DONKEYS DON’T BRAG, THEY BRAY
These articles I’ve written were originally intended for the families of a lifer inmate and lifers themselves, to better familiarize themselves with the legal processes happening all around them, with and without their knowledge. This information, which I’ve characterized as a “threat” to tyranny, has actually resulted in overturning one conviction and helped several lifers get remanded to the Board for brand-new parole suitability hearings.
Not only that, but the Butler Settlement lives on in posterity to demark lifers’ base terms EVERY TIME they go to the Board now. That’s unprecedented, because previously lifers had to be found “suitable” for parole BEFORE the Board ever performed such a “demarcation” of a lifer’s term. Even when they did so in the past, they were meaningless in light of the lack of legal precedent to review just a denial of parole. For example, for the last 36 years under these Prop 7 term-to-life sentences, in the RARE event that the Board found a lifer “suitable” for parole, they would “calculate” and “adjust” (for credits) the base term. Because findings of suitability were so rare, lifers would find that they were often years or decades past that calculated base term. The Board or Governor would then reverse the finding, and the exceeded base term was essentially meaningless in the appeal courts. In this post-Butler era however, lifers automatically have their base term “calculated” at their next scheduled parole consideration hearing, regardless of outcome or whether the hearing proceeds or not.
I have discovered the power of these articles. The public is quickly catching on to this concentrated stream of information you’re plugged into here, and our public servants in the government are, too. They’re feeling the upward pressure of a frustrated constituency, especially during the all-important election cycle. That’s the politicians’ currency. When people see that one in every 100 Americans is behind bars (yes, one percent of the total population, look it up), and that in California specifically, more and more families have or know a “lifer” in their fold, the frustration with outdated “tough on crime” politicians is reaching a crescendo.
The power of Twitter is also taking on a life of its own, as I had no idea of its impact as a variable. It’s a tough-on-crime pol’s worst nightmare. To be exact, I recently got a letter telling me a pair of prominent Assembly members want to discuss some of the solutions I’ve been proposing for the lowering of crime. I haven’t been contacted beyond that, but I’m glad they’re listening. It’s all the result of the person who reads this and tweets their Assembly members and Senators about their frustration. Tell them you won’t be voting for them if they keep it up, and quickly they’ll listen to you if they see it’s a growing chorus. Suddenly you become an “important” part of their constituency.
Believe me folks, I’ve been dealing with that hypocrisy from the beginning. They’re not as interested in lowering crime as they are about the votes it will generate for them. That’s the reason I haven’t left out the reminders for YOU to make sure you vote your conscience. My audience is growing as a result of this overcrowding crisis in the prisons, and so is my expanding class of lifers. The reason why our voice is so “loud” now is because bar none, we have THE ABSOLUTE LOWEST RATE OF REOFFENSE AND RECIDIVISM AMONG ALL PRISONERS, at 0 .058% and 0 .036%. Look that up. I won’t lie to sell a point. The number of lifers getting out has increased recently, but the recidivism rate is still at under one percent. In fact, I’ll give you a direct quote: “lifers recidivate at less than 1%.” That is Board of Parole Hearings Commissioner Arthur Anderson to Senator STEVE KNIGHT at a recent Senate Confirmation Hearing for BPH Commissioners. Senator Knight indicated he was worried with the numbers of lifers being paroled of late. That was a shock to me, because BPH Commissioners frequently suffer amnesia at our parole hearings regarding such facts. In essence, it has been shown by Stanford studies that people who serve 15 years straight rarely reoffend. Lifers automatically fall into that statistic, as we have never served less than 17 years on average, and just the 15 is a very definitive number.
I wanted to write this article right away, because I want people to know that I’ve written and helped file another lifer petition of great significance to lifers. Roy Butler declared support for it, and it follows his case (the Settlement), and its progress and outcome I will update and inform in this forum. So stay tuned!
Meanwhile, I want to share a recent strange incident with those of you who savor convenient coincidences: lifer Lanzester Hymes, who happens to be Roy Butler’s co-defendant (Hymes is the one who actually did the killing of the abuser who kicked a baby out of Jane Woods: that was the trio’s motive for killing him), went to the parole Board recently and was found NOT suitable (surprise, surprise). The neat twist is that the Parole Board’s audio recorder “malfunctioned,” and Hymes will have to have his denial of parole vacated and a new hearing held per PC Section 3041.5 (a)(4). It struck me that Hymes may have said something at his hearing that would put Butler’s parole in jeopardy, and considering the ramifications I spelled out in previous articles, that result would be unacceptable for the Board. The cheapest way to fix that, if it were I, would be to blame the audio recorder. Apparently, the Board agrees. The Board has recently invested heavily in hi-tech equipment designed to enable “victims” (read: non-victim parties with pecuniary interests such as prison guards’ unions) to participate in parole hearings through Skype-like video links. Doesn’t it seem strange that a SIMPLE audio recording device would malfunction at such a critical time?
As direct evidence, my ex-cellmate and longtime friend Ramon Gallegos was recently found suitable and has had his date confirmed. He has served over 30 years on a 7-to-life (yes, Bonnie Dumanis and Christine Ward opposed). Back between the late 1990’s and early 2000, Ramon was found “suitable.” Someone didn’t like it, and pulled some strings. All the sudden, it was declared that the audio recorder in that hearing “malfunctioned” and Ramon had to have another hearing. Can anyone guess the outcome of the re-do? Well, it took 15 years for him to be found “suitable” again.
People, I live and breathe these shenanigans and hypocrisies. It can embitter anyone, even someone who’s supposed to be quiet and remorseful of his or her crime. I recognize the pain that I caused when I committed my crime, and I deserve my sentence. What I don’t deserve is to be stuck in here way past my time by those who claim to uphold the law. Some of you may know about SB 260, the Youthful Offender Act, which obliges the Board to recognize the age of the offender at the time they committed their crime. Two weeks ago, I saw Ralph Hernandez go home (well, to an INS hold), after almost 30 years. He was one of the first to go to the Board under SB 260. However, the Governor has now been reversing at least 50% of the Board’s grants, nullifying the People’s intent through SB 260’s passage. The Governor has recently been reversing a LOT of Board grants of parole. Obviously, the November elections are impending, and Brown is up for a subsequent nod. If you feel these injustices, it’s up to YOU to Tweet him and wield your voting power by voicing your opinion or concern.
The Butler Settlement is a very good platform for change, by forcing a limit on sentences, just like EVERY other prisoner in California. You do realize that other heinous crimes receive set base terms from the court, right? It’s a fact. For the most part, they receive sentences totaling less than 15 years in most cases. When they do, they contribute to the recidivism statistic of non-lifer prisoners, which is about 70 percent. To be clear, all prisoners serving less than 15 years categorically recidivate at a rate of 70 percent. Lifers alone, of which ALL serve more than 15 years, categorically almost NEVER reoffend, to the tune of less than one percent of the time. Even the Parole Board will reluctantly admit it.
I personally continue to pursue the enforcement of the Butler Settlement’s term-setting provision. Recently, the 1976 term-setting mandate discussion that motivated us to file the Butler petition in the first place was rehashed. That argument is DEFINITELY a conspiracy. It’s the reason why we’re in this predicament today. Simply put, it begins with the Morrissey 8 and their memo, which the Justices of the First District Appellate Court have officially blown the lid off of with the Riley opinion. I have urged you to read the Riley opinion, even if you’re not a lawyer. It isn’t complicated. The Justices go into the Morrissey 8 problem beginning at “Discussion II” (226 Cal. App. 4th at the last paragraph of page 562), and give us a thorough examination of this problem. Well, the Roy Butler petition made a simple claim: there is a penal code statute that was written in 1978, immediately available for all crimes committed on or after January 1, 1979; the statute enables the Board with the power and mandate to set base terms. It was to be used with the 1978 Prop 7 term-to-life sentences we have. Well, before any lifers could go to the Board, the Morrissey 8 group quickly wrote that “Morrissey 8 memo” and stated that the Board had no power to set base terms. To this day, that penal code statute HAS NEVER BEEN USED ONCE. The statute is CA Penal Code Section 1170.2 (h). In the law world, that is a huge anomaly — for a statute to exist for 35 years, still be on the books, yet NEVER to have been used ONCE! That is truly unheard of. There is now a desire for us to renew this claim.
The claim is simple: Penal Code 1170 .2 (h) was written SPECIFICALLY for the Board to have authority to fix terms for Prop 7 lifers [us]. The Board has ignored their duty to fix terms for 36 years. I believe the Butler Court did not address it because the Board rushed to settle the case before we ever reached that stage, having seen what direction the case was going (THEY WERE IN A SINKING CANOE). When they offered Roy Butler a set base term policy in exchange for settling so that they could avoid liability for over-incarcerating lifers for decades (like Ramon Gallegos and Roy himself), Roy assumed the worst was over. But as you can see, they PAROLED Roy to get him off their back, and went right back to business as usual. Well, now that the Court has certified the origin of the parole-only policy (the Morrissey 8 memo), I want a clear definition from the Courts: “TO WHOM EXACTLY DOES 1170.2, SUBDIVISION ‘h’ APPLY?” It HAS to apply to somebody; please define who that group is, and declare that group’s rights. Isn’t that the job of the courts that you, the taxpayers pay them to do — interpret the law? Every year that one lifer spends in a California’s prison costs you at least 76,000 dollars. And the argument that they can’t release dangerous prisoners is over: we simply DO NOT REOFFEND (0 .038 percent re-offense rate).
I personally guesstimate that between 6000 to 8000 lifers would go home as a result of applying the law. THAT’S WHAT SCARES THEM! At the low end however, it would result in a net savings of $456,000,000 dollars annually. That’s a LOT of money they claim they don’t have. Oh, and as a side effect, the overcrowding issue gets solved and there will be enough space to force the 70-percent reoffenders to do more time and stop these ridiculously early releases wreaking havoc on local communities. Also, there’s money for schools, and the youth programs I’ve been touting that would keep kids from becoming part of the prison population to begin with. This series of articles should be proof that I am 100 percent right. I’m not selfishly in it for myself. I am a victim of this machine from my youth. NOT a victim of my crime; a product of what tough-on-crime politicians do so well. If they cared so much about crime, they would do a LOT more for inner-city kids who are the statistical majority of people in here; predominantly lifers that the State has failed.
Again, anyone who can refute the facts in these articles, I welcome you to prove me wrong. I’m already aware that readers here include our government, so I invite you to step up, and bring something more than a tough-on-crime speech. The whole world can see this and hold me personally accountable if I’m wrong. But I’m not. I have never been so right in my life. They may obscure the evidence and make it difficult for me to prove these claims, but the stakes have changed: it’s a whole new ball game. All the sudden, California is realizing that paying teachers is exponentially more effective at lowering crime than paying bureaucrats and guards to keep prisons crowded by demonizing us THE LIFERS past our terms.
“Realignment Plan” (AB 109), is a dismal failure. There is a study by Joan Petersilia, Co-Director of Stanford ‘s Criminal Justice Research Center, and Jessica Greenlick Snyder, that was used as evidence in the Coleman and Plata Federal Three-Judge Court proceedings against the same Respondents in Butler (see “Looking Past The Hype: 10 Questions Everyone Should Ask About California’s Prison Realignment”, 5(2) Cal. J. Politics Policy 266, pg. 295 (2013)). The study shows that that 41 percent of non-lifers paroled under this “early release policy” recidivate, and the 11 percent that have been rearrested for violent felonies within three years of early release were “property, drug, and non-violent” offenders that had DETERMINATE set terms (with less than 15 years in straight), that the Respondents had spontaneously classified as “LOW RISK” in order to justify releasing them early under AB 109 “Prison Realignment Plan.” This is a revolving door and I wonder if this is just bad judgment, or it is done on purpose to keep the system going; you be the judge of that.
Is that enough, or should I go on? There’s more if you’d like. The gauntlet is thrown. If anyone would like to refute these facts, my address is attached to this article as a link. There are more intellectual ways to solve the problem of money-skimming for the bureaucrats than to continue to play these games with our sentences. Time is up. Start setting terms, and hold us accountable to our commitment to community service restitution. As I was recently told by someone I revere: “By continually showing them that you are pillars of the community and dedicated reformed citizens, you prove that their policies are bankrupt.” That word ”bankrupt” was so impactful that it stuck in my mind, and I wanted to share it here, and leave you with it.
Note: Penal Code 1170.2 was originally written in 1976 to kick off the DETERMINATE SENTENCING LAW (DSL) by fixing the terms of ALL pre 1976 lifers, from July 1, 1977 back. In 1978, the CA Legislature added Subdivision (h) (“1170.2 (h)”) for all crimes on or after January 1, 1979 to counteract Prop 7, because they KNEW the State would try to bring back indeterminate sentences, like the Morrissey 8 did. It was a prophetic move, but the Morrissey 8 buried the statute to this day, and nobody challenged it. My partner Aubrey is the one who has been pursuing this claim for years, and no one would listen. It only gained traction when I came on Board , and we dared expose the culprits: the Parole Board and the Attorney Generals who have us under their thumb. Since we have nothing to lose, and are unafraid of the truth, we present it more openly now. ‘ Don’t be fooled by 1170.2’s heading: “For crimes committed on or before July 1, 1977” — Subdivision (h) is an AMENDMENT ADDED IN 1978, “Prospectively, for crimes committed ON OR AFTER January 1, 1979.” They have NEVER applied it ONCE! If it isn’t for us, then WHO is it for?
Until my next, I sign off.
Written by Rudy while incarcerated in California.