PROPOSITION 57 UPDATE: EMERGENCY RULES AND TIMELINE

Tom McMahon

Prison Focus Issue 52
Summer 2017

Big changes are on the way. Though the slow, grinding process of implementing Proposition 57 is still underway, its main features - affecting the presently incarcerated adult population - are just about to start taking effect. Right now, a new set of “Emergency Rules” are in operation, while we still await the as-yet-unannounced dates for the notice and comment proceedings. The new rates for accumulating “Good Conduct Credits” began on May 1st. Starting July 1, 2017, CDCr intends to begin implementing the revised parole consideration process. Meanwhile, advocacy groups like California Prison Focus, Families to Amend Three Strikes, and other organizations are looking out for your interests and advocating to expand the reach of Prop 57 to more people.

The process to put Prop 57 rules into practice will continue unfolding through the rest of 2017 and contains a number of upcoming deadlines which may or may not change. It’s important to bear in mind this all is still ongoing, so a great deal of uncertainty remains as to what the final changes will look like. As reported in the last issue of Prison Focus, the passage of proposition 57 did not actually change the laws affecting prisoners, but required CDCr to draw up new regulations that would put the changes mandated by Prop 57 into place. Typically with this process, the state agency must announce the changes it wants to make, and then leave open a period where the public gets the chance to comment on the proposed regulations and give feedback. Only once the agency has reviewed and responded to these comments, sometimes making changes in response, do the proposed regulations become law. Here, because CDCr announced the rule changes as “Emergency” changes, they did not open the regulations for public comment. At some point, however, they will do this, and we all will have a chance to state our opinion about the changes they are making. One issue of particular concern to advocacy groups is the inclusion of third-strikers from becoming eligible for the early parole consideration. CPF believes this is overly limiting from the intent of Prop 57 and plans to advocate for that change in the final regulations. When the final proposed regulations are announced, they should be available in every prison library, especially the law library, for review.

Below is a timeline of what’s happened so far, dates you should be on the lookout for, and what’s coming on the horizon. Bear in mind some of these dates are projections and are not set in stone, but may change:

November 8, 2016: Proposition 57 was approved California voters, requiring the CDCR to issue rules regarding new credits and early parole.

March 24, 2017: CDCR issues “Emergency Rules” for new credits and early parole.

April 13, 2017: Emergency Regulations are approved by California’s Office of Administrative Law (OAL) and go into temporary effect for 160 days.

May 1, 2017: Good Conduct Credits go into effect (effective now). These credits are for complying with prison rules and performing duties as assigned. Credit rates should now be accumulating at the following rates for the following categories:

Violent offenders (Lifers, 3 strikes, or indeterminate/determinate sentence): 20%
Non-violent offenders (2 or 3 strikes) & Lifers eligible for 1/3 credits: 33.3%
Non-violent offenders (determinate sentence), & Lifers eligible for day-to-day: 50%
Violent offenders (determinate sentence + fire camp service): 50%
Non-violent offenders (2 strikes or determinate sentence, fire camp service): 66.7%
Non-violent offenders (Minimum A or B custody): 66.7%

One can still lose Good Conduct Credits for violating prison rules and you can still be placed on Zero Credit earning status for violations (including refusing assigned housing twice or to perform an assignment, failing a Work Group C program, committing segregation-eligible disciplinary offenses, or classification under STG-I).

Summer 2017: At some point soon, the CDCR will publish a Public Notice of the proposed final, permanent regulations. A copy of this “Notice of Change to Regulations” will be provided to your prison law libraries, should be made available in SHUs, and will be published online at the CDCR website. There will be a minimum 45-day public comment period, where all members of the public (including prisoners) will be able to submit written comments on the proposed changes. The address for comments will be:

CDCR Regulation and Policy Management Branch
P.O. Box 942883
Sacramento, CA 94283-00001

After the comment period is over, the OAL will review the proposed regulations for compliance with California’s Administrative Procedures Act. If the regulations are approved, then they will be filed with the Secretary of State and become law.

July 1, 2017: Early parole consideration process for nonviolent, determinately-sentenced offenders goes into effect. The CDCR plans to start screening prisoners for eligibility on June 1st, and referring qualifying inmates to the Board of Parole Hearings on this date. As of now, under the Emergency Rules “nonviolent” felony offenses are any crime not listed in Penal Code § 667.5(c) or sex-offender crimes requiring registration under § 290. The “Nonviolent Parole Eligible Date” will be the date of completion of the “full term” (no credits applied) of the “primary offense,” (the crime with the longest sentence without enhancements) less pre-sentence time served credits. Even if your offense is eligible, you may not be considered if:

Your Nonviolent Parole Eligible Date is not at least 180 days before your Earliest Possible Release Date;

You have a current SHU term or assessment of a SHU term for a STG/disciplinary reason within the last 5 years;

You have a Level A-1, A-2 serious rule violation within the last 5 years;

You were placed in Work Group C within the past year;

You have 2+ serious rule violations of any level within the last year;

You have a drug-related rule violation or refusal to provide urine sample within the last year; or

You have a rule violation with a nexus to an STG.

If you are found ineligible based on one of the above, you will be screened again after 1 year.

If you are found eligible and referred to the Board of Parole Hearings, you should be notified that you can submit a written statement. You are strongly encouraged to take advantage of this opportunity, and: (1) focus your statement on why you do not pose a risk of violence to the community if released; (2) encourage members of your support network (family, friends) and potential employers to send letters of support to the BPH. There is no in-person hearing. The BPH officer will decide whether or not you “pose an unreasonable risk of violence to the community” and choose to grant or deny parole on that basis. If granted, you should be released 60 days after the decision. If denied, you can request review within 30 days of the decision through a special review procedure. Another BPH officer will then review the decision within 30 days of the request.

August 1, 2017: Credits for the Milestone Completion (MCC), Rehabilitative Achievement (RAC), and Educational Merit (EMC) programs go into effect. These are as follows:

MCC: Granted upon completing specific education or career training program with attendance and performance requirements. These are increased from the current 6 weeks per year cap to 12 weeks per year. MCCs are revocable for violations.

RAC: Granted for participation in self-help groups or other behavioral programming activities; these can be up to 4 weeks per year. RACs are revocable for violations.

EMC: Granted for successful completion of a GED, high school diploma, college degree or alcohol and drug counselor certification; one-time credits are awarded for each level and will be awarded retroactively to eligible inmates. These credits cannot be revoked.

September 20, 2017: Scheduled end of Emergency Regulations; Deadline for CDCR to complete formal rulemaking process (unless extended 90 days to December 19, 2017).

As you can see, the implementation of Proposition 57 is a lengthy process with multiple steps involved. Remember, this process is ongoing and things can change. Make sure you stay on top of these upcoming dates. Be on the look out for a copy of the Public Notice to come to your prison law library sometime soon. As noted, you are encouraged to submit comments yourself during the public comment period, and CPF welcomes copies of your submissions so we can incorporate your comments into our submission as well. Though it might take some time before the formal rules are fully implemented, make sure you stay involved in the process!

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