By David M. Greenwald
Executive Editor
OAKLAND, CA – AB 2942 passed into law in 2018, revising California Penal Code (PC) section 1170(d) and creating for the first time a prosecutor-initiated resentencing mechanism to allow prosecutors to look back at unjust, excessive sentences.
Hillary Blout, a former prosecutor in San Francisco, formed the group For the People, to push for the legislation, and now a pilot program—1170(d)—has been funded in nine California counties to the tune of $18 million over the next three years.
The participating counties include Los Angeles, Santa Clara, San Francisco, Riverside, Contra Costa, San Diego, Yolo, Merced and Humboldt.
“The diversity of these counties is intentional—not only in geography, but in voter base, prosecutor leadership, reentry resources, prison population, and incarceration rates,” the group noted in its announcement.
But as Blout told the Vanguard, it is also evidence that this is not merely more progressive legislation.
“This is not for just progressive prosecutors. This is for all prosecutors,” Blout explained. “We work with prosecutors across the political spectrum on purpose because our view is that every prosecutor, a conservative, moderate, you know, progressive blue, red whatever, that they need to be involved in this work.”
Blout noted that California is both big and diverse.
“The way that Humboldt runs is going to be far different than the way that LA County runs,” she said. “The constituents and the voters are also different.”
But even though, on the one hand, Mike Hestrin and some others are known for being traditional law and order and Chesa Boudin (San Francisco) and George Gascón (Los Angeles) are seen as progressive, there was common ground here.
“All of the DAs that we talk with, they all resoundingly agreed that if a person is serving a sentence that is unjust, that person should not be there,” said Blout, adding, “If the person is rehabilitated and is simply not the person that they were when the crime was committed, and there is, you know, there’s enough there for the prosecutor to understand and be able to go back to the court and say, your honor, this person, can be released, they should be out.”
The counties are not only diverse, but the approach taken by the counties the Vanguard was able to talk to was very different as well.
Los Angeles County
Los Angeles County is not only the largest county in the state, it is the largest in the country. The Los Angeles DA’s office will get $2.2 million through the grant, but as Diana Teran, the DA in charge of the program pointed out to the Vanguard, that’s not a lot of money given that LA County has in total over 30,000 in custody.
Alex Bastian pointed out that “past administrations were heavily reliant on the carceral state, and there’s a review process going into these resentencings that really mandates us to be thorough.
“We do things through the lens of public safety,” he said. “We want to make sure we make good decisions that advance public safety.”
Los Angeles is right now focused heavily on individuals who under the three strikes law were sentenced to life in prison for a non-serious third felony, which prior to 2012 when the law changed, was still permissible.
They are looking at those who are over 50 years old, have served more than 10 years and have no prior “super strikes” and are not sex offenders.
“The number of individuals that are still in custody because of the 90s three strikes law that would not be in custody but for the fact that they were convicted prior to 2012 is much, much greater than that, but we’re choosing to focus on those individuals first that are over 50 years old,” Teran explained.
Alex Bastian noted, “We are also assisting CDCR with their exceptional conduct referrals to the court, to ensure that they are properly being considered for purposes of re-sentencing.”
This process was already underway well before the budget was approved. But the process is large and cumbersome, Bastian explained.
“We’ve already received thousands of letters,” Bastian said. “The reality of the situation is we’re trying to be very efficient with our resources. And we want to be able to process this as fast as possible.”
He added, “This can be a very cumbersome process especially for a county like LA where the prior administrations have been so overly reliant on carceral state.”
The LA DA’s office explained that Gascón intends to look at all the cases where the people have already served 15 years, but “we can’t look at all of them the same time. So what we had to do is establish tiers of individuals and decide.”
“There are way too many that qualify,” Teran explained, noting that they have over 9,000 requests so far. “So rather than try to process the request or try to prioritize individuals with attorneys, we decided instead to prioritize individuals that we think posed the lowest risk to public safety, those individuals that have already been determined by CDCR to be at a very low risk of recidivating, as well as those individuals because of their age or because of the crime that they’re in custody for are not a danger to society.”
Once they have reviewed those individuals, they will go on to the next tier, Teran noted.
Contra Costa County
Risk that the person released will commit another crime is at the back of everyone’s minds. However, the general consensus is that the long and cumbersome process itself acts as a safeguard against release of a dangerous person. In addition, the people that many offices are releasing also mitigates against that.
Simon O’Connell last week was named Acting Chief Assistant District Attorney in Contra Costa County, and explained to the Vanguard that their DA’s office has criteria, similar to that of other counties.
“We’re looking to reevaluate individuals who were sentenced to what by current standards is probably a disproportionate sentence to the nature of the offense that they committed,” he said. Contra Costa is looking at individuals who have served 10 or more years of their original sentence.
O’Connell also explained that they are looking at what they call a “non, non, non-crime, which means it was non-serious, non-violent…and it was a non-sex offense with required registration pursuant to PC 290.”
They also look at burglaries that occurred with no one home or no one hurt, and robberies committed under the age of 25 at the time they committed their offense.
On the other hand, O’Connell said that anyone convicted of a super strike, which would result in life without parole, would be automatically excluded.
It is a long process and O’Connell said that they will often work with Blout and her staff to get a profile of the individual. He noted that while they have lots of information about what occurred at the time of the offense, “we don’t have a lot of information about where they are today.”
For the People helps to create that profile to give them an accurate view of what the person has done since they have been incarcerated.
Contra Costa also looks at classification scores—assessing risk to staff and other incarcerated people. In general, the lowest possible score somebody can have is a zero, but if they have a life sentence, the lowest they can have is a 19.
Contra Costa has released two individuals so far, one had a zero and one had a 19. But either way, this is not a quick process.
“This is a journey, it’s a marathon, it’s not a sprint,” O’Connell said. “We want to make sure that we’re finding the right individuals to receive the benefit of this program and exercising our due diligence, because there’s no taking it back.
“There’s no going back another time to say that resentencing wasn’t the right decision to make. So we need to be as certain as we can on future predictors as to what the ultimate outcome is going to be in order to make sure this is successful not only for the inmate, but the community and the victims who were impacted all those years ago,” O’Connell noted.
Victims
Last summer we discussed the San Francisco DA’s program with Dana Drusinsky. One of the key components of the program is that the victims are included in the process.
Drusinsky told the Vanguard that the DA’s office contacts the victims or family members of the victim in every single case.
She explained that many times the victims agree with re-sentencing, noting that many of the people who are being resentenced have already served lengthy prison sentences, even several decades long.
She explained that the risk of recidivism for many of these people is quite low, especially considering their ages upon release.
Hillary Blout also noted that there are robust safeguards and careful planning here to ensure that victims are involved and that community safety is prioritized.
She explained, “The checks and balances are built in, it has to go through the DA’s office. And then the public defender is coordinating to get together a really strong re-entry plan coordination with the parole and community to make sure that the services are available.”
“This is not the opening of the flood gates where there’s no concern or consideration for victims or concern for our communities. This is a thoughtful process,” she added. “In each case, the victims are all notified, called, contacted, brought in if they want to know more about the decision.”
Remarkably, she said, “We have yet to have a case where the victim has opposed a person getting re-sentenced after they understand the process, the due diligence, the detail, and the rehabilitation and redemption story.”
Blout explained, “I think that’s, I think that people don’t understand what goes into the process of making this kind of recommendation, but it’s certainly paramount and that is keeping our community safe.”
The Public Defenders
In the grant, while a majority of the money goes to DA’s offices, a not insignificant amount goes to public defenders who are tasked with ensuring that incarcerated people are represented in the process.
Danica Rodarmel of the San Francisco Public Defender’s Office confided one thing her office is working on alongside the DA’s Office under Chesa Boudin—Phil Ting’s AB 1540, which, among other things, gives people a right to counsel in these resentencing cases, “which currently does not exist.
“It’s really crazy that they don’t have that right now,” Rodarmel explained. “In places like San Francisco and other jurisdictions, we make sure it happens in our county. But that’s not true everywhere—particularly in counties where there is not a public defender’s office.”
Furthermore, she explained, “Currently there’s nothing in the statute that requires the courts to even act on these referrals when they get them. So that’s not much of a problem with DA referrals, right? Cause they’re there in the county and they know how to get the court to pick up their referrals and work out the cases. But for CDCR, about 50 percent of the cases they’ve referred back to court under 1170d have not been acted upon at all.”
When we spoke to the San Francisco’s DA’s office last summer, the number was in the teens. According to Rachel Marshall of San Francisco DA’s office, that number is now 51—the number that has been granted in San Francisco.
“Under DA Boudin’s leadership, our office has been a pioneer in reviewing excessive sentences and have resentenced 51 people already. The additional funding will provide us with the opportunity to examine the approximately 400 cases still requiring in-depth review. We intend to hire additional staff members to review these cases and to develop reentry plans in the cases deemed appropriate for release,” Marshall, Director of Communications, told the Vanguard in a statement.
One of the roles that public defenders play in this is helping people navigate through the process and handle the court procedures.
In addition, Rodarmel explained, “we do a lot of other supportive services and help people plan for re-entry.”
A lot of people being resentenced “have been in prison for really long periods of time, and they need to have an advocate that they can be really open with about their needs or their fears about going home.”
She said, “That is always going to be defense counsel over the DA’s office, even when the DA is initiating the process.”
Like the others that we talked to, Danica Rodarmel believed the process was not conducive to one where dangerous people would be let out.
Referring to even progressive DAs like Chesa Boudin and George Gascón, “they don’t have the power to let people out. Judges have the power to let people out and judges are disinclined from letting people out.”
She said, “What we’ve seen is the reality is the more progressive the DA, the more conservative the bench becomes. We’ve got a system of ‘checks and balances.” She said as the DA becomes more progressive, the judges, it seems, become more conservative.
The 1170(d) resentencing, she said, “is a great tool for particularly people who’ve been in prison for very long periods of time, or maybe aren’t going to qualify for some other kinds of relief, but are like elderly or sympathetic in some other way where their case, I mean, we should be doing a lot more individual analyses of people inside.
“We try to create these one size fits all processes and policies and the reality is, you know, people are individuals and should be looked at as such and many, many, many, many folks that we have in state prisons right now, clearly are not dangerous, are very ready to go home and those people should be looked at and given that opportunity,” she added.
Riverside
Another county that has received the grant money is Riverside.
“We have already been working with For The People to review individuals who meet the requirements for resentencing,” John Hall, Public Information Officer of the DA’s, Office told the Vanguard in a statement last week.
He explained, “We work with our assigned deputy district attorney to compile the appropriate records and present the cases to our Conviction Review Committee.”
In doing so, “we evaluate the individuals identified by For The People who have a demonstrated track record of addressing the issues which led to their incarceration. If it is determined that they have accepted responsibility for their criminal conduct, and have a well-structured plan for reentry into society, then we evaluate them to determine if resentencing would be appropriate.”
Like in other counties, victims are an important part of the process.
He said, “We also notify the victims of crime and ensure they have a voice in the process and are in agreement with the early release plan.”
Yolo County
Yolo County Chief Deputy Public Defender Ron Johnson told the Vanguard, “Since the beginning of 2019 when the law went into effect, our office has been reviewing cases that we think are good candidates for resentencing and then forwarding cases to the district attorney. We then work alongside the organization that the DA contracts with, For The People as they prepare their review for the DA.”
He explained that this process started very informally but has developed over the time.
“(It) is still lacking a clear process and has been somewhat hindered because of lack of additional resources to do the work,” he explained.
“The current legislation allows the DA to recommend recall of sentences but does not provide for individuals to petition themselves, so the work is necessarily collaborative and is limited by what the DA is willing to move forward on. Our office has primarily looked at cases that we were already reviewing for other types of post-conviction issues, such as youth offender parole preparation,” he added.
Johnson hopes that the new pilot program will allow the process to become more formal and also expand the scope of the work.
“There are scores of incarcerated people serving extremely lengthy sentences who no longer pose a risk to public safety,” Johnson added.
He pointed out, “Generally speaking, without the changes made in 2019, there is no avenue to ask the courts to take a second look at their sentences and look at them as the person they are today rather than the person they were when they committed their crime, usually at a fairly young age, and ask whether it is still in society’s interest to stand by that original sentence.”
According to the public defender’s office, they have freed six clients under 1170(d) in Yolo County so far. That number was cited as well by the DA’s office in a release.
“Despite the partnership with ‘For the People’ and the UCD Law School, only a small number of cases can be reviewed annually. Recognizing the amount of work required to undertake a sentence review and the limited resources,” the DA’s office explained.
Cases selected for review have come from a variety of sources, including recommendations from the public defender’s office, family members of incarcerated individuals and the Yolo DA’s own internal review.
“The Public Defender’s Office has assisted inmates by preparing social histories and release plans. Those who have received sentence reductions have either undertaken extensive rehabilitative efforts and/or their sentence is now considered too lengthy,” they continued.
“Public Safety is our main priority,” explained District Attorney Reisig. “However, if an individual has undergone rehabilitative efforts such that they no longer pose a threat to public safety, it is right and just to review that sentence. We also must be willing to analyze prison sentences that are disproportionate by today’s standards. This funding will allow us to expand our case review and continue to work in partnership with the Public Defender’s Office, UC Davis Law School, and ‘For the People.’”
The pilot begins on Sept. 1, 2021, and ends on Sept. 1, 2024.
Paul Redd
One of those people was Paul Redd. The Vanguard’s Ruby Wilks wrote a comprehensive story about him last summer.
In 1975, a San Francisco jury found then 19-year-old Oakland resident Redd guilty of first-degree murder of a local drug dealer, and he was subsequently sentenced to seven years to life in prison.
While Redd may not qualify for relief under some counties, his case is interesting because it became an avenue to free a man for whom there was evidence that he was wrongly convicted—and convicted only on the evidence of another man who pleaded guilty to a lesser charge.
San Francisco Public Defender Danielle Harris informed Redd that she was going to pursue his release under 1170(d) and after that she submitted the package to the San Francisco District Attorney’s Office, and San Francisco District Attorney Chesa Boudin recommended the court recall Redd’s sentence.
By mid-May of 2020, Redd said, “We had a conference call with the judge, and everything else is history. The judge vacated my murder conviction, gave me manslaughter credit for time served, and ordered I be released immediately. Within four or five days, I walked out of Vacaville.”
Derric Lewis
In May of this year, the Contra Costa DA’s Office was able to get Derric Lewis resentenced under the law as well.
Lewis, according to an article in the San Francisco Chronicle, was sentenced to 27 years in prison in 2004.
“He rode BART to Orinda, walked into an occupied home and stole a purse, then swiped a specialized bicycle from a nearby shed. His total loot was worth about $425,” the Chronicle explained. But it was his third strike.
DA Diana Becton said she believes the punishment was excessive.
Lewis, 61, became the first person released under AB 2942. He will serve two years of parole, will get public services to help him re-enter society, and live in transitional housing.
Lewis also reportedly earned his GED while in prison and finished a number of college level courses while tutoring others.
CONCLUSION
Blout pointed out that they were completing their third year of work on this project—and the last year and a half has been in the middle of a pandemic.
One plan has been to support other states—similar laws, for instance, were passed this year in Oregon and Illinois. There are several other leaders and community leaders who want to have the ability to do this in their communities.
“What’s next for us is to try to support and lift up these stories and what we’ve been able to do in California as a roadmap for what other states, other counties, other communities, can do in their jurisdictions,” Blout said.
“I think that that’s really what’s next for us, is to use what we’ve learned in California and be able to sort of share that with the rest of the country,” she added.
And Lucas Frerichs is a former Dvais maor
Seems odd we’re fighting three strikes with re-sentencing. I’ve never believed in three strikes. Better to re-vote that – not sure it would pass now – then deal with the sentences retroactively.
Alan – You’re not wrong. But there is a but here. We actually did vote in 2012 to change it, but there wasn’t a good look back mechanism. I had this conversation last week on wrongful convictions with Chesa Boudin, ironically. He said the real fix here is to avoid wrongful convictions in the first place. I agreed, but you still need a way to get people out who don’t belong there. 1170D of course goes way beyond third strike cases to any case that is unjustly long and where the person has made progress, but there still has to be a mechanism.