COMMITTEE ON REVISION OF THE PENAL CODE STAFF M EMORANDUM November 10, 2020 First Supplement to Memorandum 2020-15 Parole Release and Penal Code Section 1170(d)(1) Resentencings Panelist Materials Memorandum 2020-15 gave an overview of parole release and Penal Code Section 1170(d)(1) resentencing, the topics of the November 12–13, 2020, meeting. This supplement presents and summarizes written submissions from the panelists scheduled to appear before the Committee at its November meeting. Exhibit Parole Release Keith Wattley, UnCommon Law ..........................................................................A Heidi Rummel, USC Gould School of Law ........................................................B Jennifer Shaffer, Board of Parole Hearings ........................................................C Resentencing Under Penal Code § 1170(d)(1) Hillary Blout, For the People ................................................................................D Hon. J. Richard Couzens (Ret.) .............................................................................E Perspectives on Life Sentences Sam Lewis, Anti-Recidivism Coalition ................................................................F Adnan Khan, Re:Store Justice ..............................................................................G Shanae Polk, 2nd Call ............................................................................................H Perspectives on the Penal Code Anne Irwin, Smart Justice California ...................................................................I Jay Jordan, Californians for Safety and Justice ..................................................J Discussion Panel 1 Parole Release Keith Wattley, Executive Director, UnCommon Law Keith Wattley is the Founder and Executive Director of UnCommon Law, which represents people at parole hearings. He notes that though California law provides that parole “normally” be granted, the grant rate for eligible parole applicants is less than 20%. One reason for this is the mismatch between programs – 1 – that parole boards look for and what is actually available to people in prison. Additionally, many people in prison are survivors of untreated childhood trauma, which often prevents them from achieving the type of “insight” that the parole board wants to see. Similarly, each parole commissioner has a subjective understanding of what constitutes a sufficient expression of remorse — a concept that has “no substantial empirical data” linking it to dangerousness. Mr. Wattley concludes with a few specific policy suggestions: (1) strengthen the presumption in favor of parole, (2) forbid subjective assessments of insight or remorse in parole decisions, (3) provide the programs that the parole board expects people to complete, and (4) give courts more power to reverse improper parole denials. Mr. Wattley also suggests that California hold a series of hearings on each of these topics and that a pilot program to administer trauma testing in prison be created. He also includes an appendix of anonymized cases where courts rejected the Board's conclusions about lack of insight. Heidi Rummel, Director, Post-Conviction Justice Project, USC Gould School of Law Heidi Rummel is the Director of the Post-Conviction Justice Project at the USC Gould School of Law. Ms. Rummel’s submission is an amicus brief that argues that the Board of Parole Hearing’s regulations and practices violate constitutional requirements because they divorce the length of someone’s confinement from their culpability for the crime. BPH engages in a post-conviction “suitability” analysis that can result in two people who committed the same offense under identical circumstances and who received the same indeterminate sentence ultimately serving vastly different terms of confinement based on subjective administrative judgments. This vagueness in sentencing invites arbitrary enforcement and denies fair notice to defendants, violating due process. The brief argues that BPH’s procedures were not always this way, but regulatory shifts (unsupported by any legislation) since the creation of the Determinate Sentencing Law in the late 1970s have resulted in an unconstitutional system. Jennifer Shaffer, Executive Officer, Board of Parole Hearings Jennifer Shaffer is the Executive Officer for the California Board of Parole Hearings. Her extensive submission details how parole hearings operate and how parole commissioners are trained, and includes statistical information about parole grant rates. In particular, Ms. Shaffer explains that in the last 10 years, BPH approved release for more than 16,000 people (page 1). She also notes that 2017 – 2 – marked the first time in 34 years that more people serving life sentences were released from prison than were admitted (page 12). She describes the three forensic tools that BPH psychologists use to assess parole candidates (page 7, note 20) and that the average length of a parole hearing is two and a half hours (page 8). She also notes that BPH has a robust process for advancing parole hearing and that this contributed to an increase in the number of people granted parole every year — a number that has almost doubled in the last seven years (pages 15-16). On the issue of what BPH’s parole grant rate is, she suggests that the grant rate should be calculated as a percentage of the hearings actually held, which significantly increases the grant rate because around 40% of all scheduled parole hearings do not occur every year (page 18). Finally, Ms. Shaffer describes the extensive training that parole commissioners receive (pages 23-25, and Appendix C). and new training recently implemented for appointed counsel (pages 26-27). Discussion Panel 2 Resentencing Under Penal Code § 1170(d)(1) Hillary Blout, Executive Director, For the People Hillary Blout is the Founder and Executive Director of For the People, an organization that provides resentencing support to prosecutors and incarcerated people. Ms. Blout’s submissions provides some statistical background on the racial disparities in California’s prisons and the expense associated with incarcerating people in prison. She then describes her organization’s work with eleven prosecutor’s offices to complete sentencing review that may result in a referral for resentencing under Penal Code § 1170(d)(1). She notes that this work has eight phases — including gathering extensive records — and that the work for a single case can range from 30 to 50 hours and cost from $2,500 to $5,000. She makes three recommendations for the Committee’s consideration: (1) providing guidance in § 1170(d)(1) about how gang enhancements should be considered during a resentencing, (2) clarifying whether a resentencing under § 1170(d)(1) can result in striking special circumstances findings that led to death or life without parole sentences, and (3) clarifying whether a § 1170(d)(1) resentencing can reduce or otherwise address a 25-to-life sentence. Hon. J. Richard Couzens (Ret.), Superior Court, Placer County Judge Couzens is a retired Superior Court judge from Placer County, and the author of treatises and other widely used references on California criminal law. – 3 – His submission is a memorandum he prepared offering guidance to trial courts that receive referrals for resentencing under Penal Code § 1170(d)(1). Judge Couzens suggests that if a judge concludes after an initial review that resentencing is inappropriate, the judge can reply via letter to CDCR that they are declining to conduct a resentencing under § 1170(d)(1). But if an attorney for the person to be resentenced objects to that conclusion, the court should then set and initial status conference, most likely without the defendant being present. The goal of the status conference is to reach a resolution agreeable to all the parties. If that is not possible, the court should conduct a contested hearing and then make a final determination. This structure includes appointing counsel if the initial status conference is held, but does not contemplate doing so before a judge makes an initial determination about the request for resentencing. His memo also does not specifically address requests for resentencing made by local prosecutors. Discussion Panel 3 Perspectives on Life Sentences Sam Lewis, Executive Director, Anti-Recidivism Coalition Sam Lewis is the Executive Director of the Anti-Recidivism Coalition, which provides a support network, comprehensive reentry services, and opportunities to advocate for policy change to incarcerated and formerly incarcerated people. Mr. Lewis’s submission focuses on programming at CDCR. He briefly describes the different types of programming available to people in prison and suggests that more extensive programming be made available at reception centers, where people are first placed when they arrive at prison. Adnan Khan, Executive Director, Re:Store Justice Adnan Khan is the Executive Director and co-founder of Re:Store Justice, an advocacy group he co-founded while incarcerated. His submission details his experience in being prosecuted and convicted for first-degree murder under the felony-murder rule. He describes the events that led to his conviction and the disparity in outcomes for those involved. Namely, Mr. Khan, who did not actually commit the killing, was convicted and sentenced to 25-life, while the actual killer was convicted of second-degree murder and sentenced to a shorter term. Before he was sentenced, a probation report concluded that Mr. Khan was remorseful, had no propensity