California’s latest attempted to regulate who qualifies for early parole consideration hit a snag when its Superior Court ruled that the state cannot automatically exclude sex offenders from the list of eligible people.
Under Proposition 57, voted into law in November 2016, the California Department of Corrections and Rehabilitation (CDCR) can make nonviolent offenders eligible for parole consideration after they complete the full term for their primary offense. Now, CDCR needs to determine what constitutes a violent crime, a definition that varies across state, federal and CDCR regulations.
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Sacramento Superior Court Judge Allen Sumner ruled that the regulation’s definition of all sex offenses as violent crimes is too broad. Sumner sent the case back to prison administrators to define “nonviolent crime.”
The CDCR defines a nonviolent offender as someone who, among other things, has not been convicted of a sexual offense requiring registration.
The case before Sumner was brought by the Alliance for Constitutional Sex Offense Laws and an incarcerated person identified as John Doe.
They argued that CDCR’s definition is in conflict with the California penal code, under which some sex offenses are not listed as violent crimes.
According to the writ filed, the Alliance also argued that CDCR’s regulations are also overbroad because they “preclude early parole consideration for any one ever convicted of a registerable sex offense, even if the person is not currently incarcerated” for such a crime.
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Though some sex crimes requiring registration aren’t listed in the penal code as violent crimes, some people may agree that they are violent. Those crimes include: rape of a drugged or unconscious person; touching the intimate part of another person while that person is unlawfully restrained; pimping a minor; incest; sodomy with a person confined to state prison; sending or exhibiting certain harmful (i.e., sexual) matter to a minor; sexual penetration with a foreign object while the victim is unconscious; and advertising or possessing child pornography.
Still, some of those registerable sex offenses which the Legislature has not designated “violent felonies” may not be violent, for example indecent exposure.
The court also found that CDCR did not point to any “language in Proposition 57” that barred a person serving time for a current nonviolent offense for a past sex offense.
Superior Court remanded the case back to CDCR to define what a nonviolent offender is under Proposition 57 (see Alliance for Constitutional Sex Offense Laws, et al., v. California Department of Corrections and Rehabilitation, case number 34-2017-80002581).