As previously mentioned, several issues concerning the Proposition 57 nonviolent parole review process have been the subject of litigation. Below is a summary of some of the significant issues recently addressed or currently pending before the courts.

Issue: Can Incarcerated Persons Be Excluded from Nonviolent Parole Consideration Based on Past or Current Sex Offenses?

Resolved by California Supreme Court, December 2020. In re Gadlin; (2020) 10 Cal.5th 915. The Court held CDCR’s regulations cannot exclude persons for any prior conviction because Proposition 57’s text indicates that parole eligibility is based solely on the person’s current offenses. The Court also held the regulations cannot exclude people for a current offense not defined by the regulations as a violent felony. The Court directed CDCR to treat as void and repeal title 15, sections 3491, subdivision (b)(3) and 3496, subdivision (b) and to make any necessary conforming changes to the regulations.

Issue: Should Persons Convicted of Both Violent and Nonviolent Offenses Be Considered for Nonviolent Parole?

Pending in the California Supreme Court. In re Mohammad; No. S259999. Proposition 57 amended the California Constitution to provide for early parole consideration for persons convicted of nonviolent felonies. The question presented: Does the text of Proposition 57 preclude consideration of the ballot materials to discern the voters’ intent and prohibit CDCR from enacting implementing regulations that exclude persons who stand convicted of both nonviolent and violent felonies from early parole consideration?

Issue: Should Credits Be Applied Toward a Nonviolent Parole Eligible Date?

Resolved in the Third District Court of Appeal, November 2020. In re Canady; (2020) 57 Cal.App.5th 1022. The court held that the constitutional amendment providing that a person shall be eligible for parole consideration after serving the “full term for the primary offense” refers to the sentence imposed by the court without including conduct credits.

Issue: Does a Paper Review Process for Determinately-Sentenced Persons Convicted of Nonviolent Offenses Satisfy the Constitution?

Resolved in Fourth District Court of Appeal, February 2021. In re Kavanaugh; (2021) 61 Cal.App.5th 320. The court concluded that nonviolent parole regulations providing a paper review process for determinately-sentenced persons is consistent with article I, section 32 of the constitution and does not violate procedural due process.

Pending in Third District Court of Appeal. In re Flores; No. C089974. At issue in this habeas appeal is whether determinately-sentenced persons convicted of

nonviolent offenses are entitled to the same process and protections provided to persons serving life with the possibility of parole under In re Lawrence, including the right to attend a live hearing.

Pending in the Fifth District Court of Appeal. In re Ernst; No. F08138. At issue in this habeas appeal is whether the nonviolent parole regulations providing a paper review process for determinately-sentenced persons is consistent with article I, section 32 of the constitution, and whether the process violates procedural due process.