By Özge Terzioğlu
This report is written by the Covid In-Custody Project — an independent journalism project that partners with the Davis Vanguard to bring reporting on the pandemic in California’s county jails and Department of Corrections and Rehabilitation (CDCR) to the public eye. Visit our website to view and download raw data on cases, testing, releases and vaccinations.
Due to the pandemic, jails and prisons across California have struggled with overcrowding, making social distancing challenging.
As a result, CDCR implemented a range of early-release programs and expanded credit opportunities to reduce prison populations. The Davis Vanguard recently investigated the widespread delays in applying or processing time-served or positive programming credits (PPC), which could have resulted in expedited releases for many.
However, those who are medically vulnerable and indeterminately sentenced, or “lifers,” are facing an entirely unique challenge regarding early releases.
In July, CDCR established three early-release programs: 1. 180 days or less to serve (all prisons), 2. 365 days or less to serve (select prisons), and 3. Early-release consideration for some age 65 or above or COVID-19 high-risk. The majority of releases occurred under the first two categories.
The program for those with 180 days or less remaining on their sentence is on-going. However, CDCR ended releases under the second and third categories in early-October.
Under the third category, the Board of Prison Hearings was meant to provide a written report to CDCR about each eligible person. According to the Prison Law Office memorandum published in September, “If a person is serving a determinate sentence, the Secretary decides if they should be released. If a person is serving an indeterminate sentence, and the Secretary believes they should be released, the case is sent to the Governor with a recommendation for clemency, and the Governor makes the final decision.”
Although 6,500 people were eligible for consideration under the high-risk program, CDCR ultimately considered only 1,335. While some who were eligible may have been released under the 180-day or 365-day programs, they all were determinately sentenced. It is unlikely that any indeterminately sentenced individuals were considered and/or released.
The CDCR Secretary only recommended the Governor to grant sentence reductions for 12 people under the high-risk category.
Pete Smith is currently serving 20 years to life at San Quentin for second-degree murder. He has been incarcerated since 1983 and eligible for parole since 1997. He said, “My case is second-degree murder stemming from a drunken fight back in 1983… [I] fired my gun in self-defense and had no idea that anyone had even been shot, let alone actually died until the morning after the fight.”
Pete suffers from a chronic heart condition and previously had a heart attack, making him high-risk for COVID-19.
He applied for release months ago under the third program for early-releases. CDCR rejected his request.
This put Pete in a precarious position as he is medically vulnerable, has worked hard to rehabilitate himself through education programs, yet his request was denied due to the nature of his sentence.
Despite proving that he does not threaten public safety, CDCR’s decision highlights deep flaws in California’s indeterminate sentencing and parole system. During his interview, Pete explained how the system has failed him and others.
In California, there are two types of sentencing – determinate and indeterminate sentences. Under determinate sentencing, a person is released after a fixed number of years, and does not need to undergo a risk assessment to identify if they are a threat to public safety.
In contrast, indeterminate sentences do not include a specific number of years, instead, they are worded, for example, as “ten years to life.” The Parole Board determines if they have rehabilitated sufficiently and are ready to return to society.
Before Gov. Brown enacted California’s Uniform Determining Sentencing Act in 1977, all offenses were given indeterminate sentences. However, this was seen as unfair because people who committed the same offenses at different time periods, could serve different sentences.
In addition to the inequality in sentencing for similar offenses, there are inconsistencies in sentencing for offenses with varied severity. While Pete was indeterminately sentenced for second-degree murder, he says, “I have personally met people who have committed a kidnap, rape, first degree murder and were released after twenty six years.”
Indeterminate sentencing was meant to reward rehabilitation but it has steered far from this goal.
Pete has spent almost two decades in prison reforming himself, by working a job and earning his GED.
Further, he argues that the “risk assessment” is arbitrary as it relies on the opinion of the Parole Board and can easily be overturned by the governor.
Pete was caught with a few cell phones over the years. “This caused the Parole Board, which typically comprises people from victim’s rights commissions or ex-law enforcement, to determine that I was an unreasonable risk to public safety,” he says. On the contrary, if a determinately sentenced person is caught with a cell phone, they only lose ninety-days of good-time credit.
There is a difference between being eligible and being suitable for parole. Pete has been eligible since 1997, but he says, “You must be found suitable by the parole board in order to be released.” In 2011, Pete was granted parole, but Gov. Brown reversed the decision because the victim’s family opposed it.
After the Parole Board determines that a person is suitable, they calculate the time they will serve. According to Pete, the circumstances of his case would put him at serving nineteen years. However, “The fact that [my] case occurred in 1983 shows that the board has a little regard for [their calculations] or their own rules and regulations,” he said.
Pete’s Minimum Eligible Parole Date (MEPD) was in 1997. “There is no such thing as “early-release” for anyone who has reached or exceeded their MEPD,” he says. Yet, he is continuing to advocate for expedited release based on his medical conditions.
As of Oct. 7, over six thousand people were released from CDCR custody under its three early-release programs — 91 percent of them had less than 180 days on their sentence. A psychological evaluation prior to release was not mandated. Whereas, indeterminately sentenced people undergo risk assessments that rank them as low, medium or high risk to public safety just to determine if they are suitable for parole.
About a decade ago, Pete suffered a heart attack due to a blocked artery. With his heart and respiratory conditions, he is high-risk for developing complications associated with COVID-19. In July, he developed mild symptoms and tested positive. He was sent to solitary confinement for sixty days, despite CDC recommending a fourteen-day quarantine.
Months ago, he appealed CDCR’s decision that rejected his early-release request based on his medical classification. To be considered for COVID-19 high-risk release, one would have to score four points or higher through the California Correctional Health Care Services’ (CCHCS) points system.
CCHCS weighs COVID-19 risk by allocating points for various health factors. If the person is age 65 or older, they get four points. If the person has advanced liver disease, high risk cancer, chronic obstructive pulmonary disease, immunocompromised, they get two points.
If the person has persistent asthma, chronic lung disease, diabetes, heart disease, HIV, AIDS, morbid obesity, pregnancy, or other high risk chronic conditions, they get one point.
Pete scored a total of five points.
Overall, to be considered under the third early-release category, one must have a medical risk score of four or higher, not be serving life without parole, have a risk assessment identifying them as low risk for violence, and must not be a high-risk sex offender.
Pete wrote in his appeal that he meets all of these conditions.
He also cited government code 8658, which states that “In any case in which an emergency endangering the lives of inmates of a state, county, or city penal or correctional institution has occurred or is imminent, the person in charge of the institution may remove the inmates from the institution.”
Pete’s appeal was due on October 26, yet nearly two months later, there has been no ruling on it. Pete remarked that “The state is notorious for ignoring time limits on everything.”
He added, “Once a ruling is made, I will be allowed to file an action in court. Assuming I can find the legal representation to assist me.”
Before incarcerated people accept a court action, the courts require them to first try out every other administrative remedy they can find. “However, if enough time has elapsed past the due date, the courts will consider that an exhaustion of administrative remedies.”
As of now, Pete is still waiting to hear the court’s ruling on his appeal to grant him medical release. In addition to the Parole system failing him, he has also been failed by the early-release system.
Pete has been in prison for nearly forty years for a conviction he believes is unjust. He has spent years working on himself, his education, and his case. He has two places to stay upon his release, as well as a job.
“There is a big difference between manslaughter and murder,” he says. Pete has been working on his rehabilitation for years, he believes he is not a risk to society anymore.
Even though he was already infected with COVID-19, there is still a chance for reinfection. With the pandemic ravaging San Quentin, his consistent rehabilitation, medical conditions, and time served, Pete’s case deserves to be re-evaluated for expedited release.