An appellate court in California today upheld ACSOL’s challenge to regulations issued by the CA Department of Corrections and Rehabilitation (CDCR) that prohibit anyone convicted of a sex offense from receiving early parole consideration. This type of consideration was granted by Prop. 57 to all persons convicted of a non-violent offense.
In its decision, the Third Appellate District Court noted that CDCR has made “repeated attempts to exclude categories of inmates undisputedly classified as ‘nonviolent’ from early parole consideration.” The court rejected CDCR’s argument that the exclusions were necessary due to “public safety.” In fact, the decision specifically states that the appellate court rejects “the Department’s claim that the goal of public safety entitles it to contradict the unambiguous language of the Amendment (Prop. 57).”
“This decision is a significant victory for every person in custody who has been convicted of a sex offense,” stated ACSOL Executive Director Janice Bellucci. “CDCR can longer refuse to grant those individuals early consideration for parole.”
Today’s unanimous decision by three appellate court justices affirmed the decision of a single judge in Sacramento Superior Court made in March 2018. In that Superior Court case, Judge Sumner ruled that CDCR’s regulations were inconsistent with the language of Prop. 57 as well as the intent of the voters who approved that proposition. In addition, the judge determined that CDCR’s regulations “must be set aside.”
Consistent with the lower court’s decision, the appellate court determined that the plain language of Prop. 57 is unequivocal and does allow CDCR to “promulgate regulations directly contradicting the text of the proposition.” The appellate court dismissed CDCR’s argument that those convicted of a sex offense pose a current danger to society “based on their likelihood of recidivism.” Although the appellate court did not address the issue of recidivism, it ruled instead that public safety is a “policy consideration” that does not trump the plain language of Prop. 57.
Today’s decision could be reviewed by the CA Supreme Court, if it agrees to grant review, and CDCR has stated it will seek review by that court. A similar Prop. 57 case, involving a registrant who was previously convicted of a sex offense but is currently in custody for a different type of offense, is currently pending before that court. The name of that case is Gadlin and its case number is S254599.
The basic difference between Gadlin and the case decided today is that the case decided today includes all inmates convicted of a sex offense regardless of whether that offense is the reason there are currently in custody.