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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.
Feb 28, 2017
keywords: Cointelpro, New Jim Crow, Gary Webb, healing, Watani Stiner, Troy Williams, Mianta McKnight, Raymond Aguilar
From Prison Focus Issue 51
On November 12, 2016, California Prison Focus held its 25th anniversary commemoration at the First Congregational Church in Oakland. The highlight was a panel discussion with Watani Stiner, Mianta McKnight, Troy Williams, and Raymond Aguilar—all formerly incarcerated Californians. Together, their experiences span a significant half-century in this nation's history, from the Civil Rights Movement through what's being called the New Jim Crow era.
Before the discussion got underway, Kim Pollak greeted the public with an introduction into CPF's history and ongoing work. Bato Talamantez, a founding member of CPF absolved in the 1971 San Quentin Six trial, then weighed in with some personal remarks, excerpted here:
"Everything about California Prison Focus started around Pelican Bay a hell of a long time long ago. We didn't have a name at first. We just responded to our friends inside. We had a lot of friends and still do. And they were the ones who ultimately led the Hunger Strike twenty years later: They figured out that it's do-or-die time."
Sharing his recollections of Holbrook Teter, a co-founder off CPF who passed in 1999, Talamantez continued:
"He came to us and used the word 'torture.' And he told us he had been around the world where people had been tortured. And what was happening at Pelican Bay [SHU] was torture. We were saying 'cruel and unusual punishment,' 'the Eighth Amendment,' and all that stuff. That's absurd. None of that works. The constitution does not apply at Pelican Bay."
Each panelist had experienced firsthand—three of them, as mere juveniles—the torture that Talamantez described and had himself experienced: being held in solitary confinement or isolation.
Following introductions, Robert Monico, a CPF volunteer and a graduate student in San Francisco State University's Ethnic Studies Department, facilitated the discussion.
THE PANELISTS' BACKGROUNDS
The senior member of the panel, Watani Stiner, informed the audience that he refers to himself as a Cointelpro survivor, instead of a "political prisoner" or "ex-political prisoner." The term "Cointelpro survivor," he noted, acknowledges the government's role in his incarceration; a topic he briefly took up later.
Stiner spent his early childhood in the Jim Crow south. He remembered it as separate water fountains, separate beaches, having to enter the grocer's through the back door, and so forth.
When he was seven, his mother moved his family to Watts, California. Watts was "a whole different world" than the one he'd previously known. In the south, it had been a "sin" in the eyes of a Catholic-raised child such as he to drink from the whites-only fountain.
As a young adult in California, Stiner married his highschool sweetheart and landed a well-paying job at an aircraft company. But in 1965, Stiner's life was changed forever by the Watts revolt. At that time of the revolt, Stiner explained, "Young people across the country were breaking through racist barriers; we were raising questions about the unequal distribution of power and wealth … and the war in Vietnam." He himself got involved with the Us organization and "found culture, identity" and "a way of resisting oppression." He enrolled at UCLA, and fought to a establish the Black Studies program there.
Stiner's life was soon to change again because of a 1969 shoot-out at the UCLA campus, in which he was wounded and two Black Panthers (Bunchie Carter and John Huggins) were killed. "At the time," Stiner said about the shoot-out, "I didn't know about Cointelpro, and how they instigated and … turned that whole incident into a violent thing, where it caused the death of two human beings." He and his brother were tried and convicted for the murder. They were sentenced to life and sent to San Quentin, then escaped and fled to Guyana in 1974. About twenty years after that, out of concerns for his family, Stiner finally turned himself in to the US Embassy and land back in San Quentin, in solitary confinement. When he was released from San Quentin in January 2015, he hadn't walked the streets of the US as a free man since 1969.
/ / /
Restorative justice advocate, journalist and filmmaker Troy Williams turned fifty in late December 2016. He would have been but a toddler during the heyday of resistance and self-determination organizations like the Black Panthers and Us. Williams prefatorily remarked that he often talks with Stiner (the two both live in the same community in East Oakland) about how the decline of the Black Power Movement gave rise to gangs. "And I was sucked into that world," he added, "even though I didn't want to be."
Indeed, when Williams first learned from his brother at age ten what Crips and Bloods were, his response had been: "That's dumb. Like, why we fightin each other? That don't make sense to me." Yet, the reality was that violence was everywhere around him, and supposed role models, who preached non-violence, did not necessarily practice nonviolence themselves.
Before much longer, when Williams was thirteen, he found himself confronted by six fully grown guys who insisted that he fight. Two of them had beards. He couldn't fight six men, and was chased. He was faced with a devil's bargain: He could run in the direction of the sheriff's station (the scarier of his two options); or, he could try to make it to the other side of the park, where his pursuers wouldn't go, because their rivals would be there.
"I didn't make it," Williams remembered, "so I got stomped out … beat up with chains and all that. And, guess who came to my rescue?
"That rival gang showed up. And they ran the guys off, and next thing I know, I got thirty muscled-down men around me telling me how they got my back. Givin' me some attention that I wish I would have gotten in the household, but I didn't get."
So began William's involvement in "the lifestyle." Two years later, he was in juvenile hall for murder. That was just the beginning of a long story prefaced by getting into about thirty-six fights during his first year in juvenile hall."I've been in the hole [solitary confinement or isolation] countless times," commented Willliams, "I can't even count the amount of times that I've been in the hole in juvenile hall."
At some point after getting out of juvenile hall, Williams became a youth counselor and returned to school for cinemaphotography. Maxine Waters, then Representative for California's 35th Congressional District (which includes South Central Los Angeles), sponsored the organization he was working for as counselor.
Around that time—1996—Maxine Waters was calling for investigations by the D.O.J. and the House Judiciary Committee into journalist Gary Webb's revelations published in the San Jose Mercury News. Webb had exposed that: (1) the CIA-backed Contras in Nicaragua were using profits from cocaine trafficking to fund their guerilla effort to overthrow the (left-wing) Sandinista government; (2) this had been going on for the better part of a decade, with the US government's knowledge and tacit support; and (3) the cocaine being trafficked was being sold to the Bloods and the Crips in Los Angeles by the tons, leading to the crack cocaine epidemic that had spread from L.A. across the urban U.S..
"I was there when Gary Webb broke the story about Cointelpro and all the drugs coming into the community," Williams said, "and … I understood what had happened." Just the same, his understanding was at least initially somewhat superficial, or so he indicated. It wasn't until around 2005, after he'd received a life sentence and eventually got sent to the hole for a long spell, that he began to understand his "internal journey." Gradually he came to more deeply appreciate the connections between the external events that Gary Webb had written about, and his own life, decisions and actions.
"Sittin' in the hole, I started to realize what my part in all of this was," he explained. "Deep down inside, I knew that I was participating in something that I never should have been participated in."
/ / /
The youngest of the four panelists, Mianta McKnight, in her late 30s, and Raymond Aguilar, age 41, are children of yet a third era. When they were born, the so-called War on Crime declared by Lyndon B. Johnson in 1965 had been going on for a decade or more, having ramped up during Nixon's presidency. When they were around kindergarten age, the Reagan administration, proclaiming "Just Say No" on the one hand, was giving the wink and a nod to the Contras' drug trafficking on the other. And, within their lifetimes and before either hit the age of thirty-five, the incarcerated population within this country insanely ballooned by almost six hundred percent.
McKnight and Aguilar were both arrested as juveniles and tried as adults.
McKnight grew up in San Francisco, California, and has been out of prison for about three years. She gave birth to a baby girl almost a year ago, and is employed with Justice Now, an organization located in Oakland that specifically works with people inside of women's prisoners.
McKnight's parents divorced when she was young; a situation common to many born in the 1970's. Her overall circumstances as a juvenile and young adult, however, were less than typical. Regarding her arrest at seventeen, and her experience over the next few years after her arrest, she recounted in painfully clear language:
"My father had married somebody else, and she was molesting my brother and I. She molested me from the age of two until I was about eight, so that went on for six years. And when the sexual abuse stopped, the physical, mental and verbal started, so I held some resentment against her.
"At seventeen, I had a boyfriend—thought we were gonna be together forever—and we decided to rob my house. The ultimate goal was to make her feel what it felt like to lose something, not to kill her; and the end result is that she died in that robbery.
"I was tried as an adult; they did not want to hear what was going on in my house beforehand—because I did say something, I did tell, and nothing changed. So, that changed my belief system, in terms of: The truth mattered. And since I did not feel safe at home, I sought acceptance outside the house, and that's how I ended up with this guy to begin with.
"I made a decision, and my decision cost me something far greater than I was willing to bargain— —cost me the trust of my family; it cost somebody their life, and I ruined many, many things along the way.
"So I entered juvenile hall in Redwood City. They lied and told me I was going home. I didn't see home for a very, very long time.
"I was locked up in X Unit, which was solitary confinement … I did not know what day it was. There were no windows. I hadn't seen my parents yet; I hadn't seen my attorney yet; they came and opened the door and slammed it and told me I was never getting out. I believed them. I told my parents … that if they keep me forever, I'm going kill myself, and I meant it.
"I went through trial; I went to prison when I was twenty-one. … When those gates closed after I made it to prison, I had a panic attack because I knew I'm not gonna make it outta this place. … And, I was told as a young person coming inside, 'Don't worry about it: go ahead and get in trouble: You're never gonna get out; the only way you're gonna leave is in a pine box.' And I almost believed them."
Of how prison guards treat women and girls, McKnight stated, again in painfully clear terms:
"They have … batons now that they use, like they're Ninjas. … They have smoke bombs. They beat us, they rape us, they—kill us. … They would never cram eight dudes in one room, but they'll sardine us in there. … It's dehumanizing to have to ask for sanitary supplies, and prove that you're on your menstrual cycle and say, 'I really need a pad dude.' And still not get it. Use a sock."
Until 2005, male guards had free reign to violate incarcerated females under the pretense of conducting searches for contraband. But, as reported in Prison Focus Number 50, CPF successfully campaigned to prohibit male guards from conducting searches on females. Regarding the prohibition, McKnight had to say, "That was a huge victory, because we were being touched in every way possible by them. So, even if you had nothing on you, they … could grope, touch, grab, feel and everything else. And most of us had been sexual abuse victims; been raped; been beaten; been in abusive relationships. And they knew that and they would use it to their advantage to get us to 'submit': to get us to snitch and everything else under the sun."
Raymond Aguilar had been released from Tehachapi just four months prior to the panel discussion. He lives in Stockton, California, where he grew up, and works as a youth counselor for Fathers and Families of San Joaquin.
"As it stands right now," said Aguilar, "in Stockton—San Joaquin Valley—ninety percent of the kids that are in juvenile hall facing [a] life sentence are boys and men of color. Ninety percent." And, before voters approved Prop. 57 in November, he elaborated, juveniles as young as fourteen were being tried as adults.
"What does that say about the system?" What does that say about our community, that we are gonna give up on our youth and try them as … adults?"
Aguilar's childhood and adolescence, as described by him, underscore a common-sense point that can also be drawn from William's and McKnight's remarks: The lack of a supportive familial environment can have devastating long-term repercussions for a youngster. This is particularly true in a society that throws, foremost, its most oppressed members and those in most need of help into the gullet of the prison system.
Aguilar was tried as an adult at age sixteen after fatally shooting a man who'd robbed his grandmother a year earlier. He told the audience:
"At sixteen, I had a fifth-grade comprehension level. I wasn't going to school. [I] grew up out of a foster care system; I was in and out of shelter homes. … I was being adopted by foster parents who didn't care and who beat the shit out of me, and neglect was all that I knew. …
"When I was sent to the prison system … I was affiliated with an organization inside of prison, because, like brother Troy [Williams] said, that's my family."
At age eighteen, Aguilar was booted from the California Youth Authority into the prison system, and into Pelican Bay, no less. "I was— —young, foolish child thinking I was grown when I really wasn't," he observed.
Of his time at Pelican Bay's SHU, he recalled:
"I started reading books, I started reading newspapers, magazines, just readin to pass the time. … Most of the time, we're learning and educatin' about the organization, and the history of our organization and of our people. When I got to prison and I seen the California Prison Focus newsletter, I looked at it as another newsletter that I could read to pass my time. It took me many days, many months, perhaps even a few years to really understand what the Prison Focus was really teachin' me. …
"This is an intimidating magazine to a kid who don't have an education. I'm lookin' at the pictures. I'm looking at, 'Where's the color up in here?' You know what I'm saying? We're makin' clothes hangers out of this. We're using this as our napkins. One day, maybe I'm using the restroom. Maybe I need this. You know what I'm saying? And it wasn't until that Moses moment when I seen the light. I'm like—sittin' here—and I'm like, 'Should I use this to wipe, or should I use this to read?' So, I'm sittin' here, and I'm looking at this Prison Focus, and when I was done, I said, 'Man, I got to read this again'; I think, 'Somethin caught my attention.' And it was one of the bills that they were trying to pass to help juveniles like myself get out of prison. I said, 'Damn, well this can give me some kind of information that I could use.' "
These days, Aguilar doesn't like to define himself as a gang member, or an ex-gang member. "I'm a formerly incarcerated individual who has educated himself," he specified, "and I want a second chance at life."
CHALLENGES ON THE OUTSIDE
A topic of the November 12 discussion, unsurprisingly, was the different challenges that release from prison entails.
With humor in his voice, Watani Stiner remembered, "I always thought that … the biggest challenge I would have is how to operate a cell phone; a computer." Instead, his relationship with his children proved to be far more fraught than learning to use digital technology.
"Prison provides this buffer between you and your … family," Stiner continued. "Once I got out, I had to deal with all the emotions, the sense of abandonment, the anger." No matter what he knew himself about why he'd turned himself in to the US authorities, it did not negate what his children had gone through during his incarceration. He had to learn to "stand there and accept the anger, and the love," and get to know his children anew.
Troy Williams, too, talked about his own difficulties in dealing with family, particularly when he got out of juvenile hall as a much younger man:
"Corporations didn't want me; jobs didn't want me. I really couldn't even relate to my family, because I didn't understand how the emotional things that I went through— —they was just put to rest; they never were really dealt with. So, as soon as I found myself back in the home, all of that stuff flared up, and I found myself not wanting to be in the home, but not knowing why."
The "not wanting to be in the home" left the younger Williams, who loved his family, feeling conflicted on top of everything else he was going through. Yet, at bottom, he did not know how to cope with, explain, or even understand on his own terms what he was experiencing on an emotional level. "And, in all of the rejection from everybody else in life," Williams added, "even in the appearance of rejection from my family, guess who never rejected me? Right? Duh. … I can go get whatever I wanted from them soon as I hit the block."
Raymond Aguilar described coming out of prison and the SHU thinking: "I'm gonna get myself acclimated … and try to make a difference in my community. Especially, for all the things that I've done wrong, let me now turn around and do something positive and constructive." As his remarks evinced, though, the tentacles of the prison system extend well beyond any prison's walls or the duration of anybody's sentence:
"When I'm paroled, part of my parole conditions is that, I'm on high control. … I'm a validated gang member, and I'm on a gang injunction. How am I gonna be a productive citizen in my community if I'm being paroled 'High Risk, Gang Injunction'? That's putting a bad light on me already. How do you then expect me to get out here and get a job? … How am I going to go into the educational departments and say, 'Hey, let me tell you something: I was once where you guys were at: Let me make a difference?' "
For Aguilar, the "how" was supplied in part by others who were there to extend helping hands. Fathers and Families of San Joaquin, an organization working with low-income fathers and men of color in San Joaquin County, including those formerly incarcerated, engaged him as an employee. In addition, a comrade, who'd himself been in prison and later started his own advocacy organization, also gave Aguilar a break.
Not everybody released from prison, though, meets with the same fortune as Aguilar. Relevant to finding a job and the significant practical hurdles that people face once free of prison walls, Mianta McKnight elaborated:
"One of my target projects [at Justice Now] is working on Prop. 47 and figuring out where the resources are going. … Where's the money going that's supposed to be there for people of color? Women of color; girls? Because those resources are not available. And, as a person of color … that has survived the prison industrial complex [PIC], I see the importance of the resources, and, not just getting out. Cause once you get out, then what? Who's gonna help you? Whose gonna support you? Who's gonna advocate for yourself out here?"
FORGING A PATH FORWARD
In prison, McKnight had to advocate for and rehabilitate herself. The CDCR does not do it for you, she emphasized; in fact, "they actually put every roadblock in your path." Nonetheless, she specified, the skills she acquired inside, that eventually aided her in paroling, are skills she uses each and every day. She fights against the PIC so that her infant daughter "will never see the inside of it." She does so, too, "to help the people inside that don't have a voice currently, as a result of trying to be snuffed and choked out by CDCR."
In contrast, Williams, whose final stop within the system was the mainline at San Quentin, benefitted from the relative abundance of educational opportunities available there. (In this regard, San Quentin is an outlier among the CDCR's thirty-five-odd institutions, thanks to outsiders' efforts.) While at San Quentin, he got a leg up as a journalist and video producer in the making, and as a restorative justice advocate. After regarding an ecology program run by Van Jones with initial skepticism—why should he be worrying about some trees when people died where he grew up?—he reconsidered. That "the way we treat the very thing that sustains us is reflected in the way we treat each other," he ended up realizing, "just made a lot of sense."
Despite having benefitted from the programs at San Quentin, however, Williams is clear on where the keys to personal and social transformation ultimately lay. If you're relying on somebody else to come in and take care of your community, that's "never gonna happen." Instead, people "need to stand up and figure out ways that work for us," regardless of "what comes at us" and "what's going on with this [Trump] election" and everything else. He explained:
"This system is running exactly the way it supposed to run. And if we don't stand up to make a change, then change is never gonna happen. … This is our generation: This is our time: It's not just about the old people or the young people. We gotta get out of that old Willie Lynch-type syndrome, right? And we all gotta figure out a way to come together so that …we can allow our communities to heal in the way that they need to heal. Because irregardless of what goes on, if I don't respond to it, then it has no effect. … An' when we really wanna stop the system, then we gotta stop feeding the system. We gotta stop allowing our young to be fed to the system."
Raymond Aguilar echoed these sentiments. In his hometown, Stockton, he said, politicians foster initiatives like gun buy-back programs; initiatives that happen to make for great publicity, but end up dividing neighbor against neighbor rather than helping anyone.He continued:
"What works is when we go, as formerly incarcerated brothers, and people in our neighborhood, and we take back our community. And we say, 'We are Stockton. We are Oakland. We are Frisco. … And we're gonna take care of our community because, for years, we have harmed our community.' "
A critical aspect of healing one's community, the panelists agreed, is engaging with the young. On this score, Williams remarked:
"I think it's critical that when we drive by a young dude, or a young lady … we stop and have some dialogue with them. Right? Like, 'Wha's up? How you doin? How was your day?'
"If I'm on the yard, we can be mortal enemies, but I'm gonna acknowledge that you standin' in front of me. Nowadays you will walk by … and people won't even acknowledge that you breathin'. Like, that's bad on your spirit. Right? So when we see our young people, let's—listen to them. Let's quit telling them how to think and how to be, and just hear them."
"Because they haven't been heard," added McKnight.
Watani Stiner commented furthermore on the older generation's role in "passing the historical baton" on to the youth. " But at the same time," he cautioned, "we can't just talk about all of the glorification … how great we were during the sixties."
"We also have to talk about … the mistakes, the weaknesses that we had, in order for them to understand and not make the same mistakes … I think that the older generation have that responsibility: Not to become this 'I know it all' or guru ... whose gonna pass that information on to them, but to interact and engage with the younger people. And I find so much hope in…young people today. I mean, I really find a lot of hope."
1 The FBI says at its website: "The FBI began COINTELPRO—short for Counterintelligence program—in 1956 to disrupt the activities of the Communist Party of the United States. In the 1960s, it was expanded to include a number of other domestic groups, such as the Ku Klux Klan, the Socialist Workers Party, and the Black Panther Party." FBI, "COINTELPRO," May 5, 2011, https://vault.fbi.gov/cointel-pro; last accessed January 26, 2017.
2 Us was formed by Dr. Maulana Karenga (famously the creator of the Kwanzaa festival) and several others on the heels of the Watts revolt. Organization US, "Forty-Eight Years of Struggle, Service and Institution Building," February 2, 2014, http://www.us-organization.org/30th/30yrs.html; last accessed January 27, 2017.
3 During the November 12 discussion, Stiner expounded on this theme, "Once you create a vacuum, that vacuum is filled by something." This phenomena, he noted, can be seen at even the international level—whether with the US in Iraq, or what happened in Syria or Libya. Stiner continued:
"What happened after the demise—or the destruction, the discreditment—of the Black Power movement and most of the other movements— — this vacuum was created and gangs emerged in that. … When I got to prison, I found out that some of the young men I met there are sons and nephews of people who used to be in the movement— —who got chased out of the country, or been killed, or in prison, or into drugs. It's just a whole other dimension."
4 See Mary D. Looman and John D. Carl, A Country Called Prison (New York: Oxford University Press, 2015), 12–13. By 2008, over 2.3 million adults in the US—or 1 out of every 48 working-aged individuals—was locked up. Less than 330,000 were locked up back in 1980.
5 Not everybody inside a woman's prison, as McKnight specified, identifies as a woman.
Oct 24, 2016
keywords: Security/Welfare Checks, Sleep Deprivation
From Prison Focus Issue 50
Guards have been jarringly waking prisoners in solitary confinement every thirty minutes in the name of “security/welfare checks since May 18, 2014 in Central California Women's Facility and in Pelican Bay SHU since August 2, 2015. The practice has now spread throughout all CA prisons' solitary confinement units. Loudly disturbing and waking people every thirty minutes is serious, ongoing sleep deprivation, and sleep deprivation is a form of torture. These “security/welfare checks,” purported to be for 'suicide prevention,' are being used as a blanket practice, whether prisoners are suicidal or not, and despite the fact that denial of sleep is devastating for the human mind and body.
Our Committee to End Sleep Deprivation has received a flood of letters from people enduring these checks in California's SHU's, Ad Seg, and Psychiatric Units, explaining their suffering and trauma. Since late Aug, 2015, our grassroots campaign, legal action by prisoners and the Ashker legal team, and an official Complaint submitted to the UN have attempted to halt the checks. CDCr, claiming authorization from the federal lawsuit Coleman v. Brown decision which is supposed to address inadequate mental health treatment for seriously mentally ill CA prisoners, has ignored prisoners' individual and group complaints and has done nothing to ameliorate the mental and physical problems resulting from or exacerbated by the sleep deprivation.
We believe Lindsay Hayes, the suicide expert, and Matthew Lopes, the Special Master charged with overseeing prison reform and compliance concerning care of seriously mentally ill inmates under Coleman, could stop these "security/ welfare checks," but they have ignored the hundreds of letters our committee has generated from prisoners, mental health experts, and concerned individuals protesting that the checks cause sleep deprivation torture.
If you are suffering from “security/welfare checks,” please write Lindsay Hayes. Explain how the checks are affecting you and what you think true mental health and suicide prevention would entail. If you experienced the checks and are now out of solitary, please send a letter about how they affected you.
Either send a copy of your letter to all three of the below addresses or, if it's easier, send one letter to the PHSS Committee and we will forward it to the suicide expert (Hayes) and the Special Master (Lopes).
We understand that if you are sleep deprived, it is difficult to focus and write.
Hayes and Lopes have received many letters since we directed people to contact them. We also have forwarded many of the letters to Coleman Attorney Michael Bien who should be protecting prisoners from this harmful practice rather than supporting it.
The Committee has also recently contacted federal Receiver J. Clark Kelso, responsible for bringing medical care in California prisons to a standard which no longer violates the U.S. Constitution (Plata v. Brown), about the medical affects of the checks. Keeping someone awake 24 hours a day, or jarring them 40-48 times a day with loud metal on metal noises, stomping, beepers, and flashlights in their face not only torments the mind, but has severe adverse effects on the body. Disrupted sleep, or sleep deprivation, causes and increases the risk of serious, even fatal, illnesses. Many prisoners tell us that when they see prison medical or psychiatric staff about the effects of the checks, they are told “ You really need some sleep.” These “security/welfare checks” serve no welfare or security purpose; they're only causing serious psychological and physical harm. They need to stop. Sleep deprivation is a debilitating, internationally-condemned torture technique.
Organizations and individuals not in prison, please write Lindsay Hayes who claims these “checks” are suicide prevention, and urge him to stop the checks. Share with him the voices of the people suffering from them. Find instructions, sample letters, quotes from prisoners suffering the checks, articles, expert reports, and more @ https://prisonerhungerstrikesolidarity.wordpress.com under the “Sleep Deprivation” tab. If you have professional or personal experience with mental health issues, medical healthcare, suicide prevention, counseling, sleep disorders, or surviving torture and trauma, please share your specialized understandings of the necessity of sleep and the effects of sleep disruption/deprivation.
Find quotes from prisoners suffering the checks at http://tinyurl.com/zc3qbn6 and The American Public Health Association's letter opposing the checks at http://wp.me/P1BB1k-27L.
If you are able, please send your letter to all three of the following addresses:
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
We will work to end the sleep deprivation torture until the “security/welfare checks” stop. For more info, contact us at 510.426.5322, email@example.com, or our mailing address above.
Oct 19, 2016
keywords: Jailhouse Lawyers
From Issue 49
August 6, 2016: Vermont Supreme Court dismisses case against inmate accused of illegally practicing law without a license – Acknowledging the vital role of jailhouse lawyers nationwide.
In a unanimous decision, the Vermont Supreme Court has dismissed the State’s information against Serendipity Morales, an inmate at Marble Valley Regional Correctional Center, which alleged that Morales engaged in the unauthorized practice of law (UPL) by helping fellow inmates in their cases, including performing legal research and drafting motions.
The allegations were: 1) the inmates had heard Morales was familiar with the legal process, 2) the inmates asked Morales for assistance in reviewing and preparing various legal filings on their behalf, 3) Morales assisted each of them, including drafting handwritten motions which the respective inmates reviewed and signed, and 4) Morales did not request or accept any payment for these services.
The high court ultimately found these facts alleged by the State – whether or not they were true – did not meet the elements of the crime of UPL.
Justice Beth Robinson, writing for the court, aptly addressed the fundamental legal question of the case “concerning the scope of the offense of UPL, particularly as it relates to the rights of prison inmates to access the justice system.”
The court acted upon its duty to meaningfully examine the state’s interest in prohibiting non-lawyer assistance, and in so doing considered the applicability of the prohibition against the unauthorized practice of law to the activities of a jailhouse lawyer.
In this, the court noted its decision was guided on two particular factors – first, that jailhouse lawyers are a “well-established fixture in the justice system” and second, that “incarcerated inmates face particular challenges in accessing legal advice, and those challenges raise serious public policy, and in some circumstances, constitutional concerns.”
Prohibition of UPL exists to protect the public from unqualified and incompetent practitioners. Advocates also promote the prohibition of UPL with the concern that unprofessional filings would pollute the courts and lessen the integrity of the justice system. Prisoners are no longer eligible to a state-appointed attorney post-conviction (unless on death row), and most cannot afford to hire a “street” lawyer. A system that restricts a chance at justice to only those who can afford a private attorney surely hurts the integrity of the so-called justice system far more.
While there exist inherent risks of entrusting one’s liberty in another who is not licensed to practice law, for many, it would be their only avenue to the courts. The prisoner’s right of access to the court trumps the UPL public protection rules that were enacted and better fit for the outside. The laws governing those on the inside ought to be tailored to serve those individuals. Prison populations are notoriously largely poverty-stricken and undereducated and therefore individuals often cannot afford an outside attorney and/or do not have the reading and writing skills necessary to fight their case on their own. Such ‘well-meaning’ laws initially enacted to protect individuals from incompetent representation would ironically inhibit them from accessing the justice system altogether. UPL rules must not further discriminate indigent and illiterate prisoners.
The court was not without warning, emphasizing that if a litigation attempt is unsuccessful, the prisoner could be left worse off than if the jailhouse lawyer had done nothing .
Prisoners receive help from jailhouse lawyers where they are not entitled to an appointed attorney, mostly for petitions for a writ of habeas corpus and civil lawsuits regarding inhumane or improper prison conditions. The procedure and standard for filing appeals and writs are incredibly complex, even for experienced licensed post-conviction attorneys. These intricate rules hinder prisoners’ and jailhouse lawyers’ ability to be successful in such filings. Petitions can be dismissed by the court for a technical reason such as an “untimely” filing or for failure to properly articulate their claim. If an inmate discovers a different or better claim after their initial filing, the court may not allow it to be presented later.
If the reviewing court believes there is merit to a petition, it may appoint an attorney to represent the inmate in conducting the hearing or with further briefing. However, this occurs only once the petition is filed successfully and contains an argument persuasive enough to convince the court to do so, making strong legal research and persuasive writing skills all the more critical.
The Vermont Court stated it does not hold that an inmate may sign and file pleadings on behalf of another. Additionally, it did not determine whether selling legal services or receiving compensation for providing legal help is engaging in UPL. Nonetheless, it declared jailhouse lawyers play a vital role of upholding prisoners’ rights to access the courts; to prohibit such non-lawyer assistance would be unduly harmful to those individuals and raise gross constitutional concerns.
While this decision is not binding on courts in California and states outside of Vermont, the decision acts as persuasive authority that outside courts ought to consider. The decision establishes precedent to preserve the rights of prisoners (at least in Vermont) to provide and accept legal guidance inmate-to-inmate, under the conditions set forth, and it has raised public awareness of the rights and needs of the incarcerated.
NOTE: The Jailhouse Lawyer’s Handbook published by the Center for Constitutional Rights and the National Lawyers Guild. This Handbook explains how a prisoner can start a lawsuit in federal court, to fight against mistreatment and bad conditions in prison. Because most prisoners are in state prisons, the authors focus on those. However, people in federal prisons and city or county jails will be able to use the Handbook too. This is the fifth edition, revised and printed in 2010. To receive a hard copy, please write to:
National Lawyers Guild—Prison Law Project
132 Nassau Street, Rm 922
New York, NY 10038
Donations of $2 (or more) to help offset postage and shipping are greatly appreciated.●