Recall and Resentencing Referral Program
The California Department of Corrections and Rehabilitation (CDCR) has implemented a new process to fully apply the law for identifying and referring incarcerated people for recall of sentence and resentencing pursuant to California Penal Code (PC) section 1170(d)(1). Consideration is made in the following circumstances:
- When there is a discrepancy in sentencing due to errors or changes in the law;
- When a referral is received from the head of a law enforcement agency, prosecutorial agency, or judicial officer; or
- When a person’s behavior while incarcerated demonstrates sustained compliance with departmental rules, regulations, and requirements as well as prolonged participation in rehabilitative programming.
Referring cases pursuant to PC Section 1170(d)(1) to the sentencing court for review helps to ensure that state prison is reserved for people who continue to pose an unreasonable risk of violence to society and whose sentences are applied correctly and according to any applicable changes in law, and enables CDCR and the sentencing court to identify truly reformed individuals and consider whether their incarceration continues to be in the interest of justice, given their rehabilitation and personal growth.
CDCR filed emergency regulations with the Office of Administrative Law (OAL) in January 2020 to put criteria for referrals under the PC Section 1170(d)(1) process into regulations. These emergency regulations are in effect through May 10, 2021. Pursuant to the Administrative Procedure Act process, CDCR has submitted permanent regulations for review, to include a public hearing and opportunity for public comment. The full regulation package may be viewed here.
Pursuant to state law, PC section 1170(d)(1) does not apply to people condemned to death or sentenced to life without the possibility of parole. While CDCR recognizes the hard work of many serving such sentences, the Department is bound by state law.
Additionally, each referral category has exclusionary criteria.
- Not required to register pursuant to PC 290 (sex offenders) as a tier 2 or 3 offender.
- Beginning January 1, 2021, California Penal Code established tiers for registration. A tier one offense is not considered a serious or violent felony and requires registration for a minimum of 10 years, whereas tier 2 and tier 3 offenses require registration for a minimum of 20 years and life, respectively.
- Must have served at least 10 continuous years in CDCR custody.
- CDCR determined that 10 years is a sufficient length of time to ensure the individual has demonstrated a pattern of positive behavior and programming for a sustained period of time.
- Not found guilty of a serious or violent rules violation (Divisions A-D) within the last five years, or have a serious or violent rules violation pending.
- Such rules violations include but are not limited to murder, rape, battery, assault, arson, escape, possession/distribution of contraband, possession of a cellphone, and gang activity.
- Not scheduled for release within the next 18 months.
- Not eligible for parole consideration within the next 18 months, whether indeterminately or determinately sentenced.
- Have not had a parole suitability hearing, whether the individual is indeterminately sentenced or eligible for parole consideration under Elderly Parole, Youth Parole, or Second Striker Parole Eligibility.
- Must not be serving the lowest legal term for an individual offense, as the court may not impose a lesser sentence than the lowest legal term.
- Not scheduled for release within the next six months.
Changes in sentencing laws
- Have served five continuous years in CDCR custody
- Not have been found guilty of a serious or violent rules violation (Division A-D) within the last year, or have a serious or violent rules violation pending.
- Not scheduled for release within the next 18 months
- Not eligible for parole consideration within the next 18 months
- Not have had a parole suitability hearing
The process calls for meticulous review of an individual’s in-prison conduct, reserving sentencing court referral for those whose behavior and rehabilitative accomplishments are truly remarkable. These are incarcerated people who have demonstrated sustained compliance with departmental rules and have taken ownership of their own rehabilitation through prolonged participation in education, vocation, and self-help programs. Their conduct while incarcerated has inspired others and contributed to safer prisons for staff, visitors, volunteers and incarcerated people, in line with CDCR’s mission to enhance public safety through safe and secure incarceration of individuals and rehabilitative strategies to successfully reintegrate them into our communities.
CDCR will conduct a thorough and complex screening of identified individuals, taking into consideration individual case factors, criminal history, victims, input from institutional staff and Wardens, and other factors. Upon the Secretary’s approval, the case will be sent to the court of commitment for consideration. The court may choose to recall the sentence and commitment, and resentence the individual in question as if they had not previously been sentenced. The court may also decide to let the original sentence stand, or may choose to not respond to the referral at all. If the court resentences the individual, the prison’s Case Records Unit is required to audit all legal documents and recalculate the release date accordingly.
CDCR will review all referrals received by Wardens, the Director of the Division of Adult Institutions, or the Secretary. Referrals will not be accepted from incarcerated people or other parties on their behalf. Individuals such as family, friends, and volunteers or program providers do not have access to all of an individual’s case factors and institutional records, which are necessary to determine the individual meets eligibility criteria.
Recommendations for consideration for exceptional conduct referral must come from the Warden at the institution where the individual is currently housed. If your loved one meets the eligibility criteria and believes their conduct has truly been exceptional, they should contact an institutional staff member, such as their Correctional Counselor, to request the consideration be discussed with the Warden. If the Warden agrees, the referral will be sent to CDCR headquarters to begin the process.
CDCR will also consider cases submitted for 1170(d)(1) review that are referred by law enforcement partners, including the head of a law enforcement agency, head of a prosecutorial agency, or judicial officer. These agencies sometimes reach out to incarcerated people for assistance with criminal cases, and the information they receive may result in further criminal convictions for unsolved crimes. In some instances the case may not have been solved without the assistance of the incarcerated individual.
CDCR may make referrals for recall of commitment under PC 1170(d)(1) due to sentencing errors or based on new legislation or case law. Case law is ever-changing, and a thorough review of sentences possibly impacted by changes in the law will be conducted by CDCR’s Office of Legal Affairs (OLA). Those possibly impacted by changes in the law will have their cases reviewed and sent to CDCR’s Secretary for approval before being submitted to the sentencing court.
CDCR and the Division of Adult Parole Operations (DAPO) will work with the courts and referred individuals to best prepare them to transition back to the community. While parolees are required by law to be placed in their county of last legal residence, DAPO may authorize placement in a different county if it is determined to be in the best interest of the parolee, victims, and public safety. The court does not have the authority to transfer parole to a separate county. If the individual or the court are interested in parole to a particular county, the court should direct the parolee to report to their assigned parole unit and immediately begin the process of requesting transfer to another county. Additionally, the court may request that the individual waive custody credits in order to allow time to complete pre-release planning, including transitional program placement, gate funds, medications and benefits applications.
When an individual is referred to the court for recall of sentence based on exceptional conduct, or when referred for review by law enforcement partners, CDCR’s Office of Victim and Survivor Rights and Services (OVSRS) will notify all victims registered with them to receive information about that individual of the Department’s decision to refer the inmate to the sentencing court within 10 business days of OVSRS being notified of the referral.
In cases of individuals referred to CDCR for 1170(d)(1) review due to sentence discrepancies or retroactive changes in law, OVSRS will notify all victims registered to receive information about that individual of the court’s decision within 10 days of the court setting a court hearing date.