Did you know that the California prison system continues to illegally and unconstitutionally over incarcerate more than 30,000 prisoners who are imprisoned many years over their Good-Time earned release dates? Over the last 40 years California and its Legislators have beensupporting and wrongly allowing the illegal reactivation and/or modification of the Indeterminate Sentencing Law (ISL), unlawfully reverting back to the repealed Indeterminate Sentencing Law (ISL), which was specifically repealed for cause by Governor Brown, both State houses and blessed by the State Attorney General in 1978.

This tough on crime illegal Sentencing Scheme is not only unlawful and unconstitutional on its face, but is responsible for billions of taxpayer dollars wasted annually due to this massive over incarceration. While the reasons for the change in sentencing policy are many, implementation of NCRC’s solution will both support the cause of prison reform and benefit the public and private sectors as well.

Discretionary Overreach by Parole Boards

Other States use the ISL to illegally and unconstitutionally extend incarceration of inmates as well. In Ohio we can see that the Ohio Department of Rehabilitation and Correction, through the parole board, has assumed discretionary power to retain an inmate past the presumptive release date. This fails to afford the accused their guaranteed right to a jury trial, improperly places judiciary power in the hands of the executive branch and scrutinizes the violation of due process such that the defendant is being denied a fair hearing and notice. Not only is the Bill unconstitutional on these three bases, but it is also promulgated on racially motivated origins and serves as a mechanism for racially biased outcomes.

Ohio presently utilizes indeterminate sentencing under Senate Bill 201 whereby a judge is given limited control over the sentencing of high degree felons. There is a presumption that every offender will be released at the expiration of the minimum prison term; however, the Ohio Department of Rehabilitation and Corrections (hereinafter ODRC) is authorized to hold an administrative hearing to determine whether the offender should be held beyond the presumptive release date.

This parole board hearing conducted by the ODRC is conducted in the same manner as parole hearings in California. Accordingly, the judge’s control is limited by that of the parole board, which has been improperly granted the sole and unlawful power to extend sentences within a predetermined range according to their determination (the Executive Branch parole Agencies unlawful determination, as opposed to the lawful Judicial Branch Court determination) of a reasonable time. There is no check on this broad and illegal discretion, and those convicted have no recourse or judicial hearing on their illegal sentence extensions.

Inmate’s Right to Due Process Violated

Discretionary overreach by parole boards violates inmate’s right to due process and violates the separation of powers doctrine. We believe that Inmate citizens should not be subject to any arbitrary discretionary lengthening of imprisoned beyond the length of a judge’s sentence without a judge’s approval.

However, Ohio’s reinstatement of indeterminate sentencing in 2019 under S.B. 201 strips inmates of their constitutional right to have a judge lawfully impose an increase in these problematic sentences. And “While the prism of national politics largely shapes the discourse of mass incarceration, the problem with viewing mass incarceration through a national lens is that it obscures the reality that mass incarceration is largely state created and state enforced.”

California and ISL

California has been in a highly illegal mass incarceration mode for over 50 years. Back in 1976 Governor Brown together with both houses of the legislature and the Attorney General conducted an in-depth study to analyze how and why recidivism was so high. Statistics for recidivism at the time indicated that 85% of inmates who were paroled re-offended within three years!  At the conclusion of this study this distinguished panel found that ISL was the primary cause of repeated crime and recidivism – sentence variability had the effect of disincentivising good behavior.

Some of the negative recidivism causes that were attributed to ISL sentencing include:
● The inmate did not know if or when he/she would return to society
● The inmate’s family also did not know if or when their family member would be released
● Many sentences were disproportionate and unequal to others in the system who were similarly situated.

The Study concluded that ISL contributed to overall negative prison sentiment and created a hostile correctional environment between the guards and the inmates which lead to more in prison violence and more recidivism upon parole. Thus, these above mentioned California State Officials supported the decision that the ISL needed to be repealed and replaced with the DSL. Legislation known as Senate Bill 42 (SB-42) was then created.

Enter SB-42

SB-42’s goal was to implement the DSL and, by legislative declaration, specifically changed the purpose and public policy of incarceration for crime from rehabilitation (the repealed ISL) to punishment, the DSL. This feat by the above state experts had some legislators upset and they vowed to stop the repeal of the ISL. One such legislator who opposed the repeal of the ISL was Senator John Briggs. He was animated and determined to keep the ISL in place. Briggs even went so far as to send a deceitful letter to Governor Brown in essence threatening him that if he did not veto SB-42 that California will experience the largest crime wave in its history and “there will be blood in the streets“.  Brown responded that the issue had been extensively researched and that both houses, the Attorney General and the Governor’s Office all supported repeal of the ISL and implementation of the DSL. On November 1, 1977, the DSL was codified into the state’s sentencing system. All sentences except Capital crimes and Death penalty cases (because they are already DSL sentences) will have set release dates that were required to be set by the court at the time of sentencing. While we believe in accountability, we likewise believe that a justice system is only worthy of Respect when it metes out punishment in a proportional manner – the sentence must fit the crime.

Closed Door Parole Board Hearings

Accountability is totally lacking today as CDCR and the Guards Union have devised an illegal and unconstitutional scheme to reenact the ISL so that prisoners who have done the time (their minimum term) proscribed by law now have to go in front of a Parole Board and be deemed suitable using subjective and whimsical means to extend terms. As a result, California now has 30,000+ prisoners who are wrongly sentenced under the repealed ISL, many have served 5, 10, 15 or 20 more years than their lawful minimum term sentence calls for. This illegal conduct is costing the California Taxpayers multiple Billions annually to wrongly incarcerate prisoners who should have long since paroled.

California’s System is dangerously deceptive and only appears to be a high-quality system when in reality, the System is oppressive, barbaric and without question kills and/or harms as many as it helps. And this does not address the many more victims that are created by the long-term dysfunction and corruption of the System. All inmates should be actively involved in the re-repeal of the ISL. Please donate whatever you can to support the elimination of the unconstitutional reactivated ISL and LWOP. Governor Brown and the other Democrats, including the Attorney General specifically repealed the ISL. This was done for many well supported reasons, but the most important reason (one that was specifically codified onto the legislation) is the need for the prisoners’ families to know when their family member was coming home.

Hello Again ISL

The ISL has been repealed through SB-42 yet is currently being enforced by illegal parole board administrative hearings which enforce it. Now California’s same high recidivism problems have again revisited the prison correctional atmosphere while the cause of these problems arise as the direct result of parole agencies illegal powers of term fixing and extending of incarceration time We cite the following negative effects of California’s parole board’s practice of unlawfully imposing ISL policy through its administrative hearings.
1. Excessive over incarceration
2. Not knowing when one’s parole release date is
3. The Parole Agency’s illegal ability to extend ones sentence based on race, minor disciplinary, Public Interest pressures
4. The Guard union’s needs to generate ongoing correctional wealth.

NCRC’s crime reduction goals include advancing a fund raising campaign to fight abusive governmental misconduct in the form of intentional and illegal over incarceration
which is intended to sustain and perpetuate the governmental bureaucracy supporting ongoing mass incarceration. Of course, criminals need to do the time if they commit a crime, but to intentionally and excessively incarcerate with the goal to increase incarceration numbers for the purpose increasing prison industrial complex wealth and funding is outrageous and unconscionably wrong.

Our proposal will allow the California Correctional Peace Officers Association (CCPOA, the prison guards union) to increase officer pay while achieve the goals to reduce recidivism crime rates. This dual benefit policy will additionally cut the costs that the state taxpayers pay for incarceration fees, a trifecta benefit to multiple members of society.