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May 22, 2017

California struggles over whether all sex offenders can be excluded from Prop 57 parole reforms aimed at non-violent offenders

This new Los Angeles Times article, headlined "Debate over sex offenders moves to court as California undertakes prison parole overhaul," provides an updated on the legal and policy issues surrounding sex offenders in the wake of a California ballot initiative intended to help non-violent offenders get an earlier chance for parole. Here are excerpts:

Los Angeles-based nonprofit is claiming California prison officials have undermined last fall’s ballot measure to overhaul the state’s parole process by excluding sex offenders from consideration for early release. The Alliance for Constitutional Sex Offense Laws, which advocates for the rights of those convicted of sex crimes and their families, says the exemption — written into newly released guidelines to implement Proposition 57 — “impermissibly restricts and impairs the scope” of the initiative.

Those regulations were released in March and won initial approval from state regulators a month later. But the original ballot measure did not exclude inmates convicted of sex crimes from the chance of getting an earlier hearing before the state parole board.

The group filed the lawsuit in late April against the state Department of Corrections and Rehabilitation and its director, Scott Kernan. It argues the new rules are unconstitutional and it asks a judge to order corrections officials to withdraw and repeal them, according to the complaint filed in Sacramento County.

“We want the benefits of Proposition 57 to be provided to people who have been convicted of ‘non-violent’ sex offenses,” said attorney Janice Bellucci, who is representing the alliance and an inmate who brought the case forward. “It is a basic rule of law that regulations cannot be broader than the law that they are implementing.”...

Debate over the treatment of sex offenders under Proposition 57 has simmered since last fall’s campaign season. But at that point, the outcry came from law enforcement officials and prosecutors who argued they did not want to see the ballot measure’s benefits extended to rapists and child molesters.

The sweeping initiative, approved by 65% of voters, gave new power to the State Board of Parole Hearings to grant early release to prisoners whose primary sentences are for crimes not designated as “violent” under California law. It also provided new ways for all inmates to earn time credits toward their sentences for good behavior and for enrolling in certain career, rehabilitation and education programs.

Opponents of Proposition 57 warned that the list of crimes under the violent felony penal code was short and porous, inspiring efforts in the Legislature this session to expand the definition of what constitutes a violent crime under state law. In his January budget proposal, Gov. Jerry Brown attempted to address those concerns, directing the state corrections department to exclude all sex offenders from early parole consideration. The department’s new parole guidelines are expected to receive final approval in the fall after a public comment period. Changes to how inmates can earn credits, which can help reduce their sentences, are already underway, while the new parole eligibility requirements won’t take effect until July.

But the advocacy group that filed the lawsuit wants the state agency to revise its rules. It contends that there was plenty of public debate over sex offenders during the Proposition 57 campaign — and that even then, voters passed the measure.... The lawsuit alleges the new exclusion applies to a whole class of nonviolent offenders, including people charged with crimes where there was no sexual contact with a victim.

As of Dec. 31, the number of inmates in California prisons who would have to register as sex offenders upon release stood at 22,455, less than 20% of the population housed at state prisons. Nearly 18,000 were designated as “violent” offenders, while more than 4,521 were considered “nonviolent,” according to state corrections officials.

Bellucci said those cases could include a diverse group of offenders. In theory, she said, the new regulations could unfairly penalize an 18-year-old convicted of public indecency for streaking in high school, or a 16-year-old sentenced for child pornography after distributing nude photos of herself. “Anybody who has been convicted of a violent offense, like rape, Prop. 57 doesn’t apply to them,” Bellucci said. “We are talking about nonviolent offenses, which includes these non-contact offenses.”

I would be shocked to learn that California has any teenage streakers or sexters imprisoned for lengthy periods now hoping to get early parole. I suspect the more realistic example of the sex offender who might claim to be non-violent and seek early parole are California variations on offenders like Jared Fogle or Anthony Weiner, i.e., older men involved with child pornography or perhaps other kinds of sexual activity with underage persons.  It will be interesting to see if the California courts allow of prohibit these kinds of offenders from being excluded from the reforms of Prop 57.

May 22, 2017 at 09:54 AM | Permalink

Comments

Once again my constant complaint over the last few years vividly springs to life: the term "violent" has nothing to do with actual physical violence, or even the risk of physical violence, but is entirely a term of art. In my view it has become just like "hate" crimes. It is term used not to describe an actual action or motivation but to express the public's outrage at a particular class of offender. A violent crime or a hate crime isn't a crime that actually involves violence or hate but one which the community feels is especially blameworthy.

The problem with this mangling of language is that it undermines democracy. People think they are voting for one thing when they are actually voting for something else. Rational people lack due notice of the penalty for their contemplated conduct. And here, in CA, we see a significant ex-post facto problem with the legislature changing the meaning of the word after the proposition has already passed.

Posted by: Daniel | May 22, 2017 10:35:39 AM

California continues its "Hate S*x Offenders Today!!" campaign. Great reason to never support that criminal regime and their employees, especially law enforcement.

Posted by: FRegistryTerrorists | May 22, 2017 12:36:40 PM

Denying non-violent former sex offenders an equal chance of parole with other non-violent offenders could spark major unrest in California's prisons, depending on the number of violent ex-sex offenders to be affected by this proposal.

I could envision a scenario were a large concentration of such former sex offenders in a major part of a prison decide to get militant like Attica's inmates did back in 1971. If the Corrections Department instead of another law enforcement supports such parole eligibility restriction, this decision could come back to haunt the Corrections Department if embittered former sex offenders turn to violence against staff and corrections officers to make their point. With no incentive to behave themselves while still behind, this hair brained decision to deny non-violent sex offenders the same opportunities for parole as other non-violent offenders, would become the Corrections Department's worst nightmare. When inmates have no incentives to behave or to look forward to something, they then have nothing to lose by wrecking the prisons.

Posted by: william r. delzell | May 22, 2017 3:32:48 PM

Daniel,there is a simple remedy to non contact sex offenders sentenced as violent offenders. Just change the definition of violent in the Webster dictionary. In all the dictionaries. When there is a witch hunt, you can get away with just about anything. Even changing the definition of a simple, concise word.

Posted by: tommyc | May 22, 2017 7:00:44 PM

Bernie Madoff was a non-violent offender. Should he be eligible for parole soon?

Posted by: civil Disobedience | May 22, 2017 10:19:33 PM

The primary responsibility of California prison officials should be to look after the safety of their fellow officers and staff members. Any law or ruling that puts such safety at risk should be vigorously opposed. The suggestion by California prison officials to exclude non-violent (non-contact/non-threatening) former sex offender from the parole eligibility available to other non-violent offenders is an example of what CAN put corrections officers and other prison staff at risk for their own personal safety.

Without hope of parole, then non-violent former sex offenders who are still serving their prison time will no longer have any incentive to behave themselves before their jailers. In fact, don't be surprised if these disgruntled former sex offenders decide to lash out at their keepers by means that COULD include violent outbursts that take the form ranging from assault to outright murder.

The prison officials who oppose extending such parole eligibility to non-violent sex offenders are putting guards and other staff at needless risk to their own safety. Working inside a prison is dangerous enough without any stupid law to aggravate this danger.

Regular corrections officers and low-level prison staff should be out on the streets raising hell against this proposal by their right-wing Tea Party bosses. The prison officials who support excluding non-violent former sex offenders from the same parole eligibility as other non-violent inmates have betrayed their fellow staff members and should be thrown out of their jobs!

Posted by: william r. delzell | May 23, 2017 10:25:44 AM

In my opinion: The prison system and the judicial system are all about revenue. I find it unconstitutional for the people of America. Where is the reform and rehabilitation? Do District Attorney's really think a person will live 90 or 180 years? What kind of Jury or Grand Jury allows this behavior of our present day DA's? When a District Attorney finds out that the defendant was innocent, is he held accountable or just promoted to Judge?

Posted by: LC in Texas | May 23, 2017 9:56:46 PM

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