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Passed by voters in November 2014 effective immediately, Proposition 47 classifies “non-serious, nonviolent crimes” as misdemeanors instead of felonies unless the defendant has prior convictions for murder, rape, certain sex offenses, or firearm crimes. Non-serious, nonviolent crimes include shoplifting, grand theft, receiving stolen property, forgery, fraud, writing bad checks, and personal use of most illegal drugs.
Qualified defendants who have served their time and are off probation or parole may apply to be resentenced as misdemeanants. Defendants who are currently serving time or are on probation can also apply and may be entitled to release. However, some defendants may be denied relief so as to not pose an unreasonable risk of danger to society.
On July 18, 2014, the United States Sentencing Commission voted unanimously to apply Amendment 782, which downwardly adjusts the Sentencing Commission’s Drug Quantity Table by two levels retroactively. The retroactive application of the “Drugs Minus Two” amendment went into effect on November 1, 2014, and the retroactive application of the Amendment began on November 1, 2015.
Moreover, each inmate must be evaluated by a judge to determine if the prisoner should be released early. Judges require certain legal documents to be filed to determine this decision. Additionally, the judge will consider the defendant’s conduct in prison.
Amendment 782 reduces federal drug sentencing guidelines. To those granted resentencing retroactively, federal drug trafficking and other controlled substance offenders will have an average sentence reduction of 25 months, or 19% of their sentences. One reason for the year-long delay in the effect and application of Amendment 782 is that transitional services for federal inmates approved for early release to increase successful reentry into society must be put into effect.
For defendants who have been released but are on probation, there are mechanisms to be released early from probation. California Penal Code 1203.3 allows a judge to release a defendant from probation ahead of schedule and expunge the criminal record. Further, in ‘wobbler’ cases, felonies can be reduced to misdemeanors.
Before terminating probation early, the judge will want to ensure that the inmate successfully completed its terms, including paying fines, attending classes, or making restitution. The judge will also want to see circumstances that justify early termination. Valid reasons may include that your probation is keeping you from securing gainful employment or advancing at work.
In April 2011, Governor Jerry Brown signed Assembly Bill 109 (AB 109- Public Safety “Realignment”). This had a huge impact for people convicted of non-serious, nonviolent, or non-sex felony charges, shifting them from state prisons and parole to county jail and probation. In 2011, the Supreme Court decision in Brown v. Plata ruled that the prisons were so overcrowded that medical and mental health care were inadequate and therefore unconstitutional. California had to decrease its prison population within two years from 150,000 inmates to 110,000. Thus, individuals convicted of nonviolent or non-serious felonies are able to serve their sentence in county jail (instead of state prison), on felony probation, or on a split sentence (where part of the term is served in jail and part under supervision by the county probation department). For an individual who received a split sentence, once released from county jail they must undergo “mandatory supervision” by the probation department. In some instances, split sentencing will not change the length of the sentence, but simply split the time between jail time and mandatory supervision by the probation department. However, a person sentenced under 1170 (h) will still have a “prison prior” even if he served his custodial time in local custody (county jail).
The Board of Parole Hearings can set a hearing for a prisoner to grant medical parole and to determine which conditions will be imposed if the prisoner is not determined to be a threat to public safety. The prisoner may have an attorney represent them at this hearing PC 3550 (a).
