After the Door ClosesAn Overview of Prison Issues for Public DefendersThe possibility of prison and the prison experience affects every defendant who is facing felony charges. Thus, it is important to understand what prison may mean to your client, and to make decisions that will benefit the client once the door of the prison closes. Although it is not the intent of this article to cover all aspects of prison life, there are certain areas that may be of particular interest to the defense bar. I went to law school with the goal of becoming a public defender, and along the way I became interested in what might happen to my clients after conviction. With the advent of harsher sentencing laws and unprecedented prison construction, I found myself on the edge of a growth industry. Indeed, in 1994, California Lawyer magazine identified prisons as one of the state's hottest practice areas. However, that heat has lead to a series of statutory and legal changes over the past several years. In 1994, the state legislature amended Penal Code sections 2600 and 2601 to reduce prisoners' rights. Under the old law, the civil rights of a prisoner (or county jail detainee) could be restricted only as was necessary for prison security or public safety. The new law allowed restrictions that were reasonably related to penological interests -- a far different standard that allowed prison officials to institute a number of restrictions, ranging from reduced visiting to bans on media contact. In 1995, the Supreme Court held that prisoners were not entitled to federal due process "liberty interests" unless they were subject to "atypical and significant hardship" beyond that generally inherent in prison life. Sandin v. Conner, 115 S.Ct. 2293 (1995). In other words, every person in this country, except a prisoner, is protected by due process interests created by the state. And I suspect that my definition of what constitutes significant hardship, or your client's definition, will differ remarkably from the five vote majority in Sandin. 1996 was a banner year in the treatment of prisoners. Congress passed both habeas restrictions and the Prison Litigation Reform Act (PLRA), making it more difficult for prisoners to seek relief in the courts on both the underlying conviction and conditions of confinement. In June, the Supreme Court limited prisoners' access to law libraries and required them to show actual injury before challenging restrictions. Lewis v. Casey, 116 S.Ct. 2174 (1996). In the meantime, the legislature repealed visiting as a statutory right under California law and departmental regulations imposed new restrictions on family visits, media access, and other issues important to prisoners. Throughout all of these developments, there has been a link between prison conditions and harsher sentencing laws. One of the purposes of the PLRA was to limit the power of federal courts to remedy overcrowding at a time when prisons are becoming increasingly overcrowded due to "Three Strikes" and mandatory sentencing measures. When the district attorneys advanced their initiative to end unanimous verdicts in criminal cases, they also sought to repeal remaining rights of prisoners. Thus, restrictions on prisoners are linked to the criminal justice system as a whole, and often seen as an easy way to get tough on crime. This has not been without its cost. Prisons are now this State's third largest industry. Over 270,000 people are in state prison or on parole. Thirty-two prisons have been built throughout the State, and plans are on the drawing board to add to this number. According to correctional studies, one quarter of the state prison population has serious psychiatric needs, making prison a revolving door mental institution. For public defenders, the bottom line is this: what happens before your client go to prison will affect his or her experience behind the walls; what happens inside prison will affect your client and may add years to the sentence; what happens inside prison may come back to you when prison crimes are charged by the district attorney or your client is released to the outside world unprepared for anything but to reoffend.
Practical AdviseYou may be in a position to offer some practical advise to some clients who face prison for the first time. I had a client on appeal who told me that he believed in personal honesty and in being "upfront" about his sentence for child molestation. I told him that honesty about sexual offenses was not a favored value and could expose him to serious danger -- even an appellate brief with details of his offense could be dangerous if read by his cellmate. After he was assaulted for the third time, he may have begun to believe me.As a new "fish," your client will sink or swim in the prison culture. The prison culture has its own rules, norms, and language. You should try to understand that culture and advise your client on its basic rules: do your own time; don't talk to others about your case; don't accept gifts from strangers who might "turn you out" as a "punk" in return. (See the prisoner's dictionary if you do not understand these terms.)
Plea Bargains and SentencingPlea bargains and sentencing choices raise many issues. The dispositional issues are obvious. For instance, commitment as a civil addict may be an important alternative to prison for your client. However, in People v. Jones, the California Supreme Court held that those who had been excluded from the civil addict program were not entitled to "good time" or "work time" credits against their sentence. Thus, the attractiveness of the program is dependent upon your client's ability to succeed. Perhaps not coincidentally, the civil addict population has declined substantially since this case was decided in 1995.Other issues may be less obvious, but will still have an important effect on your client Dismissed Charges Your client has been convicted on charges of robbery, burglary, kidnapping, extortion, and rape. You file a motion for a new trial and the kidnapping, robbery, and rape charges are thrown out on the ground that the testimony of the purported victim was inherently unreliable. The charges are later dismissed. Your client is received into prison on the remaining charges. Yet prison officials disregard the work that you did and classify him with an "R-Suffix" designating a sex offender. A prisoner with this suffix is limited in terms of placement, job assignment, and other prison opportunities. If the suffix is discovered by the prison population -- and there may be ample room for it to be discovered -- it can be extremely dangerous. The bad news for your client is that the actions of prison officials are legal. They may impose the suffix on your client based upon the charges that were dismissed. All they need is some evidence, any modicum of evidence will do. People v. Wilson, 202 Cal.App.3d 661 (1988). In practice, under departmental rules, an arrest and detention for a sex offense may be enough to warrant an R suffix. However, that does not mean the information should be leaked to the general population, although your client may have to seek protective custody should it become known. Judicial Recommendations Although your client may be on his or her way to prison, the court itself may be relatively sympathetic court and include a number of things in the sentencing orders. For instance, your client could be snitch who has participated in numerous operations and is marked. At sentencing, the court tells the Department of Corrections (CDC) to put him into protective custody or transfer him out of state. Or, to put a better spin on your client, he or she could be in need of serious medical or mental health care. At sentencing, the court tells the CDC to provide it. In either case, the court's statement is at best a recommendation to prison officials that should be considered by them. But they are not bound to follow it and may disagree with the court's assessment. Therefore, it becomes important for your client to be able to document his legal, medical, or psychiatric needs to prison officials. To the extent that you can assist your client in doing this, you may be performing a valuable service. This is not to minimize the power of a judicial recommendation. The Department should take judicial findings and recommendations very seriously -- and it can be an important part of the documentation that will assist your client in obtaining needed treatment. In some cases, judicial recommendations can spur official action. CDC's operating policy provides that the Departmental Review Board (DRB) may review classification matters upon judicial referral. Thus, if the institution ignores the court's recommendations, it is possible for a judge to follow it up by asking the director for DRB review of a particular case -- most often when there may be a need for special placement or out-of-state transfer due to safety matters that were brought out in the course of a trial. Reception Center / ClassificationThe initial point of entry into the prison system is at a reception center. The reception center screens the prisoner for various needs and determines the appropriate placement. This process may take anywhere from 30 to 90 days -- although if a prisoner has special problems, it can be far longer. Because a prisoner is not formally assigned to a job during this time, he or she is not eligible for worktime (one-for-one) credits. In addition, he or she will receive far fewer privileges while in the center. Thus, it is important to try to document any problems so that the period in the reception center is not extended.In order to employ an objective, uniform classification system, the CDC uses a "scoresheet." Points are awarded or deducted for specific case factors. The number of points determines the appropriate security level. Accordingly, your client should be able to have some idea of his or her security level (and the corresponding prisons) before entering the system.
The primary factor in determining the point level is the length of sentence. The CDC uses a formula that takes the total term, minus one, and multiplies it by three. A nine year sentence would result in 24 points. The maximum number of points that may be awarded based upon the sentence is 59, which will be awarded if your client is serving a life sentence without possibility of parole The CDC also considers various factors relating to a prisoner's perceived stability. Two points may be added if a prisoner is under the age of 26; has not been married or in a common-law relationship for at least a year before the term started; failed to graduate from high school or have a recognized trade; was not employed for at least six months; and, for men, had no military service. (At least one jailhouse lawyer has challenged the latter requirement, but it remains part of the classification process.) Finally, the CDC looks at past behavior from any county jail or correctional agency. Points will be deducted if a prisoner's behavior was favorable; they may be added for misconduct or if the behavior cannot be documented. The number of points added for misconduct will vary with the seriousness of the actions: four points for serious offenses, eight points for escape or assault on staff. In addition to the point system, special case factors will affect where a prisoner is placed. Medical restrictions, enemy situations, detainers, work skills, gang affiliations, and other factors will be weighed as "administrative determinants." Many of these factors may again require documentation.
Visiting / PlacementOnce a prisoner has been assigned a security level, placement in a particular prison becomes very important. Prisoners who are able to visit with their family will have the benefit of their support. However, if a prisoner is assigned to a facility far from home, it can be difficult to maintain family ties. The expense of travel alone may make it impossible for family members to visit, leaving a prisoner with little hope for the future.The California Legislature has recognized the importance of family ties and visiting to a prisoner's rehabilitation. Penal Code section 5068 requires that the CDC investigate whether a prisoner has strong community and family ties. When reasonable, the department should assign a prisoner to the appropriate prison closest to home. Unfortunately, this section provides little protection. Reasonableness is defined in the statute to include consideration of prison programs and housing. At a time when prisons are overcrowded, almost any prison may be reasonable under the terms of the law -- courts have bent over backwards to give deference to prison officials on any placement issues. Nevertheless, prisoners have sought and obtained transfers under this section -- and the existence of particular hardship (such as the illness or disability of family members) may also be considered in placement decisions. Again, an attorney can consider what information may help his client, and even place some of it on record during the sentencing hearing.
Disciplinary / Referrals to the ProsecutorPrisoners may be charged with any number of prison offenses, ranging from relatively minor administrative actions to serious disciplinary charges. Serious offenses, as defined in the regulations, can range from gambling, disrespect, or manufacture of pruno to assault on other prisoners, battery on staff, or even homicide.For the most part, prisoners must face such charges alone. Although a disciplinary offense may add substantial time to a sentence and result in lengthy terms in segregation, prisoners have no right to an attorney. In some circumstances, the department may appoint a staff assistant (to represent the prisoner) or an investigative employee (to review charges or defenses on behalf of the hearing officer). Prisoners may have a particularly difficult time when the disciplinary charge is based on confidential information. Although staff are required to disclose as much of the information as they can, in practice a prisoner rarely receives more than a one line description of the informant's allegations, without any detail that would allow one to refute the charges. A court may review this information on behalf of the prisoner to ensure that it is fully disclosed. In re Olson, 37 Cal.App.3d 873 (1974). In practice, very few courts take the time and a prisoner is left to defend himself against shadows. Ultimately, the question of guilt or innocence may be irrelevant to a court. A disciplinary finding will be upheld as long as there is "some" evidence to support its conclusion. This is not a very high standard, and any evidence will do The situation may be different if the matter is referred to the district attorney for possible prosecution. While the matter is pending, it may not be within the prisoner's interest (under the Fifth Amendment) to make any statements at a disciplinary hearing. Therefore, CDC regulations allow a prisoner to postpone disciplinary matters until after criminal charges are resolved. The CDC asks a prosecutor to make a decision on the referral within ten working days. Because this request is not binding outside the agency, the district attorney may take considerably longer to resolve the matter. During this time, prisoners may contact an attorney or public defender for assistance -- at least one handbook commonly available to prisoners advises them to do so. In some cases, this advise may be good. An outside attorney may be able to persuade the district attorney not to take the case. As a practical matter, some counties are more likely to prosecute in prison offenses than others. One of my first appeals involved an in-prison offense -- battery by a prisoner on a nonprisoner. The altercation was relatively minor, a small bump that would not have been prosecuted in many areas. The officer was not seriously injured and did not miss any work. It could have easily been addressed through the prison's disciplinary process. Nevertheless, the district attorney took the case and won a conviction -- adding four years to my client's sentence. After the case was reversed on Wheeler (jury selection) grounds, the district attorney again brought the case to trial. The irony was that my client was under a life sentence without possibility of parole. I assume that the four years he received will be served in the next life. In any prison case, an attorney will have to overcome some of the realities of prison culture. A prisoner may be no more likely to tell you the truth than he would any other officer of the court, particularly if that truth would mean becoming a snitch in court. You may also have to pierce a veil of silence on the part of the prison staff. In Madrid v. Gomez, 889 F.Supp. 1146 (N.D. Cal. 1996), Judge Thelton Henderson observed:
Several prison staff admitted to a code of silence problem. . We also observed at trial that prison staff frequently could not recall the identity of other staff whom they testified did or said certain things, although other details were easily recalled. Prison staff also report to internal investigators, with notable frequency, that they had just looked the other way, been distracted by something else, or had their visibility impaired at the moment the alleged misuse of force was said to have occurred. . . Those who violate the code of silence risk hostility from other prison staff. Simply put, the point is obvious. Prison staff will cover for each other, even in the course of a trial.
Violence Within PrisonThe possibility of violence is never far away in prison. However, there are special factors that make this possibility more likely: Northern Latinos may fight against Southern, black may be against white, rival gangs may carry their rivalry inside the walls. In an ideal world, perhaps, prisoners would recognize that they share a common situation. The world is far from ideal.In September, 1996, fighting erupted at New Folsom State Prison between Latino and African-American prisoners. Fights spread from "B yard" to other areas of the prison. In the end, twelve prisoners were seriously injured, and there was one fatality. Over fifty weapons were later found on the yard. This incident received considerable attention in the media. Yet, for the most part, the threat of violence is more likely in individual situations. Prison officials have a constitutional duty to protect prisoners from both actual injury and the threat of harm. There may be specific case factors that would alert them such situations, including the type of offense or the presence of known enemies on a particular yard. If a prisoner is in serious danger, he or she may have little choice other than to inform correctional staff and ask that they be placed in protective custody. In such circumstances, a prisoner is generally placed in administrative segregation while the matter is being investigated. In all cases, it is up to the prisoner to provide enough information or documentation so potential enemies can be identified. Thus, any documentation or enemy situation that was brought to light in the course of a trial may be important to your client's well-being. Although the CDC maintains special Protective Housing Units (PHU) for prisoners who are unable to program anywhere else in the system, this will only be used as a last resort. The most common solution to any enemy situation is to move a prisoner to another institution. In practice, this can mean that a prisoner will be subject to repeated violence or threats before officials determine that PHU placement is required.
Prison GangsThere are two different type of gangs that may operate within prisons: street gangs that are carried into the prison from the outside world and prison gangs were established for mutual protection and to control various things within the system. The CDC recognizes the Aryan Brotherhood, the Black Guerrilla Family, Neustra Familia, the Mexican Mafia (EME), and the Texas Syndicate as prison gangs -- although the latter may not be operating in California.Identification with a prison gang may have long-reaching consequences, subjecting prisoners to long-term, indefinite segregation, often at the CDC's "super-maximum" Pelican Bay prison. Department officials will consider a number of things to establish gang association or membership: admissions, tattoos, written material, photos, association with known gang members, confidential information, and probation reports can be used. Again, material that is developed (or left unrefuted in a probation report) can have an important effect on down the line. In Madrid v. Gomez, the federal district court rejected a challenge to the CDC's policy and procedure for validating gang members. The court held that prison gangs present a serious threat to the safety and security of California's prisons and that prison gang members join the gangs for life. Because segregation was an administrative response to this threat, prisoners were not entitled to the same due process protections that apply in disciplinary proceedings. For the most part, then, a prisoner who is identified as a gang member will remain in segregation until he or she goes through a debriefing process. A prisoner who undergoes debriefing must provide specific information on gang activities (including names of other gang members) and pass a polygraph. This can be an extended process, involving a number of interviews over a protracted period of time until prison officials believe that they have enough. Clearly, such a process with its attendant admissions can raise Fifth Amendment concerns and there is no guarantee of immunity. A prisoner who is falsely identified as a gang member will have little to contribute to the debriefing process. However, any prisoner undergoes debriefing at considerable risk. One client went through debriefing but failed the polygraph. Thus, both prison staff and gang members had reason to be upset with him. In such circumstances, prisoners can literally be between a rock and a hard place.
Release DatesA prisoner's Earliest Possible Release Date (EPRD) is of particular importance, This date is computed by a formula that takes into account the number of days served, the time left under the sentence, the amount of credit that has been earned or lost, and a prisoner's current credit earning status. Prisoners receive periodic status sheets informing them of this date. For the most part, this is straight forward or involves factors that would not concern you in your representation of your client. There is one situation that may come up and should be mentioned here.In some cases, you may be able to correct the amount of presentence credit awarded by the court after the original sentence was entered. A prisoner who is given an additional twenty days of credit often assumes that the EPRD will be reduced by twenty days, and becomes concerned when his legal status sheet does not reflect this amount. However, this concern is based on a mistaken assumption. An additional twenty days of presentence credit will lower the maximum possible term (the sentence a prisoner will serve if he or she receives no credit) by twenty days. However, the EPRD is based on the number of credits a prisoner will earn on the maximum term. Thus, reducing the maximum term lowers the number of credits that a prisoner would otherwise have received. A twenty day reduction in the maximum term generally reduces the EPRD by around ten days.
Compassionate ReleaseFor some prisoners, particularly with the advent of AIDS, a determinate sentence can quickly turn into a life sentence, with the possibility of death before the term is served. In such circumstances, public defenders and other attorneys may be able to help secure compassionate release.Compassionate release comes from the power of the Department of Corrections to recommend that the court recall and resentence offenders. Penal Code section 1170. Thus, implicit in the compassionate release structure is the requirement that a prisoner be eligible for probation upon resentencing. The CDC looks at a number of factors in making a recommendation, including if a prisoner is terminally ill with a life expectancy of six months or less; if the term was for a violent or sexual offense; and, if there are family and community resources that can care for an individual. If a recommendation is made, the district attorney may still object to release and try to convince the court to retain the offender in prison. It is important, then, to try to win the cooperation or support of all parties. The CDC's factors are hardly an exact criteria. There have been instances when the Department did not believe a prisoner was within six months of his or her death. There have been at least one other occasion when they misdiagnosed prisoners who went on to commit new crimes after being released. There have been various attempts to strengthen the process through legislation. Some of the impetus for these bills was a case that forced the State to pay hundreds of thousands of dollars in medical and security costs for a prisoner who was terminally ill in a coma, while his family sought to have him transferred under their care. In any event, compassionate release bills repeatedly have passed the Legislature only to be vetoed by the Governor.
ParoleAt some point, most of your clients will be released on parole. Parole, of course, is mandatory in California and follows a term of imprisonment. I mention this because your client will be given a notice and conditions of parole to sign upon his release. This can occasionally cause problems.A few years ago, one of my clients read an outdated legal handbook and refused to sign out of principle. He paid no attention to Penal Code section 3600.5 that allowed the Board of Prison Terms (BPT) to revoke parole for this act. Although the court appointed me to represent the prisoner in a habeas corpus proceeding, I was unable to convince it that this statute was applied retroactively in violation of the ex post facto clause. My client stayed in prison for four extra years as he continued to refuse to sign the notice. In general, a condition of parole is valid if it is reasonable related to past crime or the possibility of future criminality. A condition can specify psychiatric treatment including psychotropic medication. It can forbid him or her from undertaking certain occupations or associating with certain people. It can require narcotics testing or participation in group programs.
Parole Revocation Parole may be revoked for up to a year if a parolee commits an act of misconduct. Before a revocation hearing is held, parolees will be offered a screening deal similar to a plea bargain. Many parolees accept the offer and are returned to prison for specific periods of time. A parole revocation hearing is held before a single hearing officer who determines if there is good cause to revoke parole. Although revocation hearings are relatively informal, and can include the use of hearsay, parolees are entitled to some basic protections. In some circumstances, counsel will be appointed. In any case, parolees must be notified of the charges. They will have an opportunity to question adverse witnesses (with some exceptions). They will be able to request friendly witnesses, who should be called unless there are specific reasons to deny their appearance. Parole violations may involve simultaneous criminal charges. In such circumstances, the parole hearing may be conditionally waived. The BPT will determine on paper if there is good cause to revoke parole and a parolee may request a hearing within 15 days of a verdict or sentencing. Even if your client is found not guilty of a criminal charge, the BPT may still revoke parole. The revocation process involves a different agency and is based on a different standard of proof. Thus, revocation does not implicate either double jeopardy or due process concerns. Psychiatric Revocation A big exception to the regular parole process is when parole is revoked for psychiatric treatment. In practice, this has been used to delay releasing prisoners to the community in light of public furor or concern. Psychiatric revocation does not involve any act of misconduct and the process cannot be used if a parolee has violated any other term or condition of parole. It will be used if a parolee suffers from a mental disorder that makes him or her a danger to self or others, or leaves the parolee incapable of maintaining in the community, when no other treatment is available. The psychiatric revocation process may be based on a single mental health evaluation. It is heard by a single hearing officer, who decides whether there is "good cause" to revoke parole. Psychiatric revocation contrasts with the rights afforded all other parolees who are subject to mental health commitment, including mentally disordered offenders, sexually violent predators, or those who may be civilly committed under Penal Code section 2974. Under statutory commitment schemes, parolees are provided multiple evaluations, judicial review, and ultimately a jury trial based on a reasonable doubt standard. If this sounds like an equal protection problem, you are right. In 1995, I filed a petition to the state supreme court and asked them to declare the regulations invalid on equal protection and due process grounds. We fell one vote short of what we needed for review. (In 1999, a court of appeal invalidated the procedure.) In the meantime, a Santa Barbara public defender convinced a superior court that the regulations were invalid as applied to his client. If you are able to free your client from criminal or sexual predator charges, but he or she is facing psychiatric revocation, you may be able to grab the attention of the court and overturn the parole hold. Sexual Predators As of January 1, 1996, there is one more pitfall that you and your client may have to face before he or she is released: the sexually violent predators law. Welfare and Institutions Code, section 6600. I do not want to address the constitutional challenges that have been made against the law. Suffice it to say that although many superior courts have found the law unconstitutional on ex post facto grounds, the courts of appeal have uniformly upheld the law. Petitions for review are pending in the State Supreme Court and the United States Supreme Court has heard arguments concerning a similar law in Kansas. There is one particular area that should be emphasized because it may affect general practice. The range of the law is extremely broad. Although the statute requires that an offender have served a determinate term for specific sexual offenses, it is not necessary that the current term be for such an offense. Thus, a plea bargain that looks like a good deal for your client may end up subjecting him or her to a lifetime of commitment.
Life PrisonersFor the past several years, the Board of Prison Terms (BPT) has denied nearly all hope of release to life prisoners eligible for parole. Achieving parole has never been easy. Throughout the 1980s, the BPT granted very few paroles -- less than five percent of the cases it reviewed. However, in the past several years, the Board effectively has decided that life prisoners should not be released. In 1995, the BPT conducted more than 2000 parole consideration hearings and granted parole dates in only 7 cases -- one third of one percent.The BPT is comprised of nine commissioners appointed by the governor. The Board first determines if a prisoner is suitable for parole. If suitable, a release date is set according to a matrix that takes into account a number of specific case factors. The release date may be scheduled for a number of years after the suitability hearing. Even if a date is granted, it be reviewed by the Board to determine if it should be rescinded. The Governor also reviews parole decisions and can move to reject parole. The Board has always had the right to rescind parole for good cause. However, it has treated cause to include almost any factor before it -- including the BPT's mere disagreement with previous decisions. In In re Johnson (1995) 32 Cal.App.4th 160, the BPT rescinded parole of a prisoner who had taken extraordinary steps to come to terms with his crime and rehabilitate himself. Mr. Johnson had earned the respect of correctional officials who recommended parole. A staff psychologist reported that he had never seen a prisoner with more calm assurance -- a prisoner who had "irrevocably and forever changed himself." Johnson had successfully lived in the community for a year while his parole was being decided in the courts and had the support of family, friends, and his church. Yet, even in these circumstances, the court found that the Board's authority to withhold parole was virtually unlimited. Mr. Johnson's experience has been repeated in case after case. Apparently such actions are based more on politics and less on rehabilitative factors. However, until the politics change, your client may have to wait.
ConclusionThe practical and legal aspects of prison and parole is a subject that is beyond the scope of any one talk. However, if you take anything away from this lecture, I hope it will be that your client's prison experience is part of a continuing process that begins when criminal charges are first brought. Within that process, you have an opportunity to make a difference in your client's life, even after conviction. The simple act of responding to a letter by a prisoner, even if it is say that you cannot help, may make a difference in someone's life.This article is excerpted from a talk given by Arnold Erickson to the California Public Defender's Association in December, 1996. |