Judge’s ruling may clear sex offenders for early release under Prop. 57

SACRAMENTO -- In a tentative ruling issued Thursday afternoon, a judge has thrown out Department of Corrections and Rehabilitation regulations that exclude sex offenders from early release under Proposition 57.

However, Sacramento County Superior Court Judge Allen H. Sumner stopped short of ordering the corrections department to adopt the current definition of a "violent felony" in the state's penal code. The agency will now be forced to revamp its regulations, but could still theoretically draft a policy that would exclude some prisoners based on sex crimes.

Voters passed Prop. 57 in 2016 by nearly a 30-point margin, with the goal of reducing the state's prison population by releasing some less dangerous offenders. The corrections department, or CDCR, then issued emergency regulations to implement the new law.

These included an exception that barred early release consideration of inmates "convicted of a sexual offense that requires registration as a sex offender." A group called the Alliance for Constitutional Sex Offense Laws then sued, alleging the voters' intent had been violated.

The group argued Prop. 57 "leaves no discretion for CDCR to pick and choose." The complaint argued the regulations would allow the prisons department to leave someone in jail due to a decades-old sex crime that had nothing to do with why they were currently incarcerated.

While Sumner didn't give them everything they wanted, the group's executive director welcomed the ruling. Alliance for Constitutional Sex Offense Laws v. California Department of Corrections and Rehabilitation, 80002581 (Sac. Super. Ct., filed April 27, 2017).

"I'd say it's more than half a loaf," said attorney Janice M. Bellucci. "We certainly agree with the judge that CDCR acted beyond its authority under Proposition 57. That was the most important thing to establish."

Under state law, there are several crimes that are registerable sex offenses which are not considered a "violent felony" under the penal code. These crimes include rape by intoxication, rape of an unconscious person and human trafficking involving sex acts with minors.

In court filings, Belluccii noted that during the campaign, opponents of Prop. 57 used the definition in the state legal code to argue that voters should reject the measure, including in official ballot arguments.

But in his narrow, 18-page ruling, Sumner said the penal code wasn't relevant, and that the case came down to the words in the initiative itself.

"The court cannot insert words into an initiative to achieve what the court presumes to be the voters' unexpressed intent; neither can CDCR," Sumner wrote.

Later, Sumner noted, "Proposition 57 never mentions [penal code] section 667.5. If the voters intended to define the term 'nonviolent' felony to mean any felony the Legislature has not listed in section 667.5, they presumably would have said so. ... It is by no means clear what the voters understood, or intended, the term 'nonviolent' to mean in Proposition 57."

Sumner also canceled a hearing set for Friday morning, but gave the sides until 4 p.m. Thursday to ask that the hearing still be held.

Bellucci said she did not plan to ask for a hearing. Corrections officials did not return a call seeking comment.

Sumner's ruling also comes while the lengthy regulatory process around Prop. 57 is still moving forward.

While Sumner ruled on the corrections department's emergency regulations issued last spring, the changes he ordered will also apply to the final regulations.

The agency held a raucous, hours-long public comment session in September in which paroled sex criminals, family and supporters -- including Bellucci -- criticized the sex offender provisions. The agency issued revised regulations in November but kept versions of the language excluding sex criminals.

Bellucci also noted Prop. 57 only gives prisoners the right to be considered for parole.

"Just because somebody is eligible for parole does not mean they will be released," Bellucci said. "They still have to go in front of the parole board."