Judge pauses inmate good conduct credit boosts, pending appeal

A Sacramento County Judge reinstated a temporary restraining order barring the California Department of Corrections and Rehabilitation from increasing good conduct credits for second-strike inmates, pending an appeal by 28 district attorneys.

The prosecutors, who are challenging the legality of the increase in good conduct credit from 50% to 66% for certain nonviolent second strike inmates, plan to appeal the court's denial of their preliminary injunction on the basis of standing, Sacramento County Chief Deputy District Attorney Rod D. Norgaard confirmed Wednesday.

Superior Court Judge Judith S. Craddick on Tuesday - in addition to staying the proceedings pending the appeal - reinstated the TRO, which had originally been granted in December and was lifted when Sacramento County Superior Court Judge Shama H. Mesiwala denied the preliminary injunction. Anne Marie Schubert et al. v. California et al., 2021-00312867 (Sac. Super. Ct., filed Dec. 12, 2021).

Mesiwala agreed with the prisons department's standing argument last week, ruling the district attorneys do not qualify as interested persons and are not authorized under any state statute to bring the civil action.

"Reinstatement of the TRO ... is necessary to maintain the status quo and to prevent irreversible harm to plaintiffs pending their appeal of this court's order," Sacramento County Deputy District Attorney F. Matt Chen wrote in the ex parte application. "Absent injunctive relief, CDCR will implement and enforce the already approved regulations, immediately awarding increased credits and effectively reducing sentences for nonviolent, second-strike offenders and releasing them early. Once earned, these credits may not be taken away even if the regulation awarding such increased credit is later declared invalid."

Deputy Attorney General Anthony J. Tartaglio, on behalf of the prisons department, countered in a brief that the ex parte application should be denied based on the court's denial of the preliminary injunction, a lack of showing harm needed for the TRO and a lack of showing likelihood of success on the merits.

The district attorneys are challenging the legality of an emergency rule change that increases good conduct credit for some second strike inmates from 50% to 66%. They allege the department skirted process requirements, such as public comment mandated under the Administrative Procedure Act.

The lawsuit is the second filed by a group of DAs led by Sacramento County District Attorney Anne Marie Schubert, who is running for state attorney general.