The Department of Corrections, shortly after the passing of Proposition 36, notified many inmates that they may be eligible for resentencing. Still, if you believe that you or your family member may be eligible, don't wait for someone to notice him/her. Anyone can start the process by contacting the attorney who represented the inmate originally, the public defender of that county, or hiring a private attorney as soon as possible. Many inmates filed habeas corpus petitions, or initial filings in the hopes of getting the process started. While this may be the quickest way to get some information, it may not be the best. It's important that the necessary paperwork be filed correctly and that other filings not interfere with someone's ability to be resentenced. An attorney can advise you or your family member about eligibility upon review of the case; for those who already filed the paperwork, the court will make the initial determination.
SHOULD I STAY OR SHOULD I GO?
One of the first decisions you or your family member may face is whether to leave the prison you're serving your time in and return to the county jail for resentencing hearings. The petitioner's attorney can ask the court to order that the inmate be transported to the local jail so that he/she may attend the hearings. Where the county the inmate was sentenced is too far from his/her current prison, he/she is usually moved to the jail pending the conclusion of the proceedings. This is a far bigger decision than it seems. Prison life is not an easy thing to acclimate to, yet many people will experience difficulty moving back to a county jail style of custody, where the food, opportunities and dynamics are different than they are in prison. You should discuss with an attorney (either the one assigned or a private attorney) the advantages and disadvantages of each decision and consider them carefully, specifically as it applies to each individual case.
Although the procedure differs in every county, many District Attorneys' offices are carefully reviewing every petitioning inmate's prison records for signs of violence, particularly serious incidents, and anything else they can use to show that the inmate is an "unreasonable risk of danger to public safety." The court will also review the facts of the original offense and the inmate's prior record. In some cases, the courts and the attorney's may reargue eligibility based on the current or prior charges and/or file paperwork arguing for or against resentencing. This process can take several months in some counties, while others appear to be making decision rather quickly. Having family members present at the hearings, letting the court know what your plans are if released, and indicators of rehabilitation are all helpful. These arguments can be technical at times and more than anything, it is strongly encouraged that you obtain or seek out an attorney to assist.
DOES IT MATTER?
Over the long terms that many inmates have served, most of them have had opportunity to have both good and bad experiences. Some inmates have spent a substantial amount focused on bettering themselves, while others have not. Ultimately, these decisions will be considered at the time of resentencing. Nearly every inmate has had minor issues while in custody, but the court's concern will largely focus on dangerous, serious or violent incidents that occurred while the inmate was in prison. Even if the participation is more recent, decisions to participate in weekly NA/AA meetings, obtaining a job while in custody, positive employer or counselor reports are all helpful.
WHAT HAPPENS IF I GET DENIED?
You must file a Notice of Appeal. While there is little law YET relating to the reformed law, there will be more law as more cases trickle in and are either resentenced or denied for resentencing. Portions of the law are unclear and attorneys from all over the state are making new arguments about who is and who isn't eligible, and under what conditions someone can be released. If resentencing is denied, it is strongly encouraged that you speak to an experienced attorney to discuss filing a Notice of Appeal or file one yourself. While it's not included in the statute, the right to appeal is expected to exist for those who get denied. A notice of appeal will alert the court and the state's appointed appellate program that you need an attorney (provided to you at no cost) to raise any issues that may have occurred during the resentencing process.
BUT WHAT CAN I DO NOW?
Family members and individual inmates can stay in contact with the attorney on the case, and be a source of information for what can be argued in support of resentencing. Again, while it's different in every county, some judges have asked for release plans, discussed putting petitioners on a type of supervision, etc. Supportive family members or friends in the audience at hearings, support letters, employment or school plans, and inpatient programs all go a long way in convincing a judge that someone does not present an unreasonable danger to public safety.
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