DETERMINATELY‑SENTENCED NONVIOLENT OFFENDER PAROLE REVIEW
Determinately-sentenced nonviolent offenders are also eligible for parole consideration by the Board. In 2015, the Board began reviewing nonviolent “second strikers” for parole once they had served 50 percent of their full sentence pursuant to an order of the Three-Judge Panel in the Plata/Coleman class action litigation. This program was replaced in 2017 by the parole review process for determinately-sentenced nonviolent offenders under Proposition 57.48
Under Proposition 57, CDCR refers certain determinately-sentenced nonviolent offenders to the Board for review and possible release, once they have served the full term of their primary offense49. Persons are reviewed for release based on their criminal history, a review of their institutional records, and after consideration of input received from the inmate, victims, victims’ families, and the district attorney’s office that prosecuted the person.50 Unlike the parole hearing process for long-term inmates, parole reviews for determinately-sentenced nonviolent inmates are administrative or “paper” reviews; not in-person hearings.51
As mentioned above, the nonviolent offender parole review process replaced an almost identical parole review process that had been in place since January 2015 as a result of a federal court order issued in February of 2014. As a result of that court order, the state implemented the nonviolent, second-strike parole review process. The majority of determinately-sentenced inmates eligible for the nonviolent offender parole review process under Proposition 57 are the same inmates who were eligible for parole review under the nonviolent, second-strike parole review process ordered by the court.
Inmates Eligible for Nonviolent Offender Parole Review
Inmates sentenced to a determinate term of imprisonment are eligible for the nonviolent parole review process.52 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.53 Additionally, the inmate must not be serving a term of incarceration for a violent felony as defined in Penal Code section 667.5, subdivision (c).54 Inmates who are required to register as a sexual offender under Penal Code section 290 are also not eligible for the nonviolent offender parole review process.55
Inmates convicted of nonviolent offenses will be reviewed for eligibility by CDCR.56 Once an inmate is determined to be eligible for the process, the Department will determine when the inmate will have served the full term of his or her primary offense. This date is called the inmate’s nonviolent parole eligible date.57 Inmates are provided written notice of their eligibility and their nonviolent parole eligible date.58 Eligibility determinations are subject to appeal through the Department’s inmate appeal process.59
When Eligible Determinately-Sentenced Nonviolent Offenders Are Referred to the Board of Parole Hearings for Review
Inmates are referred to the Board for a parole review 35 days before their nonviolent parole eligible date so long as they have at least 180 days remaining to serve.60 Inmates are provided written notice of the outcome of the referral decision by CDCR.61 Referral decisions are subject to appeal through the Department’s inmate appeal process.62 Inmates who are referred to the Board will be provided a written explanation of the Board’s nonviolent offender parole review process, including notification that they have an opportunity to submit a written statement for the Board’s consideration when determining whether the inmate should be released.63 Written statements should be submitted to the Board by the inmate within 30 days of the date the inmate is referred to the Board.
Parole Consideration for Determinately-Sentenced Nonviolent Offenders
If the Board confirms the inmate is eligible for parole consideration, the Board will send notices within five business days to victims and their family members who are registered with CDCR’s Office of Victim & Survivor Rights & Services.64 The Board will also send a notice to the district attorney’s office that prosecuted the inmate.65 The notices alert the victim, victim’s family, and the district attorney’s office that the inmate has been referred to the Board for review and possible release. The notices also explain that victims, their families, and the district attorney’s office have an opportunity to submit a written statement to the Board for its consideration when determining whether the inmate should be released. Written statements should be submitted to the Board by the victim, victims’ family, and the district attorney’s office within 30 days from the date of the Board’s notice.66
Once the 30 days has passed, the Board will assign the case to a deputy commissioner. The first thing the deputy commissioner will do is review the case to confirm the inmate is eligible for the nonviolent offender parole review process.67
If the deputy commissioner finds the inmate is not eligible, the deputy commissioner will issue a written decision with a statement of reasons explaining why the inmate will not be considered for release. The inmate will receive a copy of the decision and any victims, victims’ family members, and the district attorney’s office that received notice of the inmate’s referral to the Board will be notified.68
If the deputy commissioner confirms the inmate is eligible for parole review, he or she will review the case to determine if the inmate would pose a current, unreasonable risk of violence or a current, unreasonable risk of significant criminal activity if released. This is referred to as a review on the merits. The review is patterned after a risk-based, structured decision-making model for determining whether the inmate poses a current, unreasonable risk of violence or an unreasonable risk of significant criminal activity.69
Accordingly, the deputy commissioner will weigh a variety of factors and the person will be released if factors aggravating the person’s risk do not exist or if they are outweighed by factors mitigating the inmate’s risk. The deputy commissioner will consider factors such as the circumstances surrounding the inmate’s current conviction(s), the inmate’s criminal history and institutional behavior including rehabilitative programming and institutional misconduct, as well as any input from the inmate, victims, victims’ family members, and the district attorney’s office.70
The deputy commissioner will issue a written decision with a statement of reasons supporting the decision.71 Inmates who have more than two years left to serve on their sentence at the time of the Board’s review must be reviewed and approved by a supervising deputy commissioner.72 Inmates approved for release by the Board will be processed for release 60 days from the date of the Board’s decision.73 Inmates who are denied release will be eligible for possible referral to the Board again one year later.74 The inmate will receive a copy of the Board’s decision and victims, victims’ family members, and the district attorney’s office that received notice of the inmate’s referral to the Board will be notified of the Board’s decision.75
Review of the Board’s Decision
Within 30 days of being served with the decision concerning jurisdiction or a review on the merits, the inmate may request review of the decision. A hearing officer who was not involved in the original decision shall complete review of the decision within 30 calendar days of receipt of the request and will document the decision in writing. The inmate will receive a copy of the Board’s decision and victims, victims’ family members, and the district attorney’s office that received notice of the inmate’s referral to the Board will be notified of the Board’s decision.76
Referrals and Approvals
More than 8,000 determinately-sentenced persons convicted of nonviolent offenses have been approved for release since 2015. The Board has approved 3,680 persons for release under Proposition 57 (July 2017 through September 2020) and 4,336 persons under the parole consideration process ordered by the Three-Judge Panel in the Plata/Coleman class action litigation (January 2015 through June 2017).
Between July 1, 2017 and August 31, 2020, the Board received 21,943 referrals for nonviolent offender parole review. In fiscal year 2021-22, the Board projects 5,881 nonviolent offenders will be referred to the Board for parole review under this program.