Are indeterminately-sentenced nonviolent offenders eligible for the nonviolent parole consideration process under Proposition 57? When the Proposition 57 regulations were adopted in May 2018, they excluded indeterminately-sentenced offenders (nonviolent Third Strikers) from the nonviolent parole consideration process. This exclusion was challenged in court, and on September 7, 2018, the Second District Court of Appeals ordered the department to amend its regulations and expand nonviolent parole consideration under Proposition 57 to include indeterminately-sentenced nonviolent offenders.
Has CDCR amended the current regulations? On December 11, 2018, CDCR filed proposed emergency regulations with the Office of Administrative Law (OAL) to expand nonviolent offender parole consideration under Proposition 57 to include indeterminately-sentenced nonviolent offenders, creating two separate processes for nonviolent offenders.
(Note: A determinate term is a sentence of specified length. An indeterminate term is a sentence of unspecified length which ends only when the inmate is granted parole by the Board of Parole Hearings (the Board).)
When will the emergency regulations go into effect? The nonviolent offender parole hearing process was enacted by emergency regulations filed by the California Department of Corrections and Rehabilitation that took effect on January 1, 2019. Implementation of nonviolent offender parole review hearings was mandated by the passage of Proposition 57, The Public Safety and Rehabilitation Act of 2016, approved by the voters in November 2016. Referrals of nonviolent offenders to the board for parole hearings began in January 2019. The emergency regulations will be in temporary emergency effect, and will remain in effect for 160 days from the effective date.
Does the nonviolent Third Striker parole process differ from the one established under Proposition 57? Yes. Indeterminately-sentenced offenders referred to the Board will get a full in-person parole hearing. If they are granted parole, the decision will be reviewed by the Board and the Governor. A grant of parole may be vacated or rescinded. The current nonviolent parole consideration process for determinately-sentenced offenders consists of a paper review by Deputy Commissioners, and the Governor does not have the authority to overturn the decisions.
What is the eligibility process? Only nonviolent offenders sentenced to an indeterminate term (life with the possibility of parole) are eligible for a nonviolent parole hearing. The inmate must have completed the full term of his or her primary offense, which is the single crime for which a court imposed the longest term of imprisonment. For purposes of determining an inmate’s primary offense, the term of imprisonment for inmates sentenced to a life term under an alternative sentencing scheme for a nonviolent crime shall the be the maximum term applicable by statute to the underlying nonviolent offense.
At least 180 days before an inmate’s nonviolent parole eligible date, he or she will be referred to the board for a parole suitability hearing and possible release, if the inmate has not already had a parole suitability hearing and is not scheduled to have one within 12 months pursuant to any other provision of law.
Inmates will receive written notice about six months in advance of their parole suitability hearing date. Notices of the hearing will be sent to victims and their family members who are registered with the Office of Victim and Survivor Rights and Services. The board will also send a notice to the District Attorney’s office that prosecuted the inmate.
Which inmates are eligible for the indeterminately-sentenced nonviolent parole process? To be considered an “indeterminately-sentenced nonviolent offender,” the offender must be sentenced to an indeterminate term and must meet the following criteria:
- Not condemned to death
- Not serving life without the possibility of parole
- Not serving a sentence for a violent felony as defined by California Penal Code section 667.5, subdivision (c).
- Not serving a determinate term prior to beginning a life term for a violent felony.
- Not serving a term for a nonviolent felony after completing a concurrent determinate term for a violent felony.
- Not currently sentenced for a violent felony for an in-prison offense.
- Has not completed an indeterminate term and is currently serving a determinate term for an in-prison offense.
What will happen after the offender is referred to the Board? Unlike the determinately-sentenced nonviolent parole process (see FAQ), the indeterminately-sentenced nonviolent parole process will consist of an in-person, full board hearing, similar to parole suitability hearings already undertaken by the Board for other life-term inmates, youth offenders, and inmates eligible for elderly parole. Parole hearing decisions are proposed decisions for up to 120 days and are subject to review by the Board’s Chief Counsel. Offenders denied parole will be denied parole for a period of 3, 5, 7, 10, or 15 years under Marsy’s Law. Offenders may have their next parole hearing date advanced if there is a change in circumstances or new information such that there is a reasonable likelihood that additional incarceration is no longer necessary to protect the victim and public.
When did hearings begin? Hearings began in June 2019. The Board will have until the end of 2020 to provide hearings for offenders who are immediately eligible for a hearing, have served 20 years, and who were already scheduled to have a parole hearing in the next five years based on their original sentence.
The Board will have until the end of 2021 to provide a hearing for all other offenders who will be immediately eligible for a hearing under this process.
Will the Governor review the decisions? The Governor can review parole decisions and take no action, or refer the case for review by the full Board. The Governor can only overturn parole grants for people convicted of murder, which would not be applicable to indeterminately-sentenced nonviolent offenders under this process.