PRISON LAW OFFICE General Delivery, San Quentin, CA Telephone (510) Fax (510)

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1 Director: Donald Specter PRISON LAW OFFICE General Delivery, San Quentin, CA Telephone (510) Fax (510) Your Responsibility When Using the Information Provided Below: When putting this material together, we did our best to give you useful and accurate information because we know that prisoners often have trouble getting legal information and we cannot give specific advice to all prisoners who ask for it. The laws change often and can be looked at in different ways. We do not always have the resources to make changes to this material every time the law changes. If you use this pamphlet, it is your responsibility to make sure that the law has not changed and still applies to your situation. Most of the materials you need should be available in your institution s law library. Managing Attorney: Sara Norman Staff Attorneys: Rana Anabtawi Rebekah Evenson Steven Fama Penny Godbold Megan Hagler Alison Hardy Corene Kendrick Kelly Knapp Millard Murphy Lynn Wu INFORMATION ABOUT THE PAROLE REVOCATION PROCESS, THE VALDIVIA INJUNCTION, AND PROPOSITION 9 Updated February 2012 You are receiving this letter because you wrote to our office seeking assistance with the parole revocation process or asking for information about the class action lawsuit, Valdivia v. Schwarzenegger (E.D. Cal. No. S LKK/GGH). Unfortunately, we are not able to provide personalized responses to everyone who contacts our office about the Valdivia lawsuit. We hope that this letter and any enclosed information answers your questions and helps you understand and protect your rights. The Valdivia Permanent Injunction and the Conflict with Proposition 9 We are one of the law firms working on the Valdivia case, in which a federal court found that California s parole revocation process was unconstitutional because parolees were placed in custody for months without any showing of probable cause to support the parole holds. (Valdivia v. Davis (N.D. Cal. 2002) 206 F.Supp.2d 1068.) The court ordered state parole officials to develop new revocation procedures to meet constitutional standards. Those procedures are described in a Permanent Injunction issued on March 9, Board of Directors Penelope Cooper, President Michele WalkinHawk, Vice President Marshall Krause, Treasurer Honorable John Burton Felecia Gaston Christiane Hipps Margaret Johns Cesar Lagleva Laura Magnani Michael Marcum Ruth Morgan Dennis Roberts

2 Prison Law Office page 2 On November 4, 2008, the California voters passed Proposition 9 (also known as Marsy s Law ), which attempted to modify Penal Code 3044 and reduce parolees due process rights in parole revocation proceedings. Parts of Proposition 9 conflicted with the Valdivia Injunction. After several rounds of litigation, a federal district judge issued an order on January 24, 2012 ruling that the state may use Proposition 9's timeline for scheduling full parole revocation hearings. Thus, the court ordered that the Valdivia Injunction be modified to require the BPH to provide a full revocation hearing no later than the 45th calendar day after placement of a parole hold (rather than the 35 day timeline in the original Valdivia injunction). The court barred the state from enforcing the other parts of Proposition 9 that relate to parole revocations; the state is currently appealing those portions of the court s order. The Requirements of the Valdivia Permanent Injunction Under the Valdivia Injunction, the Board of Parole Hearings (BPH) and California Department of Corrections and Rehabilitation s (CDCR) Division of Adult Parole Operations are required to do the following for any parolee who has a parole hold: use more remedial sanctions like placement in Substance Abuse Treatment Control Units, self-help outpatient/aftercare programs or electronic monitoring to reduce the number of parolees who are returned to custody for minor parole violations. Please note that this is a general policy and the injunction does not give any particular parolees the right to such alternative sanctions; give the parolee notice of an alleged parole violation and notice of rights regarding the revocation process no later than 3 business days after placement of a parole hold; appoint a lawyer for every parolee no later than 6 business days after a parole hold is placed. (Note that if you do not want to be represented by an appointed attorney, and you have enough money to pay a private attorney, then you can hire a private attorney to represent you during your parole proceedings.) The attorney should meet with a parolee by the 8th business day after notice of the charges. The BPH and CDCR must provide the parolee s lawyer with all non-confidential information they intend to use against the parolee and the lawyer will be able to review the parolee s field file. The lawyer will help the parolee decide whether to take any screening offer and will represent the parolee at any hearings. conduct a probable cause hearing no later than 10 business days after a parolee has been given notice of an alleged parole violation. At the probable cause hearing, the parolee can present evidence to show why the violation charges are unsupported or why the parolee should be continued on parole. This evidence may be presented through the parolee s own testimony or through written documents.

3 Prison Law Office page 3 if the parolee s lawyer can show that there is a complete defense to the charges on which the parole hold is based, the BPH and CDCR must provide an expedited probable cause hearing between 6 and 8 business days after the parolee receives notice of the charges. conduct a final revocation hearing no later than 45 calendar days after placement of a parole hold (this is in accord with a modification to the Injunction made by a January 24, 2012 federal court order, the timeline under the original Injunction was 35 days). The parolee s attorney will be able to subpoena and present witnesses and documents as evidence. The BPH or CDCR may not use inadmissible hearsay evidence unless the BPH or CDCR can show there is a good cause for not producing a witness that outweighs the parolee s confrontation rights. For calculating the Valdivia timelines, business days do not include weekends or state and federal holidays. Please note that the time frames are calculated by counting from the day after the event that starts the time running. For example, if a parole hold was placed on August 1, start counting with August 2 as day 1. Also, if a California parolee is arrested in another state, the time frames under the Valdivia injunction do not begin until one day after the parolee arrives back in the state of California. Some of the rights under the Valdivia injunction also apply to parolees who are serving revocation terms and facing extension of revocation terms due to misconduct in prison or refusal to sign parole conditions or required registration forms. A parolee facing a revocation extension should be appointed an attorney to explain the extension process, help the parolee decide whether to accept the BPH s screening offer, and represent the parolee at any hearings. Parolees are entitled to a revocation extension hearing within 45 calendar days of the alleged offense. If a parolee s scheduled revocation release date is coming up within 45 calendar days, the parolee is entitled to a probable cause hearing within 10 business days of getting notice of the charges. Also, if the parolee s release date is within 45 calendar days, and the attorney can show there is no basis for the charges, then the parolee can request an expedited probable cause hearing. How to Protect Your Rights The Prison Law Office and other plaintiffs attorneys are monitoring to make sure that the BPH and CDCR comply with the Valdivia injunction. We read all letters sent to us to help us become aware of any ongoing problems with compliance. However, we cannot assist individual prisoners who believe that CDCR or the BPH has violated their rights. If you have a parole hold placed, you will be appointed an attorney during the parole proceedings through the California Parole Advocacy Program (CalPAP). That

4 Prison Law Office page 4 attorney will be responsible for ensuring that your rights under the Valdivia injunction are met. For help with your individual parole revocation issues, contact your appointed CalPAP attorney. If you have not yet met with your attorney or do not know how to contact your attorney, contact the regional CalPAP office covering the county in which you are incarcerated. You should also contact the central CalPAP office if you have problems with your appointed attorney. A list of the central and regional CalPAP offices is attached to this letter. CalPAP offices also should accept collect phone calls from parolees. CDCR staff are responsible for issuing parole holds. If you believe you should not be in custody because the charges are wrong, and you have not yet had a probable cause hearing, you can appeal your parole hold by filing a CDCR 602 form as described on your notice of rights. You can submit this by institution mail or through the U.S. mail to your parole officer. However, given the short timelines set forth in the Valdivia injunction, it is likely that you will have a probable cause hearing before you can get an answer to a CDCR 602 appeal. If the BPH does not meet the Valdivia timelines for providing notice of the parole hold and holding the probable cause hearing, you and your attorney can make an objection at the probable cause hearing or revocation hearing. However, the BPH policy is to overrule objections about missed timelines unless you can show prejudice. This means that you must show some reason why you would have been better able to defend yourself against the charges if the BPT had complied with the Valdivia timelines. If the BPH does not hold your final revocation hearing within the Injunction timeline, then the BPH is supposed to dismiss the parole revocation charges unless there is good cause for the delay. BPH deputy commissioners are supposed to find good cause only in extraordinary cases. For example, failure of the state s witnesses to show up at the hearing should not be good cause for a delay unless something very serious, such as a car accident, serious injury or death, kept the witness from getting to the hearing. If your hearing is delayed, you and your attorney should object and ask that the charges be dismissed. If the delay hurt your ability to present a defense (for example, because your witnesses became unavailable or forgot details of what happened), then your attorney should also tell the deputy commissioner about those issues. The BPH does not have any general administrative appeal process. This means that usually you do not need to file an administrative appeal or grievance before taking your complaints about the parole revocation process to court. However, there are two types of administrative remedies that parolees should pursue for certain types of issues: If you have a physical or mental disability, you can ask for help before, during, or after a BPH hearing. If you have a lawyer, ask your lawyer to assist you in getting the help you need. If you do not have a lawyer or do not get the help you need, you can send a BPH Form 1074 or a grievance letter to the following address:

5 Prison Law Office page 5 Board of Parole Hearings ADA Compliance Unit PO Box 4036 Sacramento, CA You can request a BPH 1074 from your assigned CalPAP attorney or from the deputy commissioner at the probable cause hearing or parole revocation hearing. 1074s should also be available in your housing unit, from your counselor and in the law library. If you need help completing the disability grievance 1074 form, your attorney or the CDC and BPH staff are supposed to help you fill out the form. If the response by the BPH is wrong, send us a copy of the 1074 form and the BPH s response and we may be able to help you. BPH has a Quality Control Unit that has the authority to correct some BPH errors. The BPH will correct non-discretionary errors, meaning simple mistakes where the deputy commissioner did not have to use his or her judgment in deciding whether you violated parole. Examples of nondiscretionary errors include clerical errors, a mistake about a mandatory date of discharge from parole, and credit eligibility during revocation terms. To contact the BPH Quality Control Unit to challenge a mistake like this, write a letter to: Board of Parole Hearings Quality Control Unit PO Box 4036 Sacramento, CA If the BPH has failed to comply with the Valdivia injunction, violated your due process rights or a made a decision to find you guilty of a parole violation or to revoke your parole that is not supported by the evidence at the revocation hearing, then you can challenge those violations or decisions by filing a habeas corpus petition in state court. The Prison Law Office has a free self-help manual on state habeas corpus actions, which is available upon request. This booklet explains how to file a state court habeas petition and includes the necessary court form. The booklet also explains how you can ask the court to appoint a lawyer to represent you in the habeas proceeding. With this letter, we may have also enclosed a PAROLEE RIGHTS HANDBOOK. The handbook generally explains your rights and responsibilities as a parolee, and includes more detailed information on how to challenge BPH or CDCR parole-related actions. It also includes information on what accommodations should be provided for parolees with disabilities and how parolees with disabilities can request assistance.

6 Prison Law Office page 6 California Parole Advocacy Program (CalPAP) Regional Office Contact List City Office Location Staff Attorneys Chino P.O. Box 606 Chino, CA (P) Dublin 4234 Hacienda Drive, Suite 110 Pleasanton, CA (P) Larkspur 900 Larkspur Landing Circle, Suite 201 Larkspur, CA (P) Los Angeles P.O. Box Los Angeles, CA (P) Madera P.O. Box 203 Madera, CA (P) Sacramento 7230 South Land Park Drive, #109 Sacramento, CA (P) Alexandra Morgan Serena Crouch Karen Gullota Angela Lytton Christine Richard Ryan Fillmore San Diego Santa Clarita 637 Third Street, Suite G Chula Vista, CA (P) Mammoth Professional Building Westinghouse Place, Suite 104 Santa Clarita, CA (P) William Hobson Adaure Egu Susanville P.O. Box 1262 Susanville, CA (P) Tracy 4600 S. Tracy Blvd., Suite 106 Tracy, CA (P) Wasco P.O. Box 855 Wasco, CA (P) John Dirks Kimberly Buchholz Shannon Hochstein Summer Smith Central Office 3455 Fifth Avenue Sacramento, CA (P)