Abstract
Jailhouse lawyering enables incarcerated persons throughout our nation to access the court system as pro se litigants, but self-represented litigants face detrimental barriers to obtaining justice. A partnership between prisoners filing pro se and appointed attorneys is essential to bridge the gap between the vast resources of the State and those of prisoners, equipped with perseverance, ingenuity, and often only electric typewriters or ballpoint pen fillers. Professional advocacy by attorneys and large firms provides prisoners with commensurate resources and lessens the constraints of preparing pleadings and conducting legal research while incarcerated. The collaboration between attorneys and prisoners allows for the professional presentation of novel arguments backed with supporting evidence produced within prison walls.
Despite the administrative and systemic obstacles that constrain pro se lawyering, a group of lifers in San Quentin State Prison were able to expose the Board of Parole Hearings’ de facto “no parole” policy by flooding the system with habeas petitions. They unveiled the Board’s invariable denial of parole for commitment offenses based on the “egregiousness” of the crime, in contravention of the statute requiring that parole shall normally be granted. These San Quentin lifers asserted their right to individualized consideration—ultimately receiving parole on their life sentences. Their litigation encompassed First and Eighth Amendment violations and held the California Department of Corrections and Rehabilitation (CDCR) accountable for falsification of evidence in prison felony prosecutions and mistreatment of prisoners living with HIV and physical and mental disabilities. The accounts of these pro se litigants inform present-day post-conviction, section 1170(d)[1] resentencing efforts, which often fail to contextualize a prisoner’s incarceration record within the abyss of prison life that is “not exactly an ideal therapeutic environment to say the least.”[2] Resentencing courts lack the insurgent knowledge of the brutality and dysfunction of prisons that traumatizes most prisoners. If presented with this insurgent knowledge in a way that they could fully understand, judges would likely conclude that “continued incarceration is no longer in the interest of justice.”[3]
Insurgent knowledge is both a form of knowledge production including political thought and collective organizing for liberation and survival that actively cultivates the transformation of oppressive conditions and a direct relationship to collective movements driven to transform those conditions.[2]
I. The Awakening (1989–1991)
Dylan Rodríguez, an ally to myself and others during my incarceration, used the mantra “insurgent knowledge,”[5] which sparks revolutionary conduct to defy the status quo within the prison system. My awakening to the truth about the California Department of Corrections and Rehabilitation (CDCR) and Board of Parole Hearings came from experiences with the systemic mistreatment of prisoners at Level IV prisons[6] and while I was imprisoned at the California Medical Facility (CMF) from 1985 until 1989, when I was transferred to Corcoran Security Housing Unit (SHU).[7] My time is isolation cultivated an awareness of my own suffering insurgent knowledge and impelled me to defy CDCR and give others a voice to resist at a time when very few lifers were being paroled. My time in the SHU crystallized my understanding of CDCR’s tactics of quelling any challenges to its regime through threats, intimidation and brutality.
I had formal legal training as a graduate of UCLA School of Law and passed the bar in 1980. My homies Rico, Mike, and Eddie were faced with retaliation and deprivation of their rights by prison officials and did not have access to private attorneys. It was natural for me to help my friends challenge the “no parole policy”[8] for lifers and the violation of their constitutional rights. I believed that if my motives were right and I was prepared, eventually I would prevail because CDCR relies on prisoners losing their will to fight back and that was never an option for me. I was prepared to lose everything and could not be dissuaded.
I was transferred to the CMF from Folsom State Prison in 1985. I spent most of my time lifting weights and had a job as a clerk for the Security and Investigations Unit, which investigates prison felonies including assaults and homicides. In 1989, I assisted a prisoner, Dae Won Park, who was born and raised in Korea and could not write fluently in English, to document the mistreatment of handicapped patients in the Physical Therapy Clinic at CMF. Amputees and other patients were routinely denied physical therapy by indolent staff. In retaliation for his complaint exposing abuse of handicapped prisoners, Park was transferred, and I was placed in Willis Unit, otherwise known as administrative segregation and commonly referred to as “the hole,” and falsely charged with a murder-conspiracy. While in Willis Unit, Anthony P. Kane, the CMF Investigative Services Lieutenant who was later promoted to Warden and Commissioner on the Board of Parole Hearings, placed me in a disciplinary detention cell. This area of administrative segregation is reserved for punishment and limited confinement to a ten-day maximum stay under Title 15.[9] I was held there for fifty-one consecutive days while also being deprived of yard time, showers, my personal property, and a mattress. Fortuitously, lawyers from the Prison Law Office were touring Willis Unit while working on a federal civil rights lawsuit[10] challenging the mistreatment of prisoners living with HIV and who had disabilities. Upon calling out to them, I informed them that I was being held in disciplinary detention in violation of Title 15. After a legal visit, I agreed to participate in their lawsuit and testify in federal court in Sacramento, California, about conditions in Willis Unit.
I was released from disciplinary detention and placed on a regular tier in a yard with members of the gang Northern Hispanics.[11] I met prisoners who were amputees being deprived of their prosthetics (staff claimed they could be used as weapons), resulting in bed sores because of their immobile state on the concrete slabs used as makeshift beds in “the hole.” I began assisting with administrative appeals[12] and documenting conditions for the Prison Law Office lawsuit. My motivation then was simply to help prisoners who could not read or write or properly fill out an administrative appeal form. I never disclosed that I had any legal training, and it was not until years later when Rico received a parole date as a result of the writ we filed and he was waiting for the date to be approved, that I confided in him. I filed group and individual appeals that succeeded in inundating the Appeals Office and required staff to respond. The confluence of the active lawsuit in federal court and our efforts to address our grievances through appeals and protests within the unit, which included daily flooding on the housing floors known as tiers and setting fires, placed significant pressure on the staff running Willis Unit, primarily the Associate Warden. In addition to reaching a settlement in the Sacramento lawsuit, the success of our resistance was apparent from the succession of Unit Lieutenants and Associate Wardens stepping down or being reassigned following the initiation of this mass protest.
While in administrative segregation in Willis and Corcoran SHU, I was transported to court and testified on behalf of two prisoners charged with prison murders,[13] revealing how the prisoner informants whose testimony was used to build these cases were bribed with phone calls, televisions, and boom boxes by the correctional officers assigned to investigate prison felonies, such as drug possession, assault, and murder. Both prisoners were found not guilty for these charges.
My efforts to address abuses engendered enmity from correctional staff. I was given a thirty-two-month SHU term in Corcoran after being found guilty of the murder-conspiracy through the prison disciplinary process, which has low burdens of proof and no right to counsel. After serving my SHU term, I was granted a rehearing on this disciplinary charge and transported from Tehachapi (California Correctional Institute) to “the hole” in Solano (California State Prison-Solano) for a rehearing. A Solano County Superior Court judge issued an order barring the use of the confidential informants in prison investigations, which was the evidentiary basis for the Institutional Rules Violation Report[14] I was charged with. This order excluded the testimony from being used in administrative hearings because the investigator, A.P. Kane, provided the prisoner informants with leading questions, including information for them to state on the record. A Solano County Superior Court judge issued an order prohibiting the use of the confidential information in judicial or administrative proceeding and called it a “textbook case on how not to conduct an investigation.” My knowledge of compromised investigations of these prison homicides and the falsification of evidence reports would have had no impact without attorneys with the capacity to authoritatively present this information to a court.
Prison officials use fabricated information provided by confidential prisoner informants, many of whom embellish testimony in order to obtain tangible benefits as simple as not being transferred to a less desirable prison or to extricate themselves from trouble. The probative value of any information from these sources should be negligible, yet these informants are used to plant negative information in the prison files that judges review in making resentencing decisions. Judges often give no thought to the reliability of these confidential sources when deciding whether to grant a prisoner resentencing. Correctional officers gave the informants in my case my boom box (a valuable commodity at the time) and other property as an incentive. One of the informants told his attorney that he knew nothing about me but was pressured to name me. The attorney advised me that he would not represent the informant if he testified against me because the testimony was false. Informants used in investigating prison homicides at CMF were given photo ducats, which are officially used to take photos in the visiting room but could be used as prison money to purchase TVs and radios. If judges understood the context of this “purchased” testimony, they would properly disregard claims based on confidential information and compromised investigations.
II. The Evolution of Insurgency (2002–2009)
After serving my SHU term and having my prison murder-conspiracy charges dismissed, my points dropped,[15] and I was no longer classified as a Level IV prisoner. I was transferred to Corcoran mainline where I programmed with Asians and Pacific Islanders and worked on the Yard Crew. I was transferred to San Quentin State Prison in 1995, where I remained until October 30, 2013, when I paroled from my life sentence. My stay at San Quentin was a pivotal period during which I pursued critical pro per actions on behalf of my allies, including Eddie Zheng, Rico Remedio, and my cellie, Mike Ngo, challenging the Board of Parole Hearings’s eligibility and consideration requirements, and took a stand against First and Eighth Amendment violations.
When we began our pro per actions in protest of the Board of Parole Hearings in 2006, this type of institutionally targeted claim was radical, and many lifers were apprehensive of retaliation by the Board at their hearings if they challenged the integrity of the hearing policies in court. At this time, less than 1 percent[16] of lifers were released on parole.[17] Our resistance challenged injustices that had become accepted as “a part of the prison landscape,” in the words of Mike Ngo.
I wrote my first habeas petition challenging the Board’s denial of parole for my friend Rico Remedio. He would get annual denials of parole despite his involvement in numerous self-help programs and his criminal history being limited to acting as a driver for older gang members. Reading his transcript and the Board’s decision was revelatory. The same language that the Board used to deny me parole—stating that my crime was “particularly cruel and egregious and showed a callous disregard for human suffering” and was “exceptional”—was used verbatim in his decision. By documenting in a habeas petition that this standardized language is used to deny parole without regard to individual commitment offenses,[18] we were granted an Order to Show Cause (OSC) from Marin County Superior Court,[19] which eventually issued a writ granting Rico another hearing where he was found suitable for parole. This first win against the Board was energizing and we were determined to challenge the Parole Board in other cases.[20]
Following this early success against the Board on Rico’s behalf, I began collaborating with fellow prisoners and allies Viet Mike Ngo, Hector Oropeza, and Sterling Scott to demonstrate to judges the use of standard language to deny parole based on the exceptional nature of every murder in California, which defied both law and logic. We argued in both state and federal courts that there must be a continuum of egregiousness—not every murder in California could be exceptional. Mike was able to get discovery ordered on his petition challenging the Board’s denial of parole. His appointed attorney, Jacob Burland, assembled a team of law students and a statistician to demonstrate how the Board used this “exceptional cruelty” standard to deny parole in virtually every case for commitment offenses without evaluating the individualized circumstances for parole suitability. I obtained similar discovery in federal court and was assisted by attorney Keith Wattley in filing a class action against the Board.[21] Through the influx of petitions, courts were able to see how a Board denial of parole premised on the crime being exceptional did not qualify as individualized consideration, but rather a scripted denial given in virtually every hearing for commitment offenses.
Rico did not go home for several more years. His parole date was rescinded because of a disciplinary report issued to him after he, Mike Ngo, Eddie Zheng, and I signed a petition requesting ethnic studies classes in the San Quentin College Program, which had denied Dylan Rodríguez and other professors permission to teach classes in San Quentin because their writings were too radical, and they opposed incarceration. Mike was my cellie, Rico and Eddie were my workout partners, and we all attended college classes. We asserted our belief that if the college program was based on critical thinking and academic freedom, other professors and teachers in the program should not hold the power to censor and restrict what knowledge was accessible to us. Our proposal for the college program, which garnered support from the Asian Prisoner Support Committee,[22] was controversial among prisoners and came to the attention of the San Quentin Public Information Officer, Lieutenant Neinhieus, who was responsible for the security of the program. He ordered the Security and Investigation Squad to search our cells and seize our paperwork and photos in an effort to dissuade and divide. He was unsuccessful. He then interviewed us individually, having found football betting slips in my property, and told me he was not interested in the gambling but rather, why we signed a proposal for ethnic studies in the college program. I told him that if he was not making an issue of the gambling, then I would not make an issue of his actions violating my First Amendment rights. Lieutenant Neinhieus became irate, fulminating, “How am I violating your rights?” After repeating his question and eventually calming down, I explained: “There is a lot in Title 15 that I do not like or agree with. But as much as I might not like or agree with a rule, if I violate it, there are consequences. The same with the Constitution. You may not like or agree with it, but it gives me the right to free speech. And if you violate that right, there are consequences.”
And there were consequences that soon followed our resistance. Rico had his parole date taken, Mike was put in “the hole” and charged with conspiring with a volunteer to bring a gun into San Quentin, Eddie and Rico were later put in “the hole,” and all of them were ultimately transferred to different facilities. I challenged these CDCR-inflicted consequences through appeals, letters to the ombudsman, writs, and a civil rights action. Appointed attorneys took over the section 1983 cases that Rico, Mike, and Eddie filed and secured victories for each of them, removing obstacles for them to be paroled.
During this time, Mike and I had begun addressing CDCR’s use of racial segregation[23] to effectuate double celling of prisoners at a time when San Quentin was so overcrowded that beds were housed in the gymnasium, chapels, and on tiers—called “broadways.” CDCR circumvented the need for interviews to determine whether cellies were compatible and substituted race as the primary determinant for pairing up prisoners in a cell. This policy also facilitated the use of race-based punishment and lockdowns. Mike filed a claim in Marin County protesting this classification system and the strict racial segregation it caused, and later obtained the assistance of another ally, attorney Charles Carbone, who represented me at my parole hearing at which I was found suitable for release in 2012. I filed a civil rights action in federal court in the Northern District of California and settled with CDCR, which changed my racial classification category from “White” to “Other” based on my Lithuanian-Turkish ancestry. I objected to being classified as “White” due to my Jewish heritage and the resulting, involuntary segregation into a group that espoused white supremacy and used swastikas. Ephraim Margolin and later James Brosnahan of Morrison & Foerster LLP took on this case in the Northern District. Brosnahan graciously represented me at my early parole hearings and later won a decision in federal court holding that there was no evidence of unsuitability at my 2009 Board hearing where I was denied parole. Judge Wilken ordered a new hearing, holding that, in the absence of additional evidence, I was to be found suitable.[24] While the case was on appeal in the Ninth Circuit,[25] the U.S. Supreme Court ruled that there was no federally protected interest in parole.[26] So I focused on doing everything within my control to be found suitable for parole by the Board. By 2009, the Board was finding more lifers in San Quentin as suitable for parole and the governor was increasingly allowing them to keep these hearing dates and go home.[27] Freedom seemed attainable.
The trajectory of these efforts reveals the essential advocacy of appointed attorneys who are dedicated to our common mission and willing to expend the necessary resources and effort to properly represent our cases in court. In Mike Ngo’s experience, as a pro per prisoner who lacked formal legal education and practiced as a jailhouse lawyer, working with appointed attorneys not only garnered the respect of the courts, but also significantly increased such prisoners’ access to the justice system through increased legal resources, expertise, and formal filings and briefs, which he later modeled his own pro per actions on. Before reaching the threshold at which point a pro per petitioner is appointed representation, prisoners are plagued by unrealistic disparities in accessing the court system. Many prisoners do not read and write English and lack knowledge of the legal system. Those with this acumen have to overcome substantial legislative barriers such as the vague and burdensome Prison Litigation Reform Act (PLRA) requirements and CDCR barriers such as limited access to the law library, confiscation of legal books and documents, and other forms of retaliation by correctional officers designed to intimidate prisoners to abandon their efforts. Upon being appointed an attorney, these San Quentin lifers encountered many who did not share the same concerns to strive for their agency rather than folding in the face of systemic disparities. In addition to the barriers for pro per litigants to retain appointed counsel, finding attorneys who can match the passion of these litigants fighting for their freedom presents further challenges. In the words of Mike Ngo, his induction into legal practice through pro per initiatives “planted a seed in him” during a time of despair in his life. Jailhouse lawyering provided purpose in his life at a Level III prison, where he chose to “bring agency to [his] allies and fellow inmates who have never had it before.”[28]
Sterling Scott worked to unveil the Board of Parole Hearings’s generalized standard of denial by circulating habeas petitions on behalf of lifers in California courts to bring the reality of prison life and prisoner suitability into the courtroom during a time when denials were routinely given. For Sterling, taking on other prisoners’ cases was the “natural marriage” between his role as a prison clerk and his CDCR training in Office Services & Related Technology. Sterling won habeas petitions releasing several lifers based on his thorough petitions which documented the positive programming and evidence of rehabilitation of the petitioner. In this protest against the Board’s lack of individual consideration for suitability, Sterling and the San Quentin lifers continued to work in solidarity with pro se litigants at the mercy of a broken system.
As a self-taught jailhouse lawyer, Hector Oropeza had experience filing Administrative Appeals for himself and others. Hector gained legal and administrative knowledge from the Prisoner’s Self-help Litigation Manual.[29] Hector was selfless in helping others who lacked literacy or legal knowledge and he acquired a “free legal education” by serving fellow San Quentin lifers in challenging Board denials. Hector required any lifer who he helped to complete self-help programming and show remorse and responsibility for the crime committed. With those requirements met, he could argue to the court that the prisoner did not pose a current threat of dangerousness and met the conditions for parole suitability. These protests against the Board of Parole Hearings by the San Quentin lifers served as a call for justice by presenting prisoners who were eligible for parole, exposing the Board’s standardized denials lacking individualized consideration, and opposing the violation of prisoners’ fundamental rights. Their efforts brought freedom to some and hope to many. We were brothers and comrades, and our resistance was a needed and powerful way to fight back against a broken prison system that was designed to imprison us for the remainder of our lives and ultimately failed to deprive us of our agency.
III. Present-Day 1170(d) Resentencing
The experiences of pro per prisoners illuminate the formidable barriers to properly advocating for oneself from behind bars without resources or legal expertise. The partnership with attorneys is critical to ensure fair and full representation.
Today, as a Legal Assistant in the San Francisco Public Defender’s Unit, I prepare letters referring clients for resentencing,[30] many of whom are serving life sentences and have blemished prison records. Prisons do not ameliorate trauma, addiction, or mental health issues. As a consequence of a life sentence, prisoners will begin their term in maximum-security Level IV institutions, which are dominated by gang and racial violence and where access to self-help programming is scant due to frequent lockdowns in response to violence. Many of these institutions are plagued with systemic racism from correctional staff, who even foment violence among prisoners. Courts give great deference to prison administrators, preferring not to meddle in the daily operation of institutions[31] and commonly viewing organization by prisoners and free people as “potentially explosive.”[32]
District attorneys and judges generally lack discernment and critical thinking when reviewing prison records. Often, records are distorted and do not convey a true account—but rather a deliberately biased picture. The subtext of quotidian violence and despair are not considered in the evaluation of lifers’ files. Insurgent knowledge of the banality of evil practiced by CDCR would mitigate and discount CDCR’s adverse information and reduce the incarceration of those who no longer pose a current danger to society.
Today, I do not have to endure the void of a California prison cell. My purpose in resentencing work is to extend the blessing I was given with my freedom to my incarcerated allies. While in San Quentin, I knew prisoners who received parole dates from the Board in 2012 when I received mine, had them taken by the governor like my date was taken, and still remain in prison. I also know lifers who were granted parole, were found to have violated their parole, and are back in prison, faced again with the same challenges to convince the Board to free them. The vicissitudes of prison life and life after parole have spared me. For most of my three decades in CDCR (formerly CDC), the purpose of prison was punishment.[33] Rehabilitation became an added objective of the CDC’s mission in 2005,[34] but prison yards and the mindset of correctional staff did not fundamentally shift. Prisons at best incubate cruelty, despair, and dehumanization. Rehabilitation or individual transformation is a result of the exercise of one’s will to transcend the detrimental conditions of CDCR. It’s an act of intention and will against conforming to the depravity that CDCR engenders.
Resentencing decisions by prosecutors and judges should take into account the magnitude of punishment that is inflicted by confining human beings to a world of pervasive racial and gang-based violence and the well-documented violence fomented by correctional staff. The Supreme Court deemed the conditions of confinement in California prisons unconstitutional in violation of the Eighth Amendment,[35] and just last year the California Court of Appeals confirmed CDCR’s deliberate indifference to the outbreak of COVID-19.[36] The pain and fear inflicted on family members and loved ones of incarcerated individuals as a result of CDCR’s dysfunction is not given consideration in resentencing decisions.
Honoring the humanity of our incarcerated clients by conveying the brutality of prison to district attorneys and judges who make resentencing decisions is the next front for insurgent knowledge. Dissolving the rigid expectations of how someone navigates the volatility of everyday life in prison requires an education from those who have lived experiences in this crucible and an understand of this suffering.
The collaboration with visionary advocates in the San Francisco Public Defender’s Office, like Jeff Adachi (peace be upon him), Mano Raju, and Matt Gonzales, has enabled our Post-Conviction Unit to achieve freedom for many lifers. Under the leadership of Deputy Public Defender, Jacque Wilson, the San Francisco Public Defender’s Office achieved freedom for several lifers under SB 1437[37] and the changes to the felony murder law. Our office’s Project Freedom, led by Head Attorney Danielle Harris, has liberated many lifers, some who had lost hope of ever leaving prison alive. Prisoners who have endured ample punishment for their crimes and no longer pose a threat to society are entitled to resentencing relief. The transformation of CDCR and the criminal justice system requires insurgent knowledge to penetrate the offices of prosecutors and the hearts of judges.
[1]. Cal. Penal Code § 1170(d) (West 2020).
[2]. In re Elkins, 144 Cal. App. 4th 475, 502 (2006).
[3]. Cal. Penal Code § 1170(d)(1).
[4]. Email from Dylan Rodríguez, Professor of Media & Cultural Stud., Univ. of Cal. Riverside, to author (Jan. 26, 2021, 2:18 PM PST) (on file with author).
[5]. See Dylan Rodríguez, Forced Passages: Imprisoned Radical Intellectuals and the U.S. Prison Regime (2006). As the abstract for Dylan Rodríguez’s book explains:
More than two million people are currently imprisoned in the United States, and the nation’s incarceration rate is now the highest in the world. The dramatic rise and consolidation of America’s prison system has devastated lives and communities. But it has also transformed prisons into primary sites of radical political discourse and resistance as they have become home to a growing number of writers, activists, poets, educators, and other intellectuals who offer radical critiques of American society both within and beyond the prison walls . . . . Rodriguez argues that the cultural production of such imprisoned intellectuals as Mumia Abu-Jamal, Angela Davis, Leonard Peltier, George Jackson, Jose Solis Jordan, Ramsey Muniz, Viet Mike Ngo, and Marilyn Buck should be understood as a social and intellectual movement in and of itself, unique in context and substance . . . . Rodriguez focuses on the conditions under which imprisoned intellectuals live and work, and he explores how incarceration shapes the ways in which insurgent knowledge is created, disseminated, and received. More than a series of close readings of prison literature, Forced Passages identifies and traces the discrete lineage of radical prison thought since the 1970s, one formed by the logic of state violence and by the endemic racism of the criminal justice system.
Id. (abstract).
[6]. See Gabriel Petek, Legis. Analyst’s Off., Cal. Dep’t of Corr. & Rehab., Improving California’s Prison Inmate Classification System (2019), https://lao.ca.gov/reports/2019/4023/inmate-classification-050219.pdf [https://perma.cc/M58W-78TA]. The California Department of Corrections and Rehabilitation (CDCR) operates four security levels of housing for incarcerated people, and describes the levels as follows:
CDCR categorizes its facilities that house male inmates into security levels ranging from Level I (lowest security) to Level IV (highest security). (Facilities that house female inmates are not classified into different security levels as female facilities generally have similar levels of security.) . . . [I]nmates housed in Level I facilities are subject to the least amount of security and are generally housed in open dormitories (rather than cells) that are not required to have perimeter security—meaning some may be only surrounded by a razor wire fence or have no fence at all.
Id. at 4.
[7]. “SHU” refers to Special Housing Unit—also known as “the hole”—and is one of the ways that the Federal Bureau of Prisons isolates incarcerated people. See Prison Life in America: Special Housing Units (SHUs), Zoukis Consulting Grp., https://www.prisonerresource.com/special-housing-units-shus [https://perma.cc/9U8D-K2GM] (“There are three categories of prisoners who are housed in the SHU: (1) Those in disciplinary segregation as a result of a formal disciplinary finding, (2) Those on administrative detention pending transfer or investigation of a disciplinary infraction, [and] (3) Those in protective custody . . . .”).
[8]. Robert Weisberg and colleagues provide a helpful explanation of the “no parole policy” and its history:
[T]he Governor’s use of his power to reverse grants by the Board of Parole Hearings has changed dramatically with the identity of the Governor. Governor Pete Wilson (1991–1999), the first Governor to implement the new measure, rejected only 27 percent of grants, although he only considered a handful of cases. Governor Gray Davis (1999–2003)—who claimed he would not parole a single convicted murderer—reversed virtually all the grants during his term. Governor Arnold Schwarzenegger (2003–2011) reversed about 60 percent of grants, while remanding about 20 percent to the Board of Parole Hearings for further review (though . . . the reversal rate within his term fluctuated). In his first few months in office, Governor Jerry Brown has reversed at the lowest rate of the three Governors. The Davis Administration is likely to remain a sharp anomaly—a virtual nullification of the law—since the Proposition 89 procedure was arguably designed as a kind of appellate review by the Governor.
Robert Weisberg, Debbie A. Mukamal & Jordan D. Segall, Stan. Crim. Just. Ctr., Life in Limbo: An Examination of Parole Release for Prisoners Serving Life Sentences With the Possibility of Parole in California 13 (2011), https://law.stanford.edu/index.php?webauth-document=child-page/164096/doc/slspublic/SCJC_report_Parole_Release_for_Lifers.pdf [https://perma.cc/B5S6-Q5DG].
[9]. Cal. Code Regs. tit. 15, § 3322 (2021). The regulation reads:
(a) No inmate shall be kept in disciplinary detention or confined to quarters more than ten days. The chief disciplinary officer may shorten time spent in disciplinary detention or confined to quarters if the inmate appears ready to conform and the facility disciplinary process will benefit by such an action. When the disciplinary detention or confined to quarters disposition has expired and continued segregation is deemed necessary, the inmate shall be processed pursuant to section 3335.
(b) Time spent in segregation pending a disciplinary hearing shall normally be credited toward any disciplinary detention or confined to quarters sentence imposed. Reasons for not granting such credit shall be explained in the disposition section of the RVR.
(c) No inmate shall be confined to quarters or otherwise deprived of exercise as a disciplinary disposition longer than ten days unless, in the opinion of the institution head, the inmate poses such an extreme management problem or threat to the safety of others that longer confinement is necessary. The director’s written approval is required for such extended confinement.
Id.
[10]. See Gates v. Deukmejian, 987 F.2d 1392, 1395 (9th Cir. 1992) (“[A]ris[ing] out of a complex class action suit brought by prisoners incarcerated at the California Medical Facility (‘CMF’) and the Main Northern Reception Center (‘NRC’) . . . against a number of California state officials . . . in which plaintiffs challenged the alleged unconstitutional treatment of inmates at CMF and NRC.”).
[11]. See Att’y Gen., U.S. Dep’t of Just., Attorney General’s Report to Congress on the Growth of Violent Street Gangs in Suburban Areas, at app. B (2008), https://www.justice.gov/archive/ndic/pubs27/27612/appendb.htm [https://perma.cc/TD95-ZQC5].
[12]. For a primer on administrative appeals, see Prison L. Off., How to File an Administrative Appeal (2015), https://prisonlaw.com/wp-content/uploads/2015/09/AdminAppealsOct2015v3.pdf [https://perma.cc/MS2Q-ALMU]:
A prisoner or parolee can file an administrative appeal to complain about an action taken by any employee of the Department of Corrections and Rehabilitation (CDCR) or any CDCR policy, procedure, or condition that affects the prisoner/parolee. CDCR prisoners who are housed in out-of-state facilities can use the same types of informal grievances and administrative appeals to complain about CDCR or out-of-state facility policies or actions that affect them. The rules that govern administrative appeals are set forth in the California Code of Regulations (CCR), title 15, §§ 3084–3086 . . . .
Id. at 1 (citation omitted). The Prison Law Office explains the refusal of courts to:
address legal complaints raised by prisoners unless the prisoner first completes the administrative appeal process. In other words, a prisoner must ‘exhaust administrative remedies’ before asking a court to step in. The CDCR’s policy is that all appeals (including appeals that are rejected or cancelled) must be presented up through the third level of review before administrative remedies are deemed to be exhausted. Also, remedies will not be considered exhausted as to any new issue, information, or person that was not included in the original appeal. If you are a prisoner or parolee, you usually must present an administrative appeal through the third (final) level before filing a state court petition for a writ of habeas corpus regarding a prison or parole conditions issue. A court may allow you to file a habeas petition without first completing the administrative appeal process in some special circumstances; for example, if the action requested cannot be granted via an administrative appeal, if it is clear under established CDCR policy that an appeal will not be granted, or if there is some emergency such that failure of the court to act immediately could result in great harm.
Id. at 3 (citations omitted).
[13]. See Investigations, Cal. Dep’t Corr. & Rehab., https://www.cdcr.ca.gov/bph/divisions/investigations [https://perma.cc/8PPS-4GRA] (outlining the processes of pardons, board investigations, pre-parole, and prisoner transfer investigations); see also What to Expect: Reception and Classification Process, Cal. Dep’t Corr. & Rehab., https://www.cdcr.ca.gov/ombuds/ombuds/entering-a-prison-faqs [https://perma.cc/JYZ6-P47R] (outlining the reception and classification process, which classifies incarcerated people by security levels and privilege groups).
[14]. The California Department of Corrections and Rehabilitation (CDCR) has procedures for punishing people who violate prison rules and for removing them from the general population for disciplinary or safety reasons. A disciplinary offense can have significant negative consequences. California Penal Code Section 2932 and Code of Regulations Sections 3310 to 3326 establish rules for conduct and a disciplinary process for addressing violations of prison rules. See Cal. Penal Code § 2932 (West 2020); Cal. Code Regs. tit. 8, § 3310–26 (2021). The CDCR rules set up a tiered disciplinary system with increasing levels of punishment for increasingly serious misconduct. See Heather MacKay & Prison L. Off., The California Prison and Parole Law Handbook (2019), https://prisonlaw.com/wp-content/uploads/2019/01/Handbook-Chapter-5.pdf [https://perma.cc/5FMQ-PS62].
[15]. “Points” refer to an inmate’s preliminary score calculated based on personal and offense-related factors which determine the level of prison they are placed into. See CDCR Classification Score Sheet, Cal. Code Regs. tit. 15, § 3375.3 (2021). Factors to determine preliminary score, or “points,” which dictate the level of prison into which a prisoner is placed include: (1) age at first arrest; (2) age at reception; (3) term points; (4) involvement in a street gang or “disruptive group;” (5) existence of mental illness; (6) prior sentences; and (7) prior incarceration(s). Id.
[16]. Weisberg et al., supra note 8, at 15 fig.7.
[17]. For annual data on conducted parole hearings and parole grants from 1978 to 2019, see Suitability Hearing Summary Calendar Year 1978 Through Calendar Year 2019, Cal. Dep’t Corr. & Rehab., https://www.cdcr.ca.gov/bph/2020/01/09/suitability-hearing-summary-cy-1978-through-cy-2018 [https://perma.cc/VBN9-GEG6]. Note that these data do not take into account reversals made by the governor, so in 2003, while around 3.8 percent of lifers were granted parole, the percentage of those actually released was much lower. See Weisberg et al., supra note 8, at 13–15, 15 fig.7. For example, Governor Schwarzenegger reversed about 60 percent of parole grants between 2003 and 2011 and remanded about 20 percent back to the Board of Parole Hearings. Id. at 13 (“A lifer’s prospect of actually being granted parole by the Board and not having the decision reversed by the Governor is—and always has been—slim.”).
[18]. See Cal. Penal Code § 3041 (West 2020). The relevant portion of the Section states:
In the case of any inmate sentenced pursuant to any law . . . , the Board of Parole Hearings shall meet with each inmate during the sixth year prior to the inmate’s minimum eligible parole release date for the purposes of reviewing and documenting the inmate’s activities and conduct pertinent to both parole eligibility and to the granting or withholding of postconviction credit. During this consultation, the board shall provide the inmate information about the parole hearing process, legal factors relevant to his or her suitability or unsuitability for parole, and individualized recommendations for the inmate regarding his or her work assignments, rehabilitative programs, and institutional behavior. Within 30 days following the consultation, the board shall issue its positive and negative findings and recommendations to the inmate in writing . . . . The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime. Any person on the hearing panel may request review of any decision regarding parole for an en banc hearing by the board. In case of a review, a majority vote in favor of parole by the board members participating in an en banc review is required to grant parole to any inmate.
Id.
[19]. See Order of Service; Denying Plaintiff’s Motion for Appointment of Counsel, Ngo v. Woodford, No. C 04-5070 JF (PR) (N.D. Cal. Mar. 20, 2006) (petitioner challenging San Quentin State Prison’s racial segregation classification system in the Marin County Superior Court); see also APSC, San Quentin Trial for Racial Segregation, Indy Bay (Nov. 18, 2003), https://www.indybay.org/newsitems/2003/11/18/16601811.php [https://perma.cc/KEA3-73JU] (“[T]he practice of racial segregation is more than a violation of prisoners’ constitutional rights, which denies them the choice of cellmate and the freedom from unwarranted group punishment. It provides a means for the prison administration to manufacture and manipulate racial conflict and violence between prisoners . . . [and] impacts the critical issue of overcrowding . . . insofar as incoming prisoners are not assigned to available space if they cannot be racially paired off.”).
[20]. See Parole Suitability Hearings, Cal. Dep’t Corr. & Rehab., https://www.cdcr.ca.gov/bph/parole-suitability-hearings-overview [https://perma.cc/C2L7-2S33]. The CDCR describes parole suitability hearings:
A parole suitability hearing is a hearing conducted by the Board of Parole Hearings (Board) to determine if an inmate should be released from prison. A parole suitability hearing is often a very stressful and significant event for inmates, victims, victims’ family members, correctional staff, and the community. The Board is dedicated to protecting public safety, treating all persons who participate in a parole hearing with respect and dignity, applying the law in an unbiased manner, and protecting the rights of inmates and victims. The Board conducts parole suitability hearings for a variety of inmates who are sentenced to lengthy prison terms, including: Inmates sentenced to life with the possibility of parole, commonly referred to as life-term inmates or “lifers,” once they have served a certain amount of time based on the sentence imposed by the court[;] Inmates sentenced to life with the possibility of parole for a nonviolent offense under an alternative sentencing scheme, such as the state’s Three Strikes Law, once they have served a certain amount of time based on their commitment offenses[;] Youth offenders—inmates who were under the age of 26 at the time of their offense, who have served a minimum of 15, 20, or 25 years of continuous incarceration, depending on the sentence imposed by the court, and who are eligible for a youth offender hearing[;] Inmates who are age 60 or older, who have served 25 years of continuous incarceration, and who are eligible for the state’s elderly parole program. The purpose of a parole suitability hearing is to determine if an inmate should be released from prison. Parole suitability hearings are usually conducted in-person at the prison where the inmate is located. However, inmates serving their California prison sentence in another state may have their parole hearing conducted by telephone or via videoconference. Hearings are conducted by a two or three-person panel comprised of commissioners and a deputy commissioner.
Id.
[21]. See Liebb v. Brown, No. C 04-4213 CW (JL), 2007 WL 2778820 (N.D. Cal. Sept. 21, 2007) (granting discovery of virtually all Board of Parole Hearing denials, citing egregiousness of crime as a criterion for unsuitability).
[22]. See Mission & History, Asian Prisoner Support Comm., https://www.asianprisonersupport.com/our-mission-1 [https://perma.cc/X9NQ-MRES]. The mission of the Asian Prisoner Support Committee (APSC) is to:
provide direct support to Asian and Pacific Islander (API) prisoners and to raise awareness about the growing number of APIs being imprisoned, detained, and deported. Since 2002, APSC has led programs in prisons, organized anti-deportation campaigns, provided resources to “lifers,” and developed culturally relevant reentry programs. APSC grew out of the campaign to support the “San Quentin 3”—Eddy Zheng, Viet Mike Ngo, and Rico Riemedio. The San Quentin 3 advocated for Ethnic Studies at San Quentin and in retaliation by the prison administration—were sent to solitary confinement and transferred to different prisons. After spending months in solitary confinement (up to 11 months), Eddy, Mike, and Rico were released and eventually, all received parole (Eddy 2005, Rico 2007, Mike 2011).
Id.
[23]. See Liebb v. Woodford, 171 F. App’x 198 (9th Cir. 2006). We filed a Federal Court challenge to the racial classification system in San Quentin State Prison.
[24]. See Liebb v. Ayers, No. C 08-02643 CW, 2009 WL 4724238 (Dec. 2, 2009), rev’d sub nom. Liebb v. Cullen, 427 F. App’x 566 (2011).
[25]. See Cullen, 427 F. App’x 566.
[26]. See Swarthout v. Cooke, 562 U.S. 216, 219–20 (2011) (holding that federal habeas relief did not lie for violations of state law, and the California parole statute did not create a protected liberty interest of which California’s “some evidence” requirement was a component).
[27]. See Weisberg et al., supra note 8, at 15 fig.7 (showing the estimated likelihood of being granted parole by both the Board of Parole Hearings and the governor increased between 2007 and 2010, from around 1 percent to above 6 percent).
[28]. Telephone Interview with Mike Ngo (Dec. 28, 2020).
[29]. John Boston & Daniel E. Manville, Prisoners’ Self-Help Litigation Manual (4th ed. 2010).
[30]. For California’s resentencing statutory scheme, see Cal. Penal Code § 1170(d)(1) (West 2020):
When a defendant . . . has been sentenced to be imprisoned in the state prison or a county jail . . . and has been committed to the custody of the secretary or the county correctional administrator, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, the county correctional administrator in the case of county jail inmates, or the district attorney of the county in which the defendant was sentenced, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. The court resentencing under this paragraph may reduce a defendant’s term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice. The court may consider postconviction factors, including, but not limited to, the inmate’s disciplinary record and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate’s risk for future violence, and evidence that reflects that circumstances have changed since the inmate’s original sentencing so that the inmate’s continued incarceration is no longer in the interest of justice. Credit shall be given for time served.
Id.
[31]. Courts are properly reluctant to interfere with prison administration, given the manifold factual difficulties inherent in that task. See, e.g., Bell v. Wolfish, 441 U.S. 520 (1979); Bradshaw v. Duffy, 104 Cal. App. 3d 475, 483 (1980).
[32]. In re Price, 25 Cal. 3d 448, 454 (1979).
[33]. Cal. Penal Code § 1170(a).
[34]. In 2004, the California Department of Corrections (CDC) was renamed the CDCR. Department of Corrections and Rehabilitation, AllGov Cal., http://www.allgov.com/usa/ca/departments/independent-agencies/department_of_corrections_and_rehabilitation?agencyid=223 [https://perma.cc/WG33-JYLG].
[35]. Brown v. Plata, 563 U.S. 493 (2011).
[36]. In re Von Staich, 56 Cal. App. 5th 53 (2020).
[37]. S. 1437, 2017–2018 Reg. Sess. (Cal. 2018).
