Sentencing Enhancements & Reforms
Is "20 to life" really a life sentence?
When a Kern County judge sentenced Esteban Demecio Hernandez to 19 years
to life in prison Wednesday for driving drunk and killing a mother of two
in an auto crash, questions about the sentence remained.
Will Hernandez serve 12 years and be paroled? Will he do the full 19 and then get out? Will he serve a life sentence?
If you chose option No. 3, it’s a good bet you’re correct.
The 41-year-old Hernandez, who already had three drunken driving convictions and was driving on a suspended license last year when he drove his mini-van head-on into a car carrying Reynalda Bazaldua and her two daughters, will probably spend the rest of his life behind bars.
The statistics from California’s prisons appear to bear that out. And attorneys agree that chances are slim for convicted murderers to be granted parole, even those who avoid life without parole sentences.
Janice Kim, an attorney with the Kern County Public Defender’s office, said an “indeterminate sentence” — such as 15 to life or 20 to life — essentially means the client “will never get out, never be released.”
“The DA’s office here — if the client has two strikes, the offer is almost always 25 years to life,” she said. “With an offer like that, you almost have nothing to lose. You might as well go to trial.”
As a result, there are too many cases clogging a finite number of courtrooms, she said, cases that could otherwise be settled before going to trial.
Mark Pafford, a deputy district attorney, said it’s generally accurate to view these indeterminate sentences as life sentences. The offenders almost never get out, he said. And when they do, they may be quite elderly or in ill health.
The sentence of 19 years to life handed down in the Hernandez case is a good example, he said. The 41-year-old will probably die in prison, Pafford said.
The issue of parole was politicized two decades ago when California voters granted the governor the power to review the parole board’s decisions affecting inmates convicted of first-degree or second-degree murder.
During his time in office, Republican Gov. Arnold Schwarzenegger has granted parole to 32 offenders convicted of first-degree murder and 124 convicted of second-degree murder.
That’s a significant increase over the eight total paroles granted to convicted murderers by his Democratic predecessor, Gov. Gray Davis, but still a fraction of the total number eligible.
Before Davis took office, Republican Gov. Pete Wilson granted parole to 98 convicted murderers, according to the California Department of Corrections and Rehabilitation spokesman Bill Sessa.
The pool of eligible inmates has ballooned as the number of indeterminate life sentences has increased through the years.
For example, Wilson was given 173 cases to consider in eight years, while Schwarzenegger has been presented with 791 paroles to consider.
Gov. Davis was adamant about refusing parole to inmates and it showed in his numbers, Sessa said.
Those serving indeterminate life sentences — such as 25 to life — must serve 85 percent to 100 percent of their minimum sentence before they can get a first-step hearing. At these hearings a decision is made whether the offender will be further evaluated for possible parole, Sessa said. About 2 percent are approved for the second hearing.
The governor has options when reviewing parole for murder cases. He may reverse the parole board’s decision, grant the parole or send the case back for review by the parole board.
“Parole for a lifer is an extremely critical decision,” Sessa said. “It’s unique in that it’s not based on what they’ve done, but would they commit the crime if released.”
About four crimes can yield life sentences — first-degree murder, second-degree murder, attempted murder and kidnapping/ransom, according to Sessa.
Bakersfield defense attorney Michael Gardina said the state’s overpopulated prisons are forcing the parole board and the governor to consider more paroles.
“They’re starting to pardon second-degree guys,” he said.
There’s a “pecking order,” Gardina added. Those sentenced to life without the possibility of parole never get out, he said. If you’re convicted of first-degree murder with a gun, you’re not getting out.
But defendants who went along for the ride, such as a driver in a robbery-murder who never fired a gun — those offenders are more likely to be paroled, he said.
Bob Barton, a former Kern County prosecutor who is running for district attorney in 2010, said he can’t comment on the policies of the current DA’s office.
But in general, he believes district attorneys should maintain some discretion to make decisions based on each individual case.
“In the 1980s, the pendulum swung back to a lock ’em up and throw away the key mentality,” he said. “In the 1990s and 2000s, we’re carrying out those changes,” such as Three Strikes and other laws mandating longer prison sentences.
“The flip side is most life crimes are life crimes for a reason,” Barton said. “Because what was done by the offender was atrocious.”
Sick dad gets long sentence for petty crime
My 58-year-old father is handicapped, mentally and physically. He has never committed a violent crime in his life and he hasn't been in trouble for 21 years. One day he decides to shoplift and he gets caught for petty theft; he goes to jail. The judge and district attorney try to push a 52-year sentence on him; that would be life imprisonment for him.
He is denied all medication by the jail. My father suffers from brain damage, kidney failure and diabetes, among other life-threatening problems. Without his meds he has a hard time understanding the reality around him. He spends 14 months in jail with no medication. He went through 40 hypoglycemic shocks during this time. He has been fighting the sentence and gets it dropped to 7½ years in prison for petty theft. The people of California now have to pay to keep a man in prison for 7½ years for petty theft. Maybe if we were all aware of the costs each year to keep him there, we wouldn't let law enforcement make such critical mistakes.
MIKE L. CONVERSE
Posted on Sun, Jul. 09, 2006
A morass behind our prison walls
Mercury News Editorial
``An abomination and an utter failure of state government.''
``A culture of incompetence and non-performance.''
``A system of operation groaning under the burden of the numerous statutes, rules, regulations, policies and procedures.''
That's how Bob Sillen characterized health care in the state's prison system in interviews and in a report last week to the federal judge who put him in charge of fixing it. But the former Santa Clara County health system director could also have been describing the overall condition of the prisons. The problems facing the system as a whole -- inmate overcrowding, bureaucratic gridlock, skyrocketing costs and a morass of union rules and state regulations -- are the same. And they won't be solved with the half-reforms Gov. Arnold Schwarzenegger wants to see passed in an upcoming special session of the Legislature.
The suspect timing of Schwarzenegger's call for a special session points to the continued politics behind the predicament. It followed a report by John Hagar, a court-appointed magistrate, who criticized the governor's team for backtracking on reform by coddling the prison guards' union.
A record 171,000 inmates are overflowing in the state's 33 prisons built for half that number. Their bunks are filling prison libraries, gyms and classrooms, adding to already high tensions. Prison officials are crossing their fingers that they won't explode this summer.
Schwarzenegger wants to create more space by building two more prisons at $500 million apiece (double that, with financing costs), moving 4,500 non-violent female inmates to local settings and creating re-entry facilities where inmates within months of parole can receive training, drug rehab and counseling they're not getting now.
Community-based incarceration for some offenders makes sense. But it would face predictable opposition. (Would the town that wants inmates in its neighborhood please raise its hand?) Schwarzenegger has yet to flesh out his ideas in legislation or lay the groundwork for such a big policy shift. Some prison construction, especially for aging and mentally ill inmates, is probably necessary, but won't end the immediate space shortage.
The prison crisis is not all Schwarzenegger's fault. He has already proposed elements of his plan, only to be rebuffed by the Legislature. But his reforms appear slapdash and incomplete. Two critical elements are missing:
• Wrenching back control of prison operations that former Gov. Gray Davis and past legislatures gave away to the politically powerful California Correctional Peace Officers Association. Sillen, who answers only to U.S. District Court Judge Thelton Henderson, has leverage to do that with regard to prison health care. But other issues are subject to bargaining, and the timing for negotiating a new contract, in an election year, couldn't be worse. Schwarzenegger doesn't accept campaign money from the prison guards. But he apparently worries that the union might unleash its $15 million campaign fund against him, so he doesn't appear willing to stand up to the group.
• Changing parole policies and sentencing laws, including the ``three strikes'' law for non-violent offenses. California is one of the few states to impose a three-year parole on all who leave prison, regardless of the offense. The result, for thousands of inmates repeatedly sent back to prison for technical violations, is ``doing life on the installment plan.'' The state needs to set priorities on who gets parole supervision, who gets returned to prison and who gets training and drug treatment once there.
Without smarter laws and tighter management, there'll be more of the same: The inmate population and the prison budget ($8.7 billion) will grow unchecked; the recidivism rate will remain the nation's highest (66 percent of inmates are back behind bars within three years); and the state Department of Corrections and Rehabilitation will be so in name only.
Sweeping Review of Sentences Ordered
February 10, 2005
Hundreds of federal prisoners in California and eight other Western states will have to be resentenced under a ruling by the U.S. 9th Circuit Court of Appeals in San Francisco on Wednesday.
The ruling was the first action from the appeals court after a landmark U.S. Supreme Court decision last month on sentencing in federal cases.
The Supreme Court ruled that the federal government's sentencing guidelines could not be binding on judges. As a result, federal judges are free in pending cases to give prison terms that are shorter or longer than those called for under the guidelines.
But the ruling left unclear how to handle the cases of prisoners who had already been sentenced under the guidelines. The high court left that issue for lower courts to decide.
Federal appeals courts around the country are weighing the issue. "Every circuit has it in front of them, and every circuit will have to speak to it," said Douglas Berman, a professor at Ohio State University's Moritz College of Law who has a widely read Web log on sentencing issues.
The Supreme Court decision has also prompted concern in Congress, leading to hearings in the House Judiciary Committee.
The 9th Circuit interpreted the Supreme Court ruling broadly. It would be only the "truly exceptional case that will not require" resentencing, the unanimous decision said.
That puts the 9th Circuit in line with three other federal appeals courts that have ruled on the issue: the 4th Circuit, based in Richmond, Va., the 6th Circuit in Cincinnati and the 2nd Circuit in New York City.
So far, only the 11th Circuit, based in Atlanta, which ruled Friday, has taken a narrower stand. The Supreme Court may eventually step in to resolve the disagreement among the appeals courts.
Legal experts said it was particularly noteworthy for the 9th Circuit, generally considered the most liberal federal appeals court in the nation, to be on the same side as the 4th Circuit, widely viewed as the most conservative of the nation's federal appellate courts.
The 4th Circuit's decision last month ordered a federal judge in Virginia to resentence a man who had been convicted of bankruptcy fraud.
Fourth Circuit Judge William W. Wilkins, the former head of the U.S. Sentencing Commission, which wrote the federal guidelines, said that the Supreme Court decision "wrought a major change in how federal sentencing is to be conducted."
As a result, Wilkins wrote, leaving a sentence in place "imposed under the mandatory guideline regime, we have no doubt, is to place in jeopardy the fairness, integrity or public reputation of judicial proceedings."
Wednesday's ruling from the 9th Circuit came in the case of Alfred A. Ameline of Box Elder, Mont., who pleaded guilty to distributing methamphetamine.
Ameline pleaded guilty in 2002 to distributing less than a pound of the drug, which would have carried a 16-month sentence. But under the sentencing guidelines, the judge hearing his case was allowed to make the sentence longer based on a pre-sentencing report by a federal probation officer. The report said that Ameline had sold more than three pounds of methamphetamine.
Based on that report, U.S. District Judge Sam E. Haddon in Great Falls, Mont., sentenced Ameline, 62, to 12 1/2 years.
Last year, in a 2-1 decision, the 9th Circuit said the sentence violated Ameline's right to a fair trial because the judge, following the sentencing guidelines, based his decision on facts that were not proved to a jury.
In its latest decision, the appeals court said it was "plain error" for the judge to sentence Ameline based on a pre-sentencing report. The three-judge panel's opinion spoke in broad terms about the need to "ensure fairness and integrity in the sentencing process."
Although the pre-sentencing report "is essential to the sentencing process, there is nothing sacrosanct about the information contained in the report," Judge Richard Paez wrote in the court's opinion.
He was joined by Judges Kim M. Wardlaw and Ronald B. Gould. All three are appointees of President Bill Clinton. Gould, who is generally more conservative than Paez or Wardlaw in criminal cases, had dissented from the earlier 9th Circuit decision in Ameline's case.
Neither Ameline's attorney nor the U.S. attorney who prosecuted him returned calls seeking comment.
One of the main issues in the cases working their way through the courts involving sentencing is which side — the prosecution or the defense — has the burden of proving assertions such as the amount of drugs in question in Ameline's case.
Prosecutors have taken the position that once they provide evidence, the defense has the burden of proving their assertions wrong.
The 9th Circuit rejected that position, saying that the burden of proving assertions that could affect the length of sentencing must be on the prosecutors.
However, the court declined to say how high the burden of proof would be for prosecutors. That means trial judges will have to decide whether the level of proof must be beyond a reasonable doubt — the normal standard in criminal cases — or whether a lower level of proof used in civil cases would be acceptable.
June 26, 2004
WASHINGTON — The Supreme Court has thrown a wrench into the machinery of sentencing criminals nationwide, legal experts said Friday, and it is not clear the machine can be easily or quickly repaired.
Until now, judges usually have decided the proper punishment for a defendant who pleads guilty or is convicted by a jury.
But on Thursday, the Supreme Court ruled that any factor that results in an increased punishment — such as carrying a gun or failing to show remorse — must be decided by a unanimous jury, not by a single judge.
Suddenly, thousands of pending criminal cases stood in doubt. Must prosecutors change the indictments to include a long list of factors that bear on the crimes? Or must judges hold a separate, post-conviction trial phase for the jury to decide the sentence?
If that does not work, must lawmakers rewrite the laws to set fixed prison terms for certain crimes?
All these questions were being kicked around after Thursday's decision.
"It's going to be interesting to see how all this plays out in the next weeks," said Michael Horowitz of the U.S. Sentencing Commission. He noted that 300 to 400 criminals are sentenced every day in the federal courts alone. Currently, 96% of them plead guilty and waive a jury trial. Now, however, more of them might decide to take their chances before a jury, since it would be difficult for all 12 jurors to reach unanimous agreement on all aspects of the government's description of the crime.
"We might see fewer guilty pleas because of this," Horowitz said.
Many lawyers were quick to say Friday that they do not see an easy solution.
"A lot of people are scratching their heads," said Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento. "The federal sentencing reforms were many years in the making. Now they are in peril."
Prior to the 1980s, two kinds of sentencing systems had been used and discarded at the state and federal levels.
One set fixed sentences by law. A person convicted of robbery would be sentenced to five years in prison, for example, regardless of the circumstances.
"Such a system assures uniformity," Justice Stephen G. Breyer said in dissent Thursday, "but at intolerable costs," since all robbers and robberies are not alike.
The other option, commonly used until the 1970s, set a high maximum in the law — often life in prison — but in fact a judge or parole board decided how long the defendant would serve. For example, as Justice Antonin Scalia noted, the law might have said burglary could be punished by up to 40 years in prison, even though no one would actually serve that long for that crime alone.
In 1984, Congress passed the Sentencing Reform Act to make criminal punishments more consistent and uniform across the nation. It was the work of a political odd couple: Sens. Edward M. Kennedy, the liberal Democrat from Massachusetts, and Strom Thurmond, the conservative Republican from South Carolina.
Before, Thurmond had complained that too many judges gave light sentences. Kennedy worried that poor and black defendants were too often given unduly harsh sentences. The two agreed on a plan to set more detailed sentencing guidelines so the punishment would fit the crime and not turn on the identity of the judge or the defendant.
The sentencing guidelines, which went into effect in 1987, set dozens of factors that might bear on the punishment in a particular case. For example, in a bank robbery, the judge might add or subtract from the prison term based on the kind of institution that was robbed, the amount that was stolen, whether the money was recovered or repaid, whether a weapon was shown or used, whether the tellers were threatened or hurt, and so on.
However, in Thursday's ruling, the Supreme Court said it is unconstitutional for a judge acting alone to use one of those sentencing factors to add to the punishment.
The U.S. Constitution gives defendants a right to trial by a jury, and "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment," said Scalia in Blakely vs. Washington.
Although the case involved the sentencing guidelines used in the state of Washington, the ruling cast doubt on the similar federal sentencing system.
California does not have similar guidelines, and the state's courts may escape the full effect of Thursday's ruling.
"California has been ahead of the curve" because in some cases, juries already decide on whether to increase the punishment, said Laurie Levenson, a professor at Loyola Law School in Los Angeles. But for some crimes, a state judge can raise a sentence from the middle range to the upper range if he or she finds an "aggravating factor," and those sentences could be attacked, Levenson said.
"I think there will be lots of litigation before this is resolved," she said.
The effect on the federal system seems unquestioned. Justices Sandra Day O'Connor, a former Arizona state legislator, and Breyer, an architect of the federal guidelines, wrote long and passionate dissents predicting the ruling would wreak havoc.
The numbers alone are daunting. In the last four years, 272,191 defendants
have been sentenced in the federal courts, O'Connor said. If the U.S. sentencing
guidelines are indeed declared unconstitutional, all those defendants could
claim their punishments were imposed unconstitutionally, she said.
Three Strikes Legal - Index