Coleman v Schwazenegger Motion Amicus Curiae

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Michael Romano, SBN 232182 
THREE STRIKES PROJECT 
Stanford Law School 
559 Nathan Abbott Way 
Stanford, CA 94305 
Phone: 650.736.7757 
Fax: 650.723.8230 
e-mail: mromano@stanford.edu

Attorneys for Amicus Curiae

IN THE UNITED STATES DISTRICT COURTS 

FOR THE EASTERN DISTRICT OF CALIFORNIA 

AND THE NORTHERN DISTRICT OF CALIFORNIA 

UNITED STATES DISTRICT COURT COMPOSED OF THREE JUDGES 

PURSUANT TO SECTION 2284, TITLE 28 UNITED STATES CODE

RALPH COLEMAN, et. al. 

Plaintiffs, 

v.
ARNOLD SCHWARZENEGGER, 

et. al.,

Defendants.

MARCIANO PLATA, et. al. 

Plaintiffs, 

v.

ARNOLD SCHWARZENEGGER, 

et. al.,

Defendants.

NO. CIV S90-0520 LKK JFM P 

THREE-JUDGE COURT

NO. CO 1-1351 THE 

THREE-JUDGE COURT

NOTICE OF MOTION AND 
MOTION BY AMICUS CURIAE 
NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC. FOR 
LEAVE TO FILE AN AMICUS 
CURIAE BRIEF

mailto:mromano@stanford.edu


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TABLE OF AUTHORITIES

California Constitutional Provisions

Cal. Const., Art. 5, § 13....................................................................... 14, 16, 17, 24

Cal. Const., Art. V, § 8 .......................................................................................... 16

Cases

Alexander v. Louisiana, 405 U.S. 625 (1972)......................................................... 2

Batson v. Kentucky, 476 U.S. 79 (1986).................................................................. 2

Farrakhan v. Gregoire, 590 F.3d 989 (9th Cir. 2010)............................................ 2

In re Randolph, 215 Cal.App.3d 790 (1989)......................................................... 22

Johnson v. California, 545 U.S. 162 (2005)............................................................ 2

Miller-El v. Dretke, 545 U.S. 231 (2005)................................................................ 2

People v. Honig, 48 Cal. App. 4th 289 (Cal.App. 3 Dist. (1996))........................  18

People v. Superior Court (Kaulick), 215 Cal. App. 4th 1279 (2013)...................... 8

Sonoma Falls Developers, LLC v. Nevada Gold & Casinos, Inc.,
272 F. Supp. 2d 919 (N.D. Cal. 2003)..................................................................... 4

Turner v. Fouche, 396 U.S. 346 (1970)................................................................... 2

Statutes

Cal. Code § 2900................................................................................................... 22

Cal. Code § 2900.5................................................................................................ 22

Cal. Penal Code § 1170.12(c)(2)(C)...................................................................6, 15

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PLEASE TAKE NOTICE that pursuant to Rule 7-11 of the Local Rules of 

Practice in Civil Proceedings before the United States District Court for the 

Northern District of California, the NAACP Legal Defense and Educational Fund, 

Inc., by and through counsel at the Three Strikes Project at Stanford Law School, 

seek leave to file the following amicus curiae brief in the above captioned matter.

STATEMENT OF INTEREST

The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) is the 

nation’s first civil rights law firm. LDF was founded as an arm of the NAACP in 

1940 by Charles Hamilton Houston and Thurgood Marshall to redress injustice 

caused by racial discrimination and to assist African Americans in securing their 

constitutional and statutory rights. Through litigation, advocacy, public education, 

and outreach, LDF strives to secure equal justice under law for all Americans, and 

to break down barriers that prevent communities of color from realizing their basic 

civil and human rights.

LDF has a longstanding concern with racial discrimination in the 

administration of criminal justice. LDF has served as counsel of record or amicus 

curiae in federal and state court litigation challenging such issues as the role of 

race in capital sentencing, McCleskey v Kemp, 481 U.S. 279 (1987); Furman v. 

Georgia, 408 U.S. 238 (1972), the influence of race on prosecutorial discretion, 

United States v. Armstrong, 517 U.S. 456 (1996); United States v. Bass, 266 F.3d

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http://www.law.stanford.edu/sites/default/files/child-

page/441702/doc/slspublic/Three%20Strikes%20Reform%20Report.pdf.

As indicated in its September 24, 2013 Order, this Court has directed 

the defendants in the instant matter “to reduce the state prison population to no 

more than 137.5% design capacity by December 31, 2013.” Order to Meet and 

Confer, filed Sept. 24, 2013 (Docket No. 2719) at 1. In response, the defendants 

‘informed the Court that, absent an extension, they will begin sending additional 

prisoners to out-of-state facilities on September 30, 2013.” Id. Thus, this Court 

ordered the parties to meet and confer to “explore how defendants can comply with 

this Court’s” Order and achieve a “durable solution” to the prison overcrowding 

problem at the heart of this litigation. Id. at 2. The Court indicated that these 

discussions “shall specifically include” the “three strikers.” Id.

This is not the first time that the three strikes population has been discussed 

in the context of the instant prison overcrowding litigation. On several other 

occasions this Court and the parties have referred specifically to Proposition 36 as 

a potential partial solution to reducing the prison population. See, e.g., Defendants’ 

Request for an Extension of December 31, 2013 Deadline, filed Sept. 16, 2013 

(Docket No. 2713), at 6. However, some of the representations that have been 

made to this Court regarding the Three Strikes law and the implementation of

Proposition 36 have been inaccurate and incomplete. Thus, Amicus seeks to

3

http://www.law.stanford.edu/sites/default/files/child-


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aware, the State prison system nonetheless remains dangerously overcrowded and
' j

constitutional violations are ongoing.

Historically, one of the primary sources of California’s overcrowding 

problem was the 1994 “Three Strikes and You’re Out” law which required 

extremely long—and sometimes lifetime—prison sentences for repeat offenders. 

According to the California Department of Corrections, as of June 30, 2013, over 

42,000 of California’s current prison inmates are serving enhanced sentences 

pursuant to the Three Strikes law. See Dept, of Corrections and Rehabilitation, 

Data Analysis Unit, “Second and Third Striker Felons in the Adult Institution 

Population,” (June 30, 2013), at Table 1, available at

www.cdcr.ca.gov/Reports_Research/Offender_ 

Information_Services_Branch/Quarterly/Strike 1/STRIKE1 dl 306.pdf. 

Approximately 34,000 of these inmates are serving “second strike” sentences (i.e. 

double the ordinary sentence for their crime) and over 8,000 are serving “third 

strike” indeterminate life sentences. Ibid.-, see also Cal. Penal Code Sections 

667(e)(2)(C), 1170.12(c)(2)(C). In aggregate, the inmates sentenced under the 

Three Strikes law constitute approximately 35 percent of the current prison 

population. The majority of these inmates are serving prison terms for non-violent

2 See Order to Meet and Confer, filed Sept. 24, 2013 (Docket No. 2719).
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(b) (“Any person serving an indeterminate term of life imprisonment imposed 

[under the relevant statutes] . . . may file a petition for a recall of sentence . . . 

before the trial court that entered the judgment of conviction in his or her case[.]”). 

If the inmate sets forth a prima facie case of eligibility for relief, the Superior 

Court must issue an Order to Show Cause to the county District Attorney why the 

petition should not be granted. See Cal. Penal Code Section 117.126 (f); Cal. Rule 

of Court 4.551 (c); Richard Couzens and Tricia A. Bigelow, The Amendment o f the 

Three Strikes Sentencing Law, 23-27 (Judicial Counsel of California, 2013) 

available at http://www.courts.ca.gov/20142.htm (discussing resentencing 

procedures under Prop. 36). If the People oppose the petitioner’s release, the 

burden of proof falls on the People to establish by a preponderance of the evidence 

that the petitioner remains an “unreasonable risk of danger to public safety.” 

People v. Superior Court (Kaulick), 215 Cal. App. 4th 1279, 1301-05 (2013); Cal. 

Penal Code Section 1170.126(f). It is then up to the Superior Court judge to 

determine whether the People have met their burden. Ibid.

Given the substantial potential impact of the Three Strikes law on the size of 

California’s prison population, this Court has correctly recognized that the 

implementation of Proposition 36 “should result in substantial reduction in the 

prisoner population,” Opinion and Order Denying Defendants’ Motion to Vacate
c

or Modify Population Reduction Order, filed April 11, 2013 (Docket No. 2590) at

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Approximately 2,000 additional prisoners are eligible for relief under 

Proposition 36. Prop. 36 Progress Report, at 5-6. Many of these prisoners also 

appear ready to reintegrate into society. According to “Static Risk Assessment” 

projections conducted by the Department of Corrections, approximately 45 percent 

of the prisoners awaiting resolution of their Proposition 36 petitions are considered 

a “low risk” of committing any new crime if released from custody; 36 percent 

qualify as “moderate” risk; and only 7 percent qualify as “high risk” of committing 

a crime of violence if released.4 On average, the 2,000 inmates awaiting review of 

their Proposition 36 petitions are 48 years old and have already served over 9 years 

in prison. Compared to the general prison population, inmates sentenced to life 

under the Three Strikes law for non-serious, non-violent crimes are 

disproportionately African American, disproportionately physically disabled, and 

disproportionately mentally ill.

Despite the relative success of inmates released under Proposition 36 to date, 

the rate of releases is trailing off and expected to slow dramatically in the coming

4 Data provided by the Department of Corrections. No risk data was available for 
212 of the inmates awaiting resolution of their Proposition 36 petitions. The 
Department of Corrections calculates recidivism risk using an actuarial called the 
California Static Risk Assessment (CSRA) instrument. See generally Susan 
Turner, et. al., “Development of the California Static Risk Assessment Instrument 
(CSRA),” University of California, Irvine, Center for Evidence-Based Corrections, 
November 2009.

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prisoner releases as it can or should. See Prop. 36 P Report at 5-6. This is because 

in some counties, Proposition 36 cases are processed expeditiously, while in other 

counties there are long backlogs. And it appears that in many counties, inconsistent 

standards and inadequate resources are applied in Proposition 36 cases. See Prop. 

36 Progress Report at 6; see also Hamed Aleaziz, “LA lags behind on three strikes 

resentencing: County has most eligible inmates and slowest pace of petition 

processing.” Daily Journal, (Sept. 6, 2013).

Furthermore, although Defendants assert that they are doing everything 

within their legal authority to promptly implement Proposition 36 and that “[t]he 

release of inmates via Proposition 36 is entirely outside Defendants’ control,” 

Defendants’ Response to April 11, 2013 Order, filed May 2, 2013 (Docket No. 

2609) at 16, Amicus contend that this is not correct. Defendants have considerable 

authority over the implementation of Proposition 36 and they can and should be 

required to exercise that authority to facilitate the prompt and safe release of 

appropriate prisoners without delay.

//

//

//

//

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Thus the State cannot ‘expedite’ resentencing, as Plaintiffs propose, and certainly 

cannot ensure that the courts will decide to resentence all of the eligible third-strike 

petitioners.” Id. at 16.

Defendants’ assertions are misleading: while they do not decide whether a 

particular prisoner is, or is not, appropriate for resentencing under Proposition 36, 

they can and should expedite the process by requesting a recall of sentence for 

Proposition 36 eligible prisoners pursuant to subsection (d) of California Penal 

Code 1170; and/or by exercising their supervisory authority over county District 

Attorneys, see Cal. Const., Art. 5, Sec. 13; Cal. Gov’t Code Section 12550, to 

ensure that the Proposition 36 process is administered fairly and effectively.

A. Defendants Have Independent Authority To Expedite
Resentencing Hearings For Prisoners Eligible For Relief 
Under Proposition 36.

Defendants have the legal authority to expedite review of resentencing 

hearings under Proposition 36.

Under subsection (d) of California Penal Code 1170, the Secretary of the 

Department of Corrections may “at any time” request that a Superior Court recall 

almost any state prison sentence (including the sentences of prisoners eligible for 

relief under Proposition 36). The Department of Corrections Operations Manual 

states that the Secretary’s authority to request a recall of sentence under Penal
o

Code Section 1170 is extremely broad. For example, the Secretary may

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be released immediately. See Cal. Penal Code Section 1170(d)(1) (“Credit shall be 

given for time served [to any inmate re-sentenced under this subsection].”)

In addition, unlike the process established under Proposition 36, any 

litigation under the Penal Code 1170(d) recall process is conducted by the Office 

of the Attorney General, representing the Secretary of the Department of 

Corrections, not the local District Attorney. See Cal. Department of Corrections 

and Rehabilitation Operations Manual, Section 1410.4 (2013). Thus contrary to 

their assertions, Defendants do have considerable ability to exercise control over 

(and expedite) resentencing hearings for prisoners eligible for relief under 

Proposition 36.6

B. Defendants Can And Should Exercise Supervisory 
Authority Over District Attorneys To Expedite 
Resentencing Hearings For Prisoners Eligible For Relief 
Under Proposition 36.

Defendants possess supervisory authority over county District Attorneys. 

See Cal. Const., Art. 5, Sec. 13; Cal. Gov’t Code Section 12550. Thus, any 

argument that the Proposition 36 process is entirely controlled by local prosecutors 

and judges (not state officeholders), is unavailing.

6 The Governor of California also has constitutional authority to pardon state 
prisoners. See Cal. Constitution, Art. V, Section 8. However, that power is severely 
constrained in this context because, “[t]he Governor may not grant a pardon or 
commutation to a person twice convicted of a felony except on recommendation of 
the Supreme Court, 4 judges concurring.” Ibid.

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judicial branch. See People v. Honig, 48 Cal. App. 4th 289, 353-356 (Cal.App. 3 

Dist. (1996)) (“[Ajssuming, without deciding, that a [party] may object to 

prosecution by the Attorney General, it cannot be doubted that the superior court’s 

authority to consider the objection would be very limited.”).

Several media reports have criticized prosecutors throughout the state, 

particularly the District Attorney of Los Angeles County, for inefficient 

administration of petitions filed under Proposition 36. See, e.g., Hamed Aleaziz, 

‘LA lags behind on three strikes resentencing,” Daily Journal, (Sept. 6, 2013); 

Jack Leonard, “Freed three strikers have low recidivism rate, study finds,” Los 

Angeles Times (Sept. 9, 2013) (including response to from the Los Angeles District 

Attorney). According to data provided by the Department of Corrections, as of 

August 31, 2013, only 17 percent of the cases filed under Proposition 36 in Los 

Angeles County have been adjudicated. By contrast, 73 percent of Proposition 36 

cases filed in San Bernardino County were adjudicated in the same time period. 

See Prop. 36 Progress Report, at 6.

The data demonstrates that application of Proposition 36 is inconsistent 

throughout the state. Regardless of whether that problem is a result of 

mismanagement, misapplication of law, or insufficient resources, Defendants can 

and should exercise their supervisory authority over District Attorneys to ensure 

swift and consistent implementation of Proposition 36 throughout the state.

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of the initiative by ensuring that adequate reentry resources are available to eligible 

inmates.

Unfortunately, prisoners released under Proposition 36 are excluded from 

receiving the public reentry resources provided to other inmates leaving prison by 

Defendants and other public agencies. This not only impedes the implementation 

of Proposition 36 but also endangers California’s public safety.

As this Court is aware, the enactment of AB 109, the Criminal Justice 

Realignment Act, divided supervision and support services offered to inmates 

released from prison between the State Division of Adult Parole Services and 

county Probation Offices. See Penal Code Sections 3450-3465; 3000.08; California 

Department of Corrections and Rehabilitation 2011 Public Safety Realignment 

Fact Sheet (April 15, 2013) available via www.cdcr.ca.gov. Prior to AB 109, the 

State Parole Division provided post-release supervision and support to all inmates 

leaving prison. See Cal. Penal Code Section 3000(a)(1) (2009). The State Parole 

Division is now responsible for prisoners released following convictions for 

serious or violent crimes; and county Probation Offices are responsible for 

prisoners released following convictions of non-serious, non-violent crimes. See 

Penal Code Sections 3450-3465; 3000.08. On average, the Parole Division spends 

$6,000 per released inmate on post-release supervision and support services. 

County Probation Offices average $6,300 per released inmate. See Prop. 36

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resentenced under Proposition 36 have excess custody credits, which satisfy their 

new reduced prison term plus an additional three years, they are not eligible for 

Post-Release Community Supervision. See Code Sections 2900, 2900.5; see In re 

Randolph, 215 Cal.App.3d 790, 795 (1989); see also Tracy Kaplan, “Released 

‘three strikes’ inmates have low repeat-offense rate, report says,” San Jose 

Mercury News, Sept. 9, 2013 (“Unlike all other prisoners released from state 

custody, strikers [released under Proposition 36] are not eligible for assistance with 

housing, jobs or drug treatment because they are not on parole or probation.”).

Although Probation offices in most counties are refusing to provide services 

to inmates released under Proposition 36, the Probation Offices for Santa Clara and 

Marin counties are exceptions to this rule and have offered reentry services to 

inmates released under Proposition 36 even though they are not required to do so. 

See Prop. 36 Progress Report, at 8-10. In all other counties, inmates released under 

Proposition 36 receive nothing more than $200 in “gate money” to assist their 

immediate reentry from the Department of Corrections. Ibid.

Defendants can and should make these post-release services available to 

those resentenced under Proposition 36 in two ways.

First, Defendants have direct authority to offer support services currently 

available through the Parole Division to prisoners released under Proposition 36. 

Because of AB 109, and the reduction of the number of parolees, there should be

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at reducing the prison population, and help improve public safety throughout 

California, Defendants should allow prisoners released under Proposition 36 to 

receive public reentry support services and exercise their authority to ensure that 

these inmates receive the same services available to all other prisoners leaving 

state custody.

CONCLUSION

For the foregoing reasons, this Court should order Defendants to exercise 

their authority to ensure consistent and expeditious implementation of Proposition 

36. This Court should also order Defendants to make reentry services available to 

inmates released under Proposition 36 at the same levels of service provided to 

other inmates released from state custody.

Amicus curiae remain available to this Court for questions related to 

implementation of Proposition 36 and the Three Strikes law generally.

DATED: October 10, 2013 Respectfully submitted,

/s/ Michael Romano 
Director
Three Strikes Project 
Stanford Law School 
559 Nathan Abbott Way 
Stanford, CA 94305 
mromano@stanford.edu

/s/ Christina Swarns______
Director, Criminal Justice Project 
NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, NY 10013 
cswams@naacpldf.org

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mailto:mromano@stanford.edu
mailto:cswams@naacpldf.org