What’s going on with Prop 57?

Previously, we covered Prop 57 and saw its great potential for tangible criminal justice & prison reform. But after passing by a solid margin on the November ’16 ballot, we’re still waiting for the implementation. CDCR recently released a regulations & recommendations memo that is a serious departure from the policies voters approved. Most notably; incarcerated folks are not allowed to apply all earned credits retroactively, third strikers convicted of non-violent felonies are not allowed to participate in the early parole process, and youth offenders are not eligible to use earned credits for early release. This is an incredibly blatant disregard for the will of the community.

CDCR posted a series of responses to frequent comments they received during the open comment period, but the answers are well, um, underwhelming.

• When asked why the Department won’t allow folks to earn all credits retroactively, they reply “CDCR has not amended the regulations to allow inmates to earn Good Conduct Credit, Milestone Completion Credit or Rehabilitative Achievement Credit retroactively. Notably, both Educational Merit Credit and Extraordinary Conduct Credit may be earned retroactively”. Good news first. Allowing educational credits & extraordinary credits to be applied retroactively is consistent with the language of Prop 57 and is a common sense approach given all that we know about the positive impact education has on recidivism rates. Now, for the bad news. Since CDCR wasn’t uniformly collecting data on who was completing milestone credits or rehabilitative achievement credit in the past, it would create a disparate impact to only apply the credits for those who’s documentation is available. Further, many incarcerated individuals didn’t know such programs would be relevant to an early release mechanism in the future and may have chosen work assignments instead. The result is that all will be forced to re-take such classes to earn the credits, but CDCR hasn’t signaled that they will increase their capacity to offer such programs.

• When prompted to allow non-violent third strikers to participate in the early non-violent parole process, they reply “Criminal sentencing is the exclusive role of the Courts and CDCR will defer to the process set forth in Proposition 36 and will not unilaterally ‘re-sentence’ a Third Striker to a lesser term so that he or she can participate. Including Third Strikers was also determined to be inconsistent with
  public safety.” Few things to note here. It’s true that Prop 36 was passed to deal directly with the proliferation of third strikers, but it seems as if CDCR is seeing the two initiatives as mutually exclusive. But that does not have to be the case! Another equally valid (but perhaps naively optimistic) interpretation could be, say, ‘It seems like voters really want to end mass incarceration & want to reduce the population of third strikers in CA prisons. Let’s use the tools they’ve given us to do just that in an efficient manner!’ Alas, this piece-meal approach of seeing two overlapping initiatives as fundamentally incompatible does not inspire confidence in the implementation capabilities of CDCR. Notice also the use of ‘public safety’ in the memo. The past forty years of criminal justice policies, and really all of humanity, serve as a testament that anything & everything under the sun is justifiable under this standard of protecting community welfare. Behind this veil of public safety society has institutionalized other-ing as an acceptable tactic for crime prevention. This remains a serious obstacle to meaningful prison reform

• When nudged to explain why juvenile offenders can’t apply credits to advance parole hearings, the answers are similarly designed to punt responsibility to other tentacles of the criminal justice system. “CDCR has not amended the regulations to allow credits to apply to the timing of a youth offender hearing before the Board of Parole Hearings … CDCR has maintained the Legislative intent behind the youth offender law.” The disconnected nature of the criminal justice system lends itself to creating the present conundrum. Californians are telling CDCR to do one thing, but the legislature has existing laws that directly conflict with these reformist goals. With conflicting puppeteers attempting to pull their strings, CDCR does the one thing they’ve mastered: complacency in the face of injustice.

The ethos of Prop 57 involves a greater investment in the rehabilitation of incarcerated folks. These recommendations however sound like preparing to take half a step forward, but not before deliberately taking another dozen steps backwards. This recent reformist era (circa 2012) starting with Prop 36, Prop 47 in 2014, and now Prop 57 illustrates the gap between the will of the people and the will of the agency in charge of the largest human caging regime in the world. Make no mistake about it, CDCR is a sociopolitical regime built on racial capitalism & this dynamic isn’t going to be dismantled over night. If fully implemented as the voters approved, Prop 57 could shrink the monster down to a manageable size. But the implementation recommendations passed down by CDCR won’t fundamentally alter the carceral landscape. The struggle continues.