Three‑Judge Court Quarterly Update

SEPTEMBER 15, 2023 UPDATE TO THE THREE-JUDGE COURT

On February 10, 2014, the Three-Judge Court ordered CDCR to reduce the in-state adult prison population to 137.5 percent of design capacity by February 28, 2016. (ECF Nos. 2766/5060 & 2767/5061.) Defendants first informed the Court that its population was below 137.5 percent of design capacity on February 17, 2015 (ECF No. 2838/5278), and have submitted 87 reports since then. Defendants have complied with the population cap for over eight-and-one-half years. On March 25, 2022, the Court granted Defendants’ unopposed motion to reduce the frequency of these reports from monthly to quarterly. (ECF No. 3795/7515.) As a result, reports will be filed on the 15th of March, June, September, and December until further order of the Court.

On December 6, 2022, CDCR announced its plans to close certain institutions and facilities, and terminate its contract for the use of California City Correctional Facility.¹ To date, CDCR has deactivated Folsom Women’s Facility (FWF) (deactivated in January 2023), Facility A in California Rehabilitation Center (CRC) (deactivated in April 2023), Facility D in California Institution for Men (CIM) (deactivated in April 2023), Facility D in California Correctional Institution (CCI) (deactivated in June 2023), and California Correctional Center (CCC) (closed June 30, 2023).

CDCR’s institutional design capacity was 81,962 before these closures and deactivations started². Following the above closures, the new institutional design capacity is 77,309 as of September 13, 2023³.

As of September 13, 2023, the State’s adult prison population is 91,933, occupying 118.9 percent of design capacity. (See Exhibit A at 1, attached.) Below are updates regarding Defendants’ population reduction efforts and evidence of durable compliance with the 137.5 percent benchmark.

A. Update on Proposition 57 Measures:

Proposition 57, passed in November 2016, is the State’s durable remedy that enacts many Court-ordered reforms, expands credit-earning opportunities, and creates a parole consideration process for nonviolent incarcerated persons who have served the full term of their primary offense in state prison.  Information about these regulations can be found at https://www.cdcr.ca.gov/proposition57/.  Details regarding measures CDCR implemented can be found in previously-filed monthly status reports.  (See, e.g., ECF No. 3769/7423 (Jan. 18, 2022).)  Updated statistics showing the impact of these regulations are included below.

1. Increased credit-earning opportunities for all incarcerated persons except the condemned and those serving life without parole sentences:

4,451 incarcerated persons released between June 1, 2023 and August 31, 2023 earned an estimated average of 191.7 days of additional credit towards their advanced release date.  This does not include incarcerated persons released from fire camps.

2. Determinately-sentenced nonviolent offender parole process: 

Since July 1, 2017, CDCR has made 36,241 referrals to the Board for this parole process.  The Board has reviewed 32,460 referrals on the merits as of August 31, 2023, approving 4,752 incarcerated persons for release and denying 27,708.  3,411 referrals have been closed because the Board’s jurisdictional review of the incarcerated persons’ criminal history and central file revealed they were not eligible for parole consideration.  The remaining referrals are pending review, including those within the 30-day period for written input from incarcerated persons, victims, and prosecutors.

3. Indeterminately-sentenced nonviolent offender parole process: 

Since January 2019, when CDCR began screening indeterminately-sentenced, nonviolent offenders for eligibility, CDCR has referred 3,026 incarcerated persons to the Board for a parole consideration hearing.  104 of these referrals were closed because the Board’s jurisdictional review of criminal histories and central files revealed those incarcerated persons were not eligible for parole consideration.  The Board has conducted 2,868 hearings for indeterminately sentenced nonviolent offenders resulting in 746 grants, 1,834 denials, and 288 stipulations to unsuitability.  An additional 2,609 hearings were scheduled, but postponed, waived, continued, or canceled.  The remaining referrals are pending parole suitability hearings.

B. Updates on Other Population Reduction Measures:

1. Contracting for additional in-state capacity in county jails, community correctional facilities, private prison(s), and reduction of out-of-state beds:
   • The population of California City Correctional Facility, California’s only private prison, is approximately 171 incarcerated persons as of September 13, 2023⁴. (See Ex. A at 1.)
   • The State currently has no contracted-for beds in community correctional facilities (CCFs), modified community correctional facilities (MCCFs), or Female Community Reentry Facilities (FCRFs)⁵.
   • California no longer houses incarcerated persons out of state.⁶  The last incarcerated persons in out-of-state contract beds returned to California in June 2019.

2. Expanded medical parole process for medically incapacitated incarcerated persons:
   The Board conducts expanded medical parole hearings for incarcerated persons referred to the Board by the head physician at their institutions.  The Board’s medical parole hearing decision approving an incarcerated person for placement in a skilled nursing facility is forwarded to the California Correctional Health Care Services (CCHCS) and Receiver’s Office, which place the incarcerated person in a community facility that will accept the person and enforce any restrictions imposed by the Board.  If CCHCS is unable to place the incarcerated person within 120 days of the decision, the decision expires and the person remains in CDCR custody.  Between July 1, 2014, and September 9, 2023, the Board has held 358 medical parole hearings, resulting in 244 approvals and 114 denials.  An additional 91 hearings were scheduled, but postponed, continued, or canceled.

3. Parole process for elderly incarcerated persons:
   Under Penal Code section 3055, incarcerated persons aged 50 and above who serve at least 20 years of continuous incarceration qualify for elderly parole consideration.
   
   Certain persons sentenced under strike-sentencing laws (Penal Code sections 667(b)-(i) or 1170.12) or convicted of first-degree murder of a peace officer are excluded from the statutory scheme, but are eligible for elderly parole consideration as set forth in the February 10, 2014 order, which covers incarcerated persons aged 60 and above who serve at least 25 years of continuous incarceration. Previous status reports further detail these parole processes. (See, e.g., ECF No. 3769/7423 (Jan. 18, 2022).)
   
   Since February 11, 2014, the Board has held 9,142 hearings for eligible incarcerated persons, resulting in 2,557 grants, 5,737 denials, and 848 stipulations to unsuitability. The Board scheduled 5,511 additional hearings that were waived, postponed, continued, or canceled.

4. Male community reentry programs:
   The State continues to refer eligible incarcerated persons for possible placement in Male Community Reentry Programs (MCRPs).  As of September 6, 2023, 623 incarcerated persons are housed in MCRP facilities the State contracts within San Diego, Los Angeles, Kern, and Butte counties. 

5. Expanded alternative custody program:
   The Custody to Community Treatment Reentry Program (CCTRP), the State’s expanded alternative custody program for female incarcerated persons, provides a range of rehabilitative services that assist with substance use recovery, employment, education, housing, family reunification, and social support.  As of September 6, 2023, 366 females are participating in the CCTRP, and are housed at facilities in San Diego, Santa Fe Springs, Bakersfield, Stockton, Sacramento, and Los Angeles.

6. Incarcerated Persons Released Under Proposition 36
   Proposition 36, passed in November 2012, revised the State’s three-strikes law to permit resentencing for qualifying incarcerated persons whose third strike was not serious or violent. As of August 31, 2023, approximately 2,254⁷ persons have been released under this measure.
   
   Since the June 15, 2023 Quarterly Update to the Three-Judge Court (ECF No. 3866-2/7857-2), CDCR has revised the total number of individuals released under Proposition 36. Due to a manual accounting error, prior data included individuals who were eligible for Proposition 36 resentencing but were released for other reasons. (See, e.g., ECF No. 3866-2 at 6/7857-2 at 6, reporting approximately 3,701 releases under Proposition 36.) CDCR has corrected the error. This correction impacts only the data reported for this category, and does not impact CDCR’s overall population data.
   
7. Incarcerated Persons Released Under Proposition 47
   Proposition 47, passed on November 4, 2014, requires misdemeanor rather than felony sentencing for certain property and drug crimes and permits incarcerated persons previously sentenced for these reclassified crimes to petition for resentencing.  As of August 31, 2023, approximately 4,761 persons have been released under this measure.
   
8. Compassionate Release
   Assembly Bill 960, approved in September 2022, amends Penal Code sections 1170 and 1170.02, and adds section 1172.2 to the Penal Code to change the criteria for compassionate release of eligible incarcerated persons.  These provisions require CDCR to recommend to the court that an incarcerated person’s sentence be recalled if that person is permanently medically incapacitated or has a serious and advanced illness with an end-of-life trajectory.  These changes took effect on January 1, 2023 and can be reviewed at https://leginfo.legislature.ca.gov/faces/billCompareClient.xhtml?bill_id=202120220AB960&showamends=false.
   
   Since January 1, 2023, the Department has submitted 57 recommendations for recall to the court under Penal Code section 1172.2, and 45 recall and resentencing applications were granted.⁸  Twelve recommendations are pending court hearings to consider whether the incarcerated person’s sentence should be recalled.
   
9. CDCR Secretary’s Authority to Make Recommendations Regarding Sentences
   
   On October 1, 2022, CDCR enacted permanent regulations regarding the Secretary’s authority to make discretionary recommendations to a sentencing court regarding an incarcerated person’s sentence under Penal Code section 1172.1.⁹ These regulations can be found at https://www.cdcr.ca.gov/regulations/wp-content/uploads/sites/171/2022/08/NCR_21-04_1170_FINAL.pdf
   Since October 1, 2022, the Secretary has submitted 94 resentencing recommendations to state courts under Penal Code section 1172.1.  As of September 12, 2023, 21 of the Secretary’s recommendations were granted by the courts, resulting in the incarcerated persons’ sentences being reduced by an estimated average of 5.25 years.  Of the remaining resentencing recommendations, 20 have been scheduled and are pending court hearings; 48 are pending responses from the courts; and, one recommendation for which the sentencing court declined to act.

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Footnotes:

1. See See ECF No. 3866/7857.  See also Cal. Dep’t Corr. & Rehabilitation, California Department of Corrections and Rehabilitation Announces the Planned Closure of Chuckawalla Valley State Prison (Dec. 6, 2022), https://www.cdcr.ca.gov/news/2022/12/06/california-department-of-corrections-and-rehabilitation-announces-the-planned-closure-of-chuckawalla-valley-state-prison/. ↩︎
2. See Cal. Dep’t Corr. & Rehabilitation, Weekly Report of Population (Jan. 4, 2023), https://www.cdcr.ca.gov/research/wp-content/uploads/sites/174/2023/01/Tpop1d230104.pdf ↩︎
3. Id., Weekly Report of Population (Sept. 13, 2023), https://www.cdcr.ca.gov/research/2023-weekly-total-population-reports-tpop1-archive/. ↩︎
4. On December 6, 2022, CDCR announced that it will not renew its lease with CoreCivic for the California City Correctional Facility.  The contract will terminate in March 2024.  As a result, this facility will no longer be used as a state prison.  Cal. Dep’t Corr. & Rehabilitation, California Department of Corrections and Rehabilitation Announces the Planned Closure of Chuckawalla Valley State Prison (Dec. 6, 2022), https://www.cdcr.ca.gov/news/2022/12/06/california-department-of-corrections-and-rehabilitation-announces-the-planned-closure-of-chuckawalla-valley-state-prison/. ↩︎
5. Six incarcerated people are housed at the Community Prisoner Mother Program as of September 13, 2023.  (See Exhibit A.) ↩︎
6. This statistic excludes incarcerated persons housed in other states under interstate compact agreements.  ↩︎
7. This number excludes inmates who were eligible for Proposition 36 resentencing but released in other ways (e.g. Proposition 47 resentencing or nonviolent parole process). ↩︎
8. Of the 45 applications granted, seven applications were initiated prior to January 1, 2023. ↩︎
9. Penal Code section 1172.1 was renumbered from Penal Code section 1170.03 by Cal. Stats 2022 ch 58 § 9 (AB 200), effective June 30, 2022. ↩︎

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