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.
Related
California appeals court says nonviolent sex offenders eligible for early parole (SF Chronicle)
I don’t understand the “public safety” argument? The person is going to get out eventually anyway, and keeping them behind bars for an extra few months isn’t going to rehab them any better. It’s not like the sentence time is based off of how much time it takes to rehab the person.
What is the case name?
Congrats! Huge victory for ACSOL! Thank you Janice, et al!
Quoting this article:
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The court rejected CDCR’s argument that the exclusions were necessary due to “public safety.”
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I am at a loss here. Prop 57 is akin to 1203.4. 1203.4 identifies crimes that are low level to where it does not affect the convicted harshly by removing them from the community if they can successfully complete probation, which shows rehabilitation.
1203.4 criteria: There are crimes that do not qualify for 1203.4. Similarly, there are sex crimes that do not qualify for 1203.4
1203.4 immunity:
… 1) court shall set aside the case
… 2) court shall dismiss the information/accusation against the defendant
… 3) shall be removed from all penalties and disabilities resulting from the conviction
Since the registry is punishment, immunity 3 cannot be used. But immunity 2 is re-obtaining privacy, which is protected by California Constitution, and succinctly identifies “information/accusation against the defendant” is what will be dismissed.
Thus the “public safety” argument must also fail here with 1203.4 b/c how do you exclude those who qualify for 1203.4 to not partake in the benefits/immunities. PC 290.5 and PC 290.007 were simply ran through without contest. PC 290.007 just simply disregards earning the immunities under 1203.4.
California Constitution, Art. 1, Sec. 1: All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.
Before 2007, 1203.4 removed one from the registry because in-person reporting was considered punishment, but also only the PD had your information and wasn’t shared. The registry takes away privacy in its present implementation as it shares it with everybody, including the federal level with the IML and passports. 1203.4 is a legal pathway (pursue) to regain (obtain) privacy. PC 290.5 and PC 290.007 moved the goal post from probationary period (3-5 years) to a minimum of 10 year wait for Certificate of Rehabilitation, CoR. Thus, proving your rehabilitativeness twice under the court of law, once with 1203.4 and a second time a petitioning for the CoR.
Only those with sex crimes must have the 1203.4 before applying the CoR. It is written on the CoR application as evidence of inequality amongst convicts where the presumed “public safety” was the reason for the inequity.
With this win, is it possible to review bad law, or unconstitutional law, being passed by the California legislation by removing the pathway to regain privacy again via 1203.4, supported by the California Constitution?
Once again, thank you, Janice and all at ACSOL for helping to establish and preserve the rights of registered citizens. May God continue to bless and empower you in this mission!
Simply put the CDCR is CORUPT and a EVIL Entity and it should be abolished and done away with and replaced by a neutral 3rd party. Im sure the CDCR and its EMPLOYEE THUGS have committed a LOT of CRIMES they have never been prosecuted for !!!!
I think that this post has a typo in the fifth paragraph where it incorrectly says:
‘does allow CDCR to “promulgate regulations directly contradicting the text of the proposition.” ‘
But it should say:
‘does not allow CDCR to “promulgate regulations directly contradicting the text of the proposition.” ‘
Had I not already lost everything due to a family member’s conviction and losing my job I’d have sold it all to help you guys out. If I had it to give it would’ve been given and more.
Since finding this site and others I recognize how other people have gone through the same. The tide is continuously against you all but the effort is not in vain.
Congratulations, Janice and team! There are a lot of challenges to Prop. 57 in the courts, but ACSOL’s is the only case brought on behalf of all registrants, including those presently incarcerated for a sex offense. And with this decision, ACSOL helped make new law!
Congratulations, this is a great victory for all including the incarcerated. I have a family member currently in CDCR. When will this take effect for inmates currently in custody? Great job I will continue to give my support.
Great job! I was lucky enough to receive the Educational Milestone when Prop 57 first came into effect before it was challenged for sex offenders. I think everyone in the prison system should have the opportunity to gain good time credits.
Congratulations Janice. One question. Does this decision mean an inmate that is already being held past his time under prop 57 for a non violent crime and committed an offence (exposure) as a juvenile (13) that is non register required use this victory for request for imitate release form CDCR?