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First Inmate Released Under Revised 3-Strikes Law Is San Diegan

November 29, 2012 5:15 p.m.

GUEST:

Justin Brooks, Corley's attorney, and professor at the California Western School of Law

Related Story: First Inmate Released Under Revised Three-Strikes Law Is San Diegan

Transcript:

This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

Our top story on Midday Edition is the first resentencing and imminent release of a three strikes prisoner since the passage of prop 36. It is happening here in San Diego managed by a combined effort of Dist. Atty. Bonnie Dumanis'office and the Institute for Defense advocacy the California Western school of Law. Those efforts will lead to the release later this week of Kenneth Corley who served 16 years on a nonviolent drug possession charge. Joining me is Corley's attorney Justin Brooks, a professor the California Western school of Law and Justin welcome back to the show.

JUSTIN BROOKS: Thank you very much

MAUREEN CAVANAUGH: Remind us to start out about how proposition 36 which was just approved earlier this month changed the three strikes law.

JUSTIN BROOKS: Proposition 36 did what a lot of California already thought was the three strikes law. I think that a lot of people thought three strikes meant three violent or serious crime so you would get sentenced to 25 years to life but the truth is you get to violent or serious crimes and the third felony can be a broad range of really nonserious stuff. And you get sentenced for the rest of your life.

MAUREEN CAVANAUGH: I think many people might be seen surprised to hear in the story we are about to tell that this is actually retroactively active. People sentence under deal three strikes law Competition to have the sentences changed.

JUSTIN BROOKS: Right and that is tricky as well. It's not everyone first of all and is not everyone with a serious or third strike because of the first districts were first districts are report order violent crimes matter what the third crime was they are going to stay in but the more tricky part is the law requires to look at future dangerousness. So, there are going to be people sitting in prison right now listening to us and who are in there and the third strike was nonviolent and nondangerous, nonserious, and yet based on their present behavior may have difficulties qualifying for the law.

MAUREEN CAVANAUGH: Tell us about Kenneth Corley and his third strike conviction.

JUSTIN BROOKS: The case is a sort of classic case. He was a guy addicted to drugs. He had a whole series of that theft crimes. The final third strike was drug possession and drug paraphernalia crime and he got sentenced to 25 years to life. He's been in prison for 16 years. He is a 61-year-old guy. And it was the kind of case that you look at and say is this really what we should be spending our money on, keeping a guy in prison for the rest of his life for that kind of crime?

MAUREEN CAVANAUGH: Kenneth Corley was resentenced last week basically to time served is that right? That came very quickly on the heels of the passage of prop 36. How did that happen so quickly?

JUSTIN BROOKS: I credit Bonnie Dumanis and her office. For more than a year we've actually been working together on candidates case and another case is going to come to court this Thursday because Bonnie Dumanis identified these as two cases that she looked at and said these are not cases that are office would've sent someone to three strikes today on so she got her stuff to go back and look through old cases and identifying ones where she thought we should cooperate and get these guys out.

MAUREEN CAVANAUGH: This was way before people voted on prop 36 we before it even qualified for the ballot. So, what were you going to be basing your legal argument on without proposition 36?

JUSTIN BROOKS: Right, that was the tricky thing and I had the unusual experience as a criminal defense attorney of literally brainstorming a lot with Gary (Shawns) at the DA office on what legal theory could we go into court on and say that these guys should be release and we put together a petition that basically said if you are a nonviolent offender you serve to long prison time and you haven't done anything in prison that your sentence ripens into a cruel and unusual sentence. That's a difficult legal argument to make what the courts have said that the three strikes law is constitutional. But, it was different in the sense that we are going into court together and agreeing that these two guys should get out. And then prop 36 passes and we thought okay well we really don't need the legal theory anymore because they qualify under this law, but I really credit our District Attorney's Office for taking the initiative to review the cases before anyone was forced to do it.

MAUREEN CAVANAUGH: One of the things that DA demand is required was the formulation of an exit plan for Kenneth Corley. What did you mean by that?

JUSTIN BROOKS: She wanted to make sure if you got out he would be in an environment where he was not likely to re-offended considering public safety and considering his own success so we put together a plan which is going to go into effect this week where he's going to come home and go to a halfway house and there's going to be some conditions for the first six months when he's at home. We've secured a job for him, so he's going to have work and we're going to make sure that he did it into the signed consent kind of situations that he was into in the past but I think the present time has really proven it out it's not like you can't get access to drugs and alcohol in prison. He hasn't had any problems he hasn't had any disciplinary writeups and I think he's going to be really successful.

MAUREEN CAVANAUGH: Even though he has a halfway house and this structured plan for and, he's not on probation. He has served his time, right?

JUSTIN BROOKS: He has served his time but the judges ordered some conditions upon his release for time served. Which I think will be okay.

MAUREEN CAVANAUGH: Could the way the DA's office worked with you, this kind of cooperation be a blueprint for other cases around the state do you think?

JUSTIN BROOKS: Absolutely. I think in the coming months as these cases, both throughout California it will be interesting to see how they play out. I think in some jurisdictions there's not going to be cooperation between the prosecutor's office and defense attorneys. They're going to be very contentious battles. There are a lot of guys in prison under constraints MAS committed offenses in prison that were never charge because they were already serving 25 to life. I think in some districts they're going to go back and try to charge them for those offenses so they don't have to release them so this is not straightforward at all and the relationships between the defense bar and prosecutors are going to play a role on how this plays out.

MAUREEN CAVANAUGH: Let's talk about a little bit more you had talked about the kinds of roadblocks that inmates may find when they tried to petition or gain access to a lighter sentence under proposition 36. You talked about the fact that they might have committed offenses in prison that, the nature of the previous strikes would make them not qualify for any kind of resentencing. But, I'm wondering if, when an inmate does petition for resentencing, what is actually done, how does he actually go about doing that?

JUSTIN BROOKS: I think it's a difficult thing to do on your own the public defenders offices going to work hard to put together a good plan for their clients going forward and they will be negotiating with the District Attorney's Office. I worry and some others jurisdictions what is going to happen because of summarize rush to court and there is no real plan for them when they get out and they have really gone through the correctional file and put together a package to show they've been doing educational programs, they have been rehabilitated, the judges made tonight it really set this up be one bite at the apple.

MAUREEN CAVANAUGH: When it comes to looking at the past and seeing whether there are any non-prosecuted violations that they might be guilty of or be accused of, you have a case of that when you got Reggie Cole being exonerated, what happened there?

JUSTIN BROOKS: Right, Chris (Porter) was an outstanding San Diego attorney who is now a judge worker the California innocence Project on this case with Reggie Cole, and ultimately Chris was successful and us working together have exonerated him for the original crime he was sent to prison on and after he was exonerated, the DA's office, not San Diego, came back and charged him with possession of a razor blade from two years before when he was in prison and we actually had to go in and litigate that separately which ultimately was dismissed. And he was released so, when someone is serving I learned a lesson on that case that you could be sitting there serving long sentences. They don't bother looking at your prison behavior is necessarily behavior but this is a (inaudible) that will open the door to that

MAUREEN CAVANAUGH: Inmates who may qualify for reduced sentencing today need the cooperation of the County DA's office?

JUSTIN BROOKS: It certainly will help because again it is not just a formula where you say okay here's what his crime was and he's getting a. This was a crime he's not getting out since it says future dangerousness when you have a sort of vague principle like That if there is not agreement that he's not going to be a danger that it will be potentially something that is located in these cases.

MAUREEN CAVANAUGH: Justin Brooks talked about inmates who have had problems while in prison and may open themselves up to be prosecuted for future crimes. Tell us about Kenneth Corley how has he spent his time in prison?

JUSTIN BROOKS: He spent his time taking GED classes, getting his GED, doing a lot of programming, working keeping himself out of trouble I think that's necessarily not easy to do in prison and that's one of the two pieces that Bonnie to menaces office identified as one we should do to get him out I think it is sad that some people probably woke up the people woke up after their data collection and were thinking about the behavior in prison and I think when you get sense from 25 to life a lot of these guys have given up “they gave up hope they stop necessarily caring about their conduct would be like in prison. When I went out to see Mr. Corley and told him the DA was working with us on his case I mean, he just wept. He was a guy who had just given up a long time ago. But unfortunately even though he'd given up on given out of prison he conducted himself in a way that made it possible.

MAUREEN CAVANAUGH: When you think about 16 years in prison and being released imminently within days. You are working on the paperwork now, what do you imagine that will be like to reintegrate into society after that time?

JUSTIN BROOKS: In the greatest part of my job as the leader of the innocence Project and the second innocence cases so we did not actually take them as part of the innocence Project is I've been able to lock people out of prison many times after serving long prison sentences and I'm going to say the same thing to Mr. Corley as I said to my other clients. Nobody really cared what you had to say for a lot of years and for the next two or three days there's going to be a lot of attention on young people want to hear from you and chances are people will not want to hear again and you have to go on with your life. They've definitely struggled, they struggled with technology, they struggle with the speed of life, I had clients who find it very difficult to cross streets after they got of prison for a long period of time because I've never seen anything move fast. Prisons are really set up to have sensory deprivation, so these guys struggle with that part of reentry. It is really surreal for them particularly when you are thinking a couple months ago you're going to spend the rest of your life in prison.

MAUREEN CAVANAUGH: So the exit strategy might be as much to the advantage of Mr. Corley as it is to the Das office for the safety and protection of the entire community.

JUSTIN BROOKS: You definitely need some support when you get out, you can just open the prison gate and have them walk out into society and hope they will be able to adjust. One of my clients, Tim Atkins when he got out of after 23 years I gave him a cell phone and I called him on it and he didn't answer and later on he said he didn't answer because he heard music coming out of it and didn't know what that meant. They've never been on the Internet. They've seen things on TV but really don't understand a lot of what's going on. Their relationships with family and friends are very different. It's not an easy thing. It's a wonderful thing, but it's not easy.

MAUREEN CAVANAUGH: Justin after prop 36 passed we discussed the election results of the political science professor on the program. He said there was good reason to believe that the measure passed because many voters thought it increased three strikes penalties. Rather than reform them. In light of that, which may or may not be true, do you think the public will be supportive of inmates released under these new provisions?

JUSTIN BROOKS: You know, I hate to be a cynical as to think that would be true but I'm cynical enough to believe the cost plays a major role of these you have guys like Grover Norquist who were in favor of it so you have people who want to save taxpayers money and I think that's really where you have the left and the right coming together. Where they are saying this is costing a lot of money to have on the island of Ireland guys in prison and we don't have the money to spend right now. I hope the same thing happened with propensity for the death penalty that the cost argument was going to carry the day. It came close, but it didn't. But I think it's more the pragmatic fiscal conservatives coming together with the people who want to do the right thing.

MAUREEN CAVANAUGH: Now, when will Kenneth Corley actually be released, where is he now and when will he be released?

JUSTIN BROOKS: He's in the northern California and we are working to get him out, right now my staff is working and learning to make cement check has been working on this case are hopefully in our office right now I'm trying to get him out, unfortunately Thanksgiving weekend (and there were no business days, so they have a few business days in order to process his paperwork so we're hoping to have him down in San Diego this week.

MAUREEN CAVANAUGH: Will you be having a news conference when he does arrive here?

JUSTIN BROOKS: Absolutely

MAUREEN CAVANAUGH: So we will be hearing more about it. I've been speaking with Justin Brooks professor at the California Western school of Law as always thanks very much.

JUSTIN BROOKS: Thank you.