By David M. Greenwald
Sacramento, CA – Two weeks ago Sacramento District Attorney Anne Marie Schubert sent a letter signed by around 40 of her counterparts across the state opposing the plans for the early release of incarcerated people. On Wednesday, she and 43 other elected DAs across California, including Yolo County DA Jeff Reisig, filed a civil lawsuit against the California Department of Corrections and Rehabilitation (CDCR) seeking declaratory and injunctive relief to prohibit awarding additional conduct credits to more than 76,000 violent and serious offenders.
DA Schubert said in a release, “Allowing the early release of the most dangerous criminals, shortening sentences as much as 50%, impacts crime victims and creates a serious public safety risk. This lawsuit asks the court to enjoin CDCR from awarding these credits unless and until these regulations are exposed to a fair, honest and transparent debate, where the public has input on dramatic changes made through the regulatory process.”
According to her office, “The additional credits were the product of ’emergency’ regulations which were passed and first made public on Friday April 30, 2021, at 3:00 p.m. In adopting these regulations, and claiming an emergency, the CDCR Secretary stated these regulations were necessary to comply with “the direction outlined in the Governor’s Budget Summary” presented a year ago on May 14, 2020. By invoking an emergency, the traditional regulatory scheme and transparent public comment period was bypassed.”
This lawsuit requests the Superior Court to declare the regulations unlawful and to prohibit CDCR from awarding these additional credits until CDCR lawfully complies with the regulatory scheme, which would include a transparent and rigorous public comment period.
According to the suit, “The APA [Administrative Procedure Act] requires a minimum 45-day period for the public to comment to the agency in writing on the proposed regulation.”
In early May, Governor Newsom announced that changes to Prop. 57, passed by the voters in 2016, will allow 76,000 incarcerated individuals a mechanism to be released early from state prison. Those individuals include over 63,000 people incarcerated for violent crimes who will be eligible for Good Conduct Credits that shorten their sentences by one-third, instead of the previous one-fifth.
As Newsom explained, “The goal is to increase incentives for the incarcerated population to practice good behavior and follow the rules while serving their time, and participate in rehabilitative and educational programs, which will lead to safer prisons… Additionally, these changes would help to reduce the prison population by allowing incarcerated persons to earn their way home sooner.”
However, Anne Marie Schubert, the Sacramento DA who is running against AG Rob Bonta in 2022, has opposed the change.
“This is wrong and dangerous for California. The Appointed Attorney General should oppose these rules that will result in thousands of dangerous inmates being released. The job of the Attorney General is to enforce the law to keep the public safe. To sit back and do nothing speaks volumes about his values towards public safety, crime victims and his ability to lead the office of the state’s top law enforcement officer,” Schubert said in a statement.
In adopting these regulations, and claiming an emergency, the CDCR Secretary stated these regulations were necessary to comply with “the direction outlined in the Governor’s Budget Summary” presented a year ago on May 14, 2020.
However, Schubert and the other DAs claim, “By invoking an emergency, the traditional regulatory scheme and transparent public comment period was bypassed.”
The administrative law petition is often the first step in seeking a formal court order declaring the regulations unlawful. If the emergency regulations are nullified by a court, CDCR would be forced to pass the regulations in the traditional manner, requiring the State’s Office of Administrative Law to provide greater transparency and public input.
Schubert explained, “This petition asks CDCR to repeal these regulations, begin the process anew, and allow for transparency and public input. Victims, their families, and all Californians deserve a fair and honest debate about the wisdom of such drastic regulations.”
DA Reisig issued a statement previously, adding, “It’s one issue for CDCR to unilaterally shorten sentences which can create a danger to the public and adversely impact crime victims. But to do so without transparency, public input and without a valid and legal rationale, violates core democratic principles and due process. CDCR needs to repeal these regulations and start the process anew in a fair, just and legal manner.”
The new ruling allows CDCR to expand good behavior credits and allow some 76,000 incarcerated people to become eligible for a shorter sentence.
However as Capitol Public Radio pointed out, “No one has been released under the expanded program and officials estimate it will be months or years before that happens.”
Nor is it automatic. They have to apply for the credits to be applied.
Among the notable DAs signing the letter: Vern Pierson of El Dorado County, who is the President of CDAA (California District Attorneys Association), Todd Spitzer of Orange County, Michael Hestrin of Riverside, Dan Dow of San Luis Obispo, Krishna Abrams of Solano, Summer Stephan of San Diego, and Joyce Dudley of Santa Barbara County.
Among the notables not signing it are the most progressive DAs, including Chesa Boudin (San Francisco), Diana Becton (Contra Costa), George Gascón (Los Angeles), Tori Verber Salazar (San Joaquin), and even Santa Clara DA Jeff Rosen and Alameda DA Nancy O’Malley.
—David M. Greenwald reporting
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Moreover, once emergency regs are adopted, they remain in effect for only 180 days during which the agency must go through the regular regulations adoption procedures, including public input. (The Office of Administrative Law may grant up to 2 90-day extensions if the agency shows it is making satisfactory progress in making the emergency regs permanent.)