By Michele Hanisee
We repeatedly warned prior to the election that the ambiguities of language in Prop 57 would allow sex offenders to be released early from prison. The proponents realized the public wouldn’t support that, so led by Governor Jerry Brown they responded by promising that CDCR would write regulations to make sure sex-offenders weren’t released early. And so they did. CDCR wrote into their regulations that registered sex offenders were excluded from the early release provisions of Prop 57.
We knew that approach would fail, because a regulation cannot expand the scope of the law that it purports to implement. Now, the completely foreseeable result of this poor drafting has occurred. This Friday, a Superior Court struck down CDCR’s after-the-fact attempt to write into the regulations what was not in the underlying law. “The Court cannot insert words into an initiative to achieve what the court presumes to be the voters’ unexpressed intent; neither can CDCR,” said the court.
Governor Brown drafted Prop 57 “himself” and clearly didn’t understand his own initiative as it related to sex offenders and other violent inmates. Witness his bullying phone call during the campaign to Fresno County Sheriff Margaret Mims after she highlighted a sex offender Prop 57 made eligible for release; in a voicemail among other things the Governor said, “This guy was sentenced to 100 years, and he’s a registered sex offender, and on both accounts would not be getting out.”
Governor Brown was not going to take “no” for an answer in his effort to force early releases of prison inmates, forcing Prop 57 onto the ballot with the false claim that only “non-violent offenders” would be released early. When we and others pointed out the Prop 57 failed to define who qualified as a “non-violent” inmate, Governor Brown refused to give any ground.
Here is what the Superior Court had to say about the definition of “nonviolent offenders” in Prop 57. “Proposition 57 did not define what is a ‘non-violent’ felony offense.” “Indeed this very ambiguity was identified by the California Supreme Court before Proposition 57 went to the voters.”
Months ago we wrote that “the question remaining is what will the Legislature, or the Governor do once the courts confirm that the initiative’s early release provisions also apply to those imprisoned for despicable sex crimes.” We aren’t waiting, and are backing an initiative circulating for signatures that will begin to address the issue of sex offenders and some of the other flaws in Prop 57. This ruling makes it even more important to get the initiative on the ballot and approved by voters.
Michele Hanisee is President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.