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Do Defendants Get Enough Warning About a Guilty Plea's Consequences?
Tony Mauro11-23-2009
The attention-seeking parents of the Colorado "balloon boy" must not have had their thinking caps on last month when they told police their son was aboard a runaway hot air balloon. But when their misadventure got them hauled into court, they suddenly smartened up.
On the advice of counsel, Richard and Mayumi Heene worked out a plea agreement that on Nov. 13 had them confess to different crimes. The father is now a felon, but the mother pleaded guilty to a misdemeanor charge of false reporting. Why? Because she is a Japanese citizen, and if she had pleaded guilty to a felony, a collateral consequence would have been deportation.
The Heenes were lucky, but Jose Padilla, whose case went before the U.S. Supreme Court exactly one month earlier, was not. Padilla, a legal U.S. resident born in Honduras, pleaded guilty to an aggravated felony drug charge in Kentucky. His lawyer told him the plea would not get him deported, because he had lived in the United States for decades. The advice was flat wrong, Padilla faces deportation, and now he wants his plea set aside because of the bad advice he got.
Both cases, as different as they are, are casting new light on a legal issue that has been simmering for years: when, whether and how defendants should be informed about the collateral consequences of pleading or being found guilty.
Depending on the offense, a guilty plea or verdict can, in addition to the penalty for the crime, also make it impossible for a defendant to vote, live in public housing, become a cosmetologist, carry a gun, drive a car or receive a growing array of government benefits. If you plead guilty to public urination or if, as a 19-year-old boy, you had a relationship with a 16-year-old girl, you can in some states be marked as a sex offender for life.
The laws of some states as well as the American Bar Association's criminal justice standards call for lawyers or others to inform defendants accurately of these consequences. It often does not happen -- especially, as Padilla learned, in the area of immigration law, which may be unfamiliar territory to a harried criminal defense lawyer. "Every day, immigrants are advised to give up their rights and plead guilty to charges that subject them to lifetime exile," said Benita Jain, co-director of the Immigrant Defense Project.
A 'CRIMINAL UNDERCLASS'
But the problem extends well beyond the immigration context, said Richard Cassidy of Hoff, Curtis, Pacht, Cassidy, Frame & Katims in Burlington, Vt. "We're creating a criminal underclass that can't fully participate in society. People who think they can plead guilty and walk out of the courthouse free may discover that there are collateral consequences that trail them around for life."
Cassidy heads a committee of the Uniform Law Commission that has drafted a model law tackling the problem. States that pass the law would compile the collateral consequences, develop a process for informing defendants before they enter pleas and create a mechanism for mitigating those consequences when appropriate. The proposed law, in the works for years, will go before the American Bar Association's House of Delegates for endorsement in February, and then would be put before state legislators. The commission, with delegates from every state, proposes laws to foster uniformity in statutes across the country.
The proposed law, Cassidy said, is one element in "the growing re-entry movement" which is aimed at helping the millions of Americans with some kind of criminal record get back on their feet when they've "paid their debt" to society.
Margaret Love, a Washington solo practitioner who has been spotlighting the issue of collateral consequences for years, said their impact has been growing, in part because of post-9/11 background checks and the public availability of criminal records. Among her clients are some with long-ago drunken-driving or other offenses who suddenly get fired even though they've been exemplary citizens for years. There is often little that can be done, though in some states, pleas can be made to the governor or a parole board to relieve the impact of a previous conviction.
"The criminal class is such an unpopular one," said Love, who has written a 50-state guide to seeking relief from collateral consequences. "If you have a felony, you have no voice."
UNINTENDED CONSEQUENCES
But the new emphasis on informing defendants about collateral consequences is not without critics.
At a 2008 Uniform Law Commission discussion of the proposed law, delegate James Bopp Jr. from Indiana said, "I do not consider it an unjust state of affairs that criminal defendants are not advised of each potential collateral sanction or disqualification." Bopp, who is better known for his litigation against campaign reform laws, expressed concern that if new laws create new obligations to inform defendants, then "every sentence and every guilty plea is ultimately subject to failure to disclose each one of these hundreds [of] unknowable collateral consequences."
At the Supreme Court hearing on the Padilla case, some justices expressed similar concerns. "The world is filled with 42 billion circumstances," said Justice Stephen Breyer at one point. Opening the door to requiring lawyers to give accurate advice about those circumstances, Breyer said, "will set in motion the great legal rule machine."
Cassidy said the model law anticipates these concerns by stating explicitly that it creates no new duty for lawyers and can't be the grounds for invalidating a plea. Though the law does not dictate how defendants would be notified of collateral consequences, Cassidy said he could envision the judge or some government agency, not necessarily the defense lawyer, giving the defendant a "one-page document" at the time he or she is charged, sentenced and released. Under a federal law passed in 2007, the National Institute of Justice is compiling the collateral consequences of laws in all 50 states.
In spite of the worries voiced at oral argument in the Padilla case, Love said she was heartened by comments from some justices. Justice Samuel Alito Jr., whose father was an Italian immigrant, told Padilla's lawyer, Stephen Kinnaird of Paul, Hastings, Janofsky & Walker's Washington office, "Your argument has an appeal because removal is such a harsh consequence, particularly for someone like your client who had been in the United States for a long time."
Said Love, who attended the argument, "It's hard to believe the Court will agree with the state of Kentucky that a lawyer doesn't need to advise his client about things that are so important."
The U.S. solicitor general took something of a middle ground, arguing that a lawyer is not obliged to tell a defendant about immigration consequences of a guilty plea, but if he or she does give advice on that point, it must be accurate. If the high court even went as far as to agree with the solicitor general, Love said, it would be significant.
"I suspect that the Padilla case," said Love, "is going to jump-start this discussion."
If you or someone you know are being exposed or subjected to aentencing consequences that advance notice wasn't given, then contact William Marshall for legal support services to seek redress. Call 570-259-6664.
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| 09/17/2009 |
Calif. proposal fails to meet goal for inmate cuts i SACRAMENTO, Calif. — California will fail to meet federal demands to reduce its prison population by 40,000 inmates over two years despite plans by Gov. Arnold Schwarzenegger to commute the sentences of illegal immigrant prisoners and build three new prison facilities to relieve overcrowding, sources said. The state has a Friday deadline to submit a plan to a panel of three federal judges detailing how it will reduce the current prison population of about 170,000. About 160,000 of the state's inmates are being kept in 33 prisons that have a combined capacity of about 80,000. The federal judges have found that because of overcrowding, the state has failed to meet its constitutional obligation to provide prisoners with adequate medical and mental health treatment. But the plan California officials will submit by midnight Friday will fall short of meeting the 40,000-inmate reduction ordered last month by the federal panel, state prison officials said in a briefing Wednesday to various parties, including legislative staffers who work on prison issues. Revisions could come The state officials did not tell by how much their plan would fall short but said they may revise it before they submit it Friday, sources said. The officials also said they expect the judges to find the state in contempt for failing to meet the demand, one source said. Schwarzenegger's spokesman, Aaron McLear, refused to comment on the specifics of the proposal, saying only: "We will release the plan on Friday." If the judges decide the state deliberately violated their order, they could hold the defendants - Schwarzenegger, Corrections Secretary Matthew Cate and state Controller John Chiang - in contempt. The court would have the power to send any or all of them to jail until they complied with the order, but that's unlikely in light of events earlier in the case. Last year, U.S. District Judge Thelton Henderson, a member of the panel, started contempt proceedings against Schwarzenegger for refusing to turn over $250 million in legislatively appropriated funds to a court-appointed receiver to start work on revamping prison health facilities. Proceedings on hold This latest chapter in the state prison system saga unfolded last month when the same federal panel ordered the state to submit the prison-reduction plan by Friday. As part of a budget compromise to erase a $24 billion deficit, Schwarzenegger and Democratic legislative leaders brokered a deal in July that would have reduced the prison population by about 37,000 over a two-year period. The plan had included controversial ideas such as allowing sick and elderly inmates to finish their sentences in home detention or community hospitals wearing Global Positioning System tracking devices. The state Senate approved the plan, which would have saved the cash-strapped state about $1.2 billion this year, but it stalled in the Assembly. The lower house of the Legislature ultimately passed a significantly watered-down version stripped of the most controversial elements. The plan now would reduce the inmate population by about 27,000 over two years. Parole system changes The governor also plans to commute sentences of some nonviolent illegal immigrant inmates and transfer them to federal authorities for deportation; seek to transfer at least 2,500 inmates to out-of-state prisons; and attempt to place low-level offenders in private prisons in California, sources said. Schwarzenegger is also considering building three prison facilities - one reception center and two housing units - likely within the grounds of existing prisons, as well as converting the corrections' juvenile facilities into adult prisons, according to sources. |
NOTATION! California is only but one state which is experiencing extreme economic restraints which is having adverse affects on the penal systems as result of the recession and federal court orders regarding jail and prison conditions to include but not limited to over crowding. The current situation has never made it more ripe for prisoners to exercise their post conviction rights for relief. Now is the time when employing the legal support services of William Marshall would not only be timely but would prove to be an essential effective asset in pursuing the various post conviction remedies available. Unless ‘waived’ by the prisoner, initiating post conviction remedies via federal habeas corpus, such while seeking relief would also preclude the state’s efforts to transfer the prisoner to another out of state prison as like in progress by the state of Pennsylvania to either circumvent or preclude a federal court order of contempt. Don’t delay, employ the services of William Marshall today who contracts with specialized attorney in the performance of said services. William Marshall – 1451 Hemlock Street – Coal Township, Pa. 17866 – Ph: 570-609-8800.
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TIMES ARE CHANGING
By: William Marshall; Paralegal
As result of the recession imposing extreme financial restraints upon the states in addition to federal courts ordering states to reduce their prison populations, the time has never been so ripe for prisoners to exercise their rights in seeking post conviction relief even if their were previously denied of such. When a new rules of law is established by either court decisions or changes in the law, a new statute of limitations has commenced. Clemency is another remedy to be considered as well as hardship petitions. Unlike prior to the recession, regardless of the remedy sought, the government is less likely to resist by opposing post conviction and other forms of relief. Such relief can better be sought through more up to date legal assistance information provided by William Marshall who utilizes the same data bases used by legal professionals but at a much lower fee to the pro se litigant. All work products are reviewed by contracting attorneys prior to delivery to the pro se client.
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7th Circuit Chief Judge Calls for Loosening of Sentencing Guidelines
Lynne Marek
09-14-2009
Judge Frank Easterbrook urged the U.S. Sentencing Commission on Wednesday to loosen the federal sentencing guidelines so that judges waste less time in precisely determining ranges that may not matter anyway.
In testimony before the commission in Chicago, Easterbrook, chief judge of the 7th U.S. Circuit Court of Appeals, said the commission's "most important current task" is revamping the structure of the guidelines in light of the U.S. Supreme Court decisions that made the guidelines merely advisory. Now that judges can sentence outside the ranges set by the guideline tables, he said, they shouldn't be spending so much time calculating those ranges in the first place.
Easterbrook had two specific proposals. First, the ranges should be made longer -- currently, a 25 percent spread is allowed between the number of months at the bottom and the number of months at the top of the range. Second, the ranges should overlap with each other more so that the possible prison times in one range overlap more with the possible prison times in the next most lenient and the next harshest ranges.
"These two changes will reduce the need to make precise findings that do not affect the outcome, and thus save time for both district and appellate judges without sacrificing any of the statutory goals," Easterbrook said.
Even under advisory guidelines, district judges are still required to calculate an appropriate range before using their own discretion in determining a sentence. Likewise, appellate judges must still make sure that the range calculation was done correctly even when a sentence is outside the range.
The sentencing commission is holding regional hearings across the United States to get feedback from judges, prosecutors, probation officers, public-interest lawyers and others on federal sentencing practices 25 years after the enactment of the Sentencing Reform Act (pdf), which created the guidelines largely to curtail disparities in sentencing. The hearings in Chicago follow earlier sessions in New York, Atlanta, and Stanford, Calif., with more to come in Denver next month; Austin, Texas, in November; and Phoenix in January.
Easterbrook is not alone in suggesting changes to the guidelines. Other federal judges who testified last week said some of the sentences were too harsh. Federal prosecutors who testified mainly deferred to a separate Justice Department effort under way to review sentencing policy.
Douglas Berman, a professor at Ohio State University Moritz College of Law who writes a blog on sentencing law and policy, said judges broadly agree that the guidelines should be revamped -- with appellate judges in particular wanting some clarification as to what their roles are in reviewing range calculations.
"Circuit judges are now struggling to figure out what their job is in an advisory guideline system," Berman said. "It's not clear that the checking they're doing serves much of a function."
Indeed, Easterbrook seems a bit annoyed by the exercise of verifying the lower courts' calculations. "It is a make-work prescription," he said.
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Time to go 'soft' on crime
TIMES ARE CHANGING
By: William Marshall; Paralegal
As result of the recession imposing extreme financial restraints upon the states in addition to federal courts ordering states to reduce their prison populations, the time has never been so ripe for prisoners to exercise their rights in seeking post conviction relief even if their were previously denied of such. When a new rules of law is established by either court decisions or changes in the law, a new statute of limitations has commenced. Clemency is another remedy to be considered as well as hardship petitions. Unlike prior to the recession, regardless of the remedy sought, the government is less likely to resist by opposing post conviction and other forms of relief. Such relief can better be sought through more up to date legal assistance information provided by William Marshall who utilizes the same data bases used by legal professionals but at a much lower fee to the pro se litigant. All work products are reviewed by contracting attorneys prior to delivery to the pro se client.
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7th Circuit Chief Judge Calls for Loosening of Sentencing Guidelines
Lynne Marek09-14-2009
Judge Frank Easterbrook urged the U.S. Sentencing Commission on Wednesday to loosen the federal sentencing guidelines so that judges waste less time in precisely determining ranges that may not matter anyway.
In testimony before the commission in Chicago, Easterbrook, chief judge of the 7th U.S. Circuit Court of Appeals, said the commission's "most important current task" is revamping the structure of the guidelines in light of the U.S. Supreme Court decisions that made the guidelines merely advisory. Now that judges can sentence outside the ranges set by the guideline tables, he said, they shouldn't be spending so much time calculating those ranges in the first place.
Easterbrook had two specific proposals. First, the ranges should be made longer -- currently, a 25 percent spread is allowed between the number of months at the bottom and the number of months at the top of the range. Second, the ranges should overlap with each other more so that the possible prison times in one range overlap more with the possible prison times in the next most lenient and the next harshest ranges.
"These two changes will reduce the need to make precise findings that do not affect the outcome, and thus save time for both district and appellate judges without sacrificing any of the statutory goals," Easterbrook said.
Even under advisory guidelines, district judges are still required to calculate an appropriate range before using their own discretion in determining a sentence. Likewise, appellate judges must still make sure that the range calculation was done correctly even when a sentence is outside the range.
The sentencing commission is holding regional hearings across the United States to get feedback from judges, prosecutors, probation officers, public-interest lawyers and others on federal sentencing practices 25 years after the enactment of the Sentencing Reform Act (pdf), which created the guidelines largely to curtail disparities in sentencing. The hearings in Chicago follow earlier sessions in New York, Atlanta, and Stanford, Calif., with more to come in Denver next month; Austin, Texas, in November; and Phoenix in January.
Easterbrook is not alone in suggesting changes to the guidelines. Other federal judges who testified last week said some of the sentences were too harsh. Federal prosecutors who testified mainly deferred to a separate Justice Department effort under way to review sentencing policy.
Douglas Berman, a professor at Ohio State University Moritz College of Law who writes a blog on sentencing law and policy, said judges broadly agree that the guidelines should be revamped -- with appellate judges in particular wanting some clarification as to what their roles are in reviewing range calculations.
"Circuit judges are now struggling to figure out what their job is in an advisory guideline system," Berman said. "It's not clear that the checking they're doing serves much of a function."
Indeed, Easterbrook seems a bit annoyed by the exercise of verifying the lower courts' calculations. "It is a make-work prescription," he said.
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Time to go 'soft' on crime
The chickens of 20 years of law-and-order hysteria have come home to roost
Back in January, the state’s Legislative Analyst’s Office (LAO) laid out a series of options for reducing California’s bloated prisons-and-parole budget. In terms of savings, they individually were worth anywhere from tens of millions of dollars to several hundred million dollars. Then, as part of his proposed budget for the next fiscal year, Gov. Arnold Schwarzenegger told the state Department of Corrections and Rehabilitation to cut $400 million from its budget. In his revised budget proposal last week, the governor said that he might have to commute the sentences of the roughly 19,000 undocumented immigrants in the state’s prisons and change the sentences of an unspecified number of prisoners convicted of low-level offenses from felony to misdemeanor (there are 26,000 such convicts in prison). Those measures, the governor says, would save $282 million during the next year.
It’s too bad it took “fiscal Armageddon,” as our governor likes to call our present situation, to get serious about prison reform, but we’re glad it’s finally happened.
According to the LAO, between 1987 and 2007, prison costs shot skyward much faster than population growth, and the reason was far more zealous prosecution and sentencing of offenders. This, despite a reduction in both the overall crime rate and the violent crime rate. Recent court-mandated improvements to inmate medical care have increased, and will continue to increase, costs even more.
Meanwhile, there’s very little actual correction and rehabilitation going on in the California Department of Corrections and Rehabilitation. The state recidivism rate, reportedly, is 70 percent—although 81 percent of parole violators are sent back because of technicalities (missed a meeting, failed a drug test) or because they committed a misdemeanor crime. In response to a prison-guards union spokesperson’s comment that corrections layoffs would result in a decrease in rehab programs, a very well-informed inmate blogger for the San Francisco Bay Guardian countered: “WHAT FUCKING PROGRAMS?”
The state’s prison system has been a colossal waste of taxpayer money, and few lawmakers (other than Schwarzenegger) have been brave enough to talk about it—they’re terrified of upsetting the powerful prison-guards union, which has earned a reputation for being able to single-handedly end political careers by flooding districts with “soft on crime” advertising at election time. During the past 20 or so years, the easiest thing for politicians to do has been to appease the union and curry voter favor by promising to lock up as many criminals as possible for as long as possible (see: Three Strikes and You’re Out) and oppose touchy-feely rehabilitation measures aimed at helping inmates avoid returning to prison. Not only have prison costs risen, we’ve lost out on any sales, property or income tax revenue we might have reaped from those folks on whom we’ve given up.
What’s more, in spite of Schwarzenegger’s right-thinking about reducing the prison population, he’s also proposing to eliminate funding for the Substance Abuse and Crime Prevention Act (2000’s Prop. 36), which diverts first- and second-time drug offenders into treatment rather than incarceration. That’s an incredibly stupid and backward idea—the $108 million it would save can be made up by implementing more of the LAO’s suggestions, such as:
• Making certain offenses ineligible for prison, increasing the dollar-value sentencing threshold for property crimes and diverting more offenders to community-based sanction and treatment programs.
• Reducing sentences for some crimes, releasing some prisoners early and increasing credit programs for work and good behavior.
• Reducing time for parole violators and making some parole violations ineligible for a return to prison.
Unfortunately, nothing is simple, and many of these measures would have consequences, such as a possible increase in offenders entering county jails and the need for increased funding for community treatment and alternative-sentencing programs—the latter being particularly problematic in San Diego County, where the jails are at an untenable 109-percent capacity.
Therefore, it’s clear that the era of costly and socially regressive tough-on-crime measures must end, and a new era of investing in initiatives that keep people out of trouble in the first place—early childhood education, drug and mental-health treatment, inner-city economic development, parenting help, a sturdy social safety net—must begin.
Fully 10 percent of California’s general fund budget is spent keeping people behind bars—up from 5 percent 20 years ago. If that’s not an indicator of a failed society, we don’t know what is.
WILLIAM MARSHALL
Paralegal & Post Conviction Consultant
137 East Arch Street
Shamokin, Pa. 17872
Ph. 570-561-2276 Cell: 570-609-8800
Hours: 8 A. M. to 8 P. M. ET Seven Days
Email: Mparalegal4u@aol.com
Web: www.myparalegal.bravehost.com
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Opposition to state budget deal mounts, would release 27,000 California inmates.
L.A. County threatens to sue, a state workers' union considers a strike, and a GOP leader protests release of prison inmates.
By Michael Rothfeld and Patrick McGreevy
July 22, 2009
Reporting from Sacramento — Less than 24 hours after Gov. Arnold Schwarzenegger and legislative leaders announced a plan to close California's massive budget deficit, Los Angeles County officials moved to sue the state, a union for government workers said it might strike, and Republicans threatened to back out of the deal over a provision to cut the number of prison inmates by 27,000.
The governor largely stayed out of sight, except for posting a brief video on Twitter in which he played with a big knife and talked about autographing state property to be sold at auction to raise extra money. Legislative leaders, meanwhile, began to brief their members, and staff started compiling a formal proposal in anticipation of a vote that could occur Thursday.
But as those preparations went ahead, the leader of the Republicans in the state Assembly reacted angrily to news posted on The Times' website about the deal's effect on prisons. Under the plan, some inmates would be allowed to finish their sentences on home detention, new incentives would be created for completion of rehabilitation programs, and parole supervision would be scaled back for the least serious offenders. The prisons now hold 168,000 inmates.
Soon after that news broke, Assembly GOP leader Sam Blakeslee sent members an e-mail with the heading, "Budget Double-Cross?" Blakeslee suggested that he had not known about the plans and said Republicans would not vote for it.
The budget deal needs a two-thirds vote in each house of the Legislature, meaning that it cannot pass without some Republican support. And with the left and the right of the political spectrum unhappy over different items -- and many legislators still in the dark about what, exactly, they will be asked to vote on -- the prospects remained uncertain.
Until that uncertainty ends, aides to state Controller John Chiang said his office would continue to send IOUs to California residents and businesses.
The IOUs, totaling $724.7 million to date, started going out earlier this month, a highly visible symptom of the financial uncertainty that has pushed the state's credit rating close to junk status.
As rank-and-file lawmakers, interest groups and California residents alike began to digest the agreement announced Monday evening, many found much to dislike.
The deal would close the state's $26.3-billion deficit with deep cuts to schools and programs that serve the elderly, poor and disabled; borrow money and take funds from local government; and slice law enforcement funding.
"It's a budget everyone will hate," Sen. Abel Maldonado (R-Santa Maria) said early Tuesday. "It's a budget that has gimmicks. But I think it will pass."
Some of the most heated reaction came from city and county government officials. The plan would seize $4.7 billion in local funds through a variety of measures, essentially shifting part of the state's deficit to the local governments. The prospect of losing $313 million in redevelopment funds and $109 million in gasoline taxes prompted the lawsuit threat from Los Angeles County supervisors, a move other local governments are expected to echo.
And state worker unions were angry about the deal's plan to continue three unpaid furlough days a month, which amounts to about a 14% pay cut. The largest of the unions, Service Employees International Union Local 1000, has mailed out strike authorization ballots to its 95,000 members.
"Making state employees pay what amounts to a 15% furlough tax is just plain wrong," said union President Yvonne Walker. "We'll fight in the courts, in the Legislature and in the workplace to have it cut back."
But it was the effect that the deal would have on prisons that seemed to offer the most potential for trouble.
Neither the governor's office nor the Legislature had publicly released details of the prison portion of the agreement. When they were revealed, Blakeslee (R-San Luis Obispo) insisted that he had not agreed to them.
He had agreed to a deal including prison cuts, Blakeslee wrote in a seemingly hurried e-mail to the GOP caucus, but his understanding was that the details were supposed to be ironed out in August.
"I have called and personally told both Karen and Darrell that their will be no republican votes for any portion of the budget if they allow such a bill to be part of the package," Blakeslee wrote, referring to Senate leader Darrell Steinberg (D-Sacramento) and Assembly Speaker Karen Bass (D-Los Angeles).
Blakeslee's spokeswoman did not respond to questions about whether he would break the deal.
By contrast, the Republican leader in the state Senate, Dennis Hollingsworth of Murrieta, said in an interview that he continues to support the budget deal.
One possibility would be for Democrats to approve the prison provisions as a separate bill that would require only a majority vote.
That, however, would require Republicans to approve the rest of the package knowing that the prison changes would be added.
The governor's corrections chief, Matt Cate, said the administration was doing a "full-court press" to win approval for the plan.
"If we don't achieve these measured, thoughtful, I think smart-on-crime proposals, then we really are in a position where we have nothing left to do but talk about early release," Cate said.
If it passes, the prison plan would be a prime example of how the budget crisis could force California to make changes that have long been talked about, but have proven politically difficult. It would amount to a significant reversal of a decades-long pattern of longer sentences and rising prison populations.
Steinberg told reporters that the proposal would target the "revolving door" that state prisons have become for lower-level offenders.
The plan resembles recommendations from experts on reducing California's prison overcrowding, which is the focus of a federal lawsuit in which judges have been considering whether to order a mass inmate release.
"We have not done a very good job in California of distinguishing between people who are violent and who belong in prison for a long time, and those who could succeed on the outside with supervision, who have not demonstrated any history of violence," Steinberg said.
The prison plan would give state corrections officials authority to allow any inmate with 12 months or less on his or her sentence to serve the remaining time on home detention with electronic monitoring.
Inmates who are over 60 or medically incapacitated could also get home detention or be confined in a hospital.
In addition, inmates who achieve milestones in rehabilitative programs, substance abuse treatment, vocational training or education could receive up to six weeks off their prison terms.
The plan includes Schwarzenegger's proposal to release and deport illegal immigrant felons, and a scaled-down version of another proposal of his to change some felonies to misdemeanors so inmates could be held in county jails instead of prisons. Sentences for property crimes also would be scaled back.
A "Parole Re-Entry Accountability Program" would reduce the state parole population by 46,000 -- more than a third of those now under supervision -- depending on their crimes and behavior.
Those former prisoners convicted of the least serious crimes would not be subject to parole revocation that could return them to prison.
The budget plan also would create a sentencing commission to reexamine the state penal code, which would not save money immediately but would advance plans under discussion by lawmakers for years.
The commission would have three years to establish new sentencing guidelines.
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July 22, 2009
Reporting from Sacramento — Less than 24 hours after Gov. Arnold Schwarzenegger and legislative leaders announced a plan to close California's massive budget deficit, Los Angeles County officials moved to sue the state, a union for government workers said it might strike, and Republicans threatened to back out of the deal over a provision to cut the number of prison inmates by 27,000.
The governor largely stayed out of sight, except for posting a brief video on Twitter in which he played with a big knife and talked about autographing state property to be sold at auction to raise extra money. Legislative leaders, meanwhile, began to brief their members, and staff started compiling a formal proposal in anticipation of a vote that could occur Thursday.
But as those preparations went ahead, the leader of the Republicans in the state Assembly reacted angrily to news posted on The Times' website about the deal's effect on prisons. Under the plan, some inmates would be allowed to finish their sentences on home detention, new incentives would be created for completion of rehabilitation programs, and parole supervision would be scaled back for the least serious offenders. The prisons now hold 168,000 inmates.
Soon after that news broke, Assembly GOP leader Sam Blakeslee sent members an e-mail with the heading, "Budget Double-Cross?" Blakeslee suggested that he had not known about the plans and said Republicans would not vote for it.
The budget deal needs a two-thirds vote in each house of the Legislature, meaning that it cannot pass without some Republican support. And with the left and the right of the political spectrum unhappy over different items -- and many legislators still in the dark about what, exactly, they will be asked to vote on -- the prospects remained uncertain.
Until that uncertainty ends, aides to state Controller John Chiang said his office would continue to send IOUs to California residents and businesses.
The IOUs, totaling $724.7 million to date, started going out earlier this month, a highly visible symptom of the financial uncertainty that has pushed the state's credit rating close to junk status.
As rank-and-file lawmakers, interest groups and California residents alike began to digest the agreement announced Monday evening, many found much to dislike.
The deal would close the state's $26.3-billion deficit with deep cuts to schools and programs that serve the elderly, poor and disabled; borrow money and take funds from local government; and slice law enforcement funding.
"It's a budget everyone will hate," Sen. Abel Maldonado (R-Santa Maria) said early Tuesday. "It's a budget that has gimmicks. But I think it will pass."
Some of the most heated reaction came from city and county government officials. The plan would seize $4.7 billion in local funds through a variety of measures, essentially shifting part of the state's deficit to the local governments. The prospect of losing $313 million in redevelopment funds and $109 million in gasoline taxes prompted the lawsuit threat from Los Angeles County supervisors, a move other local governments are expected to echo.
And state worker unions were angry about the deal's plan to continue three unpaid furlough days a month, which amounts to about a 14% pay cut. The largest of the unions, Service Employees International Union Local 1000, has mailed out strike authorization ballots to its 95,000 members.
"Making state employees pay what amounts to a 15% furlough tax is just plain wrong," said union President Yvonne Walker. "We'll fight in the courts, in the Legislature and in the workplace to have it cut back."
But it was the effect that the deal would have on prisons that seemed to offer the most potential for trouble.
Neither the governor's office nor the Legislature had publicly released details of the prison portion of the agreement. When they were revealed, Blakeslee (R-San Luis Obispo) insisted that he had not agreed to them.
He had agreed to a deal including prison cuts, Blakeslee wrote in a seemingly hurried e-mail to the GOP caucus, but his understanding was that the details were supposed to be ironed out in August.
"I have called and personally told both Karen and Darrell that their will be no republican votes for any portion of the budget if they allow such a bill to be part of the package," Blakeslee wrote, referring to Senate leader Darrell Steinberg (D-Sacramento) and Assembly Speaker Karen Bass (D-Los Angeles).
Blakeslee's spokeswoman did not respond to questions about whether he would break the deal.
By contrast, the Republican leader in the state Senate, Dennis Hollingsworth of Murrieta, said in an interview that he continues to support the budget deal.
One possibility would be for Democrats to approve the prison provisions as a separate bill that would require only a majority vote.
That, however, would require Republicans to approve the rest of the package knowing that the prison changes would be added.
The governor's corrections chief, Matt Cate, said the administration was doing a "full-court press" to win approval for the plan.
"If we don't achieve these measured, thoughtful, I think smart-on-crime proposals, then we really are in a position where we have nothing left to do but talk about early release," Cate said.
If it passes, the prison plan would be a prime example of how the budget crisis could force California to make changes that have long been talked about, but have proven politically difficult. It would amount to a significant reversal of a decades-long pattern of longer sentences and rising prison populations.
Steinberg told reporters that the proposal would target the "revolving door" that state prisons have become for lower-level offenders.
The plan resembles recommendations from experts on reducing California's prison overcrowding, which is the focus of a federal lawsuit in which judges have been considering whether to order a mass inmate release.
"We have not done a very good job in California of distinguishing between people who are violent and who belong in prison for a long time, and those who could succeed on the outside with supervision, who have not demonstrated any history of violence," Steinberg said.
The prison plan would give state corrections officials authority to allow any inmate with 12 months or less on his or her sentence to serve the remaining time on home detention with electronic monitoring.
Inmates who are over 60 or medically incapacitated could also get home detention or be confined in a hospital.
In addition, inmates who achieve milestones in rehabilitative programs, substance abuse treatment, vocational training or education could receive up to six weeks off their prison terms.
The plan includes Schwarzenegger's proposal to release and deport illegal immigrant felons, and a scaled-down version of another proposal of his to change some felonies to misdemeanors so inmates could be held in county jails instead of prisons. Sentences for property crimes also would be scaled back.
A "Parole Re-Entry Accountability Program" would reduce the state parole population by 46,000 -- more than a third of those now under supervision -- depending on their crimes and behavior.
Those former prisoners convicted of the least serious crimes would not be subject to parole revocation that could return them to prison.
The budget plan also would create a sentencing commission to reexamine the state penal code, which would not save money immediately but would advance plans under discussion by lawmakers for years.
The commission would have three years to establish new sentencing guidelines.
Legal News Bulletin
| Right to Counsel: Rothgery v. Gillespie County, Texas |
Victory for Walter Allen Rothgery, when the U.S. Supreme Court held in Rothgery v. Gillespie County, Texas that a criminal defendant's Sixth Amendment right to counsel attaches upon a defendant’s initial appearance before a judicial officer, when the defendant is informed of a formal accusation against him and restrictions are imposed on his liberty. The case arose when Rothgery was arrested on charges of being a felon in possession of a firearm—a crime of which he was innocent, since he was not, in fact, a felon. He was brought before a magistrate, who informed him of the accusation against him and required him to post bond or remain in jail pending disposition of the accusation. Rothgery repeatedly requested a lawyer, but none was appointed. Six months later, Rothgery was indicted, his bond was increased to an amount he could not afford, and he was again jailed. Counsel was then appointed, proved Rothgery was not a felon, and obtained his release—but only after he had served nearly three weeks in jail on the erroneous charges. Rothgery brought suit against Gillespie County under 42 U.S.C. 1983 for violating his Sixth Amendment right to counsel; the district court granted summary judgment to the County, and the Fifth Circuit affirmed, on the ground that Rothgery's right to counsel did not attach until he was indicted. After Rothgery successfully sought certiorari, the Court held, in an opinion by Justice Souter, that Rothgery’s initial appearance before the magistrate marked the beginning of his criminal prosecution and triggered his Sixth Amendment right to counsel.
Author’s Note: For the most part, the state of Pennsylvania violates the rights of the accused brought before District Justices where they are not afforded the right to counsel while being informed of the charges against them and being remanded to jail in lieu of inability to post bail. More frequently than not, the defendant can remain in jail for months prior to ever being next brought before the same court that remanded him/her to custody as result of repeated continuances not of the defendant’s request. Although emphasis has been noticed is foreseen in the state of Pennsylvania, such also occurs in many other states. Consequently, if you or someone you know was not afforded the Sixth Amendment right to counsel upon being immediately taken before a judicial officer after arrest, then it is time to consider initiating a petition for post conviction relief. For further information or to employ the legal support service of William Marshall, he can be contacted as provided hereinafter.
William Marshall – Paralegal & Post Conviction Consultant – 1451 Hemlock Street Street. – Coal Township, Pa. 17866 – Ph. 570-259-6664 – Email: Mparalegal4u@aol.com
Web: www.myparalegal.bravehost.com
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Post Conviction Bail
Federal law provides whereby an individual sentenced in a state or federal court to a period of incarceration, may seek release on bail pending the disposition of a post conviction petition filed in the courts of the United States. For further information or to retain legal support services to assist in making such applications, contact William Marshall at 570-609-8800 between 8 A. M. till 8 P. M. ET seven days a week. If a state court of last resort has denied a state prisoner release on bail pending post conviction review in a lower court, or if there is a lack of such post conviction bail statute or rule in a state as well as a rule or statute which prohibits such bail such as in Pennsylvania Appellate Rule 1765, then the petitioner while awaiting or having exhausted state judicial procedures on post conviction disposition can immediately seek federal habeas corpus.
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