Prop. 57: California Judges Decide What to do With Minors

What is Prop. 57?

Prop. 57, The Public Safety and Rehabilitation Act of 2016, removed the prosecutor’s authority to decide whether minors should be charged in juvenile or adult court. In California, that decision is now made by judges.

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Judge Decides if Minor Will be Tried as Adult

Prosecutors can no longer file charges directly against a minor in “adult” court. Only a juvenile court judge can determine whether a minor can be prosecuted and sentenced as an adult. The Judge must conduct a “fitness” or “transfer” hearing, taking into account various factor such as the minor’s age, maturity, criminal sophistication, and likelihood for rehabilitation. (People v. Vela (2018).)

Choosing Between Juvenile or Adult Court

Judges look to the five factors laid out in Welfare and Institutions Code 707(a)(2) to determine whether to transfer a minor’s case to adult court.

    1. The degree of criminal sophistication exhibited by the minor;
    2. Whether the minor can be rehabilitated prior to the expiration of the juvenile court’s jurisdiction;
    3. The minor’s previous delinquent history;
    4. Success of previous attempts by the juvenile court to rehabilitate the minor; and
    5. The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.

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Prop. 57 Can Apply Retroactively

Pending Cases

Minors whose cases were unresolved or pending appeal when Prop. 57 was passed are still entitled to the protections of Prop. 57. The juvenile court must conduct a fitness hearing to determine whether such minors should be tried in adult court. (People v. Diaz (2018).)

Final Cases

Prop. 57 does not apply to a minor whose judgment was final. A judgment is final when the trial court imposes a state prison sentence and suspends execution of that sentence during a probationary period. (People v. Barboza (2018).)

prop. 57

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Firearm Enhancements No Longer Mandatory

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Firearm Enhancements May Be Stricken

Senate Bill 620 was signed into law on October 11, 2017. The law gives judges the authority to strike or dismiss firearm enhancements at sentencing. Judges may dismiss or strike enhancements if doing so is “in the interests of justice.”

What is an Enhancement?

An enhancement adds time to the length of a prison or jail sentence. In the case of firearm enhancements, as much as 25 years to life can be added to a sentence.
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California Firearm Enhancements

The firearm enhancements affected by Senate Bill 620 are Penal Code Sections 12022.5 and 12022.53.

Penal Code Section 12022.5

Additional 3, 4, or 10 years for use of a firearm in the commission of a felony or attempted felony (unless use of a firearm is an element of the felony).

Additional 5, 6, or 10 years for use of an assault weapon or machine gun during the commission of a felony or attempted felony.

Penal Code Section 12022.53

Additional 10 years for use of a firearm during the commission of a Specified Felony, even if the firearm is not loaded or operable.

Additional 20 years for discharging a firearm during a Specified Felony.

Additional 25 years to life for causing death or great bodily injury using a firearm.

Specified Felony

Specified Felonies include murder, mayhem, kidnapping, robbery, carjacking, rape, and all felonies punishable by death or life in prison.

For a complete list see Penal Code Section 12022.53.
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Judicial Discretion

Prior to the passage of Senate Bill 620, judges were required to sentence defendants to additional prison or jail time upon a jury finding that a firearm was used during a felony.

Judges now have the option to strike firearm enhancements if doing so would be in the Interests of Justice.

Interests of Justice

The “Interests of Justice” is whatever a judge determines to be fair and equitable.

What is a Firearm?

A firearm is:

  • A device.
  • Designed to be used as a weapon.
  • Shoots a projectile through a barrel by explosion or other form of combustion.

What is an Assault Weapon?

“Assault weapons” are semiautomatic firearms listed under Penal Code Section 30510, et seq.
firearm enhancements

What is a Machine Gun?

Machine guns are any weapon that automatically shoots more than one shot by a single function of the trigger.

Machine guns also includes any parts used in converting a weapon into a machine gun AND guns that are readily convertible to machine guns.

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Using Penal Code 1473 To Remove Past Convictions

Withdrawal Of Plea Using Penal Code 1473

Penal Code 1473.7 allows a person no longer imprisoned to vacate a conviction or a sentence. Undocumented person who are in danger of deportation may file a motion in order to clear their record of criminal convictions.

If the conviction is overturned, the criminal case starts from the beginning. Undocumented defendants will face the original criminal charges and will need to fight the case or enter a plea that does not have immigration consequences.
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Reasons To Withdraw A Plea

Under Penal Code 1473.7, there are 2 reasons to withdraw a guilty plea:

  1. If there was a prejudicial error during proceedings that damaged the person’s ability to meaningfully understand, defend, or knowingly accept the actual or potential adverse immigration consequences of a plea of guilty or nolo contendere; or
  2. New evidence of innocence exists and requires the withdrawal of a plea.

Failure to Understand Immigration Consequences

If the prosecution opposes the Penal Code 1473.7 motion, they will need to provide evidence that the defendant understood the immigration consequences at the entry of plea. This evidence may include a signed waiver of constitutional rights, a probation or sentencing order, a transcript or recording of the entry of plea, and declarations or testimony from witnesses.
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Incompetent Counsel

A plea entered after January 1, 2017 can be withdrawn due to ineffective assistance of counsel. To do so it must be shown:

    1. That counsel’s performance was deficient in that it fell below an objective standard of reasonableness; and
    2. That he or she was prejudiced by that deficient performance

A plea entered before January 1, 2017 can only be withdrawn if the defendant asks his or her attorney about the immigration consequences of a plea and is given incorrect immigration advice. (People v. Landaverde).

When To File A Motion Under Penal Code 1473.7

The motion cannot be filed until:

        • The party receives a notice to appear in immigration authorities that asserts the conviction or sentence as the basis for removal.
        • The date a removal order based on the conviction or sentence becomes final.

The motion shall be filed with reasonable diligence after the later of the above dates.

The motion must also be filed without undue delay from the date the moving party discovered or could have discovered the evidence that provides the reason for the withdrawal of the plea.
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After Filing The Motion

The court clerk provides a hearing date when the motion is filed. At the hearing the Judge will decide whether or not to overturn the conviction. If the conviction is reversed, the defendant still faces criminal charges and will need to enter a plea or fight the case.

Entering An Immigration-Neutral Plea

In order to avoid deportation, a non-citizen defendant must enter a plea that does not have immigration consequences. One option is to plead to a charge or charges that are immigration-neutral but give the court and prosecution equivalent convictions and sentences.

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Proposition 57 Parole For Nonviolent Inmates

Proposition 57

Proposition 57, “The Public Safety and Rehabilitation Act of 2016,” allows parole consideration for people convicted of nonviolent felonies after they have completed the full term for their primary offense.

The goal of the law is to stop the revolving door of crime by better preparing inmates to succeed when they re-enter our communities.
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Parole Process

All inmates currently serving a conviction for a non-violent offense as defined by the California Penal Code will be able to participate in the parole process. The new parole consideration process began on July 1, 2017.

However, inmates are not automatically granted parole. Parole MAY be granted to inmates who have completed the full term for their primary offense and demonstrated that they should no longer be considered a current threat to public safety.

Additional Credits

“Credits” are how the California Department of Corrections and Rehabilitation tracks the number of days remaining on inmate sentences. Proposition 57 allows inmates to earn additional credits for good behavior and participation in rehabilitative, educational and career training programs.

The previous credit system is based on the crime committed. Under proposition 57, credits will be based on conduct and participation in programs. The CDCR will now award increased credits for Good Conduct and Milestone Completion Programs. CDCR will also begin awarding credits for Rehabilitative Achievement and Educational Merit.

Who Can Receive Credits?

Inmates sentenced to death or life without parole are not eligible to receive credits. All other inmates are eligible.
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When Did Credits Start?

  • Good Conduct Credits began on May 1, 2017.
  • Milestone Completion, Rehabilitative Achievement, and Educational Merit Credits began on August 1, 2017.

All credits except can be revoked for disciplinary infractions except Educational Merit Credits.

Changes To Juvenile Justice System

Proposition 57 removed the prosecutor’s authority to decide whether juveniles charged with certain crimes should be tried in juvenile or adult court. That decision will now be made by judges.

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CALIFORNIA BECOMES A SANCTUARY STATE

California Becomes A “Sanctuary State”

On October 5, 2017, Governor Jerry Brown signed the California Values Act. The “sanctuary state” law aims to protect California’s 2.3 million undocumented citizens from federal immigration authorities (ICE).
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Currently local authorities may release inmate information, including citizenship status, to federal immigration authorities. When the law becomes effective on January 1st, 2018, ICE will no longer be notified when undocumented immigrants are released from jail.

When Does The Sanctuary State Law Start?

The sanctuary state law is set to go into effect on January 1, 2018. If the Trump administration, which opposes the law, challenges the law in federal court, the start date of the law could be delayed until the conclusion of court proceedings.
sanctuary state

What Changes?

The California Values Act does not prevent ICE from looking for people without documentation or executing search warrants for non-citizens. The law does ban state and local agencies, excluding the California Department of Corrections and Rehabilitation, from enforcing “holds” on people in prison custody.

The act blocks the deputization of police as immigration agents and bars state and local law enforcement agencies from asking about immigration status. It also prohibits new or expanded contracts with federal agencies to use California law enforcement facilities as detention centers.
sanctuary state

California Responds To Trump Administration

State and local governments are locked in a battle with Attorney General Jeff Sessions over Sessions’ move to slash federal grant funding from “sanctuary jurisdictions.” A number of California cities have become sanctuary cities or cut ties with immigration authorities, including San Francisco and Los Angeles.

Proponents of the law argue that it makes immigrant communities safer by encouraging trust, cooperation and communication between immigrants and local authorities. Research has shown sanctuary cities have lower crime rates and that immigrants commit fewer crimes than U.S. citizens.

The Trump administration has tried to draw a link between undocumented immigrants and increases in violent crimes.
sanctuary state

Santa Barbara County Sheriff

Santa Barbara Sheriff Bill Brown, president of the California State Sheriff’s Association, opposed the California Values Act. Brown says people will be victimized as a result of the new law.

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Proposition 47 Early Release From Prison

Proposition 47 – Reducing Charges

Proposition 47 reduces the punishment for certain felony drug and property offense charges under $950 to a misdemeanor. It does not apply to registered sex offenders and people with prior convictions for serious or violent crimes.

Re-sentencing For Inmates

Prop 47 permits re-sentencing for people currently serving a prison sentence, or with prior felony convictions. Charges eligible to be reduced to misdemeanors are listed below.

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Must File A Petition

No one is automatically released from prison under Proposition 47. Instead you must petition the court to reduce your charges and re-sentence you.

Eligible inmates who petition the court are required to be resentenced unless the court finds an unreasonable risk to public safety.

Risk To Public Safety

When determining the risk to public safety, the court may consider the offender’s criminal history, the types of crimes committed and when they occurred, the extent of injury to victims, the length of prior prison commitments, the inmate’s disciplinary and rehabilitation records while incarcerated, and any other relevant evidence.

What Is The Deadline To Petition?

Your petition must be filed with the court before November 4, 2022.

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How Do I File A Petition?

Under Prop 47, in order to petition for a reduction of a crime to a misdemeanor, you must first obtain a copy of your criminal record. Next, you must obtain a petition form for reclassification. Most counties have created petition forms that can be found here.

For counties that have not created petition forms, contact the local courthouse and ask which form to use.

Once the petition is complete, send one copy to the District Attorney’s Office in the county where you were convicted. The other copy is sent to the Superior Court in the county where you were convicted.

proposition 47

Proposition 47 Applies To The Following Charges:

  • Shoplifting – Penal Code 459 – Shoplifting
  • Forgery – Penal Code 470-476
  • Fraud/Bad Checks of $950 or less – Penal Code 476a
  • Grand Theft of $950 or less – Penal Code 487
  • Petty Theft/Shoplifting of $950 or less – Penal Code 484, 484/666
  • Possession of Methamphetamine – Health & Safety 11377
  • Possession of Controlled Substance – Health & Safety 11350
  • Possession of Concentrated Cannabis – Health and Safety 11357(a)
  • Receiving Stolen Property – Penal Code 496

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Sanctuary State Bill Considered By California Legislature

sanctuary state

The California legislature is currently considering a bill that would make California a sanctuary state.

Under the proposed legislation, California law enforcement would be prevented from communicating or cooperating with ICE.

A similar law has existed in Oregon for 30 years.  The Oregon law is less restrictive –  it prevents law enforcement from cooperating with ICE but does not prohibit communication between the agencies. The Oregon law was enacted to prevent racial profiling and save money on law enforcement, two concerns echoed by the California legislature.

Proponents of the bill also point out that law enforcement has better relationships with the communities they police when they don’t enforce federal immigration law.

According to Los Angeles Police Chief Charlie Beck, police depend on immigrant communities to cooperate with police to keep communities and police safe.

sanctuary state

Santa Barbara Sheriff Bill Brown is the head of the State Sheriff’s Association, which opposes the sanctuary bill.

Brown believes it is in the best interest of all of our communities and especially the immigrant community that dangerous offenders that are in this country illegally be deported so they do not continue to prey on the innocent victims.

Opponents of the bill point to recent high profile crimes committed by immigrants with criminal convictions that were released into the community instead of ICE custody.

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Now a Felony for DA to Withhold Evidence

withhold evidence

New California law makes it a felony for prosecutors to withhold exculpatory evidence.

Under the new law, signed by Governor Jerry Brown on Friday, prosecutors can receive up to three years in prison if they alter or intentionally withhold exculpatory evidence. Previously, such conduct was only a misdemeanor.

The change in the law was inspired in part by the conduct of the Orange County District withhold_prosecutorAttorney’s Office. In March 2015, Orange County Superior Court Judge Thomas Goethals removed the District Attorney’s office from a high-profile mass-murder case. Goethals said prosecutors violated the defendant’s rights by failing to turn over evidence. Numerous other Orange County criminal cases have collapsed due to withholding of evidence.

The story of Obie Anthony also inspired legislators to pass the law. Anthony was convicted of a 1995 murder outside a Los Angeles brothel and exonerated in 2011 after it was revealed the key witness, a pimp, had received leniency in exchange for his testimony. The full bill can be viewed here.

Sting in Santa Barbara

Sting in Santa Barbaraprostitution sting santa barbara

On Friday July 8th, 2016, law enforcement ran a sting in Santa Barbara. Officers corresponded over the internet with individuals, who were arrested when they arrived at an agreed location. At least a dozen people were arrested and charged. The charges include disorderly conduct, a misdemeanor.

The RISE Act: Repeal Ineffective Sentencing Enhancements

drug_enhancements

SB 966, introduced by Senator Holly Mitchell (D-Los Angeles), would repeal the three-year sentence enhancement for prior drug convictions. The enhancement is applied consecutively — three years for every prior conviction for possession for sale, sale or similar drug offense to any person currently convicted for a similar offense. Since realignment, this has resulted in hundreds being sentenced to county jails for more than five or even ten years.

The Failure of Drug Enhancements

These enhancements were originally intended to deter drug selling, and reduce the availability of controlled substances. As with other punitive drug war strategies, they are a proven failure — drugs are cheaper, stronger and more widely available than any time in our state’s history.  These enhancements have the effect of sentencing thousands of people — mainly young men and women of color — to long periods of incarceration in overcrowded state prisons and county jails, destabilizing families and communities.

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Senator Holly Mitchell (D – Los Angeles)

Furthermore, this failed approach has proven enormously expensive, robbing state and local budgets that should be spent on schools, health and social services, and policies that actually reduce drug use — drug treatment, after-school programs, and housing, among them.

The RISE Act will repeal costly and ineffective sentencing enhancements, reflecting the Legislature’s and voters’ consensus that we must divest from mass incarceration in order to invest in vitally needed public services.

Why do we need the RISE Act?

The RISE Act will free up taxpayer dollars for investment in cost-effective community-based programs instead of costly jail expansion. By repealing enhancements for prior drug convictions, SB 966 would reduce jail overcrowding and stop the rush to build and staff costly new jails.

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Since 2007, California has spent $2.2 billion on county jail expansion – not including the costs borne by the counties for these construction projects, the increased staffing, or the debt service for these high-interest loans. These funds could be better invested in programs and services that meet community needs and improve public safety, including community-based mental health and substance use treatment programs, job programs, and affordable housing.

Governor Brown endorsed a measure for the 2016 ballot that will allow persons to be paroled after they complete their base sentence, regardless of enhancements. However, that measure only applies to persons sentenced to state prison, and will have no effect on jail overcrowding.

The Rise Act – SB 996

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California Institution for Women, Corona, CA

SB 966 would address extreme sentences. Enhancements result in sentences being far more severe than is just, sensible, or effective. Under current law, a person may face two to four years in jail for possessing drugs for sale under the base sentence. But if the person has two prior convictions for possession for sale, they would face an additional six years years in jail – for a total of ten years. As of 2014, there were more than 1,700 people in California jails sentenced to more than five years. The leading cause of these long sentences was non-violent drug sale offenses.

SB 966 would reduce racial disparities in the criminal justice system. Although rates of drug use and sales are comparable across racial lines, people of color are far more likely to be stopped, searched, arrested, prosecuted, convicted, and incarcerated for drug law violations than are whites. Research also shows that prosecutors are twice as likely to pursue a mandatory minimum sentence for Blacks as for whites charged with the same offense.

criminal_justiceSB 966 would help restore balance in the judicial process. Prosecutors use enhancements as leverage to extract guilty pleas, even from the innocent. Prosecutors threaten to use enhancements to significantly increase the punishment defendants would face should they exercise their right to a trial. According to Human Rights Watch, “plea agreements have for all intents and purposes become an offer drug defendants cannot afford to refuse.”

 

SB 966 will stop the cruel punishment of persons suffering from a substance abuse disorder.  People who suffer untreated substance abuse disorders often sell drugs to pay for the drugs that their illness compels them to consume. It is fundamentally unjust, as well as counterproductive, to put a sick person in jail to address behaviors better handled in a medical or treatment setting.

Sentencing Enhancements Harm Communities

santa_barbara_criminal_defenseSentencing enhancements do not prevent or reduce drug sales and have destabilizing effects on families and communities. Research finds that the length of sentences does not provide any deterrent or significant incapacitation effect: longer sentences for drug offenses do not reduce recidivism, nor do they affect drug availability.

Most people who commit crimes are either unaware of penalties or do not think they will be caught. Research shows that people incarcerated for selling drugs are quickly replaced by other people.

However, incarceration can lead to more crime by destabilizing families and communities. Many people who return from incarceration face insurmountable barriers to finding jobs and housing and reintegrating into society. Family members of incarcerated people also struggle with overwhelming debt from court costs, visitation and telephone fees, and diminished family revenue. The longer the sentence, the more severe these problems.

 

Support:

  • Californians United for a Responsible Budget (co-sponsor)
  • Drug Policy Alliance (co-sponsor)
  • Ella Baker Center for Human Rights (co-sponsor)
  • A New PATH (Parents for Addiction Treatment and Healing)
  • A New Way of Life
  • ACLU of California
  • Alameda County Public Defender
  • Alliance for Boys and Men of Color
  • All of Us or None San Diego
  • American Friends Service Committee
  • Anti Recidivism Coalition
  • Any Positive Change, Inc.
  • Arts for Incarcerated Youth Network
  • Asian Americans Advancing Justice California
  • Asian American Criminal Trial Lawyers Association
  • Asian Pacific Environmental Network
  • Asian Prisoner Support Committee
  • Bay Area Black Worker Center
  • Bay Area Community Resource Workforce Development
  • Bend the Arc
  • California Association of Alcohol and Drug Program Executives
  • California Attorneys for Criminal Justice
  • California Coalition for Women Prisoners
  • California Immigrant Policy Center
  • California Partnership
  • California Prison Moratorium Project
  • California Public Defender Association
  • Californians for Safety and Justice
  • Causa Justa : Just Cause
  • Center for Health Justice
  • Center for Living and Learning
  • Center on Juvenile and Criminal Justice
  • Centro Legal De La Raza
  • Coalition for Humane Immigrant Rights of LA
  • Coleman Advocates for Children and Youth
  • Communities United Against Violence
  • Communities United for Restorative Youth Justice
  • Community Works: Project WHAT!
  • Contra Costa County Office of the Public Defenders
  • Contra Costa Supervisor John Giaoa
  • Courage Campaign
  • Critical Resistance – Los Angeles
  • East Bay Alliance for a Sustainable Economy
  • Enlace
  • Essie Justice Group
  • Fathers & Families of San Joaquin
  • Forward Together
  • Friends Committee on Legislation
  • Further the Work
  • Harm Reduction Services
  • HealthRIGHT360
  • Healthy Communities Oakland
  • HIV Education and Prevention Project of Alameda
  • Holman United Methodist Church
  • Human Rights of the Incarcerated at Cal
  • Immigrant Legal Resource Center
  • Inland Congregations United for Change
  • Islamic Shura Council of Southern California
  • Justice Not Jails
  • Justice Now
  • Justice Policy Institute
  • L.A. Community Action Network
  • Law Enforcement Against Prohibition
  • Lawyers’ Committee for Civil Rights, SF.
  • Legal Services for Prisoners with Children
  • Marijuana Lifer Project
  • Motivating Individual Leadership for Public Advancement
  • Monterey Bay Central Labor Council
  • Mortgage Personnel Services
  • National Association of Social Workers, California Chapter
  • National Association of Social Workers, Women’s Council – CA Chapter
  • National Center for Youth Law
  • Needle Exchange Emergency Distribution – Berkeley
  • Oakland Rising
  • Office of Richmond Mayor Tom Butt
  • Orange County Needle Exchange Program
  • Parent Voices California
  • PICO California
  • Presente
  • Prison Activist Resource Center
  • Prison Law Office
  • Prison Policy Initiative
  • Project Inform
  • Reentry Success Center
  • Resource Center for Nonviolence
  • Root & Rebound: Reentry Advocates
  • Riverside Temple Beth El
  • Rubicon Programs
  • RYSE Youth Center
  • Safe Return Project
  • San Diego Organizing Project
  • San Francisco Public Defender’s Office
  • Santa Cruz County Community Coalition to Overcome Racism
  • SHIELDS for Families
  • Silicon Valley DeBug
  • Sin Barras
  • Street Level Health Project
  • Swords to Plowshares
  • Tarzana Treatment Centers
  • The Sentencing Project
  • The S.T.O.P. Hepatitis Task Force
  • The Village Project, INC
  • The Women’s Foundation of California
  • Time for Change Foundation
  • Transgender Gender Variant Intersex Justice Project
  • Underground Scholars Initiative at UC Berkeley
  • UNITE HERE! 2850
  • Western Regional Advocacy Project
  • W. Haywood Burns Institute
  • Young Women’s Freedom Center
  • Youth Justice Coalition

Individuals:

  • Sheila Pinkel, Professor Pomona College

For more information:

Lizzie Buchen, Californians United for a Responsible Budget, lizzie@curbprisonspending.org

Emily Harris, Ella Baker Center for Human Rights, emily@ellabakercenter.org

Eunisses Hernandez, Drug Policy Alliance, euhernandez@drugpolicy.org

Glenn Backes, Public Policy Research & Consulting/EBC/DPA glennbackes@mac.com