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Prop 57 Nonviolent Offender Parole – How Determined
While Proposition 57 was passed by voters back in November, 2016, there remains a great deal of uncertainty regarding who qualifies for the law’s early parole provisions.
Indeed, the law directed the California Department of Corrections and Rehabilitation (CDCR) to implement policies and procedures for early parole consideration of “determinately sentenced nonviolent offenders,” but these were not promulgated until August of 2017.
The process starts with the CDCR considering each person for eligibility within 60 days of when they arrive in the CDCR and again whenever there is a change to their sentence, or they come within one year of being considered for a Youth Offender Parole Hearing (if eligible) or Elderly Parole. 15 C.C.R. § 3491(c)-(d). A person will be screened out as ineligible if he or she will be eligible for a Youth Offender Parole Hearing or Elderly Parole within the next year.
Perhaps the most important consideration is whether the person is qualified as a “nonviolent offender.” A person will be screened out as ineligible if:
- He or she is serving a sentence of death or life without the possibility of parole (LWOP); or
- He or she is currently serving an indeterminate sentence of life with the possibility of parole for a violent felony (these are listed at Penal Code § 667.5(c))); or
- He or she is currently serving a determinate sentence for a violent felony; or
- He or she is currently serving a determinate term for either a violent or nonviolent felony prior to beginning a term of life with the possibility of parole for a violent felony; or
- He or she is currently serving a determinate term for a nonviolent felony prior to beginning a term for an in-prison offense that is a violent felony; or
- He or she has a past or current conviction for an offense that requires sex offender registration under Penal Code § 290; or
- He or she is currently serving a term for a nonviolent felony after completing a concurrent determinate term for a violent felony (the exception is that a person who has finished serving a term for a violent offense and is now serving a fully separate consecutive term for a nonviolent in-prison offense is eligible).
It should be noted that the CDCR regulations do not state whether a person is ineligible for parole consideration when that person has consecutive determinate sentences for a mix of violent and nonviolent crimes – with the nonviolent calculated at 1/3 the normal base term and has finished serving the part of the term that is for the violent offense.
After the CDCR completes its review of a prisoner’s eligibility, the prisoner should receive a notice of the result of the eligibility review within 15 business days. 15 C.C.R. § 3491(f). A person who is screened out by the CDCR can challenge the decision by submitting a CDCR Form 602 administrative appeal. 15 C.C.R. § 3491(g).
If the CDCR determines a person may be eligible, the CDCR will determine that prisoner’s Nonviolent Parole Eligible Date. This is the date on which the person will have served the “full term” of his or her “primary offense,” not counting any good conduct or programming credits earned pre-sentence, post-sentence, or in CDCR.
“Primary offense” means the crime for which the judge imposed the longest prison term, without taking into account enhancements, alternative sentences, or consecutive sentences.
“Full term” means the time imposed by the judge for the primary offense without considering good conduct and programming credits earned in prison. 15 C.C.R. § 3490(d)-(f). For example, a person serving a doubled term under the two-strikes law (which is an alternative sentencing law) for a nonviolent offense is eligible for parole consideration after serving the ordinary base term without any doubling or enhancements.
The CDCR will then perform a “public safety screening” at least 35 days before the person’s Nonviolent Parole Eligible Date to decide whether to refer the inmate to the Board of Parole Hearing for nonviolent parole consideration. At this point, the CDCR will consider whether the inmate has a regular Earliest Possible Release Date in the near future and whether the person behaved well in prison.
- a Nonviolent Parole Eligible Date is less than 180 days before their regular Earliest Possible Release Date or their Earliest Possible Release Date is less than 210 days in the future;
- a current Security Housing Unit (SHU) term or assessment of a SHU term in the past five years (unless for the person’s own safety);
- a Level A-1 or A-2 serious rule violation in the last five years;
- placement in Work Group C in the last year;
- two or more serious rule violations of any level with the past year;
- a drug-related violation or refusal to provide a urine sample in the past year; or
- a rule violation with a nexus to a Security Threat Group (STG) in the past year. 15 C.C.R. § 3492(a) – (c).
