A Superior Court Judge in Sacramento has ruled that provisions in emergency regulations issued by the California Department of Corrections and Rehabilitation (CDCR) regarding registrants are void and therefore cannot be enforced. The regulation provisions at issue deny anyone convicted of a sex offense eligibility for parole consideration under Proposition 57.
The judge’s preliminary decision was issued in a tentative ruling dated February 8, 2018, and was the subject of a hearing conducted in Sacramento Superior Court this morning.
During today’s hearing, CDCR’s legal representative argued that Prop. 57 gives the agency discretion to determine who is and who is not eligible for parole consideration. She also argued that CDCR’s discretion extends to individuals who are currently incarcerated for a non-sex offense, but who were previously incarcerated for a sex offense. The tentative ruling does not support CDCR’s position, but does allow the agency to revise its regulations in order to be consistent with the language of Prop. 57.
“We will closely review any Prop. 57 regulations issued by CDCR in the future,” stated ACSOL Executive Director Janice Bellucci. “If we believe the new regulations are inconsistent with Prop. 57, we will file a new lawsuit.”
The focus of the pending lawsuit is how the term “non-violent felony” is to be defined. Although Prop. 57 does not include a definition of “non-violent felony”, petitioners argued that current state law which defines “violent felony” should be used in CDCR’s regulations. If CDCR used that law (Penal Code Section 667.5), only 9 out of more than 100 sex offenses would be excluded from early parole consideration. The judge did not agree with this argument because he said there is insufficient evidence to identify the voters’ intent regarding use of that current law.
At the conclusion of today’s hearing, the judge stated that he will finalize his tentative ruling soon. After the final ruling is issued, the next step in the process is to draft a writ for the judge’s consideration. The draft writ could be challenged by CDCR in the future.