State inmates serving life terms are starting to file resentencing petitions with local judges after the passage of Proposition 36, the ballot measure that overhauls California's "three strikes" law. But opposition from local prosecutors and other factors could limit the number of qualifying inmates who actually get released.
Scott Thorpe, chief executive officer of the California District Attorneys Association, said his organization is recommending that district attorneys file subpoenas for the prison records of inmates seeking a resentencing hearing so they can scrutinize everything from the offenders' health and psychological profile to their participation in rehabilitation programs.
"We're arguing that everything should be taken into consideration," he said. "If they haven't taken advantage of programs that were available to them, we're saying that's a relevant fact in determining whether this is a responsible person to go out into society."
Proposition 36 allows sentence reductions for inmates convicted under the original 1994 law if their third strike was not a serious or violent felony (as defined by the California Penal Code) and their prior convictions did not include rape, murder, child molestation or other grave crimes.
About 2,800 inmates serving life terms could be eligible for shorter sentences or release under the measure, according to data from the state Department of Corrections and Rehabilitation. Of those offenders, nearly 70 percent originally were sentenced in five counties: Los Angeles, Kern, San Bernardino, Riverside and San Diego.
Resentencing is not automatic. The measure gives judges discretion to consider a host of factors to determine whether an offender poses an "unreasonable risk" to public safety and should remain in prison.
Those factors include the types of previous crimes, injuries to victims, lengths of prior prison terms, disciplinary and rehabilitation records in prison, and any other evidence the court deems relevant.
Opponents of Proposition 36 have argued that the measure was unnecessary because judges already have discretion to impose lighter sentences. Thorpe said the measure is putting a heavy burden on prosecutors to pull together all the pertinent records to determine the level of risk an offender poses.
Public defenders' offices around the state also are bracing for a heavy workload, especially if a large number of petitions are challenged.
"The costs could grow significantly," said Laura Hoffman, chief deputy public defender for San Bernardino County.
Proposition 36 provides little guidance on how the petition process should be conducted, although it specifies that inmates must file their petitions by November 2015. In recent weeks, prosecutors and defense attorneys around the state have been working with corrections officials to create a system to locate, copy and transfer inmates' prison records to local courts assigned to evaluate the petitions.
But lawyers representing third-strikers expressed concern that challenges over prison records could create a bottleneck in the petition process and long delays for some inmates who are eligible for release.
Michael Romano, a Proposition 36 co-author who directs a law clinic at Stanford University, said another challenge is ensuring that every inmate who qualifies under the statute receives adequate representation and has a transition plan for life after prison. "Their lives are on the line," he said.
While some petitions might be unopposed, Romano said, a "large number of cases are going to be contentious."
"We are not expecting that prosecutors are going to roll over," he said. "We are loading for bear."
California Watch is a project of the nonprofit Center for Investigative Reporting. For more, visit CaliforniaWatch.org.