A Los Angeles County judge responsible for reconsidering the life prison terms of more than 1,000 offenders sentenced under the state's three-strikes law began the process Monday at a hearing where he reduced the punishments for five inmates convicted of relatively minor crimes.
Among those given shorter sentences was a 74-year-old who has served more than 15 years for possessing $10 worth of drugs and an 81-year-old behind bars for more than 17 years for stealing dozens of packs of cigarettes.
The hearing came three months after voters overwhelmingly approved Proposition 36, which softened California's tough three-strikes law and allowed many inmates sentenced for non-serious and nonviolent offenses to ask for shorter prison terms. In Los Angeles County, the hearings are expected to continue through at least much of this year.
Prosecutors who had reviewed the prison records and criminal histories of the five inmates argued that they were suitable for release and that none posed an "unreasonable risk of danger to public safety." Under the new law, judges must reduce the sentences for eligible inmates unless doing so would endanger the public.
Deputy Dist. Atty. Beth Widmark, however, argued that the inmates should nevertheless be placed under the supervision of probation officers after they are released. Since the men have already served longer terms than their new sentences, they will be released from prison in the next week or so. Widmark cited the inmates' lengthy criminal histories and noted that they had each spent more than a decade behind bars.
Judge William C. Ryan acknowledged that such supervision would probably enhance public safety. But he said he could not legally place the offenders on supervision because they had already served well beyond their new terms and any period of supervision that would normally have followed their prison stint.
Widmark expressed concern about one inmate in particular. Randall Martinez's third strike, she noted, was for stealing four locks worth less than $70 from a hardware store in 1999. But the prosecutor also recited a long list of his prison violations for drug use, including possession of cocaine, heroin, marijuana and methamphetamine. Last year, she said, Martinez was caught with a syringe.
"Does he need supervision? Absolutely," Widmark said.
"I don't disagree with you," the judge responded.
Throughout California, about 2,800 prisoners are eligible to ask for reduced sentences, with an estimated 1,050 from Los Angeles County.
Mike Reynolds, whose daughter's 1992 murder led him to spearhead the creation of the three-strikes law, decried the release of resentenced prisoners without supervision.
"No one is following what they're going to be doing," he said. "I see it as a very dangerous precedent."
Michael Romano, who helped write the proposition and runs a Stanford Law School project that represents inmates convicted of minor third strikes, said state Department of Corrections and Rehabilitation data show that inmates eligible for resentencing are less likely to re-offend than the vast majority of other prisoners. Romano said the success of such inmates will depend on whether counties can provide them the drug treatment, housing and job training resources they need following release.
Unlike some counties where many courts handle such hearings, Los Angeles County has assigned a single judge — Ryan — to determine all of the re-sentencing requests, partly in an effort to ensure that the decisions are consistent.
Ryan's court has been deluged with more than 1,000 requests, with the first arriving a day before the Nov. 6 vote. On a recent day, in the office of a court research attorney who reviews the cases before they get to Ryan, thick stacks of court files and requests covered the carpet. More than 300 of the requests were filed by inmates, the rest by attorneys.
"They came in like a hurricane," Ryan said in a recent interview. "I am taking everything, even if it's in crayon, as long as it has the right information."
Ryan said he wanted a careful vetting of any potentially dangerous inmates before deciding whether they should be resentenced. Prosecutors, he noted, have been reviewing the prison records of those who are asking to be resentenced to determine whether they were violent behind bars.
The Law Offices of Justin E. Sterling provides trusted and experienced representation to individuals facing potential third-strike consequences. Recently, our practice obtained an outright dismissal for a client who was facing life in prison under California's Three Strikes Law. Click here and take a look for yourself.
Friday, February 15, 2013
Tuesday, February 5, 2013
A Step Forward For Jobseekers With Criminal Records
The mass incarceration of minority communities, and the resulting mass reentry and lifetime collateral consequences, have created the “perfect storm” to ensure that criminal record-based employment discrimination serves as a surrogate for race-based discrimination. Jobseekers with criminal records are often at the “back of the line.” In the current economy, that line has grown considerably.
But in a recent 4-1 bipartisan vote, the U.S. Equal Employment Opportunity Commission (EEOC) showed tremendous leadership and courage by issuing a revised guidance encouraging the hiring of individuals with records by clarifying the application of Title VII to criminal records. This decision gives jobseekers with criminal records a renewed opportunity to successfully enter the labor market.
But the by-product of mass incarceration—mass reentry—means that this year alone 700,000 people will return to their communities from prison.
Millions more will cycle through our courts and jails or be placed under some other form of correctional supervision. More than half of these men and women come from and return to impoverished communities that are under resourced and ill-equipped to respond to the large number of returning citizens.
On their return to the community, these individuals are expected to find and maintain gainful employment. And, let there be no mistake, those that can work want to work.
However, over the past few decades, state and local legislatures have promulgated a wide array of laws and policies that make it increasingly difficult for people with criminal records to enter the labor market successfully— even for those who have fully paid their debt to society and have demonstrated that they are not a threat and are capable of becoming productive, tax-paying citizens.
Legal restrictions, occupational bars, inadvertent and deliberate employment discrimination practices, and the cultural stigma associated with having a criminal record have prevented many of these people – especially those who come from economically distressed communities of color – from obtaining employment and other necessities of life.
In addition, researchers from around the country confirm that the majority of private- sector employers have little or no interest in hiring people with criminal records, especially those recently released from state and federal correctional facilities.
When many individuals inevitably fail to reintegrate and are re-incarcerated, they are not the only ones who suffer. So do their families, communities and indeed the entire country; valuable lives are wasted, the public is less safe, and justice is diminished. Finding effective ways to manage their reentry into society and the workforce is critical to promoting public safety and curbing recidivism rates and the high costs of re-incarceration.
The new guidance supersedes the original version issued in 1987, and reminds employers that criminal record policies have a disparate impact based on race and national origin. According to the new guidelines, employers must consider the age and seriousness of the offense, and its relevance to the job the applicant is applying for. Employers must also now conduct individualized assessments when screening applicants with criminal records.
This new provision will offer qualified jobseekers a chance to explain their involvement with the criminal justice system, in addition to providing them an opportunity to share evidence of rehabilitation. This will help to level the playing field and offer jobseekers with criminal records a chance to compete on the merits, once their criminal record is taken into account.
Surprisingly, the new guidance also encourages employers to consider recent research on “desistance,” when designing their human resource policies. This is an especially important provision, since most employers rely on often ill-informed and misguided notions about risk and recidivism.
The EEOC's action is a welcome step forward.
But in a recent 4-1 bipartisan vote, the U.S. Equal Employment Opportunity Commission (EEOC) showed tremendous leadership and courage by issuing a revised guidance encouraging the hiring of individuals with records by clarifying the application of Title VII to criminal records. This decision gives jobseekers with criminal records a renewed opportunity to successfully enter the labor market.
But the by-product of mass incarceration—mass reentry—means that this year alone 700,000 people will return to their communities from prison.
Millions more will cycle through our courts and jails or be placed under some other form of correctional supervision. More than half of these men and women come from and return to impoverished communities that are under resourced and ill-equipped to respond to the large number of returning citizens.
On their return to the community, these individuals are expected to find and maintain gainful employment. And, let there be no mistake, those that can work want to work.
However, over the past few decades, state and local legislatures have promulgated a wide array of laws and policies that make it increasingly difficult for people with criminal records to enter the labor market successfully— even for those who have fully paid their debt to society and have demonstrated that they are not a threat and are capable of becoming productive, tax-paying citizens.
Legal restrictions, occupational bars, inadvertent and deliberate employment discrimination practices, and the cultural stigma associated with having a criminal record have prevented many of these people – especially those who come from economically distressed communities of color – from obtaining employment and other necessities of life.
In addition, researchers from around the country confirm that the majority of private- sector employers have little or no interest in hiring people with criminal records, especially those recently released from state and federal correctional facilities.
When many individuals inevitably fail to reintegrate and are re-incarcerated, they are not the only ones who suffer. So do their families, communities and indeed the entire country; valuable lives are wasted, the public is less safe, and justice is diminished. Finding effective ways to manage their reentry into society and the workforce is critical to promoting public safety and curbing recidivism rates and the high costs of re-incarceration.
The new guidance supersedes the original version issued in 1987, and reminds employers that criminal record policies have a disparate impact based on race and national origin. According to the new guidelines, employers must consider the age and seriousness of the offense, and its relevance to the job the applicant is applying for. Employers must also now conduct individualized assessments when screening applicants with criminal records.
This new provision will offer qualified jobseekers a chance to explain their involvement with the criminal justice system, in addition to providing them an opportunity to share evidence of rehabilitation. This will help to level the playing field and offer jobseekers with criminal records a chance to compete on the merits, once their criminal record is taken into account.
Surprisingly, the new guidance also encourages employers to consider recent research on “desistance,” when designing their human resource policies. This is an especially important provision, since most employers rely on often ill-informed and misguided notions about risk and recidivism.
The EEOC's action is a welcome step forward.
A Finding of Factual Innocence
High unemployment rates and a faltering economy tend to make workers with arrest records nervous: That kind of a blot can only make job hunting more difficult. California has a variety of statutory remedies, such as Penal Code sections 530.6 (factual innocence for victims of identity theft), 851.90 (sealing records after a defendant completes a drug diversion program), and 1203.4 (withdrawing a plea after probation is completed). But the broadest protection comes from Penal Code section 851.8, which provides for a petition for factual innocence ("PFI"). The court can grant a PFI for any arrest that did not result in a conviction. (See Cal. Penal Code § 851.8.)
A judge who grants a PFI will order that all arrest and prosecution records be sealed. This seal holds until three years from the date of the arrest, at which time all the related records will be destroyed, including the petition itself, the PFI order, arrest records, state Department of Justice records, and those of any other agency that received information of the arrest (for example, the local police department). Put succinctly, an order granting a PFI wipes the slate clean.
A successful PFI is a godsend to someone who has been wrongfully arrested. And for anyone who may have been properly apprehended but was later acquitted of the charges, a PFI provides something the jury's verdict cannot: a finding of factual innocence - Remember that when a jury acquits someone, it simply means that the prosecution did not meet the burden of proof for guilt; it does not necessarily mean the defendant didn't commit the crime.
In 2012, the Law Offices of Justin E. Sterling launched the Clean Slate Project. The Clean Slate Project extends legal advocacy beyond an arrest or disposition by the court so that clients can avail themselves of opportunities to “clean up” their criminal records.
Friday, February 1, 2013
“Gideon’s Army”: Young Public Defenders Brave Staggering Caseloads, Low Pay to Represent the Poor
Not since PBS's "Presumed Guilty" (which I had the honor of being a part of) has there been a true and raw documentary depicting the work of a public defender.
The new documentary “Gideon’s Army” follows a group of young public defenders in the Deep South who contend with low pay, long hours and staggering caseloads to represent the poor. The film’s title comes from the landmark 1963 Supreme Court ruling in Gideon v. Wainwright that established the right to counsel to defendants in criminal cases who are unable to afford their own attorneys. “Gideon’s Army” director and producer Dawn Porter, and Travis Williams, a Georgia public defender are featured in the film.
The feature documentary premiered at the 2013 Sundance Film Festival and will broadcast later this year on HBO.
Monday, December 10, 2012
Defense Attorneys - 3 Strikes Reform - What To Do Now That Prop 36 Has Been Passed
Here, statute decoder Garrick Byers, talks about the effect of newly approved Prop 36 and its impact on California's Three Strikes law.
http://www.claraweb.us/wp-content/uploads/2012/11/3Strikes-What-to-do-Now-2012-Nov-7-Byers1.pdf
http://www.claraweb.us/wp-content/uploads/2012/11/3Strikes-What-to-do-Now-2012-Nov-7-Byers1.pdf
Prosecutor Suspended for Withholding Evidence In Gang Murder Case
A veteran prosecutor who improperly withheld crucial evidence in a San Jose gang murder case until the brink of trial has been suspended for a month without pay for incompetence and misconduct.
The suspension of Daniel Carr is the maximum penalty District Attorney Jeff Rosen could impose short of demoting or firing the prosecutor, and it cost Carr four weeks' pay -- $16,500. It is the latest example of Rosen's effort to fulfill his campaign promise to share evidence early and fully with defense attorneys to avoid problems that have allowed some prosecutors to ignore judges' orders and conceal evidence.
The problem surfaced early in 2011, shortly after Rosen took office. Twenty-eight days before a group of eight suspected gang members were to stand trial, Carr began revealing a treasure trove of information to their attorneys, including a statement by a co-defendant taken three years earlier and the fact that the alleged murder weapon, a knife, had been discovered in 2008.
Under California law, prosecutors must turn over evidence at least 30 days before trial, though Rosen and many other DAs and judges in California expect it to be turned over far sooner, partly for efficiency's sake. After the belated disclosure of the evidence in this case -- and a last-minute plea agreement by one of the defendants -- the trial was delayed and is now set to start early next year.
Carr's conduct stands out for several other reasons, according to the disciplinary notice, including the sheer volume of withheld evidence, the judge's finding of a violation, the need to reassign the case and the inability of the new prosecutor to know what evidence had been provided to the defense. It took two paralegals three months to figure it out.
But the argument that has gained the most sympathy among Carr's fellow prosecutors is his claim that gang-unit prosecutors commonly withheld valuable evidence from defense attorneys until the last minute to protect witnesses and their families from the very real risk of being knifed or shot by gangsters in retaliation.
However, in February 2009, Carr told Judge Gilbert Brown -- after defense attorneys expressed concern he was withholding evidence -- that he was "not holding anything back.'' Under the law, prosecutors are supposed to seek a judge's permission to withhold evidence, especially in big cases where late disclosure can cause significant delays. Carr argues in his appeal that his supervisors sanctioned the practice of not going to a judge.
After the scandal erupted, Rosen issued a memo instructing other gang-unit prosecutors to immediately turn over any information they were holding unless they got a judge's permission to hold onto it. At least one other prosecutor complied, Carr notes, contending that proves he, Carr, did nothing out of the ordinary. But none of the other gang prosecutors had apparently gone as far as Carr had by amassing a mountain of discovery and exceeding the final 30-day deadline. Carr was motivated by his belief that the defendants were guilty, and was trying to make sure justice was served, according to the notice.
The suspension of Daniel Carr is the maximum penalty District Attorney Jeff Rosen could impose short of demoting or firing the prosecutor, and it cost Carr four weeks' pay -- $16,500. It is the latest example of Rosen's effort to fulfill his campaign promise to share evidence early and fully with defense attorneys to avoid problems that have allowed some prosecutors to ignore judges' orders and conceal evidence.
The problem surfaced early in 2011, shortly after Rosen took office. Twenty-eight days before a group of eight suspected gang members were to stand trial, Carr began revealing a treasure trove of information to their attorneys, including a statement by a co-defendant taken three years earlier and the fact that the alleged murder weapon, a knife, had been discovered in 2008.
Under California law, prosecutors must turn over evidence at least 30 days before trial, though Rosen and many other DAs and judges in California expect it to be turned over far sooner, partly for efficiency's sake. After the belated disclosure of the evidence in this case -- and a last-minute plea agreement by one of the defendants -- the trial was delayed and is now set to start early next year.
Carr's conduct stands out for several other reasons, according to the disciplinary notice, including the sheer volume of withheld evidence, the judge's finding of a violation, the need to reassign the case and the inability of the new prosecutor to know what evidence had been provided to the defense. It took two paralegals three months to figure it out.
But the argument that has gained the most sympathy among Carr's fellow prosecutors is his claim that gang-unit prosecutors commonly withheld valuable evidence from defense attorneys until the last minute to protect witnesses and their families from the very real risk of being knifed or shot by gangsters in retaliation.
However, in February 2009, Carr told Judge Gilbert Brown -- after defense attorneys expressed concern he was withholding evidence -- that he was "not holding anything back.'' Under the law, prosecutors are supposed to seek a judge's permission to withhold evidence, especially in big cases where late disclosure can cause significant delays. Carr argues in his appeal that his supervisors sanctioned the practice of not going to a judge.
After the scandal erupted, Rosen issued a memo instructing other gang-unit prosecutors to immediately turn over any information they were holding unless they got a judge's permission to hold onto it. At least one other prosecutor complied, Carr notes, contending that proves he, Carr, did nothing out of the ordinary. But none of the other gang prosecutors had apparently gone as far as Carr had by amassing a mountain of discovery and exceeding the final 30-day deadline. Carr was motivated by his belief that the defendants were guilty, and was trying to make sure justice was served, according to the notice.
Wednesday, October 3, 2012
Expungement Explained
The first thing that someone who wants to apply for an expungement needs to understand is that if your petition is granted under Penal Code 1203.4, your case is not sealed. A criminal record is not actually "expunged" under this statute. That term implies complete erasure, as if the case had never occurred. A more proper term is "dismissal". The conviction remains on your record for many purposes, including sex offender registration and immigration consequences. What the statute provides is it allows the defendant to be released from all penalties and disabilities resulting from the offense. There are numerous limitations to this relief.
An adult who was granted probation, completed all the terms of probation, and is no longer on probation, is eligible for relief under this statute. He or she must not be on probation, or serving a sentence, for any other offense. (Penal Code § 1203.4).
If you were denied probation you can still obtain an expungement. You still cannot be on probation or serving a sentence for any other case. Applicants must wait one year after their conviction before applying for an expungement (Penal Code§1203.4a).
If your criminal case was reduced to an infraction you are eligible for an expungement under Penal Code section 1203.4a.
What are the effects of expungement under PC1203.4/1203.4a?
It Will:
1. Result in a new entry in the court record showing the dismissal of your case;
2. Allow you to answer on many, but not all, job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government-issued license, certificate, or permit, or a job which involves a security clearance, the conviction will be discovered; in such cases, you should disclose the initial conviction and its later expungement;
3. Prevent use of the conviction to impeach you if you testify as a witness, unless you are being tried for a subsequent offense.
4. If the conviction was for a felony, expungement is the first step in obtaining a pardon.
It Will Not:
1. Remove the conviction from your "Rap Sheet" - California and FBI criminal history records will still show the conviction and the later dismissal "per PC 1203.4";
2. Reinstate the right to possess firearms, if it was taken away (reduction to a misdemeanor may accomplish this if the offense is not one of violence);
3. Remove the requirement to register as a sex offender per PC290. If the expungement is granted, registrants must then complete and file paperwork requesting a Certificate of Rehabilitation, when eligible. A Certificate of Rehabilitation will relieve specified sex offenders from further registration. This is true for both felony and misdemeanor convictions.
4. Allow you to omit the conviction from applications for government issued licenses;
5. Seal or otherwise remove the court case file from public inspection - anyone who knows where to look will be able to find the court case file (probation reports are in confidential files and are not subject to public inspection 90 days after sentencing);
6. Prevent the conviction from being used as a "prior" or "strike prior" to increase a punishment on a subsequent conviction;
7. Prevent the conviction from being used for impeachment purposes on a subsequent offense;
8. Prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as real estate sales licenses, teaching credentials, bus drivers licenses, security guard certificates, etc.; however, the expungement may reduce the weight given the conviction by the licensing agency.
9. Prevent the conviction from being used by INS for removal and exclusion purposes.
Recently the Law Offices of Justin E. Sterling launched the Clean Slate Project. The program helps individuals in every aspect of post-conviction relief. Visit www.sterlingdefense.com for more information. Also, be sure to "Like" our facebook page at www.facebook.com/cleanslateproject.
An adult who was granted probation, completed all the terms of probation, and is no longer on probation, is eligible for relief under this statute. He or she must not be on probation, or serving a sentence, for any other offense. (Penal Code § 1203.4).
If you were denied probation you can still obtain an expungement. You still cannot be on probation or serving a sentence for any other case. Applicants must wait one year after their conviction before applying for an expungement (Penal Code§1203.4a).
If your criminal case was reduced to an infraction you are eligible for an expungement under Penal Code section 1203.4a.
What are the effects of expungement under PC1203.4/1203.4a?
It Will:
1. Result in a new entry in the court record showing the dismissal of your case;
2. Allow you to answer on many, but not all, job applications that you have not been convicted. If, however, you are applying for a government job or a job which requires a government-issued license, certificate, or permit, or a job which involves a security clearance, the conviction will be discovered; in such cases, you should disclose the initial conviction and its later expungement;
3. Prevent use of the conviction to impeach you if you testify as a witness, unless you are being tried for a subsequent offense.
4. If the conviction was for a felony, expungement is the first step in obtaining a pardon.
It Will Not:
1. Remove the conviction from your "Rap Sheet" - California and FBI criminal history records will still show the conviction and the later dismissal "per PC 1203.4";
2. Reinstate the right to possess firearms, if it was taken away (reduction to a misdemeanor may accomplish this if the offense is not one of violence);
3. Remove the requirement to register as a sex offender per PC290. If the expungement is granted, registrants must then complete and file paperwork requesting a Certificate of Rehabilitation, when eligible. A Certificate of Rehabilitation will relieve specified sex offenders from further registration. This is true for both felony and misdemeanor convictions.
4. Allow you to omit the conviction from applications for government issued licenses;
5. Seal or otherwise remove the court case file from public inspection - anyone who knows where to look will be able to find the court case file (probation reports are in confidential files and are not subject to public inspection 90 days after sentencing);
6. Prevent the conviction from being used as a "prior" or "strike prior" to increase a punishment on a subsequent conviction;
7. Prevent the conviction from being used for impeachment purposes on a subsequent offense;
8. Prevent the conviction from being considered and used to refuse or revoke government licenses and permits such as real estate sales licenses, teaching credentials, bus drivers licenses, security guard certificates, etc.; however, the expungement may reduce the weight given the conviction by the licensing agency.
9. Prevent the conviction from being used by INS for removal and exclusion purposes.
Recently the Law Offices of Justin E. Sterling launched the Clean Slate Project. The program helps individuals in every aspect of post-conviction relief. Visit www.sterlingdefense.com for more information. Also, be sure to "Like" our facebook page at www.facebook.com/cleanslateproject.
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