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October 24, 2011

Five extra years in prison for cellphone call to celebrate parole offer!?!

I just saw this remarkable story from the Los Angeles Times, which tells a parole sentencing tale so sad and ridiculous that I am not even sure Kafka could have dreamed it up.  The story is headlined, "Borrowed cellphone slams prison cell shut; An inmate says used a contraband phone to tell relatives he was about to be paroled. Caught, he gets five more years in prison."  Here are the details:

Dwayne Kennedy threw a man from a moving car in 1988, but that's not what's keeping him in prison today.  It's not the inmate he stabbed 17 years ago either; the state parole board forgave him that.

Instead, California prison officials are keeping Kennedy locked up for an extra five years — costing taxpayers roughly $250,000 — because guards caught him with a contraband cellphone he says he borrowed to tell his family he had just been granted parole and was coming home.

It was "just stupid on my part for even using it," Kennedy told a pair of parole commissioners convened in June 2010 to decide his punishment for breaking prison rules. But "cellphones are just everywhere in prison nowadays.... It's easy to borrow one from a guy," Kennedy said....

Phones are so prevalent in California prisons that even highly scrutinized inmates can get their hands on them. Charles Manson has been caught with two.  Inmates have used cellphones to run drug rings, intimidate witnesses and order violent attacks on the outside.  Despite state leaders' rising anxiety over inmates obtaining phones, smuggling them into prisons wasn't against the law until this month.

Gov. Jerry Brown signed a bill on Oct. 6 making it a misdemeanor punishable by up to six months in a county jail.  Brown also issued an executive order that requires prison officials to increase the number of random searches of employees and to determine how much it would cost to send them through airport-style screening on their way into work.

Under the new law, most inmates caught with phones face losing 90 days of credit earned for good behavior.  In Kennedy's case, using the cellphone derailed his parole bid and effectively lengthened his prison stay by at least five years.  That's because a 2008 ballot measure extended the time inmates serving life sentences must wait for a new hearing when they are denied parole or their parole offer is revoked.

When the two parole commissioners met to decide his punishment for violating the cellphone rule, Kennedy said that he had made the calls because he was "overwhelmed and just happy" that he had been granted parole.  "He was so happy.... We were crying and praying," recalled his sister, Yolanda Kennedy, one of the people he called.

But months later, parole commissioners John Peck and Dennis Smith found that Kennedy's willingness to violate the prison rule proved he is an "unreasonable risk of danger to society."  They revoked his parole offer and imposed the five-year wait until his next hearing.

The commissioners' decision seemed a bit severe to Debbie Mukamal, executive director of Stanford University's Criminal Justice Center, who noted that the state is under a U.S. Supreme Court order to remove tens of thousands of inmates from its overcrowded prisons.  "I wonder if they're punishing [cellphone use] more severely because it's something they feel like they can't control," Mukamal said.

Heidi Rummel, a former federal prosecutor who now advocates for inmates' rights as co-director of USC Law School's Post-Conviction Justice Project, said there should be some evidence of harm before imposing such a harsh penalty.  "It would seem that why he had the cellphone would be a critical factor in deciding whether it made him a danger to society," Rummel said.

The Los Angeles County Superior Court and the 2nd District Court of Appeal have rebuffed Kennedy's efforts to get the decision overturned.  His attorney, Keith Wattley, has filed a petition with the state Supreme Court. "There's never been any allegation he's done anything illegal with this phone," Wattley said.

Kennedy, 44, has been in prison since 1990, serving 15 years to life for kidnapping and conspiracy to commit murder.  He's now at Chuckawalla Valley State Prison in Blyth. He became eligible for parole in 1999 but a decade passed before parole commissioners found he was no longer a threat to society and recommended his release. They noted that Kennedy had stayed out of trouble for seven years and had a stable home and good job waiting for him on the outside.

The cellphone bust changed everything. "Frankly, this panel didn't buy that you were going to call your supporters to thank them," said Peck, a parole board commissioner and recently retired prison guard who presided over the June 2010 hearing.  "There is no way you would put your parole date at risk to make a thank-you call."

October 24, 2011 at 04:01 PM | Permalink

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Hi Doug,

This story seems ridiculous only because most people have no idea what a grave security threat an inmate with a cell phone is. They can and do set up escapes, run their crime syndicates, use to get drugs smuggled in, or to blackmail and coerce other inmates/staff. People die over them. What is ridiculous is California's insistence on being one of the worst prison systems in the country and not doing more to eliminate the problem (and many others).

In NYDOCS, employees, who are usually the source for inmates who get them, found with them are usually fired. At my previous job, our local union leader was fired for mistakenly bringing it into the Admin building, where there are no inmates, to get his paystub while on medical leave. They are not unheard of but such a zero-tolerance policy has made inmate occurrences rare. The story is California's lackadaisical approach to combating the problem, not that they were too tough on the guy.

Posted by: TarlsQtr | Oct 24, 2011 4:24:47 PM

maybe so tarls! but we are talking about THIS CASE! not some maybe one from the past! IN this case it shouldnt' take 5 mins for our bigbrother sytstem to KNOW WHO he was talking to. IF his story pans out! let it go and move on! IF NOT then it's time to file the additonal charges for the crimes you say he MIGHT have been planning!

but right now when calif is looking at 40,000 prisoners they have been ordered to release to keep one over a phone call is simply STUPIDITY! a calif taxpayer might even make a case for a CRIMINAL STUPIDITY charge! agaisnt the ones who made it and demand restitution from the ones for the $250,000 it's goona cost to keep him in jail!

Posted by: rodsmith | Oct 24, 2011 4:57:43 PM

I think it is entirely reasonable to revoke a parole offer when you are slapped in the face with evidence of an inability to follow very simple rules. That someone who is still inside is so easily overcome by whatever momentary urge happens to strike is not a good sign for their being able to handle greater freedom responsibly. Parolees need to be acutely aware of how easy it is to screw up and get sent back to prison. This time it was a cell phone to celebrate, next time the lapse occurs is it going to be assault against someone who pisses him off? Mr. Kennedy has already demonstrated that he has had less than stellar judgement in the past, this incident should give one pause that he hasn't actually learned very much in the meantime.

Posted by: Soronel Haetir | Oct 24, 2011 5:48:50 PM

Come on! How stupid can you get?

Posted by: Tom McGee | Oct 24, 2011 5:56:31 PM

In fact, maybe it would be worthwhile circulating some bait phones through the prison population and see who bites. And there shouldn't ever be a problem recording the conversations and using the recordings as evidence if appropriate, especially if used only for prison discipline or parole decisions rather than bringing fresh charges.

Posted by: Soronel Haetir | Oct 24, 2011 6:21:24 PM

Where can I find an application for a writ of Audita querela?
I am the relative of an immate who's requested information. Thanks!!

Posted by: Tonya Mac | Oct 24, 2011 11:19:36 PM

well guess what soronel it could have been avoided if the idiots running the parole board system had put some kind of notification system in place when someone was granted parole! then he wouldnt' have NEEDED to tell them he was coming home

Posted by: rodsmith | Oct 25, 2011 2:39:18 AM

If the revocation for cell phone use was a pretext, then the decision is correct. Income tax evasion was a pretext to imprison Al Capone for his mass murders. We need more facts. The inmate sounds dangerous and should not be loosed. Under 123D, he should have been dead long before he hurt so many people.

Posted by: Supremacy Claus | Oct 25, 2011 4:26:04 AM

An advantage of the Q♥s "Off with their heads!" protocol, is that you always knew where you stood.

Posted by: JAG | Oct 25, 2011 5:51:47 AM

Hello rodsmith,

The intention of the inmate, in my opinion, is irrelevant.

He is not guilty of a seemingly minor violation but one which the prison must take seriously. I fail to see how one could trust an inmate to obey the terms of his parole in the unstructured environment of his private home when he cannot be trusted to comply with even the most basic and obvious rules in a VERY structured setting. It is a symptom of the same behavior that plagues almost all criminal behavior. They believe the rules do not apply to them because (Insert idiotic reasoning here).

Posted by: TarlsQtr | Oct 25, 2011 9:05:10 AM

It should have been verified the number he called...Its a mickey mouse violation.. Its like you driving down the freeway yacking on your phone TarisQtr.....Whether or not its legal, its unattentive...and could cause an accident....I assume you don't like this, cause perhaps you've never caused an accident....There is way too much weight given on the potential for serious harm on minor attributes...You either did or you didn't.. This guy didn't......Calif couldn't convict OJ of murder, but holds this guy 5 yrs for a cell phone..

Ok, Bill, chime in tell us how you would run the world, in that vacuum of a life, that you live in...

Posted by: Abe | Oct 25, 2011 9:48:51 AM

TarlsQtr, I agree this is a violation the prison "must take seriously." But as you yourself state, the California system as a whole is wholly failing to take serious measures to control cell phones. In this environment where they have been so negligent as to let cell phones circulate freely (even to Charles Manson, for crying out loud), it does seem a *tad* bit harsh to keep someone inside for *5* years for what appears to have been a relatively innocent use of the phone...

I'm not disagreeing that this was dumb or there should be consequences, but a 90 or 180 day delay in parole would have been plenty.

I also wonder about the status of the "official" phones at his institution/dorm/tier. In my experience, a lot of cell phone demand in prisons is driven by problems with the official phones -- for example, they may be continually broken; or they may be working, but the unit may be continuously understaffed so that there is never an officer to transport you to them; or they may be working or accessible, but the price may be insanely prohibitive (keep in mind many prisoners and their families are quite poor) due to sweetheart no-bid contracts given out by DOC, etc. None of this excuses an individual's decision to break the rules, but on a systemic level, it is hard for a DOC to get control of the supply when they are constantly stimulating the demand.

Posted by: Anon | Oct 25, 2011 10:57:43 AM

Abe & Anon,

Substitute a 12 inch butcher's knife for a cell phone and I suspect most would think the punishment appropriate, even if he was only using it to chop up vegetables when found. The phone is more dangerous.

In order to get such a device, he had to do one of two things. 1) Have it smuggled in (promoting prison contraband), which is a crime and more than enough to have parole denied, or B) Pay another inmate (usually done with more contraband)to use the phone, a violation of prison rules at least as serious as possessing it.

Anon stated: "But as you yourself state, the California system as a whole is wholly failing to take serious measures to control cell phones. In this environment where they have been so negligent as to let cell phones circulate freely (even to Charles Manson, for crying out loud), it does seem a *tad* bit harsh to keep someone inside for *5* years for what appears to have been a relatively innocent use of the phone..."

I understand your point but would add that the bad behavior of others does not justify your own. I cannot use the complaint that others are getting away with speeding when I get pulled over.

Anon stated: "I also wonder about the status of the "official" phones at his institution/dorm/tier. In my experience, a lot of cell phone demand in prisons is driven by problems with the official phones -- for example, they may be continually broken; or they may be working, but the unit may be continuously understaffed so that there is never an officer to transport you to them; or they may be working or accessible, but the price may be insanely prohibitive (keep in mind many prisoners and their families are quite poor) due to sweetheart no-bid contracts given out by DOC, etc. None of this excuses an individual's decision to break the rules, but on a systemic level, it is hard for a DOC to get control of the supply when they are constantly stimulating the demand."

Again, some of your points could be valid (I have little insight into California DOCS). However, I am not allowed to jump line at the DMV just because the workers are surly and it takes too long. Life is one big frustration and the difference between being civilized and a criminal is how we handle this frustration. As a side note, the high cost of prison calls is often caused by the cost of logging/monitoring, although I do not rule out (or even question) the impact of the state phone system being a monopoly.

In the end, we are not too far apart on this issue. It is probably a surprise to no one that you are a little lower on the scale than I am. That said, although I do not see anything particularly wrong with 5 years, I would have absolutely no heartburn if they let him stew in prison for only 1-2 more years with appropriate disciplinary sanctions (box time or keeplock, loss of rec, etc.).

Posted by: TarlsQtr | Oct 25, 2011 11:36:36 AM

The thing I don't understand is why are people so eager to make excuses for this violation? You have a murderer who has provided evidence that he has not matured past the poor judgement that landed him in prison to begin with, yet Rod and others are looking to blame the prison or the parole board or the wired phone system or just about anyone other than Mr. Kennedy it would seem. That just makes no sense to me. Place the blame where it belongs, squarely on Mr. Kennedy and his decision making processes.

It should be up to Mr. Kennedy to prove that he has in fact changed not the rest of us to continue proving that he has not.

Posted by: Soronel Haetir | Oct 25, 2011 11:59:12 AM

I agree with Anon that fives years seems harsh for this, but one must bear in mind that the inmate assumed the risk. Other than that, it seems to me that TarlsQtr's and Soronel's analysis is unanswerable.

Posted by: Bill Otis | Oct 25, 2011 1:13:56 PM

TarisQtr, most cell phones are brought in by the prison guards themselves or they get busy off on somethiung else, while they unpack them... When you get hundreds of cell phones in San Quentin, its not the inmates running the show...
Cell phones bring a very high price and the guards sell them to the highest bidder..

WIth that said, his viloation was trivial.. ( his background is not) therefore he should be going home....Otherwise I think you should foot the bill entirely yourself....Society cannot pay the costs.. The needs of the many outweigh the wants of the few....(Spack, star Trek) enough said..

Posted by: Josh2 | Oct 25, 2011 1:55:32 PM

Soronel,

I believe much of it comes down to individual perception.

I suspect that many (Doug, Anon, Rodsmith) see this as a guy getting a 5 year sentence for talking on a cell phone (note Doug's comment that "he gets 5 MORE years in prison"). They see the shortest possible sentence (parole date) as almost a right unless the state can justify otherwise.

You, I, and others see parole as something to be earned and that the inmate needs to justify. It is only by the mercy and compassion of society that we were allowing him to leave prison 5 years EARLY, with certain conditions. He failed to meet these conditions even before stepping out of the front gate. Although 5 years is a bitter pill to swallow and will not likely make him any more rehabilitated than if he left in a year, the sympathy is unwarranted. He is obviously one of life's second stringers.

Posted by: TarlsQtr | Oct 25, 2011 2:10:52 PM

Josh,

If you read my original post, I already stated that inmates usually get them from staff. This is true of most contraband, although the origin is not really relevant. Possessing a cell phone is a serious prison offense and is often a crime. To blow it off as "trivial" shows an inherent lack of understanding of the dangers they create in a penal institution.

Posted by: TarlsQtr | Oct 25, 2011 2:21:35 PM

Josh stated: "Cell phones bring a very high price and the guards sell them to the highest bidder.."

The above statement alone outlines the danger. Please tell me, what happens when 6'5" 250 pound Inmate A cannot afford to be the "highest bidder" and Inmate B who is smaller, weaker, and richer can?

Posted by: TarlsQtr | Oct 25, 2011 2:26:59 PM

TarlsQtr --

"Please tell me, what happens when 6'5" 250 pound Inmate A cannot afford to be the 'highest bidder' and Inmate B who is smaller, weaker, and richer can?"

Ummmm, let's see. Inmate A applies for a "Cell Phones for the Downtrodden" grant from Obama's Stimulus XXXVIII?

Posted by: Bill Otis | Oct 25, 2011 3:17:46 PM

hmm

"Josh,

If you read my original post, I already stated that inmates usually get them from staff. This is true of most contraband, although the origin is not really relevant. Possessing a cell phone is a serious prison offense and is often a crime. To blow it off as "trivial" shows an inherent lack of understanding of the dangers they create in a penal institution.

Posted by: TarlsQtr | Oct 25, 2011 2:21:35 PM"

Horse shit tarls! we understand the SYSTEM just fine! The GUARDS are bringing in 1000's of cell phones FOR the inmates to USE ...then HAMMERING them when they do the verry thing the GUARDS arranged for them to do!

on the OUTSIDE lawyers would be SCREAMING INTRAPMENT!

Posted by: rodsmith | Oct 25, 2011 4:06:39 PM

TarisQtr, you take everything so literal and painfully....90% of the guys in the joint are reasonably normal...Maybe not any more screwed up than our very own SC, when he/she/it is on the right meds....So don't get defrosted when an inmate breaks a mickey mouse rule....Taris, be careful this friday when you stop after work and have a glass of wine, then drive on the freeway 75 mph yacking on your cell phone...
Your on your way to some serious trouble....If the feds had there way, that would possibly make you eligible as a Career Offender upgrade..(Potential for serious physical harm) How would it make you a career offender, I have no idea and don't care..

Bills solution a while back was to make it a Felony to have a cell phone in an institution....Just what we need.. Would that stop it... No it wouldn't but would cost us some more money...

Anyway T. enjoy your day and have a nice weekend..

Posted by: Abe | Oct 25, 2011 4:16:09 PM

as for this!

"You, I, and others see parole as something to be earned and that the inmate needs to justify. It is only by the mercy and compassion of society that we were allowing him to leave prison 5 years EARLY, with certain conditions. He failed to meet these conditions even before stepping out of the front gate. Although 5 years is a bitter pill to swallow and will not likely make him any more rehabilitated than if he left in a year, the sympathy is unwarranted. He is obviously one of life's second stringers."

NOT QUITE! i see parole as a decison that the individual is no longer a DANGER TO SOCIETY! at that point UNLESS the state can PROVE a continuing DANGER TO SOCIETY....it is done!

then your talking 5 years more in prison at 30-50 THOUSAND DOLLARS PER YEAR! for what a 5 min phone call to his family!

that's something any normal person not a lawyer would just about consider CRIMINAL STUPIDITY!

Posted by: rodsmith | Oct 25, 2011 4:25:38 PM

Like the previous poster (Tom) stated...

'Come on! How stupid can you get?'

Posted by: comment | Oct 25, 2011 6:51:19 PM

Rodsmith stated: "Horse shit tarls! we understand the SYSTEM just fine! The GUARDS are bringing in 1000's of cell phones FOR the inmates to USE ...then HAMMERING them when they do the verry thing the GUARDS arranged for them to do!"

To me, that calls for hammering the staff (not just "guards") that bring them in, not giving everyone who breaks the law/prison rules a break. Fire and arrest those responsible, rather than allowing them to just resign from the position when caught.

Posted by: TarlsQtr | Oct 25, 2011 7:01:22 PM

Abe stated: "TarisQtr, you take everything so literal and painfully...."

And exactly what words of yours were taken so literal?

You stated: "90% of the guys in the joint are reasonably normal...Maybe not any more screwed up than our very own SC, when he/she/it is on the right meds...."

Considering that about 20% of inmates are diagnosed with mental illness, you are already way too low without even accounting for people who are just evil.

You stated: "....So don't get defrosted when an inmate breaks a mickey mouse rule....Taris, be careful this friday when you stop after work and have a glass of wine, then drive on the freeway 75 mph yacking on your cell phone..."

This time I WILL take you literally. I do not drink (nor is it illegal to talk on a cell phone where I live). :-)

Abe, you only think a cell phone is "Mickey Mouse" because you have no experience/expertise in corrections. In a place where people die over a game of dominoes, cell phones are a major security concern. Continuing to call it Mickey Mouse does not change that fact.

Posted by: TarlsQtr | Oct 25, 2011 7:29:19 PM

hmm

"To me, that calls for hammering the staff (not just "guards") that bring them in, not giving everyone who breaks the law/prison rules a break. Fire and arrest those responsible, rather than allowing them to just resign from the position when caught."

works for me. problem is right now that is NOT being done! therefore last time i looked your not suposed to punnish one group harder than others who are COMITTING THE SAME CRIME! so either punsh BOTH or leave it alone UNLESS in cases where like you stated earlier they are using the phones to COMITT actual LEGAL CRIMES...sorry last time i looked absent some type of restrainng/no contract order...talking to family didnt' make the list!

Posted by: rodsmith | Oct 26, 2011 1:24:43 AM

rodsmith,

There are two major assumptions being made here, with at least one of them being demonstrably wrong.

1) He said it was borrowed, which is easy to do. BS. These things are part of a black market economy. Not many are going to let one "borrow" it because of their great value (something even Abe concedes). He is euphemistically telling a whopper. He had it because either A) Someone already owed him something or B) He was able to pay for it or C) He took it by force. All of these are major prison no-nos and for good reason.

2) You are making the assumption that he called his family, however he never did (see last paragraph of article). So, rodsmith, there are no records to check as you request. We all know that such good news is something you share immediately, not days or a week later. Thus, we would have to be gullible enough to believe he was busted moments after he "borrowed" it.

In a nutshell, you are claiming that we should believe the word of a man who threw another man from a moving car, stabbed another, and was in possession of an illegal cell phone when he says that he was only going to use it to call his family AT SOME VAGUE POINT IN THE FUTURE and tell them about his parole.

Do you want to buy a bridge?

Posted by: TarlsQtr | Oct 26, 2011 8:59:14 AM

Rodsmith,

I fail to see why bad behavior by one group eliminates the culpability of another. There are police officers that drink while driving, beat their wives, and murder. Does that mean we should not arrest and incarcerate others that do the same?

Then why should inmates get a free pass for breaking the law/prison rules because of a few bad apples among the staff? Doesn't it make more sense to rain the pain down upon the staff members responsible?

You stated: "therefore last time i looked your not suposed to punnish one group harder than others who are COMITTING THE SAME CRIME!"

Look again. We do it all the time and with good reason. Inmates are convicted felons who have already proven an inability to live and play nicely with others. If I were to get a DWI this evening, I would likely get an evening in the pokey and a hefty fine. If someone with 7 prior DWIs and had previously killed another in an accident did the same thing, would he be treated the same for the "same crime?" Of course not, nor should he.

Posted by: TarlsQtr | Oct 26, 2011 9:14:35 AM

TQ:
Your a right fighter, you need to tean up with Bill Otis and Kent Schedinger??....All 3 of you may as well lockup the entire USA, then you can parade around in front of each other with Lamb arguments.....

But rememeber that bill has a Pre booker guideline chip installed and just cannot get past it....His thoughts are pre-determined and so mpreductable, as are yours TQ....Be careful on having that drink now, even though you say you don't.....Not hard to jerk your chain is it....

Posted by: Josh2 | Oct 26, 2011 9:43:55 AM

Josh2,

Perhaps you should try putting two thoughts together in a coherent manner, then we can get somewhere. First, a rant that I am a "right fighter" in the mold of Kent and Bill (am I supposed to be insulted?) and then a claim that you are jerking my chain. Whatever.

You stated: "All 3 of you may as well lockup the entire USA,..."

One big problem. This thread is not about locking up "the entire USA" or even a single individual. In fact, although his possession of the phone likely came about from a crime on his part (and others), I would not support pressing any charges against Kennedy. The subject is ALREADY locked up after being convicted separately for throwing an individual out of a moving car and stabbing another inmate.

I would also point out that Anon (not exactly in Bill or Kent's camp)said that 6 months was appropriate, while I said as little as a year. So, 6 months is the difference between a "normal" person and a nutty "right fighter" in your world?

Posted by: TarlsQtr | Oct 26, 2011 11:05:00 AM

Josh2 --

1. I am flattered to be included with Kent and TarlsQtr. Thank you!

2. Nothing is more predictable on this blog than that your comments will evince a swooning affection for criminals and an undifferentiated desire to let them loose because, ya know, ther're all harmless.

Far out!

Posted by: Bill Otis | Oct 27, 2011 9:51:11 AM

It is odd how people can say inmates use cell phones primarily to intimidate witnesses, escape, and murder people when, as they are already in prison, it seems a bit late to coerce the witnesses who put them there. And when was the last time you heard of an escape in california? Or of such a murder?

Posted by: marc | Oct 30, 2011 10:09:29 PM

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