chances


http://sanquentinnews.com/game-theory/
http://sanquentinnews.com/tasty-graduation-for-the-first-class-of-sq-chefs/
Boatwright

Prop. 57 opens a door for juvenile offenders

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With the passage of Proposition 57, Kid CAT will strive to build upon the positive changes in the law and community attitudes and rehabilitation initiatives which are giving juvenile offenders hope for freedom in the future.

“The passage of Proposition 57 on Nov. 8 represented a big step toward a more restorative approach toward addressing the systemic failures in prosecuting minors as adults,” said Charlie Spence, Kid CAT Chairman. “The adult criminal justice system is just not set up to help young people.”

The passage of Proposition 57 takes away the District Attorney’s discretionary power to try a juvenile as an adult and authorizes the juvenile court judge to take into consideration, “any relevant factor…not limited to, the minor’s age, maturity, intellectual capacity, physical, mental and emotional health at the time of the alleged offense…. [And] whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction.”

“It is Kid CAT’s belief that all youth are capable of redemption given the right conditions through nurture, compassion and education opportunities,” said Spence. “Kids can grow and flourish into caring and productive members of their communities, and this can even take place in an adult system given the right conditions.”

In the words of first-term youth offender David Rodriguez on the passage of Proposition 57, “I consider myself fortunate. Had it not been for rehabilitative policies like AB1276 (a program that diverts youth offenders to lower level security prisons), I would’ve not been here in San Quentin to take advantage of the programming opportunities but be stuck somewhere in a level 4 maximum security prison, facing violence.”

As the California voters decided with Proposition 57, the criminal justice system continues to increase its focus on restorative justice approaches. “We at Kid CAT will continue to foster the idea that youth offenders can be empowered to make a difference through educating and mentoring others in their communities,” said Philip Melendez, Kid CAT Public Relations president. “We empower our communities through the programs we do and created here.”

In the last six months, Kid CAT has worked on the following projects to further its mission to empower and educate:

In June, Kid CAT created a class that specifically addresses the concerns of Youth Offender Program (YOP) population, offenders between the ages of 18-23.

In August, a public viewing in San Quentin of the film “The Mask You Live In” directed by Jennifer Siebel-Newsom, which features some of the men of Kid CAT sharing about how they understand masculinity.

In October, Kid CAT held a symposium entitled “The Value of Rehabilitation,” where more than 70 community guests, which included survivors of crimes, lawmakers and juvenile justice advocates, to discuss solutions toward creating a more holistic approach toward rehabilitation.

In November, 27 individuals graduated from Kid CAT First Step Curriculum after spending six months of intensive activities taught in eight modules ranging from Communications, Masculinity and Forgiveness to Compassion.

One of the many ways Kid CAT members practice empowerment is through making amends and accountability through service to their community.

This December, Kid CAT will be conducting their fifth annual holiday card decorating. Decorated cards will be given to the children in Oakland’s Children’s Hospital.

Also in December, Kid CAT will be conducting the fourth annual hygiene drive to raise awareness on the plight of homeless children.

This drive has successfully raised funds to purchase more than 1,000 hygienic kits to benefit homeless children in the Bay Area. If you would like to become involved, you can:

Get your family or friends to donate on your behalf by going to www.huckleberryyouth.org.

“We are inspired by the work that still needs to be done. Kid CAT wants to thank and acknowledge all who have advocated on the behalf of youthful offenders,” said Spence. “We also want to thank all the men and women who write to our Kid CAT Speaks page each week seeking correspondence courses to improve their lives and who are striving to make positive changes in their lives.”

California Top Officials’ Support Ballot Measures

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California’s top officials revealed their support for November ballot measures, the Sacramento Bee reported.
Governor Jerry Brown approves of Proposition 57, which, among other things changes, parole rules for some nonviolent offenders and would help to alleviate overcrowding and “ensure that any release of rehabilitated inmates is consistent with public safety,” the Bee reported.
Other top officials such as Lt. Governor Gavin Newsom, Controller Betty Yee and Insurance Commissioner Dave Jones also show signs of supporting Proposition 57, the Bee highlighted.
“Earlier parole for nonviolent offenders and giving judges more latitude not to try juveniles as adults are changes that make good policy and fiscal sense provided services are funded and are available,” Yee said.
Attorney General Kamala Harris has not taken positions on the November measures, but based on her track record it does indicate that she supports abolishing the death penalty, legalizing use of marijuana, and rehabilitation for inmates who are in and out of state’s custody, the Bee reported.
What’s more, Proposition 62, a measure that would abolish the death penalty has received support from Newsom, Yee and Jones. In contrast, only Newsom and Yee oppose Proposition 66, which would speed up the death penalty process, the Bee listed.
Some of the other ballot measures this November include:
Proposition 52, which deals with hospital fees, and Proposition 53, which deals with revenue bonds. Proposition 55 extends a temporary income tax on high-income filers while Proposition 56 increases taxes on cigarettes. Proposition 58 restores some bilingual education. Proposition 59 questions voters on Citizens United campaign contribution transparency. Proposition 64 legalizes recreational marijuana use for adults 21 and older. Proposition 63 imposes new ammunition and gun control restrictions.
Notably, no top official is taking a stance on Proposition 60, which would require the use of condoms for adult film actors. In addition, only Newsom has taken a position to legalize marijuana, the Bee noted.
https://sanquentinnews.com/optionb-org-support-group-overcoming-effects-incarceration/

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