By Michele Hanisee
If there are two agencies agency full of bureaucrats in California who cannot do enough for prison inmates while tromping on crime victims, it is those who work at the Office of Administrative Law (OAL) and those who make policy at the California Department of Corrections and Rehabilitation (CDCR).
The OAL is nominally tasked with ensuring “that agency regulations are clear, necessary, legally valid, and available to the public,” yet this agency has demonstrated in its dealings with the death penalty and Prop 57 just how it treasures prison inmates and has contempt for crime victims. CDCR, of course, is charged with incarcerating convicted criminals, “rehabilitation” of same, and parole supervision of a limited number of inmates.
The death penalty and Prop 57 are two stark demonstrations of the underlying motivations of the two agencies. Within only a few months of passage, CDCR and OAL have greased up and ready to go prison releases, in stark contrast to their deliberate, years long, foot-dragging on death penalty protocols.
For nearly TEN YEARS after a federal judge stopped California from using a three-drug protocol, CDCR deliberately dragged its feet on adopting a new protocol even though the judge had ruled that a one drug protocol could be used instead. CDCR spent more than EIGHT YEARS exploring other three-drug protocols and then sitting on a single drug protocol before being sued in 2014 by Kermit Alexander, whose mother, sister and two nephews were murdered in 1984, and Bradley Winchell, whose sister was raped and murdered in 1983.
After a Sacramento Superior Court Judge rejected CDCR’s argument that Alexander and Winchell lacked standing to bring a lawsuit, CDCR agreed to settle the lawsuit and submit the one-drug protocol they had been sitting on for over a year to the OAL. The CDCR regulation was submitted in October 2015 to the OAL. The OAL then granted extension after extension to the public comment period until the California Supreme Court placed on hold Proposition 66. Prop 66 was approved by voters in 2016 to speed up death penalty appeals and provide justice for victims. Scarcely had the ink dried on the Supreme Court order than the OAL issued a 25-page decision disapproving the new CDCR death penalty regulations, citing the need for public comment, inconsistencies and ambiguities in the regulation, and a need for justification for some regulations.
Among other issues, the OAL was troubled by the decision to use a 7.5-gram dose when 5 grams was sufficient, why there was a $50 limit on the inmate’s last meal, and what the monthly inspections of the death chamber entailed.
Contrast the feet dragging on the death penalty regulations with the absolute rush by OAL and CDCR to develop and implement regulations to allow early release of prison inmates under Prop 57. First, CDCR claimed and OAL decreed that the regulations were “emergency regulations.” “Emergency” is defined by Government Code section 11342.545 as a need to “avoid serious harm to the public peace, health, safety, or general welfare.” So, yes, you have read correctly—-both agencies believed serious harm would be done to the public peace, health and welfare if prison inmates were denied a chance to be paroled years early!
By invoking the “emergency” exception in connection with Prop 57, CDCR benefits by limiting public comment and by allowing the regulation to take immediate effect for 180 days after it is submitted to the Secretary of State. In this instance, both CDCR and the OAL have trampled on the constitutional rights of victims. One prime example is the elimination of the right of victims, as set forth in the California Constitution, to attend any parole or post-conviction release hearing. CDCR has now limited the victim to a written statement submitted to a hearing officer.
As the ADDA pointed out in a letter to the OAL, nothing in the language of Proposition 57 eliminates or conflicts with the provisions of the California Constitution,in Article 1, Sections (b)(7) and (8), that are commonly known as “Marsy’s law.” CDCR was directed to adopt regulations “in furtherance” of Proposition 57 but it has no legal authority to draft regulations that exceed the scope of Prop 57 by eliminating the Constitutional rights of victims. While hot and bothered by the cost limits for last meals, the OAL apparently hasn’t mustered the time to read the California Constitution and question CDCR’s abrogation of victim’s rights in these “emergency” Prop 57 regulations.
It will likely take a court to rule on CDCR’s attempt to eviscerate victim’s rights guaranteed in the California Constitution. What is abundantly clear, however, is that for CDCR and the OAL, the rights of victims pale in importance to those of the prison inmates who victimized them.
Michele Hanisee is Vice 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.