New CDCR regulations proposal

These regulations have not been certified for emergency adoption by the Office of Administrative Law  yet and therefore haven’t been noticed to the public for public comment yet. They are posted by OAL for 10 days and the public may challenge the necessity for the emergency adoption but not the details of the proposed changes themselves. The public comment period has not opened yet because the regulations are not in emergency effect.  Emergency adoption is different from regular rulemaking which seeks public comment before the regulations are certified for adoption.

CDCR will post them on its website after (and if) OAL approves them for temporary emergency adoption. OAL may require changes to the regulation text as a condition of emergency approval.

TEXT OF PROPOSED REGULATIONS

In the following, underline indicates additional text, and strikethrough indicates deleted text.

California Code of Regulations, Title 15, Division 3, Adult Institutions, Programs, and Parole

Chapter 1. Rules and Regulations of Adult Operations and Programs

Article 1. Behavior

3000. Definitions.

Section 3000 is amended to alphabetically merge the definition below with those already in the regulations.

Classification Staff Representative (CSR) means a departmental employee designated to represent the Director in the classification process during the review, approval, or deferral of actions by institution classification committees, including but not limited to inmate transfers, inmate special housing program placements/retention, and custody designations.  Any Correctional Counselor III may be designated to perform the duties of a CSR.

Lethal electrified fence is a high voltage fence installed for the lethal infliction of injury to escaping inmates.

Non-secure Facility means any of the following Departmental facilities: Minimum Support Facilities, Camps and Community Correctional Centers (i.e. Community Correctional Reentry Centers, Restitution Centers, Community Correctional Facilities, Drug Treatment Furlough, halfway back facilities, Community Reentry Programs, etc.); and comparable facilities in another law enforcement jurisdiction (i.e. county road camps, county detoxification center, etc.)

Secure Level I facility is a Level I facility with a secure perimeter as defined in section 3000 that includes razor wire to prevent the escape of inmates.

Totally disabled means a diagnosis provided by a physician and/or psychiatrist indicating that an inmate is incapable of performing an assignment.

3375.2 Administrative

Determinants.

Subsections 3375.2(a) through 3375.2(a)(5) are unchanged but shown as reference.

Subsection 3375.2(a)(6) is amended to read:

(6) An inmate serving a sentence of life without possibility of parole (LWOP) shall not be housed in a facility with a security level lower than Level III II, except when authorized by the Departmental Review Board (DRB). Additionally, an LWOP inmate housed within a general population facility with a security level of II, III, or IV shall be housed in a facility with a lethal electrified fence as defined in section 3000.

Subsection 3375.2(a)(7) is unchanged but shown as reference.

Subsection 3375.2(a)(8) is amended to read:

(8) An inmate serving a life term with the possibility of parole shall not be housed in a Level I non-secure facility as defined in section 3000 nor assigned to a program outside a security perimeter unless the exceptional criteria specified within this subsection has been met. Exceptions may only occur when Board of Parole Hearings (BPH) grants parole, the release date is within 3 years, and the Governor’s Office has completed its review and either formally approved parole or taken no action. When all three conditions are met and the inmate is otherwise eligible for a custody reduction, the inmate shall be evaluated by an ICC for the custody reduction.

Subsection 3375.2(a)(9) is renumbered to 3375.2(a)(11)

New Subsection 3375.2(a)(9) is adopted to read:

(9) An inmate serving a life term with the possibility of parole shall be housed in a facility with a security level of II or higher unless the exceptional criteria specified within subsections 3375.2(a)(8) or 3375.2(a)(10) through 3375.2(a)(10)(I) have been met.

Subsection 3375.2(a)(10) is renumbered to 3375.2(a)(12)

New Subsection 3375.2(a)(10) is adopted to read:

(10) An inmate serving a life term with the possibility of parole may be housed in a secure Level I facility as defined in section 3000 when all of the following criteria are met for the inmate:

Subsections 3375.2(a)(10)(A) through 3375.2(a)(10)(I) are adopted to read:

(A) Preliminary score of 18 or less.

(B) Their most recent parole consideration hearing resulted in no more than a three year denial by the BPH.

(C) Their most recent Comprehensive Risk Assessment, completed by a licensed psychologist employed by the BPH, identifies the inmate’s potential risk for future violence as low or moderate, or they have been granted parole by the BPH.

(D) Does not have a VIO administrative determinant currently imposed.

(E) Not identified as a Public Interest Case as defined in section 3000.

(F) Does not have an “R” Suffix imposed.

(G) Does not have a history of escape or attempted escape with force from any correctional setting or armed escort, escape or attempted escape from a correctional setting with a secure perimeter as defined in section 3000, and plotting or planning to escape from a correctional setting with a secure perimeter as defined in section 3000 or from an armed escort.

(H) Does not require Maximum or Close custody.

(I) Does not have a mandatory minimum score factor currently imposed which would preclude secure Level I placement.  Where determined eligible for placement, the mandatory minimum score factor for “other life term” shall be removed/not imposed.

Subsection 3375.2(a)(9) is renumbered to 3375.2(a)(11):

(11) An inmate serving a life term whose placement score is not consistent with a Level I or II security level shall not be housed in a Level I or Level II facility except when approved by the Departmental Review Board.

Subsection 3375.2(a)(11) is renumbered to 3375.2(a)(13) and amended to read:

(13) An inmate with a case factor described in sections 3377.2(b)(2)(A), 3377.2(b)(2)(B) or 3377.2(b)(2)(C), shall be ineligible for minimum custody. An inmate with a history of one or more walkaways from nonsecure settings, not to include Drug Treatment Furlough, and Community Correctional Reentry Centers, and Community Reentry Programs, shall not be placed in minimum custody settings for at least 10 years following the latest walkaway.

Editor’s Note:

These are not the proposed regulations in their entirety. This leaves out a substantial portion of the proposed regulations, which is understandable considering our space issue. If you would wish to read the full proposed regulation,  please go to oal.ca.gov.

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