The last 30 years in prisoner and constitutional law has been the erosion, rather than an expansion, of legal, civil, and political freedoms for inmates. Prisoners have lost more rights than they have gained. Despite this, prisoners have retained some rights in the courts which can be defended and advanced. The most basic prisoner rights can be divided into two categories:

1. the right to challenge a criminal conviction and

2. the rights which affect the conditions of a prisoner's confinement

Let's deal with the first - namely, the right to challenge a criminal conviction.

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(a) The right to challenge a criminal conviction

Here's the truth on how criminal appeals work: A person is convicted in state court by either a plea agreement or by a jury. If a plea is accepted, the prisoner has fewer recourses for challenging the conviction. There is no right to appeal a plea agreement, and accordingly, prisoners who accept a plea are not given appointed counsel to appeal the plea in the California Court of Appeals. All too often, prisoners who accept a plea based on faulty, inaccurate, or misleading information realize after arriving in prison that they made a terrible mistake. Undoing the plea, however, is no easy task. 

When a prisoner petitions the court to reverse or undue a plea agreement, courts will generally examine whether the plea was made in a "knowing" and "intelligent" manner. The evidentiary standard for reviewing the legality of a plea agreement is to assess whether the plea was made in a "voluntary and intelligent" manner. On the topic of "voluntary," an appellate court may review whether the accused entered into the contract freely. In other words, was the accused threatened, coerced, or under undue duress in entering his plea? Obviously, being scared of going of trial does not constitute sufficient duress. A plea becomes involuntary when an accused is threatened or abused or a confession or plea is coerced, Unless those characteristics are present, an appellate court will assume that the plea was voluntary. 

An appellate court will review whether a plea was intelligent by gauging whether the accused was properly informed of the rights he waived; knows the consequences of the plea (time to be served); and knows that the government is otherwise prepared to proceed to trial, etc. There is an equally difficult bar to establish that a plea was not made in an intelligent manner. 

If a prisoner has been convicted by a jury, it is easier -- although it's still hard -- to challenge the conviction. Here's how this appeals process works: A person is convicted in the trial court or what is called the "California Superior Court for the County of ____." Once the jury convicts, the convicted is given one appeal as a matter of right. This means that the convicted is given a free-of-charge appellate attorney to file an appeal in the California Court of Appeals. These attorneys handle too many appeals and consequently have limited time to investigate and attack the conviction in a thorough manner. Many appellate attorneys don't even visit their clients in prison. If the Court of Appeals affirms the conviction, the prisoner must on their own or through a hired lawyer bring their appeal before the California Supreme Court. It is critical for a prisoner to bring their appeal before the California Supreme Court because according to a federal law passed in 1996 called the Antiterrorism and Effective Death Penalty Act, prisoners must have the California Supreme Court hear an appeal before one is reviewed by the federal courts. This means that prisoners may never get into federal court unless they file an appeal before the California Supreme Court. All too often, prisoners who want their convictions heard in federal court are precluded from doing so because they haven't filed a timely appeal in the California Supreme Court. This bad outcome underscores the absolute importance of having, if available, a good and knowledgeable appeals attorney who can file a thorough appeal in the California Supreme Court which will provide the foundation for an appeal in federal court. 

Some common pitfalls and traps of prisoners occur when prisoners fail to file a timely appeal in the California Supreme Court. In this instance, the prisoner is forced to file what is known as "Collateral Attack" or "Collateral Appeal." This legal instrument is an appeal filed when the statute of limitations (amount of time to file) has expired on a direct appeal.

Courts are leery to accept Collateral Attacks because they consider such appeals to be late. Prying open the court house door is only allowed on two grounds. A prisoner must first prove to the court the existence of either:

1. new court precedence which due to its retroactive application would render the conviction unlawful; and/or

2. that newly discovered evidence exists which could not have been reasonably discovered earlier and upon which the prisoner did not delay in presenting the court.

Let me try to make sense of these two requirements for you. On the first, a prisoner would have to show that a new controlling court decision has been issued that would call into question the legitimacy or legality of the conviction. Moreover, this new court decision(s) must apply on a retroactive basis -- meaning that the decision applies to criminal cases which were decided in the past as well as to new cases. This retroactive requirement is difficult to meet because while new cases are decided all the time it is rare that the court decides that a new case has retroactive application because the court system hates to unravel old decisions. The court system frowns on such retroactive application because it makes more work for judges and brings uncertainty into the law. 

Often the sole ability to get back into court once the statute of limitations has expired rests on the grounds of establishing newly discovered evidence. This requirement can be tricky so it's important to understand how it works. The newly discovered evidence requirement has several components. One, that the evidence could not have been discovered without a reasonable degree of diligence (effort); two, that the evidence is not cumulative (meaning merely echoing other evidence which was already heard); three, that the convicted brought such evidence to the court's attention within a reasonable period of time; and four, that if the evidence is assumed true that such evidence would serious undermine the conviction. Now be careful because many prisoners and their families mistake this requirement as a license to raise issues that were known at trial (like a particular fact wasn't raised by the defense attorney). Newly discovered evidence means just that -- it was not known at trial and was recently discovered. 

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(b) The Rights of Prisoners In Their Conditions of Confinement

Almost all rights of prisoners is judged against what is called the "Turner" test. This "Turner" test refers to a 1987 U.S. Supreme Court case where the high court established a four part test for deciding whether a prison rule or regulation is constitutional. There are 4 criteria that any court will apply when reviewing the constitutionality of a prison regulation. The court will consider:

1. whether there is a valid and rational connection between the prison regulation or practice and the legitimate governmental interest that justifies it;

2. whether there are alternative means of exercising the right that remain open to prison inmates;

3. the impact accommodation of the constitutional right in question will have on guards and other prisoners, and on the allocation of prison resources generally;

4. whether there are readily available alternatives that fully accommodate the prisoner's rights at de minimis cost to valid penological interests.

Once known, it becomes clear how easy it is for prison administrators to meet the low threshold in the "Turner" test for constitutionality, and we begin to see why prison wardens and other correctional staff exude such great confidence in enacting any rule or regulation regardless of its intelligence or harm to prisoners because the courts are not likely to overturn or declare the rule unconstitutional. 

Apart from prison rules and regulations, courts are even more deferential to the decisions of prison staff under a different standard known as the "some evidence" standard. Under this criteria -- established in another U.S. Supreme Court case known as Superintendent v. Hill -- the "some evidence" standard only requires that prison staff refer to minimal evidence to support their conclusion or decisions. For example, when deciding whether a prisoner has broken the prison's rules (e.g. attacking another inmate or having contraband), the prison staff has to merely refer to "some evidence" or proof that the prisoner has broken the rules. As long as the prison staff can refer to some evidence or proof, courts of law are precluded from looking further into whether the evidence actually supports the claims of the prison's staff. This highly deferential standards basically allows prison staff a "free-ride" to make any decision regardless of its merit as long as they can offer some proof or evidence that they considered.

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(a) What is the Exhaustion Requirement?

Prisoners can generally have almost any claim or complaint heard in court as long as they first exhaust their administrative remedies. This means that prisoners must first have their complaint heard through the prison's internal grievance process. In California, the prison grievance process is commonly referred to as the "602' process because prisoners must fill out a form called a "602." A prisoner has 15 weekdays to file a 602 from the date of the incident which they are complaining about. Once submitted to prisons staff -- usually, the prison's "appeals coordinator" -- the prison must answer the administrative appeal within a set period of time. The prisoner must then continue their appeal at three levels of review. Only after receiving a denial at the third level has a prisoner then "exhausted" their administrative remedies by having their 602 appeal heard and denied at three levels of internal review by prison staff. Once exhausted, the prisoner can bring their complaint to a court of law. If a prisoner tries to file a complaint in court without first "exhausting" their administrative remedies, the court will throw their case out.

There are two other exhaustion requirements that are lesser known but equally important. One is the requirement that prisoners file a "Board of Controls Claim" with a California state agency known as the California Board of Controls if they are seeking monetary damages in a lawsuit against the California Department of Corrections and (supposedly) Rehabilitation. Any prisoner who wants to sue the Department of Corrections for money damages must first file a Board of Controls Claim available on this web site: http://www.boc.ca.gov/.

Second, on medical neglect claims, any prisoner who wants to sue a prison doctor for medical neglect must first notify the doctor of their intent to sue by filing a complaint -- which complies with Section 364 of the California Code of Civil Procedure -- against the doctor with the California Medical Board. Again, any prisoner medical suit against a doctor will be thrown our of court if this requirement is not met.

Given these procedural hurdles and hoops which prisoners are required to pursue and complete before even getting into court, one can see how important it is to hire a knowledgeable attorney who specializes in prisoner rights or to educate yourself on the law before pursuing a lawsuit without an attorney.

(b) What Are the Types of Lawsuits That Prisoners Can Bring?

There are mainly four types of lawsuits which prisoners can bring in California. While there are others, the four main ones are:

1. a state writ of habeas corpus;

2. a federal writ of habeas corpus;

3. a state civil tort lawsuit;

4. a federal section 1983 civil rights lawsuit

I will briefly explain each. 

1. A State Writ of Habeas Corpus:

A state writ is a fairly easy lawsuit to bring in state court which can be used to challenge either a criminal conviction or condition of a prisoner's confinement. The advantage to the state writ is that the case is decided fairly quickly usually in about 4 months time. Another advantage is that there is no filing fee and that the state must appoint the prisoner an attorney if the court decides to hear the case. The major disadvantage is that monetary damages are not available if the prisoner files a state writ. 

Cost: I typically charge around $5,000 for the filing of a Writ in California Superior Court. 

2. A Federal Writ of Habeas Corpus

A federal writ is most often used for challenging a state conviction or a denial of parole by the Board of Parole Hearings. This legal tool can be quite effective because there are no filing fees, and the court generally hears these cases faster than others reviewed by the notoriously slow federal courts. 

Cost: I typically charge around $3,500 to $6,000 for the filing of a Writ in federal court dealing with prison conditions and approximately $7,000 to 15,000 to challenge a criminal conviction.

3. A State Civil Tort Lawsuit

This is perhaps the most difficult and frustrating type of lawsuit a prisoner can file. It operates like an ordinary civil complaint that is filed between parties. Prisoners are expected to conduct discovery (meaning take depositions and operate as a lawyer in obtaining evidence from the defendants), and to fully litigate their case as if they were in "free" society. The major disadvantage to these cases is that they are difficult to litigate and very time consuming. Plus it is often necessary to hire expensive experts to testify should the case go to trial. The advantage to filing a civil tort complaint is that monetary damages are available.

Cost: I typically charge around $15,000 to $25,000 for the filing of a civil suit in California Superior Court. 

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4. A Federal Section 1983 Civil Rights Action

A federal 1983 action is a commonly filed federal complaint alleging a violation of a prisoner's civil rights. These cases are subject to a "screening order" by the federal courts which must first decide if the prisoner's complain has merit. Once the federal court decides such the prisoner's case may proceed. Prisoners are fully expected to litigate their case. Unfortunately, federal courts will rarely appoint the prisoner a free attorney in section 1983 actions. Expensive experts are often required to offer testimony on behalf of the prisoner. Monetary damages are available even though prison staff often invokes a defense against an award of money damages by claiming "qualified immunity." This defense requires that prisoners prove that the prison staff either knew or should have known that they were violating the U.S. Constitution when they were acting against the prisoner. This can be especially hard to prove in court. 

Cost: I typically charge around $6,000 to $15,000 for the filing of a federal 1983 action in federal court. 

Overall, I strongly urge prisoners who don't have a lawyer file a state writ of habeas corpus where available. As mentioned, these cases are easier to litigate without an attorney, and the prisoner may even get an appointed attorney if their case has merit. I discourage prisoners from filing 1983 actions or civil tort claims without the assistance of an attorney because of the complexity of these cases. 

Having a thorough and thoughtful prisoner rights lawyer on your side can make all the difference. Prisoners who file complaints without the assistance of an attorney have a very low chance of success. Unfortunately, the statistics on prisoners losing cases support this contention. Prisoners are often out-maneuvered by government lawyers who use every trick in the legal play book to get a prisoner's case thrown out. A good prisoner rights lawyer can go toe-to-toe with the prison's lawyers and can ensure that the merit of the case has a chance.

 

While many inmates serving long life sentences are familiar with the law of parole, far too many are unaware of the political dimensions of the Board of Prison Terms' consideration of a finding of parole suitability. I will try to decipher these considerations for you:

First off, let's deal with the legal landscape for a moment because it bears upon the reasoning of the Board of Parole Hearings. Undoubtedly, the California Supreme Court decision of Dannenberg ((2005) 34 Cal.4th 1061) is having a nightmarish effect on parole hearings. First, Dannenberg ruled that the Board does not have to engage in a "proportionality" test when reviewing whether a murder was committed with "callous disregard." The Board had been for years characterizing every murder before it as being committed with "callous disregard" in order to avoid the statutory mandate that the Board "shall normally" release any prisoner who is suitable and has done sufficient time under the sentencing matrix of 15 CCR §2282 et seq. Now, under Dannenberg, the Board does not have to characterize every crime as being committed with "callous disregard" to permit the Board's disregard for the mandate of Penal Code § 3041. The Board can use the label "callous disregard" without having to compare the crime with a similar murder. Basically, the Board can slap the "callous disregard" label on the crime without reference to any other crime. Second, the Board doesn't need this label to establish an exception to applying the sentencing matrix because Dannenberg now permits the Board to rely on the commitment offense alone to conclude that the crime demonstrates that the lifer continues to pose an unreasonable risk to society. In translation, Dannenberg gives the Board a "blank check" to rely on every lifer's crime of murder (or rape or kidnapping) to conclude that the lifer will always pose and unreasonable risk for future violence, and accordingly never reach a finding a suitability.

Now that you understand that the Board is empowered by Dannenberg (we should call it jet fuel) to have nearly unfettered discretion to deny parole, let's turn to what a lifer can actually do to best prepare themselves for a chance at parole.

First off, there are unwritten rules and considerations of the panel that lifer's should know. Some are obvious while others are not. Here they are in no particular order:

1. Every time a lifer gets a 115, s/he's basically adds five years to any possibility of getting a date out of the Board. Incurring a 115 can be a serious set back in getting a date, perhaps the biggest one.

2. Of particular importance to SHU inmates, the Board has an unwritten rule that it will not parole a lifer from the SHU. In fact, the panel and Governor Schwarzenegger even require former SHU inmates debrief as a condition of a getting a parole date despite being deemed inactive for over a decade in several cases.

3. A lifer must express consistent and sincere remorse for their offense and priors despite, in many instances, the lifer being innocent or not as involved in the crime as deemed by the trial court. Basically, a lifer has to throw themselves into the pit of self-deprecation and express serious remorse despite any level of contribution to the offense.

4. One vocation is not enough for lifers. The Board often times requires several -- as in 3 or 4 -- vocations as a condition of parole. This is especially troubling given that many prisons have stopped offering these programs.

5. Lifers must have several stable residences available to them upon release.

6. Lifers must have no less than 2 firm job offers awaiting them, preferably in the trade or vocation in which they are trained.

7. A lifer must have a GED at bare minimum. It is preferred that the lifer has an AA degree or BA/BS degree.

8. The lifer must be forthcoming, articulate, and perhaps even poignant, at their appearance before the panel.

9. The lifer must not have the victim's family interested in opposing their release, or worse, have the victim's family appear at the hearing.

10. The District Attorney's office should not oppose the lifer's release.

Even when each of these conditions are met, there is absolutely no guarantee that the lifer will get a date given the often ill-reasoned opinions of the panel. At times, the logic of the panel's decision is incomprehensible The panel will take dates previously given without a change in a lifer's status. And the panel will give dates to lifers who are seriously less-deserving than others. There is no mistaking that the U.S. in general, and California in particular, are wildly confused on lifer issues with sentences far surpassing those served for similar offenses in countries who also profess democracy and the rule of law. Simply stated, there are tremendous flaws with an indeterminate sentencing scheme which grants great discretion to political appointees with little judicial review to ensure their compliance with the legislature's directives or the needs of public safety. Keeping lifers locked-up well-beyond any reasonable period of time fails everyone from the taxpayer, the lifer, the victim, the lifer's family (who is also then victimized), and of course the cause of public safety. It seems the only beneficiary is the bloated prison system. 

Given these issues, here are a few recommendations for lifers to bear in mind when they are up for parole consideration.

1. The parole board is not a confessional booth. You are not required to admit anything. If you didn't do the crime, or didn't do the crime as described, don't admit to it. Be consistent. Don't change your story. Go with the truth from the first to the last appearance.

2. Remember that the Board asks two types of questions - ones in which they just want the bare bones facts and don't want you to ramble on; and two, more open ended questions where you are permitted and encouraged to reveal more about yourself and where you should feel free to give longer responses.

3. Seriously consider not going with the Board of Parole Hearings (BPH) appointed attorney. Appointed attorneys, even if they care, are grossly underpaid, and according can give your case very limited attention. If possible, consider hiring a private attorney who is well-versed in parole matters. This can make a big difference.

4. Make certain you are free of 115's.

5. Obtain laudable chronos from correctional staff without becoming a "chrono chaser."

6. Get a GED or higher degree even if you have to do it from a correspondence course.

7. Get a vocation -- make it several.

8. Try to have regular contact with your family even if it's via letters to prove "stable" and "healthy" social relationships. Family also can be critical in finding housing and job offers.

9. Attempt to secure support for release the victim's family without waking a "sleeping giant" if the family hasn't appeared at past hearings. A letter of apology sent to the family via the District Attorney can be effective.

10. Have friends and family lobby the DA to back-off on opposition to your parole.

11. Bear in mind that you may have to lobby the Governor too should the Board give you a date.

12. Show initiative by pursing your own "rehabilitation" through book reports, classes, or self-study despite the lack of programs offered at your prison.

13. Be realistic. You are not going to get a date the first few times you appear before the panel especially if you have recent 115s.

This portrait of the parole process isn't pretty. And the information offered here is not meant to excuse the unfairness of the process. Quite frankly, too many lifers who have proven their suitability (and exceed it) for parole are still doing time. It’s criminal to keep someone locked up who has done everything asked of them and then some. A massive overhaul -- make that a scrapping -- of the parole process is desperately needed. Until then, pay heed to these suggestions and observations and you will vastly improve your parole chances.

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If you are confused, overwhelmed, or discouraged by all of this, the best thing to do is take a deep breath and know that you are not alone. Unfortunately, because of the massive rate of incarceration in the U.S., too many families and prisoners are harshly affected by American's love affair with prisons. There are a good prisoner rights organizations out there (including California Prison Focus at www.prisons.org) who can help. And there are a few good lawyers who really care and who know the law. 

I suggest asking some basic questions up front before hiring a lawyer. Don't forget to ask any lawyer some basics: how much is this going to cost from start to finish?; what will you be filing in court?; what is your guess as to how long this will take?; what do you think is the chance of success?; and, have you handled this type of case before? One recommendation that I strongly encourage to ask the lawyer for copies of all documents filed with the court so that you can see for yourself what the lawyer is doing on your behalf.

Be sure to check back here regularly as I will try to update this page with important legal developments and tips! The goal of justice requires our full participation.

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