Proposition 57 Update

My friend Douglas Fienberg from the Fresno County Public Defender’s Office has been carefully tracking the proposed rules for Proposition 57.  You can see the proposed rules here:

Here is the latest from Mr. Fienberg:

There are at least four problems with the proposed regulations.

First, the proposed regulations exclude people subject to indeterminate terms (such as 15 years to life, or 25 years to life, etc.), such as people serving Third Strike sentences, from parole eligibility.  That exclusion contradicts Proposition 57, which promised that it applied to “any person convicted of a nonviolent felony offense and sentenced to state prison.”  That exclusion also contradicts Proposition 57 in that Proposition 57 specifically defined the minimum term that must be served before consideration for parole eligibility as excluding alternative sentences.  Alternative sentences usually, if not always, require indeterminate sentences.

Second, the proposed regulation excludes people required to register as a sex offender pursuant to Penal Code section 290 as a result of a conviction.  The regulations arbitrarily conclude that any offense requiring sex offender registration is automatically violent, even though the elements of many such offenses contain no requirement of any force or violence.  Additionally, the exclusion applies even if the current offense is not violent.  This goes far beyond the language of Article I, Section 32, subdivision (a)(1), of the California Constitution, which limits application of violent felony exclusion to people sentenced to state prison.  CDCR has already interpreted the language “nonviolent felony offense” as applying to people with violent offense so long as they are not currently serving a prison sentence for a violent offense.

Third, previously served time does not become eligible for enhanced time credits.  People who have been behaving well for years would not receive credit for those years.

Fourth, special approval is required if Proposition 57 would result in the defendant being released more than two years early.  “If the decision will result in the inmate being released two or more years prior to his or her Earliest Possible Release Date, the decision shall require a second signature from the Associate Chief Deputy Commissioner or the board’s Chief Hearing Officer.”  This second signature requirement would suggest that release more than two years early should presumptively be denied.  There is no authority in the initiative itself for such a limitation.  The electorate, which provided plenty of restrictions on Proposition 57 eligibility, would have included such a limitation if it had intended such a result.

There is a public comment period for the proposed regulations to end on September 1, 2017.  Once the public comment period has elapsed, and any changes are made, the regulations should become effective.  However, I am sure there will be litigation if the above identified issues are not resolved before the regulations are finalized.

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