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Is an In-Person Parole Hearing Required by Prop 57?

In 2009, a three-judge federal district court panel, in response to findings that housing prisoners in overcrowded prisons was cruel and unusual punishment in violation of the Eighth Amendment, ordered the California Department of Corrections and Rehabilitation (CDCR) “to reduce the prisoner population to 137.5% of the adult institutions’ total design capacity.”

The California Legislature and electorate subsequently enacted several measures aimed at reducing the prison population, including Assembly Bill 109 (in 2011) regarding criminal realignment and Prop 36 in 2000. 

Still, the issue of prison overcrowding persisted and in February 2014, the federal district court ordered the CDCR to implement more procedures.
Brief Synopsis: A prisoner does not have a right to an in-person parole hearing under Proposition 57 or any other provision(s).        
In November 2016, the California electorate approved Proposition 57.  As applicable to this article, the initiative added section 32 to article 1 of the California Constitution.  Section 32 states: “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.”

It further provides that “the full term for the primary offense means the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.”  The purposes behind the statute are to "protect and enhance public safety, save money by reducing wasteful spending on prisons, prevent federal courts from indiscriminately releasing prisoners and to stop the revolving door of crime by emphasizing rehabilitation, especially for juveniles.”

The initiative states that its provisions “shall be liberally construed to effectuate its purposes.” In re Gadlin (2020) 10 Cal. 5th 915, 922-923.

In 2014, a Sacramento County jury found Larry Bailey guilty of assault with a deadly weapon and leaving the scene of an accident, as well as finding true various enhancements.  The judge assigned to the matter sentenced Bailey to 28 years in state prison.

Three years later in 2017 (and in 2018), however, under Proposition 57, Bailey was eligible for parole. In each of the parole consideration proceedings, the Board of Parole Hearings allowed Bailey to submit a written statement explaining why he should be granted parole.

The Board explained, “[t]his is a ‘paper review’ process” and “[t]here will not be a hearing for your or others to attend.”

The Board, through written decisions by a deputy commissioner, both times denied Bailey parole.  Bailey requested administrative review of each of the parole decisions; both decisions were upheld.

Bailey thereafter filed two petitions for writ of habeas corpus in the trial court.  The trial court consolidated the petitions and issued an order to show cause for the prosecution to show why parole hearings should not be “a live parole hearing at which [he] could attend.”  The trial court interpreted Penal Code § 3041.5 “’as providing for a hearing for all inmates eligible for parole consideration, at the very least to comply with federal and state due process concerns as well as equal protection.’”  The judge also ordered the CDCR to, within 60 days of the finality of the decision, to promulgate new parole regulations to reflect the right to an in-person hearing under Prop 57.

The CDCR appealed this order to the Third Appellate District, arguing that Proposition 57, as set forth in Section 32 to Article I of the California constitution does not require or impliedly incorporate an in person hearings.

The Third Appellate District agreed with the CDCR that the term “parole consideration” does not include an in-person hearing.  It agreed with the CDCR that its procedures whereby a hearing officer reviews “all relevant information and applies criteria to determine whether the prisoner poses a risk or violence or significant criminal activity.  Depending upon the outcome of the assessment, the hearing officer then approves or denies parole release.”

The appellate court also held that Penal Code § 3041.5’s hearing requirements were inapplicable to determinately sentenced prisoners and nothing in Prop 57 changed or expanded 3041.5 to determinatively sentenced prisoners.  Rather, it was up to the CDCR to adopt regulations in furtherance of Section 32 and the CDCR did so in a reasonable manner.

We present this summary to our readers because many believe a Prop 57 parole hearing is like a parole hearing seen on television with live testimony from the prisoner as well as loved ones.  We have to let the caller know that such a “live” hearing is not required.

The citation for the Third Appellate District Court ruling discussed above is In re Larry Bailey (3d App. Dist., 2022) 76 Cal. App. 5th 837.

For more information about Prop 57, please click on the following articles:
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