February 9, 2021

The Honorable Nancy Skinner

Chair, Senate Budget & Fiscal Review Committee

California State Senate

Sacramento, CA 95814

The Honorable Maria Elena Durazo

Chair, Senate Budget Subcommittee 5

California State Senate

Sacramento, CA 95814

The Honorable Phil Ting

Chair, Assembly Budget Committee

California State Assembly

Sacramento, CA 95814

The Honorable Christina Garcia

Chair, Assembly Budget Subcommittee 5

California State Assembly

Sacramento, CA 95814

Re: The Safe and Effective Implementation of Criminal Justice Reforms and Post-

Conviction Immigration Reform

Dear Budget Leaders:

The California Public Defenders Association (CPDA) with support from the ACLU of

California, National Association of Social Workers (CA chapter), Immigrant Legal Resource

Center, NextGen California and the San Francisco Public Defender is requesting $37,800,000 to

be allocated to the public defender offices of the fourteen most populous counties to hire public

defenders and social workers for the purpose of implementing recent post-conviction criminal

justice and immigration reform statutes that if fully implemented will lower California’s prison

population, keep our communities safe, and prevent the unjust deportation of non-citizens. This

budget request would save tens of millions of dollars in fiscal year 2021-22 and hundreds of

millions of future dollars spent on corrections as described in more detail in this request.

Specifically, the county public defender offices requesting support through this budget request

are Los Angeles, San Diego, Orange, Riverside, San Bernardino, Santa Clara, Alameda,

Sacramento, Contra Costa, Fresno, Kern, San Francisco, Ventura, and San Joaquin. This one-

time budget request will generate millions of dollars in on-going savings to the state.

INTRODUCTION

I. THE STATE COULD SAVE MILLIONS OF DOLLARS BY RELEASING

INCARCERATED PERSONS WHO ARE SERVING ILLEGAL SENTENCES

OR SENTENCES THAT NO LONGER SERVE THE INTERESTS OF

JUSTICE

A. A relatively small investment in public defender’s offices now will save tens of millions

of dollars in fiscal year 2021-22 and hundreds of millions of future dollars spent on

corrections.

There are thousands of incarcerated persons currently serving life or shorter state prison

sentences that are illegal or unnecessary for public safety but are costing the taxpayers millions

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of dollars in the midst of a budget deficit and pandemic. While recent court orders require the

California Department of Corrections and Rehabilitation (CDCR) to further reduce prison

populations, thousands of prisoners lack the assistance of lawyers who could help them obtain

release. 1 With a modest investment, public defender’s offices could help individual prisoners

obtain release and save the state upwards of $29,000,000 ($29 million dollars) in fiscal year

2021-22 and more than $230,000,000 ($230 million dollars) in long-term savings.

California’s correctional system’s budget is upwards of $15 billion dollars per year.2 The

considerable savings associated with safely decarcerating state prisons and closing facilities is

timely; as recently as May 2020 California was facing a projected $54 billion deficit caused by

the COVID-19 pandemic.3

In 2011, California’s state prisons were so overcrowded that the United States Supreme Court

found that they violated the Eighth Amendment’s ban on cruel and unusual punishment.4 In its

opinion, the Court affirmed that prisons were “severely overcrowded, imperiling the safety of

both correctional employees and inmates” and resulting in “[n]eedless suffering and death.”5

While strides have been made to reduce the prison population, it has consistently hovered around

115,000, or just below 137.5% of its design capacity.6 Very recently, in response to COVID-19,

the prison population was reduced to just under 100,000 (approximately 118% of its capacity),

achieved mostly by accelerating releases of persons nearing natural release dates.7 Many of the

post-conviction statutes public defender’s offices are seeking resources to implement focus on

persons at the other end of the spectrum, namely those persons serving life sentences or very

long determinate term sentences who are legally entitled to release due to a change in the law or

have otherwise earned release through sustained, demonstrated rehabilitation.

B. Incarcerated persons are more at risk for COVID-19 infection and severe illness.

Between late March and early November 2020, more than 15,875 persons incarcerated in

California state prisons have tested positive for COVID-19; 80 have died.8 Another 4,401 staff

members have also tested positive.9 At San Quentin state prison alone, more than one in three

incarcerated persons have been infected with a potentially deadly disease.10 While the human

costs to incarcerated people, staff, and their families have been immense, the direct financial

costs of treating incarcerated people at outside hospitals have been adding up as well.

1 https://www.nytimes.com/2020/10/21/us/san-quentin-prison-coronavirus.html 2 https://www.sacbee.com/news/politics-government/the-state-worker/article237689339.html accessed on October 9 3 https://www.kqed.org/news/11821589/california-considers-downsizing-state-prison-system-amid-coronavirus-

budget-woes 4 Brown v. Plata (2011) 563 U.S. 493. 5 Id. at 503-504. 6 See PPIC Just the Facts at https://www.ppic.org/publication/californias-prison-population/ accessed on April 15,

2020. 7 See CDCR’s Weekly Report of Population, October 7, 2020 at https://www.cdcr.ca.gov/research/wp-

content/uploads/sites/174/2020/10/Tpop1d201007.pdf. 8 https://www.cdcr.ca.gov/covid19/population-status-tracking/ 9 https://www.cdcr.ca.gov/covid19/cdcr-cchcs-covid-19-status/ 10 https://www.theguardian.com/us-news/2020/jul/03/california-prisons-coronavirus-covid-19-health

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Because COVID-19 spreads from person-to-person and risks for infection are higher for people

who live in close quarters, prisons have become super spreaders of the disease. Older adults and

people of any age who have serious underlying medical conditions are more at risk for severe

illness from COVID-19. By 2018, over 23% of California prisoners were age 50 or older; 4%

are over the age of 65 years.11 As of March 2020, at least 8% of California inmates have

hepatitis C, 6.5% are diabetic, and 12% of males and 20% of females take asthma medications.12

A new surge of COVID-19 is anticipated, and safely decarcerating prisons will help preserve

precious human life.

II. PREVENTING THE DEPORTATION OF PEOPLE ENTITLED TO RELIEF

WILL PROTECT CALIFORNIA’S TAX BASE AND SAVE MILLIONS IN

SOCIAL SERVICE COSTS

California is the most immigrant rich state in the country with 11 million foreign born residents –

one out of every four persons. Mixed immigration status households are the norm; over 50% of

all children in our state reside in a household headed by at least one foreign-born person, and the

great majority of these children are U.S. citizens.13 The overwhelming majority of non-citizens

are productive workers – many are parents. Aside from the immense human costs of separated

families, the detention or deportation of non-citizens imposes costs upon the State. The

deportation of a parent means the loss of a breadwinner and drives the remainder of the

household into poverty – imposing costs related to unemployment and unreimbursed health care

on the State. Children with deported parents face the danger of being placed in foster care,

becoming wards of the State or otherwise in the juvenile system. These are all costs the State

ends up bearing. The State also loses the tax revenue from individuals who can no longer work

because they have been deported.

There are numerous examples of California residents who have been saved from deportation by

successful Penal Code section 1473.7 motions which challenged invalid convictions. Examples

from Riverside County include relief for a U.S. Army Veteran who served in Vietnam and

Panama, for a well-loved member of his community, who now has a path to citizenship, for a

young man who works as an electrician with the goal of becoming a licensed electrician, and for

a young mother of three. In Santa Clara County, a young woman who has been in the United

States since she was eleven was given relief. Marin County cases include relief for a man from

Haiti who had been in the county since he was six years old. In Los Angeles County, a woman

who was the sole caretaker for her paraplegic husband was able to stay, as was an Operation

Desert Storm veteran who had been in the United States since he was two months old, and a

single father whose only crime was writing a bad check to pay medical bills related to his

daughter’s kidney transplant.

Funding public defenders to represent immigrant clients in Penal Code section 1473.7 motions

will prevent the unjust deportation of non-citizens and save the costs associated with poverty and

family separation. This will amount to millions of taxpayer dollars saved. For example, 6% of

children in foster care in Los Angeles and San Diego were there because of the deportation of a

11 https://www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2020/01/201812_DataPoints.pdf p. 20. 12 https://www.ppic.org/blog/severe-covid-19-infections-may-threaten-californias-prisons/ 13 US Census 2010, available at https://www.census.gov/quickfacts/CA (last accessed October 11, 2020)

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parent. Using a per diem paid to foster homes ranging from $7,700 and $9500 per child annually,

this amounts to $9.5 million in deportation foster care related costs from deportations of

residents of just two of the fourteen counties.14 This is a tiny fraction of the costs that unjust

deportation imposes on the state.

In recognition of the significant financial burden deportations place on the state of California,

from 2015-2020 the state has devoted over $110 million dollars to nonprofit immigration legal

services representation. (https://caimmigrant.org/what-we-do/one-california-immigrant-services-

funding/). But none of this investment has gone to public defenders to engage in mission-critical

post-conviction relief representation.

III. INCARCERATED PERSONS ELIGIBLE FOR SB 1437, YOUTHFUL

OFFENDER PAROLE, PENAL CODE SECTION 1170(D), AND 1473.7

RELIEF NEED ADVOCATES

A. The Legislature’s recent post-conviction criminal justice and immigration reforms.

SB 1437’s (Skinner) “Accomplice Liability for Felony Murder” was signed into law on

September 30, 2018 and became effective January 1, 2019. The law narrows the situations in

which a person may be convicted of murder. For unsentenced, pending cases, the change in the

law will be applied forthwith and no new implementation resources are necessary. However, SB

1437 is retroactive and incarcerated eligible persons convicted of first- or second-degree murder

under the old law may petition the court for resentencing.

Thousands of such cases are in backlog, waiting for an attorney to determine whether SB 1437

applies and, if so, waiting for an attorney to file and litigate the motion, if necessary. Some of the

defendants have already obtained counsel for SB 1437 litigation and have been released from

prison.

In a recent Compton case, a 16-year-old defendant’s sentence of 25 to life was reduced to six

years and a few months. In a Santa Clara case, a 20-year-old man was sentenced to 25 years to

life. Twenty-two years later, he was freed – instead of sitting in a prison cell for the rest of his

life. In Riverside, a middle-aged mother, who got involved in a robbery as a non-shooter, served

8 instead of 25 years in prison. In Ventura, an aunt used by her nephew to set up a robbery in

which she did not participate, was set free after 8 years. In Los Angeles, a 38-year-old was

sentenced to time served for a crime he committed when he was 19. In a Fresno case, the

sentence of life without the possibility of parole for a young woman whose only involvement in a

crime was as a driver was reduced to eight years. In Bakersfield, a teen convicted of felony

murder for participation in a burglary as a look out will likely be released in a few years, rather

than after a lifetime in prison. These are just a few of many examples.

A series of bills, namely SB 260, SB 261, AB 1308, and SB 394, amended Penal Code section

3051 between 2014 and 2018, created the youthful offender parole (YOP) suitability

hearing, offering incarcerated persons whose eligible committing offense occurred when they

were under the age of 26 a meaningful chance to parole back into the community. The

14https://www.nilc.org/wp-content/uploads/2016/06/access-to-counsel-Calif-coalition-report-2016-06.pdf

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underpinning of youth offender parole is based on scientific evidence showing that parts of the

brain responsible for impulse control, understanding consequences, and other executive functions

are not fully developed until mid-to-late 20s.15 As youth age, maturity can lead to reflection that

is the foundation for remorse, renewal and rehabilitation.16 YOP hearings are conducted on

timelines far in advance of “normal” parole hearings, offering the opportunity for youthful

offenders to gain release upon a showing that they have been rehabilitated and gained maturity.

This showing requires that records be collected, witnesses be interviewed, and other information

be developed that demonstrates how each person’s childhood circumstances contributed to the

crime. It is the juxtaposition of the then and the now that informs the Board of Parole whether

the person has indeed shown maturity and rehabilitation over time. Public defenders with the

assistance of public defender social workers must uncover and compile this information so that it

is available for the parole board to consider when the youthful offender appears. While costs

savings are difficult to calculate, a youthful offender with considerable mitigation to present to

the Board is much more likely to be released than one who has nothing to present.

AB 2942 (Ting) amended Penal Code section 1170(d) was signed into law on September 30,

2018 and became effective January 1, 2019. Previously, a court could recall the sentence of a

state prisoner only with 120 days of imposition or upon the recommendation of the California

Department of Corrections and Rehabilitation (CDCR). In practice, CDCR typically limited its

recall recommendations to those cases in which a sentencing error had occurred, an applicable

sentencing law had changed, or an inmate demonstrated “exceptional conduct” after a number of

limiting criteria are applied. After AB 2942, the court may also recall a sentence based upon the

recommendation of a district attorney. This modification allows a district attorney’s office to

apply an expanded range of criteria to inmates serving unnecessarily long and punitive sentences

which no longer serve the interest of justice. Advocacy by public defenders on behalf of

incarcerated persons is often instrumental in persuading the district attorney’s office to exercise

its discretion under this new law.

AB 813 (Gonzalez) added Penal Code Section 1473.7 and went into effect 2017; the section

was amended 2018. The law permits people no longer in criminal custody to file a motion to

vacate a conviction or sentence based on either one of two claims: (1) a prejudicial error

damaging the defendant’s ability to meaningfully understand, defend against, or knowingly

accept the actual or potential adverse immigration consequences of a plea of guilty or nolo

contendere, or (2) newly discovered evidence of actual innocence. Certain criminal convictions

can cause immigrants to be placed in removal proceedings, be detained for months or years in

immigration facilities and permanently separated from family and an established life in the

United States. The intent of the law was to ensure that a person prosecuted in state court does not

suffer penalties or adverse consequences, like deportation, as the result of a legally invalid

conviction.

Public defenders have access to important tools that can mitigate or eliminate the immigration

consequences of a crime. Public defenders already have a duty to advise and defend against the

immigration consequences of criminal convictions. Penal Code §§ 1016.2, 1016.3; Padilla v.

Kentucky, 559 U.S. 336 (2010). Public defenders must screen clients for past problematic

15 https://www.cdcr.ca.gov/bph/youth-offender-hearings-overview/ 16 Ibid.

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convictions. But too often, public defender offices lack the resources to clean up old

convictions. Right now, only a few counties provide attorney assistance for Penal Code section

1473.7 cases. For example, Los Angles handles 132 such cases a year (despite a population of

1.7 million immigrants). Public defenders from Los Angeles, San Francisco, and Ventura county

public defender offices recently reported a combined total of 329 backlogged post-conviction

cases, due to the lack of resources.

Public defenders are increasingly faced with taking on Penal Code section 1473.7 representation.

In 2019, the California Court of Appeal held that a defendant who makes a prima facie showing

under Penal Code section 1473.7, who is indigent, and who is unable to attend a hearing is

entitled to court-appointed counsel to litigate the Penal Code section 1473.7 motion.17

B. State laws only work to the extent they are implemented.

No funding accompanied these new laws, and public defender offices throughout the state while

committed to trying to help their clients benefit from these reforms, have struggled to handle the

new workload. Consequently, a backlog of these cases exists, requiring that incarcerated persons

who are eligible for release remain in state prison while they wait for an attorney to be assigned

to their case. Put simply, thousands of persons incarcerated in state prison who are statutorily and

legally entitled to be released have not received the benefit of SB 1437. Likewise, YOP and

Penal Code section 1170(d) candidates continue to serve prison sentences that no longer serve

the interest of justice.

DETAILS OF BUDGET REQUEST

IV. THE PROGRAMMATIC CHANGES SOUGHT IN THIS BUDGET

REQUEST.

A. Attorneys are necessary to implement SB 1437 and Penal Code 1473.7.

SB 1437 can be successfully implemented only through the assistance of public defenders.

According to CDCR, as of September 30, 2018, almost 22,000 persons were serving state prison

sentences for first- or second-degree murder.18 Not all 22,000 will be eligible for resentencing

under SB 1437. However, CDCR cannot identify eligible inmates because its records do not

differentiate between principal offenders and accomplices. Determining whether an inmate

qualifies for relief is a legal determination, with the central question being whether the inmate

could have been convicted of first- or second-degree murder had SB 1437 already been in place.

Therefore, all 22,000 cases must be reviewed by an attorney for eligibility for relief.

County public defender offices do not have the necessary resources to implement SB 1437. Six

of the largest counties - San Diego, San Bernardino, Los Angeles, Orange, Sacramento, and

17 People v. Fryhaat (2019) 35 Cal. App. 5th 969. In accordance with this decision, California criminal courts have

begun to appoint public defenders to represent indigent federal immigration detainees who seek post-conviction

relief. 18 See CDCR Senate Bill 1437 Fact Sheet, November 2018.

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Riverside - account for two of every three inmates sentenced to state prison.19 These six counties

also account for 67% of all murder convictions that need to be reviewed for SB 1437

eligibility.20

For example, the Orange County Public Defender’s Office estimates that 900 of the 1,150

murder convictions that need to be reviewed for relief are waiting to be assigned to an attorney.

In Riverside County, of 1,330 murder convictions that need to be reviewed for eligibility, the

public defender’s office has taken appointment on 325, but even these have been “wait-listed”

due to a lack of resources. In Sacramento County, of the 1,680 cases that need to be assessed;

approximately 90 are receiving active attention. The Los Angeles Public Defender’s Office has

by far the biggest backlog, with almost 2500 cases awaiting review to determine eligibility for

relief.

Penal Code 1473.7 likewise requires public defenders to ensure successful implementation.

Public defenders have access to important tools that can mitigate or eliminate the immigration

consequences of a crime. Public defenders already have a duty to advise and defend against the

immigration consequences of criminal convictions. Penal Code §§ 1016.2, 1016.3; Padilla v.

Kentucky, 559 U.S. 336 (2010). Public defenders must screen clients for past problematic

convictions. But too often, offices lack the resources to clean up old convictions. Right now,

only a few counties provide attorney assistance for Penal Code section 1473.7 cases. For

example, Los Angles handles 132 such cases a year (despite a population of 1.7 million

immigrants). Public defenders from Los Angeles, San Francisco, and Ventura county public

defender offices recently reported a combined total of 329 backlogged post-conviction cases, due

to the lack of resources.

Public defenders are increasingly faced with taking on Penal Code section 1473.7 representation.

In 2019, the California Court of Appeal held that a defendant who makes a prima facie showing

under Penal Code section 1473.7, who is indigent, and who is unable to attend a hearing is

entitled to court-appointed counsel to litigate the Penal Code section 1473.7 motion.21

B. Social workers are necessary to implement YOP and Penal Code sections 1170(d).

Public defender social workers are, not only essential, in implementing YOP and Penal Code

sections 1170(d) but are more cost effective than lawyers. Social workers in public defender

offices, write psychosocial histories based on the client records and interviews with family and

friends, but social workers are also the primary professionals responsible for the individual’s

successful reentry. Social workers perform discharge planning ensuring that those reentering the

community have access to prescribed medications, placement in residential treatment facilities or

sober living programs. They often connect clients directly to crisis stabilization hospitals and

other forms of residential care, depending on the client’s mental health diagnoses and acuity of

19 See “Some criminal justice reform measures taking hold slowly as judges and prosecutors oppose them,” by Greg

Moran, November 24, 2019. 20 See The California Department of Corrections and Rehabilitation county totals for Murder 1 and Murder 2

convictions as of December 31, 2018. 21 People v. Fryhaat (2019) 35 Cal. App. 5th 969. In accordance with this decision, California criminal courts have

begun to appoint public defenders to represent indigent federal immigration detainees who seek post-conviction

relief.

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care needs and work between providers to ensure that medical clearances and negative infectious

disease tests are completed and received by residential providers during the reentry process.

Social workers are often the only parties in public defender offices who are aware of state funded

programs targeting clients upon reentry and connecting them to these state resources. For

example, probation officers and parole agents rarely initiate the process to place clients who

qualify for STOP (Specialized Treatment for Optimized Programming) or similar CDCR funded

housing into these housing programs, where they are supposed to stabilize and avoid

violations/revocations that return them to custody at immense public expense. Social workers in

public defender offices have tapped into these resources and make these referrals. Similarly,

social workers are the professionals promoting STRTP placements for juveniles, funded by

CDSS, rather than DJJ juvenile incarceration. Public defender social workers also try to connect

youth with the community colleges through the Rising Scholars program. In the long run, each of

these reentry options is a cost saver; these are therapeutic, holistic, and cost-efficient programs

that the state often intends counties to use in service of re-entering individuals, but which are

rarely used. Public defender social workers make referrals to these state targeted resources, as

well as accessing residential care for substance use and mental health disorders for some

individuals directly upon the individual’s leaving custody through Drug Medi-Cal (the DMC-

ODS 1115 Waiver) in several counties.

At a Penal Code section 3051 YOP hearing, the Board of Parole is required to give great

weight to factors specific to youthful offenders. These factors include the diminished culpability

of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth

and increased maturity of the incarcerated person. Public defender offices with current clients

sentenced to prison who will one day be eligible for a YOP hearing are collecting records and

obtaining other information including interviews of family, teachers, and friends for use at the

future YOP hearings. However, for the thousands of persons who were incarcerated before the

effective dates of the statute’s amendments, public defender offices must retroactively recreate

an accurate picture of the persons’ youth, which is a herculean and time-consuming effort as

memories fade and records are destroyed.

Penal Code section 1170(d) post-conviction factors to consider include the incarcerated

person’s disciplinary record; record of rehabilitation; evidence that reflects whether age, time

served, and diminished physical condition, if any, have reduced the inmate’s risk for future

violence; and changed circumstances that would render continued incarceration no longer in the

interest of justice.22 While CDCR has a process in place to identify cases that may merit a recall

of sentence, in practice its criteria are more narrow than the law requires. After AB 2942, a

district attorney may recommend a sentencing recall based on a much wider range of appropriate

criteria.

Although some efforts are being made to implement AB 2942, resources are insufficient to

implement this new law statewide. In some counties, district attorney’s offices are simply not

pursuing Penal Code section 1170(d) relief. In others, the district attorney’s offices evaluate

cases by their own internal and un-reviewed criteria. In still others, the practical process to obtain

post-AB 2942 relief is for defense counsel to present to the district attorney’s office a complete

22 See Penal Code section 1170(d)(1).

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psychosocial assessment supported by records and expert recommendations in order to persuade

the district attorney to make the recall recommendation to the trial court.

To fully implement Penal Code section 1170(d), social workers are instrumental in preparing

persuasive presentations which include a robust reentry plan. Not only are social workers less

expensive to employ than attorneys, but they also have the necessary skill set to accomplish the

needed tasks. The information uncovered by social workers can be used to persuade district

attorneys to originate 1170(d) requests. Additionally, having public defenders identify

appropriate cases will allow clients to receive advice and support from a trusted advocate that

will hold communications confidential until informed consent is obtained, and social workers

familiar with community supports can formulate reentry plans. Reentry plans are critical in

convincing district attorneys to support release and in keeping the community safe.

Most public defender offices do not have social workers. Even in public defender offices with

social workers, the social workers are overwhelmed with their current duties with social worker

to attorney ratios of 1:100 (Orange County) and 1:130 (Riverside County). Existing public

defender social workers do not have the capacity to service Penal Code section 1170(d) needs.

V. FUNDING THE IMPLEMENTATION OF CRIMINAL JUSTICE REFORMS

WILL SAFELY DECREASE THE PRISON POPULATION, SAVING

MILLIONS OF DOLLARS AND HELPING PERSONS AVOID

CONTRACTING COVID-19.

A. Thousands are eligible for release from incarceration.

A 2002 study of FBI crime data found that nearly 20% of all murders annually between 1970-

1998 were felony murders.23 Even if only 10% of the 22,000 state prison cases involving

convictions for first- or second-degree murder are eligible for SB 1437 relief, this amounts to up

to 2,200 persons who are legally entitled to release or a shortened sentence. 24

The number of persons eligible for a YOP parole hearing is in the thousands. The Orange County

Public Defender’s Office reports that there are 1,216 YOP cases to prepare for hearing, and

meaningful work on any of them has yet to commence. The San Bernardino County Public

Defender’s Office reports that it has 900 cases to prepare. The San Diego County Public

Defender’s Office reports that it has over 600 cases that are currently unassigned due to lack of

resources.

The number of incarcerated persons eligible for Penal Code section 1170(d) relief is similarly

vast, as the primary limitation is what is in the interest of justice.

23 See SB 1437 Felony Murder Analysis SENATE FLOOR ANALYSES 8/30/18. 24 When the Legislature enacted SB 1437 they were keenly aware of the possible financial savings to be gained. The

Senate Committee on Appropriations calculated the potential savings based on the then proposed 2018-19 per capita

cost to house a person in state prison at $80,729 annually, with an annual marginal rate per inmate of between

$10,000 and $12,000. As to SB 1437 alone, the Senate Floor Analysis explained that there would be “[u]nknown

significant ongoing savings, likely amounting to hundreds of thousands of dollars to millions of dollars annually, for

CDCR to incarcerate inmates for shorter sentences.” SB 1437 Felony Murder Analysis, SENATE COMMITTTEE

ON APPROPRIATION 5/14/2018 and Ibid, SENATE FLOOR ANALYSIS.

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B. Safely releasing incarcerated persons will save California millions of dollars annually.

By acting now to fund current legislative priorities such as SB 1437, YOP and AB 2942 (Penal

Code section 1170(d)), the legislature will be addressing future structural budget problems and

save the state money. In the mere 3 years since SB 1437 was enacted the per capita cost of

housing an individual in state prison has increased by over $10,000, from approximately $80,000

to over $90,000.

Based on only partial data, funding public defender offices to litigate SB 1437 cases would save

the state at least $17,000,000 ($17 million dollars) in fiscal year 2021-22 and long-term savings

assuming a modest average sentence reduction of 10 years over $177,000,000 ($177 million

dollars).

Partial SB 1437 Savings

County

SB 1437 cases

pending

assessment25

Projected number

of eligible cases

(assuming 10%

eligible26)

Projected

releases

(assuming 25%

success rate27)

FY 21-22

savings28

Long-term savings

(assuming average

sentence reduction

of 10 years29)

Orange 900 90 22.5 $2,049,007.50 $20,490,075.00

Riverside 1330 133 33.25 $3,027,977.75 $30,279,777.50

Sacramento 1590 159 39.75 $3,619,913.25 $36,199,132.50

Los Angeles 2500 250 62.5 $5,691,687.50 $56,916,875.00

San Diego 1476 147 36.75 $3,346,712.25 $33,467,122.50

total $17,735,298.25 $177,352,982.50

Similarly, Penal Code section 1170(d) long-term savings, assuming an average per prison

sentence reduction of 4.5 years, are $53,274,195 ($53 million dollars) and $11,838,710 ($11

million dollars) for fiscal year 2021-22 just relying on the current CDCR projected release of 130

people that they have referred to court for release.

25 Numbers provided by respective county public defender offices. 26 A 2002 study of FBI crime data found that nearly 20% of all murders annually between 1970-1998 were felony

murders. (See SB 1437 Felony Murder Analysis SENATE FLOOR ANALYSES 8/30/18.) For purposes of this

analysis, we assume 10% of reviewed cases are eligible for relief. 27 We do not have comprehensive statewide data on success rates for SB 1437 cases. Yolo County reports a success

rate of approximately 20% and Alameda County reports a success rate of approximately 57%. For purposes of this

analysis, we assume a statewide success rate of 25%. 28 Estimates based on FY 20-21 average per person cost of incarceration of $91,067. 29 We do not have comprehensive statewide data on sentence reductions for SB 1437 cases. The average sentence

reduction in several recent cases from Los Angeles, Santa Clara, Riverside, and Ventura counties was 15 years.

Using this average, we conservatively assume an average reduction of 10 years.

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Forecast 1170(d) Savings

CDCR referrals pending

court response30

Projected releases

(assuming 30% success

rate31)

FY 21-22 savings32 Long-term savings

(assuming average per

person sentence

reduction of 4.5 years33)

435 130 $11,838,710 $53,274,195

The cost savings from implementing only SB 1437 and Penal Code section 1170(d) are upwards

of $29,000,000 ($29 million dollars) in fiscal year 2021-22 and more than $230,000,000 ($230

million dollars) in long-term savings.34

VI. DATA COLLECTION

A. SB 1437.

Data will be collected as to the number of cases that are reviewed, found eligible, litigated, and

outcomes.

B. Penal Code section 3051 YOP Hearings.

Data will be collected as to the number of cases that are prepared for hearing and, as applicable,

outcomes.

C. AB 2942 (Penal Code section 1170(d)).

Data will be collected as to the number of cases that are prepared for recall, as well as outcomes.

D. Penal Code section 1473.7.

Data will be collected as to the number of cases screened for relief, found eligible, petitions filed,

and outcomes in order to analyze the outcomes to determine the success of this funding.

30 Estimate based on CDCR Recall and Resentence Recommendation Program Summary Dashboard, Data as of

9/30/2020. 31 Id. 32 Estimates based on FY 20-21 average per person cost of incarceration of $91,067. 33 Estimate based on CDCR Recall and Resentence Recommendation Program Summary Dashboard, Data as of

9/30/2020. 34 Closing a prison that is no longer needed as the result of safe decarceration methods will save hundreds of

millions of future dollars. While the financial savings associated with closing a prison is significant, if safely

decarcerating the state prisons saves human life because incarcerated persons and prison staff avoid a deadly

disease, the return on investment is incalculable.

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VII. FUNDING AMOUNTS WERE DETERMINED BY CURRENT FTE COSTS

AND APPORTIONING RESOURCES BY RELATIVE POPULATION SIZE.

A. SB 1437.

Assuming 10% of the 22,000 cases that need to be reviewed for AB 1437 eligibility are

thereafter assessed as eligible for relief, this amounts to 2,200 persons that need an attorney to

handle their case. Bigger counties are struggling the most with SB 1437 backlogs. This request,

therefore, seeks to secure resources for the biggest fourteen (14) counties to make significant

progress clearing the backlogs. Counties would receive two, three, or four attorneys based on

relative population size, except for Los Angeles County which would receive ten attorneys.

This budget request asks for funding to hire a total of 46 attorneys, to work for two years on the

backlog of 1437 cases. Assuming an attorney costs $200,000 annually, this amounts to a total

cost of $18,400,000 to address the unassigned work associated with SB 1437.

B. Penal Code section 3051 YOP and AB 2942 (Penal Code section 1170(d)).

The estimated annual cost to fund a social worker is $150,000. The aggregate cost of employing

a total of 46 social workers, for two years, $13,800,000.

C. Penal Code section 1473.7.

It is estimated that a total of 14 attorneys (working for two years) would be required to give

immigrants with claims that their pleas were taken without knowledge of immigration

consequences under Penal Code section 1437.7. The total request is for approximately

$5,600,000. 35

CONCLUSION

VIII. PUBLIC DEFENDER’S OFFICES AND SOCIAL WORKERS CAN

EFFECTIVELY IMPLEMENT CRITICAL LEGISLATIVE REFORMS

Public defenders and social workers are the best hope for the thousands of people serving

unlawful sentences in state prison and the thousands of people who continue to serve state prison

sentences that no longer serve the interest of justice.

This budget request safely reduces state prison populations at a time when budget deficits loom

and the COVID-19 crisis continues to threaten the lives of those who live and work in state

prison. Freeing those who are legally and constitutionally entitled to relief and those who are

serving sentences that no longer serve the interest of justice is a smart and cost effective place to

start.

Likewise, with proper resources for post-conviction attorneys, thousands of immigrants with old,

unlawful convictions will be spared deportation and allowed to remain in California as

35 https://caimmigrant.org/what-we-do/one-california-immigrant-services-funding/

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productive workers and family members. The state will save costs related to forcing these

families into poverty.

Please do not hesitate to contact us should you have any questions or if we can provide any

additional information. We look forward to working with you on this important budget request.

Sincerely,

Jennifer Friedman

President, California Public Defenders Association

Rebecca Gonzales

Director of Governmental Relations and Political Affairs, National Association of Social

Workers, California Chapter

Rose Cahn

Senior Staff Attorney, Immigrant Legal Resource Center

Mica Doctoroff

Legislative Attorney, ACLU of California Center for Advocacy and Policy

Arnold Sowell Jr.

Executive Director, NextGen California

Danica Rodarmel

State Policy Director, San Francisco Public Defender