Proposition 57 Report

By Tom McMahone

Prison Focus Issue 51
Spring 2017

On November 8, 2016 California voters approved Proposition 57, the “Public Safety and Rehabilitation Act.” Governor Jerry Brown sponsored the initiative and the “Yes on 57” campaign outraised opponents, $14.98 million to $1.51 million, despite vocal opposition from law enforcement organizations across the state. Just months before the election, the California District Attorneys Association (“CDAA”) filed a lawsuit to remove Prop 57 from the ballot, citing “unrelated amendments.” Though the CDAA initially succeeded in the lower courts, the California Supreme Court reversed, and the measure went forward. Voters overwhelmingly approved the measure with 64.46% in favor, a total of 8,790,723 votes for and 4,847,354 against.

Prop 57 is the most recent ballot initiative in a series of efforts being made in California to address persistent overcrowding in our prisons. It should be viewed as the next step in the process, following the 2009 order by federal judges in Plata v. Brown that California reduce its prison population to 137.5% of the prisons’ design capacity, the 2011 ruling by the United States Supreme Court in the same case that the overcrowding of California’s prisons violates the 8th Amendment of the Constitution, and the adoption of Proposition 47 by voters in 2014.

This article breaks down exactly how Prop 57 will work in practice so that you can understand which offenses will be eligible, when sentences will be up for consideration, how the CDCR plans to implement Prop 57 parole cases, and the current status of the new regulations. Since the new rules are still in the process of being adopted, this article also updates you on how that process is unfolding, and what it should look like once it’s finished.

WHAT IS PROP 57?

Prop 57 adds a new section to the California Constitution: Article I, section 32. It has three major provisions:
(1) Parole consideration: Any person convicted of a “non-violent” felony offense and sentenced to state prison is eligible for parole consideration after completing the full base term of the primary offense (defined as the longest term of imprisonment for any offense, excluding enhancements, consecutive or alternative sentences).
(2) Credit earning: the Department of Corrections and Rehabilitation will have the authority to award credits earned for good behavior and approved rehabilitative and educational achievements. The Department of Corrections and Rehabilitation will adopt new regulations to implement this process.
(3) Juvenile prosecution: the authority to decide whether or not to try juveniles 14 years and older as adults is removed from prosecutors and conferred to judges.

WHO WILL BE ELIGIBLE?

To be eligible for Prop 57’s parole consideration provision, you must have (1) a conviction for a “nonviolent” offense; and (2) complete the full term of your primary offense. It does not apply to persons serving time in county jail – only those serving time in prisons.

As of the date of publication, CDCR has not yet formally proposed new regulations under Prop 57. Therefor, “Nonviolent” offenses for purposes of Prop 57 are currently still undefined. Until the CDCR writes the new regulations, it is not known which crimes will be considered violent and not eligible for early parole.
The Governor’s office has stated sex registrant crimes will be excluded. Other than that clarification, there is currently a great deal of misinformation circulating about this issue; it is important to understand that these are rumors only. There is disagreement in the legal community over whether the criteria should include all offenses not listed as “violent” offenses in Penal Code § 667.5(c), and the eligibility of second and third strikers. The CDDA campaigned against 57 on the basis that crimes such as Assault with a Deadly Weapon (“ADW”) and Domestic Battery (“DB”) will not be included.

However, it is likely that the following “violent” felonies listed in Penal Code § 667.5 will not be included: murder; attempted murder; voluntary manslaughter; mayhem; forcible sex offenses; rape in concert; robbery; arson; kidnapping; carjacking; certain gang offenses; first degree burglary where a victim is present; any felony punishable by death or life in prison; any felony where great bodily injury is inflicted; and any felony involving use of a gun.

The base term means the normal, base Determinate Sentencing Law (“DSL”) term, without enhancements. For example, even if the court imposed double the term because of a strike prior, you should still be eligible for parole consideration after completion of the normal, unmodified DSL term. It is still not known how much time must be done on the primary term before it is considered “completed” in full. Until the CDCR writes the new regulations, it is not known whether good time/work credits can be applied to the completion of the primary term.

The Governor’s office estimates that 7,000 inmates should be immediately eligible once the regulations take effect and that 25,000 inmates in total will be affected. Over the next year, the prison population should be reduced by approximately 2,000 persons, and by 9,500 persons in 2020-21.

WHEN DOES PROP 57 TAKE EFFECT?

The CDCR is still in the process of adopting the new regulations (changes to Title 15) to implement Prop 57. According to the Governor’s Office, the proposed parole and credit changes are expected to go into effect by October 1, 2017. It is not known when the CDCR will start screening prisoners for eligibility or start holding Prop 57 parole hearings.

Before the rules are adopted, inmates and the public will have an opportunity to participate in a “notice and comment” period. At some point soon, the CDCR will publish the text of the new proposed rules. So make sure you are checking with your law library. Inmates and the public will then have several weeks to send written comments to the CDCR about the proposed rules. The CDCR can then respond and issue revised rules, which will be open to another round of comments. At the end of this process, the CDCR will file the new Title 15 rules with the Secretary of State.

HOW WILL THE NEW CREDITS SYSTEM WORK?

Though many unknowns remain until CDCR publishes its proposed rules, the Governor’s office has released some information describing what it expects the credit earning rules will look like. Generally, it has publicly expressed the goal that the regulations provide more incentives for positive programming. Specifically, in its 2017-18 state Budget Summary, it has suggested promulgating credit earning rules that:
(1) Increase and standardize good-time credit earnings from avoiding rule violations; (2) Allow all prisoners except life without parole and condemned inmates to earn “milestone credits” for completing specific education or training programs; (3) Increase time earned from milestone credits from 6 weeks per year to 12 weeks; (4) Create new, enhanced milestone credits for significant achievements like B.A.’s, high school diplomas, Mentor Certification program and career technical education certifications; (5) Apply retrospectively; (6) Add new achievement credits for sustained participation in rehabilitative programs of up to four weeks per 12-month period; (7) Credit lifers toward the Minimum Eligible Parole date; and (8) Are revocable based on violations.

Ultimately the new rules are supposed to encourage more participation in programs and services, with the overall effects of making the prison environment safer and reducing recidivism.

WHAT'S THE LATEST NEWS?

As of right now, CDCR has not yes released its proposed rules. This means it will be several months at the least before the changes from Prop 57 go into effect. It is estimated that Prop 57 will create net governmental savings of $22.4 million in 2017-2018 and over $140 million by 2020-21. Organizations such as Californians United for a Responsible Budget (“CURB”) are reviewing the Governor’s proposals and sending letters urging responsible use of the funds to invest in affordable housing, community reentry programs, and better mental health care and access. The next step is to check with your law library for a copy of the proposed rules, and to participate in the upcoming notice and comment process.

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