INTRODUCTION, DEFINITION, AND HISTORY OF NONVIOLENT PAROLE REVIEW
This document provides an overview of the California Department of Corrections and Rehabilitation’s (CDCR) nonviolent parole review process implemented under Proposition 57 (approved by the voters in November 2016). Under Proposition 57, persons convicted of nonviolent offenses are eligible for parole consideration by the Board of Parole Hearings (Board) once they have served the full term of their “primary offense,” which is defined as the longest term of imprisonment imposed by the court, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.i
DEFINITION OF NONVIOLENT OFFENSE
Regulations implementing Proposition 57’s parole consideration process went into effect on July 1, 2017.ii Under the regulations, a nonviolent offense is any crime not listed as a “violent felony” under Penal Code section 667.5, subdivision (c).iii
It is important to note that although most nonviolent crimes involve criminal conduct in which there is no physical injury, many crimes involving physical injury or threat of physical injury are considered “nonviolent” because they are not a “violent felony” under Penal Code section 667.5, subdivision (c). Examples of crimes excluded from the definition of a violent felony under Penal Code section 667.5, subdivision (c) that involve physical injury or threat of physical injury include the following:
HISTORY OF NONVIOLENT PAROLE REVIEW
Overview- The nonviolent parole review process actually began prior to Proposition 57 and the number of people eligible for parole review has expanded significantly as a result of litigation since Proposition 57 was first enacted.
The Proposition 57 nonviolent parole review process was patterned after a similar process referred to as the nonviolent, second-striker parole review process, implemented in January 2015 under a court order by the Three Judge Panel in the Plata/Coleman class action litigation.iv The parole review process was one of several initiatives in the court order intended to reduce the prison population so that a constitutional level of medical and mental health care could be provided. Key provisions of the court-ordered nonviolent, second-striker parole review process included the following:
- Eligibility – persons sentenced to a second strike for a felony offense that was not a violent felony under Penal Code section 667.5, subdivision (c) were eligible for parole consideration
- Time Served – persons were eligible once they served 50 percent of their total term
- Exclusions – indeterminately-sentenced persons and people required to register as a sex offender were excluded
- Additional Requirement – eligible persons had to pass public safety screening criteria to be referred to the Board for parole consideration; the public safety screening criteria excluded persons from parole consideration based on negative in-prison behavior, such as two or more serious rules violations within the preceding year or a Security Housing Unit term within the preceding five years.v,vi
Proposition 57 expanded the criteria for nonviolent parole consideration. As originally enacted in 2017, all determinately- sentenced persons convicted of nonviolent offenses were eligible for parole consideration under
Proposition 57, not just persons whose sentences had been doubled as a second strike. As a result, persons sentenced to multiple consecutive terms without a second strike were eligible for the process under Proposition 57. In addition, many were eligible for parole review earlier in their sentence – once they served the full term of their primary offense, rather than 50 percent of their total term.
As illustrated below, under Proposition 57 the amount of time some people have to serve before they are eligible for parole consideration is the same as it was under the court-ordered process; however, for others it is much less than 50 percent of their total term, depending on their convictions and how they were sentenced.
As a result, when Proposition 57 was first implemented, many people eligible for parole review had more recent criminality (i.e., they were eligible for parole consideration earlier in their term, prior to serving 50 percent of their sentence) and many had more criminality (i.e., more convictions) than those who were eligible under the court-ordered process.
In addition, expanded credit earning under Proposition 57 went into effect in August of 2017. This means that persons who behave well and engage in rehabilitative programming in prison and who are serving the shortest sentences for nonviolent offenses are now often released “on the natural” based on the sentence imposed by the court and their credit earning rather than being referred to the Board for parole consideration, as they were under the court-ordered process. Only persons serving longer sentences for nonviolent offenses or persons whose release dates have been extended as a result of rules violations are incarcerated long enough to be considered for parole by the Board under Proposition 57.
Lastly, as initially enacted, the Proposition 57 nonviolent parole review process excluded persons required to register as a sex offender and eligible persons had to pass the same safety screening criteria used for the court-ordered process to be referred to the Board for parole consideration.
Expansion of Proposition 57 by Case Law
As mentioned above, the nonviolent parole review process under Proposition 57 has been the subject of significant litigation, which has further expanded the number of persons eligible for parole consideration. For example, in July 2019, CDCR removed the public safety screening criteria in response to the First Appellate District Court of Appeal’s decision in In re McGhee and indeterminately-sentenced persons convicted of nonviolent offenses became eligible for parole consideration as a result of the Second District Court of Appeal’s decision in In re Edwards.vii Lastly, persons convicted of nonviolent offenses who are required to register as a sex offender are now eligible for parole consideration under the California Supreme Court’s decision in In re Gadlin.viii
Below is a timeline of significant events associated with the nonviolent parole review process.
As a result of the significant changes in the law governing the nonviolent parole review process described above, the number of determinately-sentenced persons referred to the Board and the number approved for release has varied annually since 2015:ix
The number of determinately-sentenced persons approved for release has also varied annually from a high of 1,801 in 2017 to a low of 860 in 2019:
The percentage of determinately-sentenced persons approved for release has varied from a high of 51 percent in 2015 for nonviolent, non-sex registrant, second-strikers who had served at least 50 percent of their term with no recent rules violations under the court-ordered process to a low of 17 percent for persons convicted of nonviolent offenses who served the full term for their primary offense regardless of their recent in-prison behavior, and who were not otherwise released “on the natural” with increased credit earning under Proposition 57 in 2020.
The Board has found that each time parole eligibility is quickly expanded, the initial impact is that incarcerated people are considered for parole who were not expecting it. Often persons are considered for parole who have not had the opportunity or incentive to actively engage in rehabilitative programming. However, as eligibility criteria stabilizes and more people are determined to be eligible for parole consideration upon admission to CDCR, more people are expected to actively participate in rehabilitative programming earlier in their incarceration and the number of people approved for release increases.
This section provides a more detailed explanation of the administrative procedures and timelines associated with the Proposition 57 nonviolent parole review process for determinately-sentenced persons. As mentioned above, determinately-sentenced persons convicted of nonviolent offenses are eligible for parole consideration under Proposition 57 once they have served the full term of their primary offense. Proposition 57 defines primary term as “the longest term of imprisonment imposed by the court for any offense, excluding the imposition of an enhancement, consecutive sentence, or alternative sentence.”x
A Nonviolent Parole Eligible Date (NPED) is the date on which the person is first eligible for parole consideration. Within 60 days of admission to prison, Case Records staff determine a person’s eligibility for parole consideration and if eligible, calculate the person’s NPED. An NPED is calculated by first identifying the longest term of imprisonment that is not an enhancement or alternative sentence and then subtracting any days the person has spent in custody prior to admission to CDCR.xi Eligibility determinations and NPED calculations are served on the incarcerated person within 15 days and are subject to CDCR’s administrative appeal process to address any alleged errors.xii
A person is referred to the Board for parole consideration 35 days prior to their NPED so long as they have at least six months remaining to serve on their sentence and they are not, or will not within a year, be eligible for a parole consideration hearing as a determinately-sentenced youth offender or as a determinately-sentenced person eligible for a parole hearing under elderly parole.xiii If the person is not approved for release, they are eligible for review and possible referral to the Board again annually.xiv When a person is referred for parole consideration, they are served with a Notice of Rights explaining the process, including the opportunity to submit a written statement to be considered by the Board.xv
Below is a timeline of procedures once a determinately-sentenced person is referred for parole consideration under Proposition 57.xvi
The Board’s deputy commissioners are responsible for reviewing determinately-sentenced persons for discretionary release under Proposition 57. The Board’s deputy commissioners are experienced attorneys and their civil service classification is administrative law judge. The Board employs about 50 administrative law judges.
Deputy commissioners come from a wide variety of professional backgrounds and experience. Many have private practice experience in family law, criminal defense, immigration, workers’ compensation, and taxation. Others have experience in the public sector as public defenders and prosecutors. Some have experience working with nonprofit entities, and in juvenile dependency proceedings. Lastly, a few have experience as a judge or judge pro tem or served in the military, and one has experience in law enforcement.
New deputy commissioners receive a minimum of eight weeks of training, and all their decisions are monitored and reviewed for the first six to eight months, followed by periodic review thereafter. In addition, deputy commissioners receive continuing education monthly. Training topics for deputy commissioners include the law governing the Board’s decisions, risk assessment, correctional policies and procedures, disabilities and reasonable accommodations under the Americans with Disabilities Act, ethics, implicit bias, and structured decision-making.
In addition to conducting nonviolent parole reviews under Proposition 57, deputy commissioners also serve on hearing panels with commissioners for parole suitability hearings (i.e., parole hearings for persons serving life with the possibility of parole, youth offenders, elderly parole, and medical parole). They also conduct annual and certification hearings under Penal Code section 2960 et seq. for persons with mental health disorders, review parolees for discharge from supervised release, and adjudicate a variety of pre-hearing matters for the Board’s parole hearing process.
When conducting a nonviolent parole review under Proposition 57, deputy commissioners must review and consider all relevant and reliable information, including:
- information contained in the incarcerated person’s central file, including their California Static Risk Assessment score;
- the person’s criminal history;
- any return to prison with a new conviction after previously being approved for release under Proposition 57; and
- written statements by the incarcerated person, registered victims, and the prosecuting agency.xvii
Incarcerated persons are approved for release if they do not pose a current, unreasonable risk of violence or a current unreasonable risk of significant criminal activity.xviii Deputy commissioners are required to evaluate specific risk factors concerning the person’s current conviction(s), prior criminal behavior, institutional behavior, work history, and rehabilitative programming. The Board’s regulations list specific evidence-based factors that aggravate or mitigate the person’s risk. For example, crimes in which a person personally used a deadly weapon aggravate the person’s risk, whereas crimes that do not involve personal use of a deadly weapon mitigate the person’s risk.xix
Deputy commissioners render a decision based on the totality of the circumstances.xx Incarcerated persons shall be approved for release if factors aggravating their risk do not exist or if they are outweighed by factors mitigating their risk. Deputy commissioners must also take into account the relevance of the information based on the passage of time, the person’s age, and the person’s physical and cognitive limitations, if any.xxi Decisions are rendered in writing and must include a statement of reasons supporting the decision.xxii Decisions approving a person for release two or more years prior to the end of their term must be reviewed and approved by a supervising deputy commissioner.xxiii
Incarcerated persons may request review of a Board decision within 30 calendar days of being served the decision.xxiv In addition, the Board may at any time prior to a person’s release, review its decision if the decision contained an error of law, an error of fact, or if the Board receives new information that would have materially impacted the previous decision had it been known at the time the decision was issued.xxv A deputy commissioner not involved in the original decision will review the decision within 30 days and determine whether to concur with the original decision or overturn it.xxvi The resulting written decision must be supported by a statement of reasons.xxvii The incarcerated person, registered victims, and prosecutors are notified of the outcome.xxviii
Persons approved for release are released 60 days from the date of the Board’s decision and persons denied release are reviewed again annually until they are either approved for release by the Board, they are released “on the natural” based on the sentence imposed by the court, or they become eligible for a parole consideration hearing as a determinately-sentenced youth offender or under elderly parole.xxix