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California

CA Write-In Action Alert by Sept 1: Guidelines for writing in support of Prop 57 applying to registrants

California’s Proposition 57 is one of the most significant criminal justice reforms in our state’s history. Passed by an overwhelming majority of voters in November 2016, Proposition 57 promises many benefits for Registrants and their families, as well as other incarcerated individuals. However, the benefits of Proposition 57 will not be realized unless the regulations implementing them are consistent with Proposition 57’s purpose and intent.

The California Department of Corrections and Rehabilitation (CDCR) is the state agency responsible for drafting and implementing the regulations under Proposition 57. CDCR has issued draft regulations for review and comment by the public. They are available here: http://www.cdcr.ca.gov/proposition57/ (see link at top right of the page). After the public comments are received, CDCR will issue final regulations, so our best chance to influence this process is NOW!

While helpful to Registrants in some ways, CDCR’s draft regulations harm Registrants by excluding them from one of Proposition 57’s major benefits: a new early parole process for nonviolent offenders. That is, Proposition 57 mandates that “any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.” However, CDCR’s draft regulations exclude Registrants from the definition of “nonviolent offender.” This means that, for the purposes of Proposition 57’s early parole process, anyone who has ever been convicted of any registrable offense is considered “violent,” and ineligible for relief.

ACSOL has already submitted public comments to CDCR regarding the draft regulations, but in order to have our voices heard we need EACH OF YOU to write a unique letter asking CDCR to revise the draft regulations and to fulfill the promise of Proposition 57 for Registrants and their families. Your letter should be unique (please don’t simply copy ACSOL’s letter). Here are a few suggestions:

  • Begin by explaining why you are interested in Proposition 57 and the regulations (e.g., you are a Registrant or a family member, you know an incarcerated individual, or you care to see that CDCR faithfully implement the law)
  • Thank CDCR for drafting regulations that allow Registrants to earn sentence reduction credits on the same terms as other inmates, for thing such as education, good behavior, and rehabilitative efforts
  • Note your concern that CDCR has excluded those convicted of any registrable offense from the definition of “nonviolent offender” and this doing so is improper because many sex offenses are nonviolent, as defined by California law (Penal Code § 667.5(c))
  • Note your concern that the draft regulations exclude any inmate who has ever been convicted of a registrable offense, even if the sentence they are currently serving is not for a sex offense (this means that anyone currently serving a sentence for failing to register as a sex offender, or for economic crimes, or for any other nonviolent, non-sex offense is excluded from the early parole process simply because they were convicted of a sex offense sometime in the past)
  • Emphasize that CDCR cannot lawfully rewrite Proposition 57 by restricting the scope of the relief provided by California voters to all inmates in California, including Registrants
  • Add anything else about the draft regulations that you wish to emphasize

Please send your letter by mail or email so that it arrives by the deadline of September 1, 2017 to:

Department of Corrections and Rehabilitation
Regulation and Policy Management Branch
P.O. Box 942883
Sacramento, CA 94283-0001

CDCR-Prop57-Comments@cdcr.ca.gov

Thank you for helping us make a difference for Registrants and their families in California!

Join the discussion

  1. Anonymous Nobody

    I agree with the thrust of your article. But let me first correct some key language.

    You say it denies this early parole to registrants. No, does not. There is not a single registrant in prison, no one in prison has to register under 290. Only those not in prison have to register — that is, only those who are NOT sex offenders have to register, as in they are not committing sex offenses so are not in prison.

    What the regulations here say is that anyone convicted of a registrable offense, it does not say any registrant. And unfortunately it does not say “any prisoner serving time for an offenses included in 290,” so it does certainly sound retroactive to any prior offense that might have nothing to do with why you are in prison now. And mind you, that language does not care even if you get released from registration under this tier proposal.

    I know that is what you were meaning, but if we are going to assert that we should not be called sex offenders, we should be called registrants, then please do not equate us with prisoners, which we absolutely are not. Punishment can be imposed on prisoners, but it cannot reimposed on registrants (yes, I know the courts have widely lied about what is punishment). Let us not undermine our own argument.

    The regulations notice is 117 pages long. I’m not going to read through all that. But I found the key parts. And yes, it says anyone convicted of a sex offenses included in 290.

    You can get to the actual regulations at:

    http://www.cdcr.ca.gov/Regulations/Adult_Operations/docs/NCDR/2017NCR/17-05/17-05.pdf

    And that clause I just paraphrased comes on page 34 under:

    Nonviolent Offenders.
    Section 2449.1. Definitions

    .
    It says:

    This section is adopted to define key terms that will apply to the new parole consideration
    process for nonviolent offenders. First, this section defines a “nonviolent offender” as any inmate
    who is not (1) condemned, (2) currently incarcerated for a term of life without the possibility
    of parole, (3) currently incarcerated for a term of life with the possibility of parole, (4) currently
    serving a term for a violent felony as defined in Penal Code section 667.5, subdivision (c), or (5)
    convicted of a sex offense that currently requires registration pursuant to Penal Code section 290.

    Inmates convicted of a sex offense that currently requires they register pursuant to Penal Code section 290 are also excluded from parole consideration because the crimes listed in that section of the Penal Code reflect the determination of the people of the State of California (through initiatives and the legislature) that, “Sex offenders pose a potentially high risk of committing further sex offenses after release from incarcerati
    on or commitment, and the protection of the public from reoffending by these offenders is a paramount public interest.” (Penal Code section 290.03.)
    Also, when the people of the State of California approved Proposition 35 on November 6, 2012, they declared that “Protecting every person in our state, particularly our children, from all forms of sexual exploitation is of paramount importance.” (See Proposition

    Californians
    Against Sexual Exploitation Act
    , 2012 Cal. Legis. Serv. Prop. 35 (Proposition
    35) (WE
    ST),
    section
    2, paragraph 1.)

    That sounds completely challengeable in court, that is the weakest justification I have ever seen. They are citing non-violence matters to justify it as violence. Saying sex offenders are highly likely to offend says nothing about violence (yes, I know how wrong even that statement they make is, but it isn’t even important, it does not apply to violence!) And citing a statute that says you must protect people from sexual exploitation has nothing to do with violence.

    In fact, even these regulations point to Sec. 667.5 PC as defining what is a violent felony! And ALL sex offenses are not in there. But evening naming that stature, it grants this early parole to even these actually violent offenders under the circumstances stated:

    Inmates currently serving a term for a violent felony as defined in Penal Code section 667.5,
    subdivision (c), are excluded from parole consideration because the crimes listed in that section of the Penal Code involve physical violence. However, inmates who have completed a violent offense term but remain incarcerated for offenses that do not qualify as a violent felony will be eligible for parole consideration, in accordance with court decisions.

    It seems to me that the law already has defined who is a violent offender. I don’t know the language that was in that ballot measure, but I would look closely at it to see if the regulators even can change that definition in 667.5 for this isolated matter.

    The ballot measure said NON-VIOLENT offenders must be granted this early parole. It did not give any leeway to name people even these regulations do not say are violent to be excluded from its relief — as in ALL sex offenders,not only those who are violent or only those who are listed in 667.5. These regulations say they are lily to reoffend, not that they are violent. These regulations are another blanket application based on the idea that all sex offenders are the same.

    Clearly, someone very sick in the head wrote this bit about people convicted of 290, so sick that they decided to write in that people even they couldn’t call violent would be excluded from the relief.

    If fighting this, we are not arguing that violent sex offenders should get this relief, as this early parole doesn’t apply to any violent offender. We are saying the regulations cannot exclude the relief beyond violent offenders, as it so clearly is doing.

    But again, bad language in this article. We do not want to write in demanding that ALL sex offenders be grated this relief. We want to write in saying that all NON-VIOLENT sex offenders be granted the relief, and even say all sex offenders not listed in 667.5 be granted the relief. In fact, we should say that the relief should be granted to all non-violent prisoners currently in prison for registrable sex offenses as opposed to having convictions in the past that is not why they are in prison. If we simply demand no sex offenders be denied the relief, we are wasting our time, that will be ignored, even the courts would not allow that. This relief is specifically only for non-violent felons. This article above is just saying to demand sex offenders not be denied the relief, and that means ALL of them.

    And readers here, mind you, if you ever land locked up again — and you better understand that you don’t have to do anything for that to happen, you are prime suspect always and will be framed if necessary, but all they have to do is have someone accuse you, and the jury will convict. The jury system is not what it ought to be.

    • Gwen

      Anonymous Nobody – Just FYI I know of a first time ever incarcerated person, who is in prison and had no criminal record prior to this charge, and when you put there name into Megan laws or any registry they appear. And there place of residence list the prison they are currently in.
      Also, Orange County, CA DAs make sure to state that all sex offenders are to be listed 290 and it is put on everyone’s court documents that they are to be a 290 Registered Sex Offender,effective at incarceration, whether or not the offense was non-violent. (unless you perhaps have higher contacts within the OC system – Such as the recent OC Sheriff convicted of having relations with a minor and the DA stated 2 years on the registry.) And having witnessed this first hand I feel that should start the clock ticking for time on the registry. Not at release from prison like the new tiered registry states.

    • CEVJR

      “There is not a single registrant in prison, no one in prison has to register under 290.” You have no idea what you are talking about. ALL convicted of a registerable offense are registered during the reception period. So, your premise that is an equivocation fallacy is incorrect.

  2. New Person

    This law is an immunity.

    I present to you California Constitution Article 1, Section 7(b):

    =====================================
    (b) A citizen or class of citizens may not be granted privileges
    or immunities not granted on the same terms to all citizens.
    Privileges or immunities granted by the Legislature may be altered or
    revoked.
    =====================================

    The immunity is for all non-violent class or none at all. It’s right there in the constitution!

    With that stated, why is it the same ordeal with the 1203.4 with registrants? Why aren’t they allowed to share the same immunities like all other former convicts?

    • Lisa Rogers

      I believe increased credits should be given for convictions of 288 (a) on case by case basis’ especially if their Static 99 shows them to be at low risk and federal studies have shown that certain sex offenders (low Static 99 scores) are less likely to reoffend. Consideration should be given to first time offenders for increased credits.

      In consideration of Prop 57, 667.5 subdivision (c) in which it describes violent crimes for the purpose of enhancements for repeat offenders, as selected by the legislature and as stated in case law that certain felonies, such as 288 (a) Lewd Acts (not to be confused with 288 (b) with the use of force) are those which cause”extrodinary psychological or emotional harm”. Nothing in the Proposition stated anything about psychological or emotional harm and trying to guess or assume that for instance the fondling of a breast or buttocks, and without being tried for emotional or psychological harm, it seems as though a potential can of worms will be opened. 273.5, domestic violence is not on the list of violent crimes for enhancement purposes and neither is domestic violence against a child.

      People v. Hetherington (1984)
      “The statute’s unadorned language indicates the Legislature intended to impose increased punishment via section 667.5, subdivision (c) not only for certain felonies which are “violent” in a physical sense but also for other selected felonies which cause extraordinary psychological or emotional harm.” (Most all crimes against a person and especially those of the domestic violence nature with violence against an adult or a child have extraordinary psychological harm). Although crimes of domestic violence involving an adult or child are obviously violent in nature and the term violent is associated with physical violence, these criminals are allowed increased credits. I find domestic violence crimes reprehensible. I have been a victim of 273.5 in which my ex-husband was incarcerated and I know that these offenders repeat this type of behavior because they are truly violent and never change.

      The legislature also have used studies regarding recidivism amongst sex offonders based off of the Static 99.

      . Federal Recidivism Study (Released Inmates Followed for Three
      Years) – Sex Offenders have Lower Rates of Recidivism

      A 2003 study by the U.S. Bureau of Justice Statistics has been
      widely cited as authority for assertions that sex offenders have
      shocking rates of recidivism. However, the study does not make
      such claims. In fact, as measured by the study, sex offenders
      have lower rates of recidivism than do other offenders. The
      study did make the finding that (former prison inmate) sex
      offenders were more likely to commit a future sex crime than
      were other former inmates, although the non-sex crime inmates
      were significantly more likely to commit new crimes overall.
      This is consistent with one of the basic principles underlying
      the STATIC-99 that past behavior is an important predictor of
      future behavior.

      Even Section 707 was amended by this Proposition and removed 288 (a) Lewd Acts with a Child Under 14 and it is noteworthy that it was added only if it were gang related, completely ignoring 667.5 as the rule of thumb.

      There are offenders in there that will never take advantage of the milestone or education credit because they can’t or simply do not want to.

      For those that have had great behavior, I believe it should be retroactive or at least incentive based. For instance, for every two years of incarceration with good behavior, an additional 5% of good time credits could be applied up to 50%. Or retroactively based.

      The prison system should eventually evolve into real education / training and should be reflected in your new hire practices. Education / Training could be given to long term employees so that they can be be utilized and not in fear of losing their jobs.The California prison model has not worked, but if you evolve and train the employees into more of a teaching / training roll, I think it will pay off in the future.

      Thank you.

      • mot

        I want to comment on the 288(a) since I am guilty of that one. I was caught in a sheriff department sting so there was no person under the age of 14 involved but a sheriff male deputy age 36+. I think that the situation and the entire story should play into how each one of us should be considered for Prop 57 and eventually for the tiered registration. Just as all sex offenses are not the same neither are the ‘crime’ the same just because they fall under a disignation such as 288(a) and the vast spread of events that fall under that

      • Lake County

        I think the Corrections Department has enough staffing problems as it is. If you also narrowed the qualified D.O.C. employees to just those that are willing to teach, you would end of with a huge shortage of officers. Fewer officers would only hurt those in prison since prisons would just lock everyone down more without the needed staff. I don’t think anyone that works in the current prison or jail system could be trained to also be a good teacher.

  3. ReadyToFight

    I agree Lisa. And I wanna add that if they asked I’m sure they’d find that most prisoners would much rather be doing something productive than sitting around stewing about the eff’d up system and counting down the days till they’re released….

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