CDCR Seeking Public Comment on Prop 57 Regulations

By Michele Hanisee

The California Department of Corrections and Rehabilitation (CDCR) is accepting public comments on the regulations to implement Proposition 57, which was approved by voters last November.

The Proposition 57 regulations include an increase in credit-earning opportunities for inmate participation in in-prison programs and activities, as well as early release consideration that was touted as applying only to nonviolent offenders. The ADDA believes that the regulations, as drafted, far exceed what the language of Prop 57 authorized or what the voters were told the initiative would accomplish. Simply put, the regulations allow early release of inmates convicted of violent offenses if those inmates were also convicted of a nonviolent crime. The regulation can be found here. For the definition of who the department qualifies as a “nonviolent offender” see page 23 of the attachment, under subsection (b) of the proposed Section 3490 of the California Code of Regulations.

According to CDCR Secretary Scott Kernan, “The public plays an extremely important role in this rulemaking process, and by commenting on the proposed regulations, we can ensure the department is taking the right approach to the reform the way we incarcerate inmates in California.”

Members of the public that want to comment can do so in several ways.
By mail to the CDCR, Regulation and Policy Management Branch, P.O. Box 942883, Sacramento, CA 94283-0001
By fax at (916) 324-6075
By e-mail at CDCR-Prop57-Comments@cdcr.ca.gov
People can also submit their oral comment at a public meeting on the regulations scheduled to take place on Friday, September 1 from 9 a.m. to noon at the Department of Water Resources, Building Auditorium located at 1416 Ninth Street, Sacramento. The public comment period will end on September 1 at 5 p.m.

Below is the letter the ADDA sent to the CDCR.

Via Email
CDCR-Prop57-Comments@cdcr.ca.gov

Re: California Department of Corrections and Rehabilitation
OAL Matter Number: 2017-0324-01

To whom it may concern:

Since the California Department of Corrections and Rehabilitation is now accepting public comments on Proposition 57 regulations, this letter is to inform you of the Association of Deputy District Attorneys’ objection to proposed changes to California Code of Regulations, Title 15, Division 2, Board of Parole Hearings, sections 2249.1 (a)-(f), 2449.2, 2449.3, 2449.4, and 2449.5. These emergency provisions, as currently written, violate case law and the California Constitution, Article 1, Sections (b) (7) and (8) which allow a victim to be heard at any parole or other post-conviction review proceeding.

Section 2249.1

Section 2249.1 (b)(1) proposes to classify as a “non-violent” offender an inmate who has “completed a determinate or indeterminate term of incarceration and is currently serving a determinate term for a nonviolent in-prison offense.” This effort to grant Proposition 57 relief to “violent offenders” through sleight of hand re-classification contradicts the stated intent of Proposition 57– namely that it would only apply to “non-violent” inmates-and is in violation of statutory and case law.

The proposed regulations expand the definition of “nonviolent offender” far beyond what the language of Proposition 57 envisioned or what was described to the voters. Proposition 57 was sold to the voters as only affecting “non-violent” offenders. The language of Section 32, Article I of the California Constitution, as enacted, limits early parole eligibility to “a person convicted of a non-violent offense.” [Emphasis added.]

Subsection (b)(1) of section 3490 of the California Code of Regulations has impermissibly expanded the definition of “a person convicted of a non-violent offense” to include inmates convicted of a violent offense, if the inmate is also serving time for additional non-violent offenses. The Department’s reliance on case law (In re Reeves (2005) 35 Cal.4th 765) relating to issuance of conduct credits cannot reasonably be construed as permitting the Department to define a person convicted of a violent offense as “a person convicted of a nonviolent offense.” Such a definition defies logic. It is disingenuous to claim that a person who stands convicted of a violent crime can be considered a “non-violent offender” because they also stand convicted of a non-violent offense.

Subdivision (b)(2) of section 3490 also defines as a “nonviolent offender,” “[a]n inmate who has completed a . . . indeterminate term of incarceration and is currently serving a determinate term for a nonviolent in-prison offense.” First, all indeterminate terms (i.e. life sentences) are specifically defined as violent by Penal Code Section 667.5. Therefore an inmate serving a life sentence is a person convicted of a violent offense and cannot be defined as a “a person convicted of a nonviolent offense.” Second, an indeterminate term is only “completed” when the inmate is paroled or when the inmate dies. Until the inmate is paroled or dies, the indeterminate term is not “completed.” To redefine an inmate serving a life sentence for a violent crime as a “nonviolent offender” because they committed a new crime while in prison is disingenuous.

Sections 2449.2, 2449.3, 2449.4, and 2449.5.

The provisions regarding how parole hearings are conducted violates Proposition 9 (Marsy’s Law) which amended the California Constitution and expanded the rights of victims of crime. The purpose of that initiative was to protect a victim’s right to justice and due process. The California Constitution enforces those rights in two important ways.

First, a victim is to be provided “reasonable notice of all public proceedings, including delinquency proceedings, upon request, at which the defendant and the prosecutor are entitled to be present and of all parole or other post-conviction release proceedings, and to be present at all such proceedings.” (Article 1, section (b)(7).)

Next, a victim has the right to “be heard, upon request, at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.” (Article 1, section (b)(8).)

As presently formulated, the emergency changes in sections 2249.2-5 eviscerate these rights limiting a victim’s participation to a written statement rather than a right to be heard by the parole board.

Nothing in the language of Proposition 57 eliminates or conflicts with these provisions of the California Constitution. Therefore, CDCR has no legal authority to eliminate the victims’ rights provided for in Article 1, Sections (b)(7) and (8).

CCDR was directed to adopt regulations “in furtherance” of Proposition 57. Such regulations should continue to enforce the rights of victims, and not pretend the inmates serving sentences for violent crimes become “non-violent” inmates via baseless reclassifications. If CCDR will not respect the will of voters, then it will be necessary for a court to ensure it does so.

Sincerely,

Michele Hanisee
President

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.