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Feb 28, 2017
keywords: suicide, CIW, mental health
From Prison Focus Issue 51
California Institute for Women (CIW) is responsible for six suicides
in the past two years, the highest rate of any California prison.
Despite new leadership after the warden, Kimberly Hughes, forced
retirement in August 2016, CIW has repeatedly failed
to follow their own mental health crisis policies and
procedures. To date, no correctional officers have lost their
jobs despite the systematic, neglectful failures that led to
these six deaths. Since the start of 2017, there have been
more suicide attempts in the mental health crisis unit at
People are committing suicide because of the inhumane
conditions at CIW, including forcing people into solitary
confinement when they are the most vulnerable. Guards
are indifferent to these deaths and blatantly refuse to follow
CIW’s suicide prevention policy with no repercussions.
When the women experiencing mental crisis ask the COs
for help, they are told to “calm down” and sent back to
their cells where at least two people have hung themselves
in the past year alone. There is a culture of disrespect,
disregard and neglect that is unacceptable!
California Coalition for Women Prisoners (CCWP)
has been working with people inside the prison, family
members and other advocates outside for years: issuing
press releases and legislative memos since the Fall of
2013; having family members and former prisoners
give testimony at legislative hearings; doing petition
and phone campaigns; and demonstrating in front of
Since early 2016, CCWP advocates in the
Los Angeles area have been visiting people inside on a
weekly basis, struggling to see people on suicide watch,
insisting that it cannot be “business as usual” at CIW. We
have called, written, petitioned and emailed to officials in
Sacramento. In early August 2016 , Sen. Connie Leyva
(D, 20th District-Corona) helped family advocates win a
demand for a State audit to examine suicide prevention
and reduction policies, procedures and practices at all the
California prisons. The California State Auditor’s office
is currently in the initial research phase of the audit and has
been contacting community and family advocates (Audit
objectives can be found at: https://www.auditor.ca.gov/
A state audit and a new warden are NOT enough. We
urge the CDCR to interview and listen to family members
and former prisoners; to hold staff accountable for cruel,
inhumane, treatment of our loved ones inside; to emphasize
decarceration as key to addressing the mental health needs
of people inside. We will continue to raise the issues that
people inside say are most critical, and demand justice and
change. Here are some of the key changes people inside
•Change abusive suicide watch policies that only increase
isolation and despair. (See Sleep Deprivation article.)
•Allow people to provide help to each other in need,
Without Punishment. A culture of care and support must be
encouraged and allowed to grow.
•Investigate drug combinations given to people in mental
•Respect and implement bed move requests to keep
Please contact us at :firstname.lastname@example.org and
check our website for updates and action campaigns at:
www.womenprisoners.org Bring our loved ones home
Feb 28, 2017
keywords: X-ray scanners, Petition, Office of Administrative Law, California Penal Code section 6402, Administrative Procedures Act
From Prison Focus Issue 51
Note: Since the time that this article was published, CPF has filed its petition with the OAL, which is currently under review. And, an earlier and apparently similar petition was filed on December 21, 2016, according to information published at the OAL's website. For further details, see http://www.oal.ca.gov/underground_regulations/underground-regulations-under-review/ (as of March 9, 2017) and https://oal.blogs.ca.gov/files/2017/03/Underground-Regulations-Currently-Under-Review.pdf (as of March 9, 2017.)
Starting in October 2016, volunteers with the Prisoner Hunger Strike Solidarity Coalition and California Prison Focus began hearing reports about X-ray scanners acquired by the California Department of Corrections and Rehabilitation (CDCR or Department).
By this time, many of our incarcerated readers will have encountered or been subject to the use of X-rays scanners firsthand. Some may have received a November 30, 2016 memo with the subject line "Use of Low Dose Full Body X-ray Scanner," signed by Kathleen Allison, Director of the Department's Division of Adult Institutions.
The November 30 memo states that "the implementation of the Low Dose Full Body X-ray Scanners will begin at selected institutions and expand to incorporate all CDCR adult institutions." Per the memo, the scanners are part of a strategy to prevent the introduction of contraband. The Memo further and presumptuously advises, "It is expected when you are selected to be scanned with the Low Dose Full Body X-ray Scanner, you do so in compliance with the California Code of Regulations, Title 15, Section 3005, Conduct." (Section 3005, in relevant part, requires those in custody to obey "all laws, regulations and local procedures.")
Since October, information on all topics scanner-related has been pouring in from visitors and those in custody, and advocates and activists alike. Concern over the X-ray scanners is widespread and, in our view, well-placed. In response, we are researching grounds for filing an "underground regulation" petition with the Office of Administrative Law (OAL).
BACKGROUND ON UNDERGROUND REGULATIONS AND CALIFORNIA'S ADMINISTRATIVE PROCEDURES ACT (APA)
The APA says that state agencies "shall not" issue, use, enforce, or attempt to enforce any regulations that have not been adopted and filed with the Secretary of State.
Regulations that have been properly filed with the Secretary of State undergo the administrative review (notice and comment) process, which is administered by the OAL. The process can be slow, and the OAL's ultimate approval is not guaranteed. In response to public input and external oversight, an agency may end up revising or amending proposed regulations, or withdrawing them altogether.
By issuing underground regulations, however, an agency can conveniently although unlawfully bypass the process.
This brings us back to Kathleen Allison's memo. Existing (OAL-approved) Title 15 regulations regarding searches and seizures—namely, sections 3287, 3173.2 and 3410.1—do not explicitly contemplate, much less provide for, the use of X-ray scanners per se to search people. Yet, by means of merely issuing a memo, the CDCR can re-interpret and implement sections 3287, 3173.2 and 3410.1 as it sees fit, in disregard of the law.
Notwithstanding the APA's prescription against underground regulations, there are circumstances in which a regulation may be exempt from the APA. To cite one key example: If a regulation "embodies the only legally tenable interpretation of a provision of law," it is exempt per Government Code section 11349, subdivision (f) . This becomes relevant here due to the recent amendment of Penal Code section 6402, effective June 27, 2016.
AMENDED PENAL CODE SECTION 6402
Section 6402 is found in Part 3 of the Penal Code, Title 7 (Administration of the State Correctional System), Chapter 10.7 (Prison Visitation). The amended statute requires the CDCR to "develop policies related to its contraband interdiction efforts for individuals entering CDCR detention facilities." Per section 6402, subdivision (a), the term "all individuals" includes "all individuals, including visitors, all department staff, including executive staff, volunteers and contract employees entering CDCR detention facilities." The word "inmate" or "prisoner," though, nowhere appears in section 6402, inclusive of its subdivisions.
Section 6402, subdivision (f) additionally requires that all individuals "who have a positive alert for contraband by an electronic drug detection device, a passive alert dog, or other technology" be informed of or offered "further potential search or visitation options." Per subdivision (i), the CDCR "shall consider the use of full-body scanners" in determining which "additional search options to offer" visitors and employees. Subdivision (i), however, does not preordain or require that the Department adopt or implement the use of X-ray scanners, or any other specified method of search. This is plain from the language.
Returning to the issue of exemption from the APA raised earlier, we see no single interpretation of section 6402 as being the "only legally tenable interpretation." But we do find that the most plausible and legally tenable interpretation of section 6402 is:
* It is inapplicable to prisoners—although it could be interpreted to allow for an exception where prisoners are just passing through an institution on "standby" (in which case, they become like visitors, staff, volunteers, and contractors circulating in and out of an institution).
* It authorizes the CDCR only to promulgate regulations—for administrative review—that permit the qualified or conditional use of full-body scanners to search individuals entering prison grounds. By its terms, subdivision (i) merely requires the Department's consideration of the use of full-body scanners. Precisely for that reason, any regulations permitting the actual use of full-body scanners would have to go through the administrative review process and would not be exempt from the APA.
NEWS FROM THE GROUND
Information we've received about the X-ray scanners, from allies both inside and outside prison walls, has been invaluable to our efforts. This can not be overstated. Information coming directly to CPF from CDCR officials has been minimal, evasive, and/or inconsistent with other information we have.
What seems to be the case is that X-ray scanners are currently being used to scan only incarcerated people, and on a routine basis following visits. To date, we believe that at least twelve prisons for men and two prisons for women, (CIW and CCFW) have scanners. They are now in use in most of these institutions.
We have heard some reports regarding the frequency with which people may be scanned, as well as whether scanning will occur on a routine basis other than during visits. We welcome additional information along these lines, particularly if it is specific. (If a cop made a remark to you, what was their name and rank? What exactly did they say, and when? If you witnessed or experienced something firsthand, what exactly was it? How many times did you witness/experience the same thing, if more than once, and when?)
It appears that at least two different X-ray machines are being used: the Adani Conpass and the Rapiscan Secure 1000. Visitors have identified a model they've seen as the Adani Conpass; this is corroborated with secondhand information some have received from employees. In January 2016, the Department put in a Budget Change Proposal which included funding for three Rapiscan Secure 1000 SP Body Scanner Maintenance contracts (relative to California State Prison, Solano and Los Angeles County, and Calipatria State Prison). We have a copy of the proposal.
The Conpass is geared toward use in prisons, diamond and mines, and other locations. The Secure 1000 is a much bigger rig qualified by the Transportation Security Administration (TSA) for use in airports.
PRIVACY AND SAFETY-RELATED COCNERNS
The images produced using the Conpass, as depicted in promotional materials available on the internet, are so explicit as to allow for a person's genitals to be seen. An earlier-generation model of the Secure 1000 was pulled from airports in 2013 due to the explicit nature of the images they produced and concerns over privacy. (On an incidental note: We've heard one rumor that the CDCR may have acquired scanners donated by or acquired directly from the TSA, but this information is unsubstantiated. This technology is not cheap, though, and the expenses add up when tallied for some 35 odd facilities).
The CDCR is no stranger to the privacy issue. In a class action filed in 2001, the plaintiffs—visitors at Lancaster State Prison who were being scanned with the Secure 1000—alleged multiple counts including violations of plaintiffs' federal and state privacy rights. The Department stipulated to removing the X-ray scanners in 2008, and as of April 2015, it appears, the litigation was still ongoing.
The privacy "rights" of those in custody are severely abridged, of course, by the "strip, squat, spread, and cough" procedure people undergo during spot checks and visits. However, concern over the cumulative effects of exposure to even very small amounts of ionizing radiation—the type found in X-rays or gamma rays— has also long been part of a broader controversy over X-ray scanners. While the TSA has always maintained that the technology poses no hazard, the European Union prohibited the use of X-ray scanners in 2011 "in order to not jeopardize citizens' health and safety."
The research arm of the National Academy of Sciences, the National Research Council (NRC), publishes periodic reports on the risks associated with low-level exposure to ionizing radiation. Its most recent report came out in 20065 (updating its prior 1990 report). In the preface thereto, the NRC acknowledged the difficulties in understanding the cumulative health effects of low doses of radiation. Yet, it concluded that there's (1) a "linear dose-response relationship between exposure to ionizing radiation and the development of radiation-induced solid cancers in humans"; and (2) there's "no compelling evidence" suggesting this risk is "zero" at any threshold of exposure, though it will be "small" at low doses. Without additional data, the NRC also noted, an assessment can't be made of any connection between low doses of radiation and health effects beyond cancer. We understand these findings to mean that getting cancer is a known risk of being exposed to even low levels of X-rays; a risk that may increase with the number of times you are exposed over time.
The NRC defines the term "low dose," as it pertains to ionizing radiation, as doses "in the range of near zero up to about" 100 mSV (millisievert), or 0.1 Sv.
Relative to the CDCR's current use of X-ray scanners, the concerns discussed above are compounded by questions having to do with their maintenance and repair—not to mention, the adequacy of any training received by officers operating them. The Department's willingness to be accountable to its wards and the broader public is up in the air here, as is too often the case. And, its ongoing expenditure of public funds to acquire and use X-ray scanners raises further questions, to say the least.
POSSIBLE OUTCOMES OF PETITIONING THE OAL
In response to our petition, the CDCR could elect to provide a certification to the OAL that it won't issue or act on the regulations we allege are underground. Action by the OAL or any other state agency would then be suspended, pursuant to Code of Regulations, section 280, subdivision (h). So, while the CDCR would agree to stop issuing or acting on regulations around X-ray scanners, there would be no formal determination from the OAL.
A determination would issue absent such certification, were our petition considered. The determination would state whether the regulations contested are “regulations” for the purposes of the APA, which should have been adopted per the administrative review procedure, but weren’t.
Per Government Code section 11340., a determination, once issued, must be filed with the Secretary of State. The OAL must additionally make the determination known to the CDCR, Governor Brown, and the Legislature, and make it available to the public and the courts. Within thirty days of the date that the determination is published, judicial review of the determination may be sought, asking that it be modified or set aside.
The possibility of a drawn-out legal battle awaits. Yet, because of broad concern over the X-ray scanners—as well as to bring attention to the CDCR’s actions and ensure that it follows that law as required—we feel it necessary to intervene.
1 The APA is codified in Government Code sections 11340–11365. Provisions concerning underground regulations are found in Code of Regulations, Title 1, sections 250–280.
2 "Tenable" means " capable of being held, maintained, or defended: defensible, reasonable." See Merriam-Webster, 2017, https://www.merriam-webster.com/dictionary/tenable.
3 Additional exemptions are set forth in Government Code section 11349, inclusive, and Penal Code sections 5058–5058.3
4 The National Academy of Sciences, established by an Act of Congress in 1863, has long advised the federal government on scientific and technical matters.
5 National Research Council of the National Academies, Health Risks from Exposure to Low Levels of Ionizing Radiation (2006)
Feb 28, 2017
keywords: Sleep Deprivation, PHSS, Security/Welfare Checks
From Prison Focus Issue 51
Dr. Jamie Zeitzer, PhD, recognized worldwide as an expert in sleep and circadian rhythms, concluded in his 10/25/2015 report: “The current practice of 30 minute wellness [sic] checks of inmates housed in the SHU is likely a cause of severe sleep disruption. This type of sleep disruption is likely worse than anything that has been provocatively studied in a laboratory. The known consequences of chronic sleep loss, including disruptions to metabolism, memory, mood, and health, are likely even more severe in these individuals. The mandated purpose of these wellness checks (i.e., suicide prevention) is, in fact, likely to have the opposite effect and inadvertently increase suicidality in these individuals. ...There have been no direct studies of intentionally waking an individual every thirty minutes every night for days, weeks, or months, as doing so would be considered highly unethical in a research environment.”
“Security/welfare checks” persist in SHU's, Ad-seg's, Psychiatric, and Condemned Units throughout CA prisons, waking people locked in solitary confinement every 30 minutes, night and day. The PHSS Committee To End Sleep Deprivation works to end these checks.
In May 2016, we published a survey to elicit information from prisoners about the checks. Soon we'll have a more detailed survey for you to answer about the harmful effects. We want to document the effects in detail to get the checks stopped.
Systematic abuse and neglect caused and/or contributed to six recent deaths at California Institution for Women (CIW). A campaign by surviving family members and CA Coalition for Women Prisoners demanding investigation into those deaths has led to the current Joint Legislative Audit of CIW and all CDCr suicide prevention policies & practices. We have sent materials and communicated with both the Audit Committee and the CA State Auditor, the body conducting the audit for the legislature, urging they recommend a STOP to the “security/welfare checks.”
Suicide expert and Special Master in Coleman v. Brown, Lindsay Hayes and Matthew Lopes, still claim the "security/welfare checks" are suicide prevention despite the sleep deprivation and excruciating mental and physical health problems they cause. Write to Hayes and Lopes (and send us a copy) about how the checks affect(ed) you and what you think true mental health and suicide prevention require, or send one letter to the PHSS Committee, and we will forward it to Hayes and Lopes.
We also ask people not in prison to write Hayes and Lopes and urge them to stop this harmful practice. Share any personal or professional understandings of the need for sleep and the effects of sleep disruption/deprivation.
Mr. Lindsay M. Hayes,
40 Lantern Lane, Mansfield, MA 02048
Matthew A. Lopes Jr., Pannone Lopes Devereaux & West LLC,
317 Iron Horse Way, Suite 301
Providence, RI 02908
PHSS Committee to End Sleep Deprivation, P.O. Box 5692, Eureka, CA 95502
Feb 28, 2017
keywords: Parole, Credits, Juvenile
From Prison Focus Issue 51
On November 8, 2016 California voters approved Proposition 57, the “Public Safety and Rehabilitation Act.” Governor Jerry Brown sponsored the initiative and the “Yes on 57” campaign outraised opponents, $14.98 million to $1.51 million, despite vocal opposition from law enforcement organizations across the state. Just months before the election, the California District Attorneys Association (“CDAA”) filed a lawsuit to remove Prop 57 from the ballot, citing “unrelated amendments.” Though the CDAA initially succeeded in the lower courts, the California Supreme Court reversed, and the measure went forward. Voters overwhelmingly approved the measure with 64.46% in favor, a total of 8,790,723 votes for and 4,847,354 against.
Prop 57 is the most recent ballot initiative in a series of efforts being made in California to address persistent overcrowding in our prisons. It should be viewed as the next step in the process, following the 2009 order by federal judges in Plata v. Brown that California reduce its prison population to 137.5% of the prisons’ design capacity, the 2011 ruling by the United States Supreme Court in the same case that the overcrowding of California’s prisons violates the 8th Amendment of the Constitution, and the adoption of Proposition 47 by voters in 2014.
This article breaks down exactly how Prop 57 will work in practice so that you can understand which offenses will be eligible, when sentences will be up for consideration, how the CDCR plans to implement Prop 57 parole cases, and the current status of the new regulations. Since the new rules are still in the process of being adopted, this article also updates you on how that process is unfolding, and what it should look like once it’s finished.
WHAT IS PROP 57?
Prop 57 adds a new section to the California Constitution: Article I, section 32. It has three major provisions:
(1) Parole consideration: Any person convicted of a “non-violent” felony offense and sentenced to state prison is eligible for parole consideration after completing the full base term of the primary offense (defined as the longest term of imprisonment for any offense, excluding enhancements, consecutive or alternative sentences).
(2) Credit earning: the Department of Corrections and Rehabilitation will have the authority to award credits earned for good behavior and approved rehabilitative and educational achievements. The Department of Corrections and Rehabilitation will adopt new regulations to implement this process.
(3) Juvenile prosecution: the authority to decide whether or not to try juveniles 14 years and older as adults is removed from prosecutors and conferred to judges.
WHO WILL BE ELIGIBLE?
To be eligible for Prop 57’s parole consideration provision, you must have (1) a conviction for a “nonviolent” offense; and (2) complete the full term of your primary offense. It does not apply to persons serving time in county jail – only those serving time in prisons.
As of the date of publication, CDCR has not yet formally proposed new regulations under Prop 57. Therefor, “Nonviolent” offenses for purposes of Prop 57 are currently still undefined. Until the CDCR writes the new regulations, it is not known which crimes will be considered violent and not eligible for early parole.
The Governor’s office has stated sex registrant crimes will be excluded. Other than that clarification, there is currently a great deal of misinformation circulating about this issue; it is important to understand that these are rumors only. There is disagreement in the legal community over whether the criteria should include all offenses not listed as “violent” offenses in Penal Code § 667.5(c), and the eligibility of second and third strikers. The CDDA campaigned against 57 on the basis that crimes such as Assault with a Deadly Weapon (“ADW”) and Domestic Battery (“DB”) will not be included.
However, it is likely that the following “violent” felonies listed in Penal Code § 667.5 will not be included: murder; attempted murder; voluntary manslaughter; mayhem; forcible sex offenses; rape in concert; robbery; arson; kidnapping; carjacking; certain gang offenses; first degree burglary where a victim is present; any felony punishable by death or life in prison; any felony where great bodily injury is inflicted; and any felony involving use of a gun.
The base term means the normal, base Determinate Sentencing Law (“DSL”) term, without enhancements. For example, even if the court imposed double the term because of a strike prior, you should still be eligible for parole consideration after completion of the normal, unmodified DSL term. It is still not known how much time must be done on the primary term before it is considered “completed” in full. Until the CDCR writes the new regulations, it is not known whether good time/work credits can be applied to the completion of the primary term.
The Governor’s office estimates that 7,000 inmates should be immediately eligible once the regulations take effect and that 25,000 inmates in total will be affected. Over the next year, the prison population should be reduced by approximately 2,000 persons, and by 9,500 persons in 2020-21.
WHEN DOES PROP 57 TAKE EFFECT?
The CDCR is still in the process of adopting the new regulations (changes to Title 15) to implement Prop 57. According to the Governor’s Office, the proposed parole and credit changes are expected to go into effect by October 1, 2017. It is not known when the CDCR will start screening prisoners for eligibility or start holding Prop 57 parole hearings.
Before the rules are adopted, inmates and the public will have an opportunity to participate in a “notice and comment” period. At some point soon, the CDCR will publish the text of the new proposed rules. So make sure you are checking with your law library. Inmates and the public will then have several weeks to send written comments to the CDCR about the proposed rules. The CDCR can then respond and issue revised rules, which will be open to another round of comments. At the end of this process, the CDCR will file the new Title 15 rules with the Secretary of State.
HOW WILL THE NEW CREDITS SYSTEM WORK?
Though many unknowns remain until CDCR publishes its proposed rules, the Governor’s office has released some information describing what it expects the credit earning rules will look like. Generally, it has publicly expressed the goal that the regulations provide more incentives for positive programming. Specifically, in its 2017-18 state Budget Summary, it has suggested promulgating credit earning rules that:
(1) Increase and standardize good-time credit earnings from avoiding rule violations; (2) Allow all prisoners except life without parole and condemned inmates to earn “milestone credits” for completing specific education or training programs; (3) Increase time earned from milestone credits from 6 weeks per year to 12 weeks; (4) Create new, enhanced milestone credits for significant achievements like B.A.’s, high school diplomas, Mentor Certification program and career technical education certifications; (5) Apply retrospectively; (6) Add new achievement credits for sustained participation in rehabilitative programs of up to four weeks per 12-month period; (7) Credit lifers toward the Minimum Eligible Parole date; and (8) Are revocable based on violations.
Ultimately the new rules are supposed to encourage more participation in programs and services, with the overall effects of making the prison environment safer and reducing recidivism.
WHAT'S THE LATEST NEWS?
As of right now, CDCR has not yes released its proposed rules. This means it will be several months at the least before the changes from Prop 57 go into effect. It is estimated that Prop 57 will create net governmental savings of $22.4 million in 2017-2018 and over $140 million by 2020-21. Organizations such as Californians United for a Responsible Budget (“CURB”) are reviewing the Governor’s proposals and sending letters urging responsible use of the funds to invest in affordable housing, community reentry programs, and better mental health care and access. The next step is to check with your law library for a copy of the proposed rules, and to participate in the upcoming notice and comment process.
Feb 28, 2017
keywords: Marijuana, Legalization, Resentencing
From Prison Focus Issue 51
In one of the many world-changing decisions made by voters on November 8, 2016, California joined several other state jurisdictions that have legalized recreational use of marijuana by passing Proposition 64, the “Control, Regulate and Tax Adult Use of Marijuana Act,” commonly known as the “Adult Use of Marijuana Act” (“the Act”). The passage of Proposition 64 represents a major change in marijuana law.
The Act has four major provisions. First, it permits adults, 21 years of age or older, to legally possess, transport, purchase, consume, or share up to one ounce (? 28.5g) of marijuana, and up to 8 grams of marijuana concentrates. Second, it permits adults, 21 years of age or older, to grow up to 6 marijuana plants per household out of public view. Third, in addition to its legalization provisions, the Act drastically reduces the penalties for other marijuana-related offenses, including the reduction of some felonies to misdemeanors, and some misdemeanors to infractions. Among these are offenses including Health and Safety Code Section 11357(a) (possession of concentrated cannabis), Section 11358 (cultivation), Section 11359 (possession for sale), and Section 11360 (sale, transportation for sale).
Fourth, the Act has a resentencing provision which permits persons previously convicted of designated marijuana offenses to obtain a reduced conviction or sentence, if they would have received the benefits of the Act had it been in place when the crime was committed. In other words, if you were convicted for a crime based on conduct that is now legal under the Act, there is a provision requiring the court to “dismiss and seal” the record of conviction.
In addition to these major changes, the Act creates a number of new statutes to regulate the consumption of marijuana in public and establishes a comprehensive system to control the cultivation, distribution and sale of nonmedical marijuana and marijuana products. As part of that system, the Act creates a marijuana tax to be imposed on sale of marijuana and marijuana products.
Before you get too excited, we note that it is still forbidden for incarcerated individuals in state prisons and county jails to possess or use marijuana. (See 15 CCR § 3315(a)(2)(D) and (a)(3)(E)-(F).) Also, Prop 64 does not make any changes to the laws that make it a felony for incarcerated individuals in state prisons and county jails to possess alcohol or controlled substances without authorization. (See Penal Code § 4573.6 and § 4573.8.)
By far the most important part of these changes for the incarcerated reader are the provisions related to resentencing of previously convicted individuals. As a general matter, most changes in the criminal law tend to be increasing in severity rather than becoming more lenient, and it is also rare that changes in the law such as this are explicitly retro-active in their affect. There are several exceptions to eligibility, most of which involving specified prior convictions, including: (1) “super strike” prior convictions (See Pen. Code, § 667, subd. (e)(2)(C)(iv)); (2) prior convictions requiring sex offender registration (Pen. Code, § 290, subd. (c)); or (3) two or more prior convictions of Section 11359, subd. (b) (18 or over). (See Health and Safety § 11359, subds. (c)(1)-(2).). This means that if you are currently in prison, but eligible for dismissal, the court may still decide that while you are eligible under the law, that resentencing would pose “an unreasonable risk of danger to public safety.”
If you have a marijuana-related conviction and believe you may be eligible for dismissal or reduction, here are the steps you should take:
(1) Contact the trial attorney who handled the case or the Public Defender’s office in the county of conviction to request the list of affected offenses and the Prop 64 Petition Form (you should not expect representation);
(2) Determine whether your offense is on the list of those offenses which are now lawful or qualify for reduction;
(3) Determine that you do not fall into one of the “exceptions” precluding relief based upon a super-strike, prior convictions, or 290 registration status;
(4) Fill out and file a Prop 64 Petition Form. As part of your application, contact the court in the county of conviction to determine if the county will be holding formal hearings on Prop 64 petitions.
(5) This is a filing with the court so you must also file a Proof of Service and serve a copy to the district attorney (“DA”), city attorney, or other prosecuting agency;
(6) Prepare for and attend the hearing.
Under the requirements of Prop 64, the judge is required to presume that you qualify for belief unless the DA proves by “clear and convincing evidence” that you do not. If released, you may still be subject to parole, probation, or another form of supervised release.
The State Judicial Counsel has been tasked with developing forms for you to use in petitioning the court under prop 64, but they are not yet widely available to the public.