28 DAs sue prisons department over early release credits

Half California's district attorneys are again challenging the increase in good conduct credits for prison inmates, alleging the corrections department is violating the state Administrative Procedures Act and unlawfully adopting the changes as emergency regulations.

"They want to award them 66% credits, meaning if you got sentenced to 30 years, you'd only do 10 years," Sacramento County Chief Deputy District Attorney Rod Norgaard said in an interview Wednesday.

The California Department of Corrections and Rehabilitation is reviewing the lawsuit but, "In the meantime, we will proceed with the regulatory process as planned," Dana Simas, a spokeswoman for the department said in an email Wednesday.

The department will continue to "ensure incarcerated people who are maintaining good behavior and participating in programming and rehabilitative opportunities are afforded the chance to earn credits," Simas wrote.

The lawsuit filed Tuesday by Sacramento County District Attorney Anne Marie Schubert on behalf of herself and 27 district attorneys seeks a temporary restraining order to prevent a regulation to go into effect Jan. 1, which would increase good conduct credit for second strike inmates convicted of crimes described as nonviolent. Anne Marie Schubert et al. v. State of California et al., 2021-00312867 (Sac. Super. Ct., filed Dec. 21, 2021).

"'Nonviolent' is a legal definition in California as defined in the Penal Code," Norgaard said. "Most people are shocked and surprised to learn that domestic violence is a nonviolent felony. So if you have a prior strike, and you were sentenced on a domestic violence felony, you would qualify for 66% credits under CDCR's new calculation."

The lawsuit is the second to challenge the prisons department's granting of increased good conduct credits.

In May, 44 of the state's 58 district attorneys sued over another rule change they said could lead to the early release of more than 76,000 prisoners. The changes included: allowing prisoners convicted of violent felonies to accumulate one day of credit for every two days of incarceration rather than one day of credit for every four days of incarceration; and one day of credit for every day of incarceration rather than one day of credit for every two days for prisoners convicted of second or third nonviolent strikes, according to court documents. Anne Marie Schubert et al. v. State of California et al., 2021-00301253 (Sac. Super. Ct., filed May 26, 2021).

Both lawsuits allege the department is skirting process requirements such as a public comment period required under the Administrative Procedure Act and that the changes go beyond what is allowed under Proposition 57, the 2016 ballot initiative that sought to give inmates paths to early release.

In July, Sacramento County Superior Court Judge Shama H. Mesiwala denied the district attorneys' request for a preliminary injunction, finding that although the plaintiffs had demonstrated some arguable likelihood of prevailing, they had not made a significant showing of irreparable injury sufficient to enjoin the department.

Mesiwala added that there was an "earlier, reasonable window of time during which plaintiffs could have acted to obtain a temporary restraining order to enjoin the implementation" of the regulations to preserve the prior status quo rather than seek an injunction to reverse regulations that were already implemented.

Norgaard said Tuesday's lawsuit and temporary restraining order request were filed with the court's previous findings in mind.

A hearing on the temporary restraining order is expected to take place next week, according to Norgaard.