Friday, October 13, 2017

Gov. signs AB 1308 to expand Youth Offender to 25 y.o.

SACRAMENTO – On October 11,2017 Governor Edmund G. Brown Jr. signed legislation to improve California’s criminal and juvenile justice systems, restore the power of judges to impose criminal sentences and reduce recidivism through increased rehabilitation.

The Governor signed the bills enumerated below (among others) but of immediate importance to the current Youth Offender (ISL/DSL) Lifer or Determinate inmate population are:

 • AB 1308 (Stone) expands the Youth Offender parole process for persons sentenced to lengthy prison terms for crimes committed before age 23 to include those 25 or younger. BOTTOM LINE:
Both Inderterminate (ISL) and Determinate (DSL) inmates that committed their crime at the age of 25 years old (the day of the crime Not the sentencing day) or under will be eligible for a Youth Offender Hearing on or before January 1, 2020 and January 1, 2022, respectively. Furthermore those youth offender inmates will receive a CONSULTATION by meeting with a Commissioner on or before January 1, 2019.

NOTE: CONSULTATION HEARINGs are not hearings and no attorneys are allowed at the Consultation.  It is only a Consultation with a Commissioner to give a brief orientation to the inmate (Youth offender) on what s/he needs to work on before his/her actual Youth Offender Parole Suitability Hearing.

• AB 1448 (Weber) allows the Board of Parole hearings to consider the possibility of granting parole to an elderly prisoner who has served at least 25 years in prison. This bill will codify the 3-Judge Panel guidelines to give special considerations to the Elderly inmates. BOTTOM LINE: if the inmate is 60 years old and has been incarcerated at least 25 years, he will qualify for an Elderly Parole Hearing. The Board of Parole Hearings (BPH) will normally look at health factors, cognitive functioning, as well as mobility issues during the Elderly Parole Suitability Hearing. This is NOT to be confused with the Expanded Medical Parole (EMP) hearings nor the Compassionate Release. If you need more information on the difference on this terminology consult an attorney, familiar with this area of the law.

• SB 394 (Lara) ensures compliance with U.S. Supreme Court decisions by allowing children sentenced to life without the possibility of parole (LWOP inmates) to be eligible for a parole hearing after 25 years of incarceration. BOTTOM LINE: they will not need to file a Petition in Court to lift the LWOP top; unlike the old SB9 and Miller V. Alabama Petition that needed to be filed in Court to be re-sentenced the inmate as a Lifer with Possibility of Parole.


It is expected that these Laws will become effective as of January 1, 2018. It will surely increase the work load of all the 15  Governor appointed Commissioners working at the Board of Parole Hearings (BPH) - be patient the NOTICES will surely be provided to the inmates in the near future if they qualify as a youth offender - BE PATIENT but BE PREPARED. If you feel BPH made an error in finding your loved one NOT eligible you may want to hire an attorney that is familiar with these new laws and the Parole Hearing area.

Wednesday, September 27, 2017

In re Palmer (7/26/2017): BPH to give "deferrence" to Youth Factors

Case Name: In re Palmer , District: 1 DCA , Division: 2 , Case #: A147177
Opinion Date: 7/26/2017 , DAR #: 7132

Case Holding:
Board of Parole Hearings' refusal to calculate base and adjusted base term at inmate's parole hearing entitles youthful offender to new hearing. In 1988, when he was 17 years old, Palmer pleaded guilty to kidnapping for robbery. He was sentenced to life with the possibility of parole and has since been denied parole 10 times.

At his most recent parole hearing in June 2015, the Board issued a five-year denial of parole and refused Palmer's request to calculate his base term and adjusted base term, stating it did not set terms for youthful offenders. Palmer filed a petition for writ of habeas corpus, arguing the settlement terms of In re Butler (2015) 236 Cal.App.4th 122 required calculation of his base and adjusted base terms. After the court issued an order to show cause, the Board calculated Palmer's base term and adjusted based term. Held: Petition granted.

The Butler settlement requires the Board to set the base terms and adjusted base terms for life inmates at their initial parole consideration hearing, or in their next scheduled parole consideration hearing that results in a grant of parole, denial of parole, a tie vote, or a stipulated denial of parole. Unlike the parole suitability determination, which focuses on current dangerousness, the setting of the base term is designed to insure that life prisoners do not serve terms disproportionate to their individual culpability. The adjusted base term indicates the point at which a denial of parole will result in constitutionally excessive punishment, and the Board must consider the relationship between the adjusted base term and time served before denying parole.

Here, the Board did not calculate Palmer's base and adjusted base term until after it issued a five-year denial of parole so the issue of excessive punishment was not factored into the term of the Board's denial. Palmer's June 2015 parole hearing did not comport with Butler and the Court of Appeal ordered the Board to conduct a new hearing in light of the terms it now has set for Palmer.

[CCAP Editor's Note: Justice Kline filed a concurring and dissenting opinion, agreeing that Palmer is entitled to a new hearing but questioning whether it is proper for the Board to apply the same base term criteria to youth offenders as it does to adult offenders, an issue the court expressly declined to address. In Justice Kline's opinion, the base term for youth offenders should be adjusted to reflect the "diminished culpability" of juveniles as compared to adults.]





NOTE: It is very worth while to read  Justice Kline's well articulated opinion on the "dimished culpability" of the youth offenders - which is not reflected ANYWHERE in Title 15 CA code of Regs. (aka the matrix) that is used in setting the Base Terms during a Youth Offender's Parole Hearing.

A BIG THANK YOU to CCAP's weekly summary of case Editor(s)!

The full opinion is available on the court's website here: http://www.courts.ca.gov/opinions/documents/A147177.PDF

Wednesday, August 9, 2017

Senate Concurrent Resolution SCR 48: What is it and How would it impact Inmates?

Our law office received several inquiries on SCR 48, thus it was best to provide a good article Excerpt from the July 2017 LSA Newsletter - written by Vanessa Nelson of LSA.

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A basic understanding of the legislative process starts with knowing the difference between AB and SB bills; in California as well nationally, there are two houses in the legislature.

In California those are the state Senate and the Assembly. Bills (potential laws) that originate in the Senate are labeled SB, and those starting in the Assembly as AB.

So what is an SCR?  SCR stands for Senate Concurrent Resolution. Breaking it down, this piece of quasi-legislation originated in the Senate, concurrent means the other chamber (the Assembly) agrees, with the language, the resolution.

More particularly, what is SCR 48, where is it in the legislative process and what, if anything, will it do to change laws relative to lifers? The short answer to the last part of the question is; nothing, yet.

According to the California legislature, a Continuing Resolution is “A measure that can be introduced in either House, but must be approved by both Houses and filed with the Secretary of State to take effect. The Governor’s signature is not required.” In fact, the resolution is not even submitted to the Governor, and thus a resolution, even one approved by both houses of the legislature, does not have the force of law.

In this case, SCR 48, which has passed the Senate and has good chance of passage in the Assembly, expresses the intention of the legislature to “recognize the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.” Specifically, if this resolution at some point becomes the basis for a bill, it would impact the felony murder law.

Quoting from the language of the resolution: “It is a bedrock principle of the law and of equity that a person should be punished for his or her actions according to his or her own level of individual culpability; reform is needed in California to limit convictions and subsequent sentencing in both felony murder cases and aider and abettor matters prosecuted under “natural and probable consequences” doctrine so that the law of California fairly addresses the culpability of the individual.” The language continues, the felony murder rule is “is fundamentally unfair and in violation of basic principles of individual criminal culpability,” and “In California, people who commit a felony are not sentenced according to their individual level of culpability.

Cut to the chase, after several more ‘whereas’ statements, which lay out all the issues with the felony murder law, the resolution gets around to business, that the legislature “recognizes the need for statutory changes to more equitably sentence offenders in accordance with their involvement in the crime.”

Thus the legislature has expressed its collective feeling that the felony murder rule is inappropriate, unjust and costly. Now, if only next legislative session, someone will just take that resolution and turn it into an actual Bill, passage of which could actually change that the law.

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A BIG THANK YOU [to our strong Lifer Advocate Vanessa Nelson] out of the Sacramento area which is well located (in the Capital city) to advocate and support new laws.

**  EXCERPT from: Vanessa Nelson-Sloane’s Article from the from Life Support Alliance (LSA) July 2017 newsletter - thank you for clarifying SCR 48 and its process in the law making procedures.