The California Supreme Court unanimously held Monday that the state can’t categorically exclude sex offenders from early parole consideration, emphasizing that its decision doesn’t prevent making inmates incarcerated for violent felony sex offenses ineligible for parole. The court also held that nonviolent offender parole eligibility must be based on an inmate’s current conviction, not a prior one.
The ruling concerns Proposition 57, a criminal justice reform ballot initiative that California voters approved in 2016 in an effort to reduce the state’s prison population. This year the state’s voters decisively rejected a ballot measure to roll back some of those reforms; Proposition 20 would have prevented early parole consideration for those convicted of certain sex offenses currently classified as nonviolent, including rape of an unconscious person and human trafficking of a child.
Among other reforms, Proposition 57 amended the state’s constitution to provide that anyone “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.”
The regulations that the California Department of Corrections and Rehabilitation (CDCR) adopted implementing the reforms, however, excluded all registered sex offenders from nonviolent parole consideration, even if they were convicted of nonviolent sex offenses. The Supreme Court granted a request for review from the state’s Attorney General to determine whether CDCR had the authority to make that exclusion.
Authoring the high court’s opinion, Chief Justice Tani Cantil-Sakauye wrote that the CDCR regulations indicate that the exclusion of registerable sex offenders from parole consideration doesn’t rely on an interpretation of what offenses are considered “nonviolent,” but “is based on a public safety determination that requires the Department to carve out exceptions to parole consideration” within a class of inmates it has determined to be “nonviolent offenders.”
Therefore, Cantil-Sakauye wrote, the constitutional amendment here “is not ambiguous” in its scope for offenders with prior or current convictions for registerable sex offenses “that the Department has itself defined as nonviolent” — those offenders have been convicted of nonviolent felony offenses, and the amendment directs that they “shall be eligible for parole consideration.”
Proposition 57’s overall focus on public safety doesn’t grant CDCR the authority to promulgate regulations in conflict with constitutional provisions, the court held, noting that this finding doesn’t rob the department of any meaningful regulatory authority.
“A conclusion that the electorate made certain inmates eligible for parole consideration does not require the Department to find each of those inmates suitable for parole,” Cantil-Sakauye wrote. “The Department is left with ample room to protect public safety by crafting the specific processes under which parole suitability is determined on a case-by-case basis.”
An inmate “may not be excluded from nonviolent offender parole consideration based on a current conviction for a registerable felony offense that the Department’s regulations have defined as nonviolent,” the court held, and the regulations at issue here “cannot stand.”
The court directed CDCR to repeal California Code of Regulations, section 3491, subdivision (b)(3) and section 3496, subdivision (b), and “to make any further conforming changes necessary to render the regulations consistent” with article I, section 32(a)(1) of the California Constitution.
Janice Bellucci, the executive director of the Alliance for Constitutional Sex Offense Laws, said in a statement that the decision is “a siginficant victory” for sex offender registrants who are currently in custody.
“As the result of this decision, all registrants in custody who have been convicted of a non-violent sex offense must be provided early consideration for parole,” Bellucci said.
A spokesperson for CDCR said in an email that the decision “does not mean sex offenders will automatically be released to the community; it means that sex offenders currently serving time for nonviolent offenses will have the opportunity to go before the Board of Parole Hearings under the Proposition 57 parole process.”
“The parole board will assess their case factors individually, including whether they continue to pose a public safety risk,” the spokesperson said. “The opinion also does not impact CDCR’s exclusion from parole consideration of inmates currently incarcerated for violent felony sex offenses.”
The case is In re Gadlin, case number S254599 , in the Supreme Court of California.
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