Update on ‘Bay View First Amendment Campaign’

by Anthony D. Prince, Esq.

SWAT-team-arrest-web, Update on ‘Bay View First Amendment Campaign’, Abolition Now! As reported in last month’s edition, the Law Offices of Anthony D. Prince have teamed up with the San Francisco Bay View to challenge the California Department of Corrections and Rehabilitation (CDCR)’s practice of using mere possession of the Bay View as evidence of gang association. In those cases where the CDCR points to a specific article in a given issue of the paper, it is usually an item of particular interest to the African-American community, including those behind bars.

Stories in the Bay View about figures historically associated with prisoner issues, such as George Jackson, comprise a large percentage of the stories that the CDCR deems to pose threats to prison security and, in the hands of African-American prisoners, as indicia of gang affiliation. In other cases, the CDCR seizes the Bay View without referencing any particular article, the inference being that the newspaper itself is a threat to security, the mere possession of which is an indicator of gang association. In addition, it is commonplace for prison authorities to seize prisoner correspondence intended for the Bay View and to use such attempts to communicate with the Bay View as security issues and evidence of gang connections.

Thus, it is clear that the First Amendment free speech and free press rights of both prisoners and the Bay View are being routinely violated by the CDCR. The CDCR argues that maintaining prison security and controlling “gang activity” outweigh these First Amendment rights. However, even a cursory examination of this alleged “compelling government interest” reveals an entrenched mythology that has been perpetuated for some 40 years.

Although other publications, such as Prison Legal News, have successfully sued the CDCR to permit prisoner access, few lawsuits have directly confronted this false portrait allegedly linking materials on historical figures and significant events to current prison gang activity. We envision a legal strategy that specifically targets this perverse, racist distortion of history used so effectively by the CDCR to falsely validate prisoners, keep them locked up forever and trample the free speech, free press rights of others on the other side of the wall.

For this reason, our law office and the SF Bay View launched the “Bay View First Amendment Campaign” in September. Since the campaign was launched last month, we have received a steady stream of communications from prisoners and their families reporting gang validation based on mere possession of the Bay View and other publications. We have also heard from lawyers, journalists, college professors and others concerned about their own First Amendment right to propagate their views and scholarship.

While our office cannot provide formal legal representation to all prisoners and others who contact us, we are willing to pass along information to other prison law attorneys who may be able to provide immediate assistance to individual inmates. However, we are still very interested in receiving whatever information you may have to prepare what may be a future class action lawsuit on behalf of all those impacted by CDCR’s unconstitutional practices.

Finally, as part of the Bay View First Amendment Campaign, this office will be sharing the specific legal theories and key evidence that we develop as we work up both the Bay View’s lawsuit and the potential class action. (See accompanying article, “Supreme Court case opens new evidentiary front in parole suitability,” in this issue.)

Anthony Prince is an East Bay attorney. He can be reached at princelaw@sbcglobal.net or by phone at (510) 845-5475. Letters, accounts of similar misconduct by prison authorities and financial contributions can be sent to “Bay View First Amendment Campaign” c/o Law Offices of Anthony D. Prince, 2425 Prince St., Ste. 100, Berkeley, CA 94705 or to the San Francisco Bay View, 4917 Third St., San Francisco, CA 94124.

Supreme Court case opens new evidentiary front in parole suitability

Roper decision cites scientific findings linking lack of brain development in adolescents, young adults to commission of crimes

by Anthony D. Prince, Esq.

On March 1, 2005, the United States Supreme Court ruled that execution of persons under 18 was unconstitutional: Roper v. Simmons, 543 U.S. 551 (2005), 125 S.C t. 1183. This case could have profound implications for those adult inmates seeking parole whose commitment offenses took place when they were teenagers or young adults.

Although parole boards have traditionally been required to consider the age of the prisoner at the time of the commission of the crime, the Roper decision may now require panels evaluating the “current dangerousness” of the prisoner seeking parole to factor in the difference between the undeveloped brain of the youthful offender he once was versus the fully matured brain of the adult inmate who now seeks a return to the community.

In Roper, the Supreme Court relied in large measure on the results of new scientific research in neuropsychology showing that teenage brains remain immature through early adulthood. The studies focused on the areas of the brain where impulsivity, risk taking and poor social judgment are regulated. As stated by Columbia University Professor Jeffrey Fagan, “[T]he frontal lobe, especially the prefrontal cortex, is maturing and developing dramatically during the teen years. [T]his is the region of the brain associated with decision making, planning, cognition, judgment and other behavioral skills associated with criminal culpability.”

The court also considered MRI studies done at the National Institutes of Mental Health on subjects from ages 4 through 21 showing that the frontal lobe is one of the last areas of the brain to reach maturity. Citing directly to this medical evidence, the Supreme Court ruled that the application of the death penalty to adolescent offenders was unconstitutional because “(t)he susceptibility of juveniles to immature and irresponsible behavior means ‘their responsibility is not as morally reprehensible as that of an adult.’” [Citations].

Although Roper considered the constitutionality of executing juvenile offenders – a class of persons who, by medical definition, do not possess the mature neurobiology of adults – the significance of the decision and the medical evidence on which the court relied to reach it opens a new door in parole hearings of adult inmates whose commitment offenses occurred when they were adolescents.

Pelican-Bay-Prison-Guard-George-Sherman-carries-rifle-whenever-a-guard-enters-10-cell-pod-by-John-Burgess-Santa-Rosa-Press-Democrat, Update on ‘Bay View First Amendment Campaign’, Abolition Now! Recently, my office represented a Pelican Bay inmate housed in the SHU for some 35 years before the parole board. His commitment offenses took place when he was 15 years old. Therefore, at the hearing, we cited to the Roper decision and a number of the neurobiological studies relied upon therein to suggest that, at age 15, our client may have been unable, as a matter of science, to curb the recklessness, impetuousness, vulnerability to peer pressure and disregard of consequences that typifies the adolescent brain.

We argued that but for his still undeveloped prefrontal cortex, my client might not have been as inclined to commit the crime, and the fact that he now possesses full, mature neurobiological characteristics means that the likelihood of him returning to criminal activity has been greatly reduced.

Of course, the panel all but dismissed this evidence, suggesting that we were attempting to “re-try” the case with medical evidence that may not have been available at the time. We made it clear that under the law, the panel was obligated to consider all relevant evidence in assessing suitability for parole and, therefore, the panel had to consider current, modern scientific evidence that would now tend to show that our client now possesses the judgment, temperament, independence of thought and consideration of the consequences of his actions that he could not have possessed at age 15.

The panel either missed – or pretended to miss – the significance of this evidence as it pertains to assessing the risk of “current dangerousness” posed by our client, should he be released. Our hope is that, in our pending habeas petition, the court will not be as hasty to dismiss evidence relied upon by the nation’s highest tribunal in Roper.

In last month’s edition of the Bay View, we examined the case of In re Lawrence, (2008)44 Cal.4th 1181, the recent California Supreme Court decision that now requires parole boards which rely on the “heinous” nature of the commitment offense to specifically identify the link between that offense and the risk of current dangerousness posed by the inmate. We discussed how in spite of Lawrence panels are still repeatedly referencing the “especially egregious” nature of the original crime as evidence, standing alone, that the inmate still represents a threat to society.

Now, in addition to insisting – on the record – that the parole board state the nexus required by Lawrence, prisoners and their counsel should consider putting into the record and arguing the relevance of Roper to show that there is medical evidence – bearing the imprimatur of the United States Supreme Court, no less – that the adolescent who committed the commitment offense is not, as a matter of science, the same person as the adult inmate who now seeks a parole date.

In conclusion, use of Roper in conjunction with Lawrence at parole board hearings and appeals may become a way of showing a lack of current dangerousness of prisoners whose commitment offense took place when they were adolescents. It may also prove useful to enlist the assistance of psychiatrists and other medical experts to prepare client-specific declarations in support of a finding of no current dangerousness based, in part, upon this new and legally precedential medical evidence coupled with a review of the particulars of the parole-seeker’s case.

Anthony Prince is an East Bay attorney. He can be reached at princelaw@sbcglobal.net or by phone at (510) 845-5475. Letters, accounts of similar misconduct by prison authorities and financial contributions can be sent to “Bay View First Amendment Campaign” c/o Law Offices of Anthony D. Prince, 2425 Prince St., Ste. 100, Berkeley, CA 94705 or to the San Francisco Bay View, 4917 Third St., San Francisco, CA 94124.