A New Day for Criminal Justice in California

Even as communities nationwide are struggling with a lack of trust for our police forces, rates of crime are falling. In San Diego, the overall crime rate dropped an additional 13.5% in 2014 and is at a nearly 40 year low. But in addition to a drop in new crime, California is developing a new approach to criminal justice, one that values rehabilitation over warehousing. A spate of bills and voter initiatives in recent years demonstrated this see-change. They are reducing the punishment for many offenses, reducing the prison population, and providing new opportunities for second chances.

These have included:

AB109: This 2011 comprehensive overhaul of California’s Penal Code re-categorized many felonies as misdemeanors, increased “time off for good behavior,” and most significantly, allowed for local county incarceration or probation for many felonies that previously required state prison sentences);

Prop 36: This 2012 voter-initiated law changed the Three Strikes scheme, no longer allowing offenders to be put away “for life” if their third strike was not serious or violent. It also permitted inmates currently serving “life” based on a non-violent third strike to seek re-sentencing. Thousands of prison inmates had their sentences retroactively reduced because of this law.

Prop 34: In 2012, voters considered whether to abolish the death penalty in California. The proposition as narrowly defeated, 52% to 48%. This law would have commuted all death row inmates’ sentences to “Life Without Parole.”

SB9 and SB260: This pair of bills, enacted in 2012 and 2013 respectively, were designed to

address the U.S. Supreme Court’s recent ideological declaration (in Miller v. Alabama) that juvenile offenders should not be treated the same as adults, even for the most serious of crimes. SB9 allows petitions for re-sentencing for juveniles sentenced to Life-Without-Parole, and SB260 provides parole hearings for juvenile offenders who would have otherwise had to serve longer terms. While no one is suggesting that youthful offenders be excused for their criminal actions, this law recognizes that crimes committed by youth are not always the result of entrenched criminal personalities, but may be the result of transitory immaturity and other factors (such as a negative home life) that a youngster cannot control. By providing parole hearings or re-sentencing, youthful offenders have the opportunity to demonstrate that they have changed and may be worthy of a second chance.

Prop 47: This 2014 voter-initiated law reduced many non-violent felonies, especially drug possession offenses, from mandatory felonies to misdemeanors. This law also permitted inmates currently serving time for such crimes to seek retroactive reductions to their sentences.

These laws have come as a result of ideological changes regarding the “War on Drugs,” the culpability of juvenile offenders, and the rehabilitative purposes of criminal justice. But they also came as a result of two little-known court cases, Coleman v. Brown, and Plata v. Schwarzenegger. In these cases, The Prison Law Office in Berkeley, California sued the prison system on behalf of inmates, who were suffering cruel and unusual punishment in the form of dangerously neglectful medical and mental health treatment, as a result of severe prison overcrowding. Populations were as high as 200% in some institutions; as an example, some institutions had inmates triple-bunked in spaces built to be recreational gymnasiums. These conditions not only led to increased violence, but unavailable medical and mental health treatment that led, in some cases, to serious irreparable harm or death. These cases, which are still open and under the supervision of a Federal three judge panel, Governor Brown and the California Department of Corrections and Rehabilitation (CDCR) were ordered to reduce the prison population.

This motivated the State to pursue laws to release less dangerous inmates sooner and prevent non-violent offenders from reaching prison gates in the first place. Other executive actions have also furthered this effort: Offenders serving doubled second-strike sentences for non-violent offenses are being considered for early release based on good behavior. All non-strike offenses are receiving a higher percentage of “credits,” essentially more time off for good behavior. A new “Elderly Parole Program” is providing parole hearings (not a guarantee of parole, but an opportunity to demonstrate rehabilitation) to inmates over the age of 60 who have served at least 25 years. This program in particular is a boon to inmates who have rehabilitated themselves but are serving lengthy sentences which can be as long as hundreds of years, but are not technically “Life Without Parole.” This program is also a boon to the CDCR’s budget, because inmates over the age of 50 consume the vast majority of prison medical services and funds. While the average cost to house an inmate in the CDCR is $50,000 annually, elderly inmates (defined as over age 50) are estimated to cost two to three times that amount.

More, similar laws on the horizon include the following:

SB261: This bill proposes to expand the SB260 “juvenile offender” parole category to include all those who committed their crimes by age 23 or younger. This expansion is consistent with the neuro-science that indicates young men’s cognitive functioning and impulse control do not fully mature until at least age 24.

SB224: This bill proposes to expand and codify the Governor’s “Elderly Parole Program,” offering parole hearings to inmates over the age of 50, who have served at least 15 years of their sentence. In addition to the increased expense for incarcerating the elderly, statistics show that even for the most serious criminals, recidivism rates drop sharply after the age of 50. That makes this category of inmates ripe for identifying viable parole candidates without jeopardizing public safety. Again, a parole opportunity is not a parole guarantee, it still requires a significant demonstration of rehabilitation, no small achievement with the conservative nature of the Board of Parole Hearings.

Death Penalty: In 2014, a federal judge ruled that the death penalty in California is unconstitutional because its application is arbitrary and plagued with delay. This ruling is currently holding executions in California in abeyance. The US Supreme Court is also about to decide whether the lethal injection method of execution is categorically cruel and unusual, which would result in a nationwide ban on such executions.

Gilman v. Brown: In 2014, a Federal judge ruled that Prop. 89, a 1988 law which permitted the Governor’s office to reverse any parole decision, was an ex post facto punishment. If that ruling is upheld in the Ninth Circuit, many more rehabilitated lifers will be released.

All of this news is bittersweet for most of my colleagues, who are glad for the changes, yet finding their pool of work as criminal defense lawyers to be shrinking. We are a profession that seeks to put itself out of work! I’m told that felony filings in San Diego Superior Court are decreasing at such a rate that the San Diego Public Defender’s office cannot promote worthy misdemeanor attorneys to handling felonies, because there is not enough work available.

In contrast, one area of criminal defense practice is growing, and that happens to be my area of expertise: Post-conviction Writs and Parole. With so many new laws and court rulings being applied retroactively, inmates, parolees, and ex-cons alike are seeing an opportunity to reduce their sentence, be discharged from parole, or have their criminal record reduced, usually by way of Writ of Habeas Corpus.

And parole is expanding exponentially: Not only are lifers (those serving “25-to-life” or similarly described sentences, usually for murder, attempted murder, or kidnapping offenses) seeing an increase in the granting of parole dates, but new categories of inmates are becoming eligible for parole hearings (such as juvenile offenders under SB260, and inmates over age 60 under the Elderly Parole Program). Also, the first Three Strike offenders are currently reaching eligibility for parole, as the original Three Strikes law (which sentenced offenders to 25-to-life) went into effect 25 years ago.

The Board of Parole Hearings (BPH), a state agency associated with the CDCR but independently run by an appointee of Governor Brown, makes all of the state’s parole decisions. These hearings are not a formality; they often take 3 to 5 hours, in which the Governor’s appointed parole Commissioners (mostly formal law enforcement officials, prison guards, or attorneys) grill the inmate about his childhood, insight into the causes of his criminal behavior, his remorse, behavior in prison, educational and rehabilitative efforts, and his parole plans, which be comprehensive, including housing, employment, social support, and substance abuse relapse prevention plans. Potential parolees must demonstrate years of effort to remain sober, discipline-free in prison, disassociate from negative influences and prison gangs, as well as positive efforts to make amends, educate themselves, and plan for their future.

We are entering a new day in the world of criminal justice, one in which we no longer warehouse drug offenders, and where fewer serious offenders are locked up for life, and the key thrown away. Rehabilitation and second chances are no longer a pipe dream, but a real, if hard-earned, opportunity for many offenders. This is a good time to be a parole lawyer, but also a good time to be an inmate who is trying to change, and hoping for a second chance at freedom. Those violent offenders who don’t change will stay locked up, but for the rest, hope is beginning to shine over the edge of the horizon.