The 2017‑18 Budget: Implementation of Proposition 57

The 2017-18 Budget: Implementation of Proposition 57 M AC TAY L O R • L E G I S L A T I V E A N A L Y S T • A P R I L 2 0 17 2017-18 BUDGET 2 Legislative Analyst’s Office www.lao.ca.gov 2017-18 BUDGET EXECUTIVE SUMMARY Proposition 57 In November 2016, voters approved Proposition 57, which made various changes to the state’s criminal justice system. Specifically, the measure (1) makes all nonviolent offenders eligible for parole consideration, (2) expands the authority of the California Department of Corrections and Rehabilitation (CDCR) to award sentencing credits to inmates to reduce their prison terms, and (3) requires that judges decide whether juveniles should be tried in adult court. Administration’s Plan to Implement Proposition 57 As a part of the Governor’s January budget proposal for 2017-18 and through emergency regulations submitted by CDCR to the Office of Administrative Law on March 24, 2017, the administration outlined its plan to implement Proposition 57. Specifically, the administration proposes to: • Implement New Nonviolent Offender Parole Consideration Process. On July 1, 2017, the administration plans to begin the parole consideration process for nonviolent offenders. The emergency regulations for the new process define “nonviolent offenders” in such a way as to exclude certain offenders convicted of nonviolent offenses (such as sex registrants) from parole consideration and allow certain offenders convicted of violent offenses to be considered for parole. Those found to not pose an unreasonable risk of violence by Board of Parole Hearings (BPH) deputy commissioners would be released around 60 days after completing the term for their primary offense (the longest term imposed excluding any additional time added, such as for enhancements). • Expand Sentencing Credits. The administration plans to increase the number of credits inmates earn for good behavior (effective May 1, 2017) and for participation in rehabilitation programs (effective August 1, 2017). • Make Various Budget Adjustments to Reflect Proposition 57 Implementation. The Governor’s January budget reflects the administration’s estimates for how its initial plan, which was released before the emergency regulations, would impact the state’s inmate, parolee, and juvenile ward populations, as well as the number of offenders supervised by county probation departments. LAO Recommendations Direct Administration to Report on Final Regulations. The final regulations could ultimately be different than the emergency regulations. Accordingly, we recommend that the Legislature direct the administration to provide a report after the regulations are finalized. This report should www.lao.ca.gov Legislative Analyst’s Office 3 2017-18 BUDGET (1) summarize the final regulations, (2) discuss how the final regulations differ from the emergency regulations, and (3) identify how the changes affect CDCR’s budget and populations. Direct Administration to Justify Definition of Nonviolent Offender. The definition of nonviolent offender contained in the emergency regulations may violate Proposition 57. Accordingly, we recommend directing the administration to justify the legal and policy basis for its definition of nonviolent offender. Seek Advice From Legislative Counsel on Timing of Parole Consideration. The administration’s plan to release inmates approved for parole around 60 days after they complete their primary terms may be unnecessarily costly. As such, we recommend consulting with Legislative Counsel to determine whether Proposition 57 allows BPH to begin parole consideration earlier. If this is possible, we recommend directing the administration to report on how it could do so. Direct BPH to Investigate Using a Structured Decision-Making Tool. Because the parole decision-making process is inherently subjective and decisions may lack consistency and transparency, several states use statistically validated, structured decision-making tools to improve the accuracy and objectivity of such decisions. We recommend directing BPH to report on available structured decision-making tools and the cost and benefits of adapting them for use in California. Direct Department to Assess Program Capacity and Evaluate Rehabilitation Programs. The population impact of the administration’s plans would depend on inmates’ access to the programs that yield credits. We recommend that the Legislature direct CDCR to report on the number and type of programs through which inmates would receive credits, the current capacity and attendance rates for these programs, and the corresponding effect they may have on the inmate population. We further recommend directing CDCR to contract with independent researchers to evaluate the effectiveness of its rehabilitation programs, given that their effectiveness at reducing recidivism remains unclear. Direct Administration to Explain Credit Reductions. The administration plans to reduce credits awarded for completing specific programs. We recommend directing the administration to report during budget and policy hearings on its rationale for such changes. Withhold Action on Budget Items Pending the May Revision. We recommend withholding action on the administration’s January budget adjustments related to Proposition 57 and its population impacts pending the receipt of revised adjustments as part of the May Revision. 4 Legislative Analyst’s Office www.lao.ca.gov 2017-18 BUDGET INTRODUCTION In November 2016, voters approved of Proposition 57 and provide a description of Proposition 57, which made various changes the provisions of the measure. We then describe affecting the state’s adult and youth correctional and assess the administration’s proposals to systems. In this report, we first describe state implement Proposition 57 and provide various law and practice prior to the implementation recommendations for legislative consideration. BACKGROUND Adult Sentencing and Parole Consideration. box on page 7, the federal court imposed several Individuals are placed in prison under an measures to keep the state’s prison population indeterminate sentence or a determinate sentence. below a certain limit.) Under indeterminate sentencing, individuals are Sentencing Credits. The California Department sentenced for a term that includes a minimum but of Corrections and Rehabilitation (CDCR) awards no specific maximum, such as 25-years-to-life. credits to inmates that reduce the time they must These individuals typically appear in-person before serve in prison. Credits are provided for good the state Board of Parole Hearings (BPH) for a behavior or for participating in work, training, or parole consideration hearing in order to be granted education programs. Currently, inmates are limited release from prison. in the types of credits that they can earn, as well as Under determinant sentencing, individuals the amount that that their sentences can be reduced receive fixed prison terms with a specified release through credits. Existing state statutes allow date. Most people in prison have received a inmates to reduce their prison terms primarily determinate sentence. Certain determinately through two types of credits: sentenced inmates can be considered for parole • Good Conduct Credits. Eligible inmates and released before they have served their entire earn good conduct credits when they avoid sentence. For example, certain individuals violating prison rules and/or participate convicted of nonviolent offenses who were in certain workgroups, such as fire camps. previously convicted of a serious or violent Statute prohibits some inmates, such as offense are eligible for parole consideration third strikers, from earning good conduct part way through their prison sentence. These credits. Statute also includes various limits particular individuals are commonly referred to on the rate at which inmates can earn such as “nonviolent second strikers” because they were credits. For example, most violent offenders sentenced under the state’s three strikes law. (Please are eligible to reduce their prison term see the box on page 6 for more detailed information by up to 15 percent under current law. In about the state’s three strikes law.) Specifically, addition, with certain exceptions (such as pursuant to a federal court order related to prison for nonviolent second strikers and violent overcrowding, nonviolent second strikers are offenders) inmates who work as fire fighters currently considered for parole after they have (or have completed training to do so) are served half of their sentence. (As we discuss in the eligible to reduce their sentence by up to www.lao.ca.gov Legislative Analyst’s Office 5 2017-18 BUDGET two-thirds. Good conduct credits can credits are effective in reducing recidivism, improve prison operations by incentivizing milestone credits can improve public safety inmates to follow prison rules and by incentivizing inmates to participate in participate in workgroups. such programs. In addition, certain inmates are eligible to • Milestone Credits. CDCR awards earn credits at rates that exceed the limits specified milestone credits to inmates for completing in state law pursuant to the above federal court certain rehabilitation, education, or work order to reduce prison overcrowding. For example, training programs. For example, inmates statute specifies that nonviolent second strikers can can earn two weeks off of their sentence for only reduce their terms by 20 percent through good completing a three-month substance abuse conduct credits. However, the court order allows program or two weeks off of their sentence nonviolent, non-sex registrant second strikers to for completing certain welding courses. reduce their terms by up to 33 percent through such Currently, only nonviolent, non-sex credits. registrant, non-third strikers are eligible Criminal Court Proceedings for Youths. to earn milestone credits. These inmates Individuals accused of committing crimes when can reduce their prison term by up to six they were under 18 are generally tried in juvenile weeks per year through milestone credits. court. Counties are generally responsible for the To the extent that the specific programs youths placed by juvenile courts. These youths are for which inmates can earn milestone Three Strikes Sentencing In 1994, the California Legislature and voters (with the passage of Proposition 184) changed the state’s criminal sentencing law to impose longer prison sentences for certain repeat offenders (commonly referred to as the “three strikes” law). Proposition 36, approved by voters in 2012, narrowed the type of repeat offenders subject to some of these longer sentences. Currently, state law requires that a person who is convicted of a felony and who previously has been convicted of one or more violent or serious felonies be sentenced to state prison as follows: • Second Strike Offense. If the person had one previous serious or violent felony conviction, the sentence for any new felony conviction (not just a serious or violent felony) is twice the term otherwise required under law for the new conviction. Offenders sentenced by the courts under this provision are referred to as “second strikers.” • Third Strike Offense. If the person has two or more previous serious or violent felony convictions, the sentence for any new serious or violent felony conviction is a life term with the earliest possible parole after 25 years. In addition, an offender with two or more previous serious or violent offenses who commits any new felony (not just a serious or violent felony) can be similarly sentenced to a life term if he or she has committed certain new or prior offenses, including some drug-, sex-, and gun-related felonies. Offenders convicted under this provision are referred to as “third strikers.” 6 Legislative Analyst’s Office www.lao.ca.gov 2017-18 BUDGET typically allowed to remain with their families under Under certain circumstances, youths can be the supervision of county probation, with some tried in adult court. Youths convicted in adult court placed elsewhere (such as in county-run camps). can receive adult sentences and typically are first However, judges can place youths that commit held in a state juvenile facility and then transferred certain major crimes (such as murder, robbery, and to state prison after they turn age 18. certain sex offenses) in a facility operated by CDCR’s Division of Juvenile Justice (DJJ). MAJOR PROVISIONS OF PROPOSITION 57 Proposition 57, which was approved by the court. The measure states that these changes are voters in November 2016, made various changes intended to protect public safety, save money by related to the state’s criminal justice system. reducing spending on prisons, prevent federal Specifically, the measure (1) makes all nonviolent courts from releasing inmates, and reduce offenders eligible for parole consideration, recidivism through rehabilitation. (2) expands CDCR’s authority to award sentencing Makes All Nonviolent Offenders Eligible for credits to inmates, and (3) requires that judges Parole Consideration. Proposition 57 amended decide whether juveniles should be tried in adult the State Constitution to specify that individuals Federal Court Ordered California to Limit Prison Population In November 2006, plaintiffs in two ongoing class action lawsuits—now called Plata v. Brown (involving inmate medical care) and Coleman v. Brown (involving inmate mental health care)—filed motions for the courts to convene a three-judge panel pursuant to the U.S. Prison Litigation Reform Act. On August 4, 2009, the three-judge panel declared that overcrowding in the state’s prison system was the primary reason that the California Department of Corrections and Rehabilitation (CDCR) was unable to provide inmates with constitutionally adequate health care. Specifically, the court ruled that in order for CDCR to provide such care, overcrowding would have to be reduced to no more than 137.5 percent of the design capacity of the prison system. (Design capacity generally refers to the number of beds that CDCR would operate if it housed only one inmate per cell.) The court ruling applies to the number of inmates in prisons operated by CDCR, and does not preclude the state from holding additional offenders in other public or private facilities. To comply with the prison population cap, the state took a number of actions, including (1) housing inmates in contracted facilities, (2) constructing additional prison capacity, and (3) reducing the inmate population through several policy changes. For example, in 2011, the state shifted the responsibility for housing and supervising certain lower-level felons to counties. In 2014, to ensure that the state complied with the cap, the three-judge panel ordered CDCR to develop and implement several additional population reduction measures including a parole consideration process for nonviolent second strikers and expanded credit earning for minimum-custody inmates and certain second strikers. www.lao.ca.gov Legislative Analyst’s Office 7 2017-18 BUDGET convicted of a nonviolent felony offense shall be achievements. Accordingly, CDCR may increase eligible for parole consideration after completing the number of inmates eligible to earn credits and the term for their primary offense. The primary allow inmates to reduce their sentences through offense is defined as the longest term imposed credits by more than what is currently allowed in excluding any additional terms added to an statute. The measure authorized CDCR to adopt offender’s sentence, which include any sentencing regulations to implement changes to credits. enhancements (such as the additional time an Requires Judges to Decide Whether Youths inmate serves for prior felony convictions). As a Should Be Tried in Adult Court. Proposition 57 result, BPH could release nonviolent offenders after changed statute to require that all youths have they serve the term for their primary offense— a hearing in juvenile court before they can be allowing some offenders to be released from prison transferred to adult court. As a result, prosecutors and placed on parole earlier than otherwise. The can no longer file charges directly in adult court measure requires CDCR to adopt regulations to and no youths can have their cases heard in implement this change. adult court on a mandatory basis due to the Expands CDCR Authority to Award circumstances of the offense. Accordingly, there Sentencing Credits. Proposition 57 amended the will likely be fewer youths tried in adult court, State Constitution to specify that CDCR shall and, eventually, fewer youths sent to state prison. have the authority to award credits to inmates for Instead, it is likely that more youths will be placed good behavior and rehabilitative or educational under county jurisdiction and/or in a DJJ facility. ADMINISTRATION’S PLAN TO IMPLEMENT PROPOSITION 57 As part of the Governor’s January budget 2017, the administration plans to begin the proposal for 2017-18, the administration outlined parole consideration process for nonviolent its plan to implement Proposition 57. This offenders. plan was revised somewhat and formalized in • Expand Sentencing Credits. The emergency regulations submitted to the Office of administration plans to increase the Administrative Law (OAL) on March 24, 2017. number of credits inmates earn for good The OAL must review these regulations within behavior and participation in rehabilitation 20 calendar days of their submission. If approved programs. It anticipates that changes by OAL, the emergency regulations will remain in to good conduct credits will go into effect for 160 days and can be extended for up to effect on May 1, 2017 and that changes two additional 90 day periods. These emergency to credits inmates earn for participation regulations will become finalized if CDCR adopts in rehabilitation programs, such as them through the regular rulemaking process modifications to milestone credits, will go within this time period. into effect on August 1, 2017. Specifically, the administration proposes to: • Implement New Nonviolent Offender • Make Various Budget Adjustments to Parole Consideration Process. On July 1, Reflect Proposition 57 Implementation. 8 Legislative Analyst’s Office www.lao.ca.gov 2017-18 BUDGET The Governor’s January budget includes implementation plan subsequently various funding adjustments to reflect changed as reflected in recently released the administration’s initial plan for emergency regulations. For example, the implementing the new nonviolent Governor’s budget assumes an October 1, offender parole consideration process 2017 implementation date while the and changes to sentencing credits, as emergency regulations assume earlier well as the requirement in Proposition 57 implementation dates as described above. that all youths have a hearing in juvenile The administration indicates that it will court before they can be transferred propose budgetary changes to reflect its to adult court. The budget reflects the current implementation plan as part of the administration’s estimates for how its May Revision. initial plan would impact the state’s inmate, Below, we provide greater detail on each aspect parolee, and juvenile ward populations, of the administration’s plan, assess its merits, and the number of offenders supervised by and provide recommendations for legislative county probation departments. However, consideration. as indicated above, the administration’s IMPLEMENTATION OF PAROLE CONSIDERATION PROCESS Administration’s Plan offenses from the parole consideration process authorized in Proposition 57. As authorized in Proposition 57, the Specifically, nonviolent offenders required administration plans to begin parole consideration to register as sex offenders (whether or of nonviolent offenders after they complete the not their current offense is a sex offense) term for their primary offense. The specific process and nonviolent “third strikers” who are outlined in the emergency regulations is modeled serving indeterminate sentences under after the nonviolent second striker parole process California’s three strikes law would not be ordered by the federal court. eligible for the new parole consideration Key components of the administration’s plan process. The administration also plans to include: exclude nonviolent offenders who recently • Exclusion of Certain Offenders With committed certain rule violations in prison. Nonviolent Convictions. As previously indicated, Proposition 57 specifies that • Inclusion of Certain Offenders With nonviolent offenders shall be eligible for Violent Convictions. The administration’s parole consideration after completing emergency regulations make certain the term for their primary offense. The offenders convicted of offenses defined emergency regulations define “nonviolent in statute as violent eligible for the new offenders” in such a way as to exclude parole consideration process. Specifically, certain offenders convicted of nonviolent the emergency regulations make eligible www.lao.ca.gov Legislative Analyst’s Office 9 2017-18 BUDGET certain offenders who have completed a their primary offense. As a result, under prison term for a violent felony but are the administration’s plan, an inmate who still serving a prison term for a nonviolent is granted parole under the new process felony offense that they were convicted of at would not be released immediately the same time. following his or her primary term. • Inmate File Reviews Rather Than LAO Assessment Actual Hearings. As part of the parole Administration’s Plan Subject to Change. consideration of nonviolent offenders, BPH As indicated above, the administration recently indicates that it does not plan to conduct released emergency regulations outlining the in-person hearings. (Currently, BPH new parole consideration process for nonviolent conducts in-person hearings primarily for offenders. These emergency regulations will inmates serving indeterminate sentences.) become finalized if CDCR adopts them through Instead, similar to the nonviolent second the regular rulemaking process. However, the final striker parole process, a BPH deputy regulations could ultimately be different than the commissioner would review certain emergency regulations if the department chooses information about an inmate collected by to modify them, such as in response to public CDCR. The inmate would be approved comments received through the regulatory process. for parole if the information reviewed by Exclusion of Certain Nonviolent Offenders the deputy commissioner indicates that Appears to Violate Measure. We find that the the inmate does not pose an unreasonable administration’s plans to exclude nonviolent third risk of violence. According to BPH, strikers and sex registrants from the new parole this determination would be based on consideration appears to violate the language of the following factors: (1) circumstances Proposition 57. This is because the proposition surrounding the crime (such as whether specifies that all inmates serving a prison term a weapon was used); (2) prior criminal for a nonviolent offense shall be eligible for record; (3) institutional behavior and parole consideration. By automatically excluding rehabilitation program participation; and nonviolent sex registrants and third strikers, (4) any input provided from victims, the the administration would not provide parole district attorney, and the inmate. consideration to this subset of these offenders. • Review Initiated After Primary Term Uncertain Whether Including Certain Served. While Proposition 57 states that Offenders With Violent Convictions Permitted. nonviolent offenders shall be eligible for It is uncertain whether the administration’s plan parole consideration after completing the to include certain offenders who have completed a term for their primary offense, it does not prison term for a violent felony but are still serving specify when BPH can begin the review a prison term for a nonviolent felony offense process for an inmate. The administration, that they were convicted of at the same time is however, is interpreting Proposition 57 consistent with the intent of Proposition 57. This is to prohibit deputy commissioners from because the measure could be interpreted to limit beginning to review inmates’ files until eligibility to inmates who were sent to prison for after they have served the full term for nonviolent offenses. 10 Legislative Analyst’s Office www.lao.ca.gov 2017-18 BUDGET Initiating Process After Primary Term To the extent that such an alternative Completed Appears Unnecessarily Costly. Based approach reduces the time nonviolent offenders on the administration’s plan not to initiate the serve in prison by two months, we estimate that parole consideration process until after nonviolent this approach could potentially result in several offenders have completed their primary term, millions of dollars in savings annually relative to inmates approved for parole would not be released the Governor’s proposal depending on the actual immediately. Instead, inmates would have number of offenders approved for parole. While a their case reviewed and decided on by a deputy portion of these savings could be offset by the cost commissioner after completing their primary of reentry planning for inmates who are ultimately term. While this particular process could be not released, these additional costs are likely to be done relatively quickly, if approved for parole, the minor. inmates would then go through reentry planning Parole Consideration Process Inherently activities (such as receiving pre-release risk and Subjective. Throughout an inmate’s time in prison, needs assessments), which the administration CDCR records specific information on him or her, reports take about 60 days to complete. As such, such as the extent to which the inmate participated these inmates would not be released until around in rehabilitation programs and rules violations. In 60 days—in some cases more depending on the preparation for the parole consideration process, actual timing of the review process—after they BPH would supplement this information by have served the full term for their primary offense. soliciting input from victims, district attorneys, On the other hand, if BPH initiated the and the inmate. By the time the inmate is actually parole consideration process sometime before considered for parole, BPH would have a multitude nonviolent offenders completed their primary of qualitative and quantitative data about the term, CDCR could release inmates approved for inmate. Deputy commissioners would use these parole shortly after their primary term and achieve various types and sources of information to make a the associated population reduction and savings. release decision. One way this could be done is for BPH to make a According to CDCR, deputy commissioners preliminary release decision 60 days before such currently use their professional judgement to inmates complete their primary terms. Reentry synthesize various sources and types of information planning activities would then occur during the about inmates to make a decision about whether to 60 days between the preliminary release decision release an inmate for the nonviolent second striker and when inmates complete their primary terms. parole process. However, this process is inherently A final parole consideration decision—based on subjective. For example, it is possible that deputy a review of inmates’ behavior in the 60 days since commissioners could over or under value various the preliminary release decision and any other aspects of inmate data they review, such as criminal relevant new data available—would be made upon history or completion of rehabilitation programs. the completion of inmates’ primary terms. We note In addition, it can be difficult to ensure that that in some cases, this could result in reentry plans different deputy commissioners make decisions in a being made for some inmates who are ultimately consistent and completely transparent manner that not released under the new parole consideration is free from any unconscious biases. process. In order to improve accuracy and reduce subjectivity of parole board decisions, several states www.lao.ca.gov Legislative Analyst’s Office 11 2017-18 BUDGET use statistically validated, structured decision- • The legal basis for including in the making tools as part of their parole consideration nonviolent offender parole consideration process. These tools guide commissioners through process certain offenders who have a process of weighing several different sources completed a prison term for a violent felony of information about an inmate. For example, but are still serving a prison term for a Pennsylvania’s Parole Decisional Instrument nonviolent felony offense. combines the results of several actuarial risk Seek Advice From Legislative Counsel on assessments and inmates’ institutional behavior Timing of Parole Consideration. In order to ensure and programming history into a numerical that the measure is implemented in the most score, yielding a parole recommendation that effective and efficient manner, we recommend that commissioners can supplement with their the Legislature consult with Legislative Counsel qualitative observations. Accordingly, decisions to determine whether Proposition 57 allows BPH guided by such instruments weigh factors in a to initiate parole consideration before an inmate consistent manner; are transparent, as they can completes his or her primary term. If Legislative be shown to be based on specific factors; and are Counsel advises the Legislature that BPH can less likely to be subject to unconscious bias. In begin parole consideration as such, we recommend addition, research suggests that such actuarial tools that the Legislature direct the administration to can improve public safety by yielding better release report, during spring budget hearings, on how it decisions than professional judgment alone. could begin to consider inmates for parole prior to completion of their primary terms. LAO Recommendations Direct BPH to Investigate Using a Structured Direct Administration to Report on Final Decision-Making Tool. Given the potential Regulations. We recommend that the Legislature benefits, we recommend that the Legislature direct the administration to provide a report no direct BPH to investigate using a structured later than 30 days after the regulations on the decision-making tool in the future. Specifically, new parole consideration process for nonviolent we recommend that the Legislature direct BPH to offenders are finalized. This report should report by December 1, 2018 on available structured (1) summarize the final regulations, (2) discuss decision-making tools and the estimated costs, how the final regulations differ from the emergency opportunities, and challenges associated with regulations (including justification for any adapting such tools for use in parole consideration differences), and (3) identify how the changes affect reviews required by Proposition 57, as well as the CDCR’s budget and populations. other parole processes conducted by BPH. (This Direct Administration to Justify Definition should give BPH time to focus on implementing of Nonviolent Offender. We recommend that the new parole consideration process before the administration report at budget and policy considering changes to it.) This report would allow hearings on the following issues: the Legislature to determine whether to require • The legal and policy basis for excluding BPH to use such a tool in the future. nonviolent sex registrants and third strikers from the parole consideration process. 12 Legislative Analyst’s Office www.lao.ca.gov 2017-18 BUDGET IMPLEMENTATION OF NEW SENTENCING CREDITS Administration’s Plan cannot reduce their prison terms through good conduct. CDCR plans to allow violent As authorized in Proposition 57, the offenders—except condemned inmates administration plans to increase the amount of and those sentenced to life without the good conduct credits inmates can earn beginning possibility of parole—to reduce their prison on May 1, 2017 and to increase the number of term with good conduct credits by up to credits inmates earn through participation in 20 percent. Nonviolent third strikers, who rehabilitation programs beginning on August 1, are currently ineligible for good conduct 2017. Figure 1 summarizes the administration’s credits, would be able to reduce their current plan relative to existing credits authorized terms by up to one-third. In addition, the in statute and by federal court order. We note that administration plans to increase good only good conduct credits subject to change are conduct credits for certain offenders depicted in Figure 1 as the administration is not working or trained to work as firefighters. proposing to change all good conduct credits. Specifically, violent offenders would Specifically, CDCR plans to increase credit receive one day of credit for every day earning in the following ways: served with good behavior and nonviolent • Increase Good Conduct Credits. Currently, second strikers would receive two. The violent offenders can generally reduce their administration expects these changes to go prison terms by as much as 15 percent into effect on May 1, 2017. with good conduct credits. However, some violent offenders, such as third strikers, Figure 1 Administration’s Planned Changes to Inmate Credit Earning Inmates Affected Current Planned Good Conduct Credits Most violent offenders Up to 15% Up to 20% Nonviolent third strikers — Up to 33.3% Inmates in fire camps, firehouses, or who have completed training for these assignments • Violent Up to 15% Up to 50% • Nonviolent second strikers Up to 33.3% Up to 66.6% Milestone Credits Non-sex registrant, nonviolent, non-third strikers Up to 6 weeks per year Up to 12 weeks per year All other inmates except those sentenced to death and — Up to 12 weeks per year life without the possibility of parole New Educational Merit Credits All inmates except those sentenced to death and life — 3 to 6 months per without the possibility of parole achievement New Participation Credits All inmates except those sentenced to death and life — Up to 4 weeks per year without the possibility of parole www.lao.ca.gov Legislative Analyst’s Office 13 2017-18 BUDGET • Expand Milestone Credits. As previously • Provide Participation Credits for Certain discussed, currently only nonviolent, Programs. Effective August 1, 2017, non-sex registrant, non-third strikers are CDCR plans to offer credits (referred to eligible to earn milestone credits to reduce as “rehabilitative achievement credits”) their prison term by up to six weeks per to inmates who demonstrate sustained year. Effective August 1, 2017, CDCR plans participation in particular programs to expand eligibility for milestone credits and activities for which the department to all inmates except those serving life does not otherwise award credits. The terms without the possibility of parole department has not provided a list of these and condemned inmates. In addition, programs and activities but has indicated the administration plans to increase that they will be selected by wardens the amount of credits inmates earn for and will likely include inmate affinity completing many programs and increase and self-help groups, such as Alcoholics the limit on the annual amount of Anonymous and Toastmasters. Inmates milestone credits that an inmate can earn would be allowed to earn up to four weeks to 12 weeks. However, we note that in a of participation credits per year. few cases the administration is planning Codify Court-Ordered Credits in Regulation. to reduce the amount of credits that As discussed earlier, the federal court required inmates will earn for specific programs. CDCR to implement certain credits that exceed For example, the amount of credits earned limits specified in existing statutes, such as for completing Guiding Rage Into Power allowing nonviolent, non-sex registrant second (GRIP)—a program seeking to help strikers to reduce their terms by up to 33 percent inmates reduce violent behavior—will be through good behavior. The administration plans decreased from four to two weeks. to include these court-ordered changes into its planned regulations. Accordingly, inmates will • Create New Educational Merit Credits. continue to receive these credits once the court Effective August 1, 2017, CDCR plans to order is lifted. offer new credits for specific educational achievements. The administration plans LAO Assessment to reduce inmates’ terms by between three Administration’s Plan Subject to Change. and six months when they accomplish Similar to the regulations on parole consideration, these achievements, such as earning a the administration has only released emergency high school diploma, earning a bachelor’s regulations for its planned changes to credit degree, or becoming certified to provide policies. The final regulations could ultimately be alcohol and drug counseling to other different than the emergency regulations if the inmates. These credits would be applied department chooses to modify them, such as in retroactively, meaning that inmates who response to public comments received through the have completed these achievements before regulatory process. August 1, 2017 would be awarded the Lack of Information on Inmate Access to credits immediately. Programs. The population impact of CDCR’s planned milestone and participation credits will 14 Legislative Analyst’s Office www.lao.ca.gov 2017-18 BUDGET depend on inmates’ access to the programs that yield LAO Recommendations credits. However, the administration indicates that Direct Administration to Report on Final it has not done an analysis of how the availability Regulations. We recommend that the Legislature of these programs will impact credit earning under direct the administration to provide a report, no their plan. On the one hand, the changes in these later than 30 days after the regulations on credit credits could reduce the inmate population by less policies are finalized, that summarizes the final than the administration expects if there is not enough regulations. This report should (1) summarize capacity in rehabilitative and educational programs the final regulations, (2) discuss how the final to allow inmates to earn the number of credits regulations differ from the emergency regulations assumed by the administration. On the other hand, (including justification for any differences), and to the extent there is more than enough capacity, the (3) identify how the changes affect CDCR’s budget planned changes to credit earning could impact the and populations. population by more than the administration expects. Direct Department to Assess Program This creates significant uncertainty about how Capacity. We recommend that the Legislature Proposition 57 will actually impact the state’s inmate direct CDCR to report at budget hearings on population. Such uncertainty makes it difficult for the number and type of programs through the Legislature to evaluate the Governor’s proposed which inmates would receive credits, the current budget adjustments. capacity and attendance rates for these programs, Effectiveness of CDCR’s Programs Remain and the corresponding effect they may have on Unclear. Inmates who participate in approved the inmate population. This information would programs earn credits, which allow them to allow the Legislature to assess whether the accelerate their release, regardless of whether the current availability of programs is sufficient. The programs are effective in reducing their risks to Legislature could then decide whether it needs to public safety. In order to protect public safety, adjust funding for programs accordingly. it is critical that the approved programs are Direct Administration to Evaluate Credit- effective at reducing recidivism. However, CDCR Yielding Programs. We recommend that the currently has only done a limited analysis of the Legislature direct CDCR to contract with effectiveness of its programs. This analysis found independent researchers (such as a university) that the recidivism rates of offenders who received to evaluate the effectiveness of its rehabilitation substance use disorder treatment reoffended at programs and that it prioritize credit-yielding lower rates than those who had not. While many programs for evaluation. We estimate that such of the other programs offered in prisons have evaluations would cost a few million dollars and been shown to be effective elsewhere, analyses could take a few years to complete. The outcomes of of California’s current implementation of these the evaluations would allow the Legislature in the programs have not been completed. future to prioritize funding for programs that have Unclear Rationale Behind Credit Reduction been shown to reduce recidivism. for Certain Programs. As discussed above, the Direct Administration to Explain Credit administration plans to reduce credits awarded for Reductions. We recommend that the Legislature a few programs, including GRIP and two theology direct the administration to report during budget programs. It is unclear why the administration and policy hearings on its rationale for reducing chose to reduce credits awarded for these programs. milestone credits for specific programs. www.lao.ca.gov Legislative Analyst’s Office 15 2017-18 BUDGET FISCAL IMPACTS OF PROPOSITION 57 Governor’s Proposals offender parole process. We note these funds would decline in future years as this The Governor’s January budget proposal for workload decreases. 2017-18 includes various adjustments that reflect the administration’s initial plan to implement • BPH Staff ($1.2 Million). The the provisions of Proposition 57. As indicated administration proposes funding to above, the administration plans to make further support 2.3 additional positions at BPH to adjustments as part of the May Revision to reflect coordinate communications with victims the March 2017 emergency regulations. Figure 2 and district attorneys for the new parole summarizes the fiscal impacts of Proposition 57, consideration process. The proposed funds which we discuss in more detail below. would also allow BPH to hire an additional Staff and Resources to Implement Parole parole commissioner and 4.4 additional Consideration Process and Credit Policies. The deputy commissioners to consider inmates Governor’s January budget proposes a $6.5 million for release. The administration also proposes General Fund augmentation and 20.9 positions in budget trailer legislation that would allow 2017-18 to implement the new parole consideration the Governor to expand the number of BPH process and credit policies. Specifically, these commissioners from 14 to 15. resources include: • Pre-Release Planning and Parole • Case Records Staff ($4.1 Million). The Case Records Staff ($1.2 Million). The administration proposes funding for administration proposes these funds to CDCR to support five additional case support 8.2 additional positions at CDCR’s records positions and overtime for current Division of Adult Parole Operations to staff to (1) process inmate release and do pre-release planning and manage parole eligibility date changes as a result case records for the anticipated increase of expanded credit earning and (2) screen in the parolee population caused by inmates for eligibility for the nonviolent Proposition 57. Figure 2 Inmate Population Fiscal Impacts Related to Proposition 57a Reduction. By expanding inmates’ opportunities (In Millions) to be released before 2017-18 they have served their Staff and resources to implement new parole consideration $6.5 process and credit policies full sentence, the Inmate population reduction -47.8 administration’s new Parolee population increase 7.1 parole consideration Juvenile population increase 4.8 Grants to counties for increased post release community 6.4 process and credit policies supervision population will reduce the state’s Total -$23.0 inmate population. a Calculated based on administration’s population estimates made before release of emergency regulations. As shown in Figure 3, 16 Legislative Analyst’s Office www.lao.ca.gov 2017-18 BUDGET the Governor’s January Figure 3 budget projects that the January Projection of Inmate Population Reduction administration’s initial Under Proposition 57 plan for implementing Proposition 57 would reduce 160,000 the inmate population by 140,000 about 2,000 in 2017-18. We 120,000 estimate that this decrease 100,000 would allow the department 80,000 to avoid about $48 million in 60,000 costs it would have incurred 40,000 Projected Proposition 57 Reduction in the absence of the measure. 20,000 Projected Population The population impact of the measure is expected to grow 2015-16 2016-17 2017-18 2018-19 2019-20 2020-21 to an average daily population reduction of about 9,500 by 2020-21. The administration Juvenile Population Increase. The expects that this decline in the inmate population administration expects that the new juvenile will allow it to remove inmates from one of two transfer hearing requirement will increase the out-of-state contract facilities in 2017-18 and from number of youths committed to DJJ. Specifically, as all out-of-state contract facilities by 2020-21. shown in Figure 5 (see next page), the Governor’s Parolee Population Increase. Because the January budget projects that Proposition 57 will administration’s plan to implement Proposition 57 increase the DJJ ward population by 72 in 2017-18. will increase the rate at which inmates will be Accordingly, the administration is proposing a released from prison, it will temporarily increase $4.8 million General Fund augmentation in 2017-18 the parolee population. Specifically, as shown to accommodate this increase. Most of these funds in Figure 4, the Governor’s January budget projects Figure 4 that its initial plan for January Projection of Parolee Population Increase implementing Proposition 57 Under Proposition 57 will temporarily increase the parolee population by about 60,000 1,000 in 2017-18. Accordingly, 50,000 the Governor’s budget reflects 40,000 an increase in the parole budget of about $7.1 million 30,000 in 2017-18. The parolee 20,000 Projected Proposition 57 Increase population impact is expected Projected Baseline Population 10,000 to grow to about 5,000 by 2019-20 and to generally 2015-16 2016-17 2017-18 2018-19 2019-20 2020-21 decline thereafter. www.lao.ca.gov Legislative Analyst’s Office 17 2017-18 BUDGET would be used to activate two additional living LAO Assessment units, one at N.A. Chaderjian Youth Correctional Budgetary Impacts Subject to Change. Facility in Stockton and the other at Ventura Youth As mentioned above, the administration’s Correctional Facility in Camarillo. The population implementation plan changed somewhat between impact is expected continue to increase to about the release of the Governor’s January budget 145 wards by 2020-21. proposal and the release of the emergency Grants to Counties for Increased Post Release regulations in March 2017. These changes to the Community Supervision (PRCS) Population. implementation plan will likely alter somewhat the Offenders whose current offense is nonserious and administration’s projected population impacts and nonviolent are placed on PRCS and supervised by budget requests, though at the time of this analysis county probation departments rather than state the administration had not provided these updates. parole agents when they are released from prison. In addition, as discussed previously, the Because Proposition 57 will increase the rate at regulations for the nonviolent offender parole which inmates will be released from prison, it consideration process and new credit earning will temporarily increase the PRCS population. policies are not yet finalized. Accordingly, the Accordingly, the Governor’s January budget administration’s implementation plans and proposes to provide counties with $6.4 million in timeline are subject to further change, which 2017-18 on a one-time basis to offset some of the raises additional uncertainty about their budgetary costs they will incur from the temporary increase effects. in the PRCS population. The administration Population Impacts of Proposition 57 Are reports that counties will be provided with $10,250 Difficult to Predict. Even if the administration’s to supervise each PRCS offender for a period of regulations do not change, its projections of the 18 months. Proposition 57 impacts would still be subject to uncertainty because of Figure 5 the inherent difficulty of January Projection of Division of Juvenile Justice projecting the effects of Ward Population Increase Under Proposition 57 the measure. For example, 900 the effects of the parole consideration process will 800 depend on decisions made by 700 deputy parole commissioners. 600 Similarly, the effects of the 500 proposed credit expansion 400 will depend on how inmates 300 Projected Proposition 57 Increase respond to increased good 200 Projected Baseline Population conduct credit earning rates 100 and credits for participating 2015-16 2016-17 2017-18 2018-19 2019-20 2020-21 in programs and activities as well as the capacity of these 18 Legislative Analyst’s Office www.lao.ca.gov 2017-18 BUDGET programs. Finally, the effect on DJJ will depend on workload required to implement and operate the decisions made by juvenile court judges. new parole process and credit policies make it difficult to assess the Governor’s requested funding LAO Recommendation for implementation. Given these uncertainties, we Withhold Action Pending the May Revision. recommend that the Legislature withhold action on Uncertainty in the population impacts of the administration’s January budget adjustments Proposition 57 makes it difficult to assess the pending the receipt of revised adjustments from the Governor’s population-related budget requests. administration. In addition, uncertainty in the timing of and www.lao.ca.gov Legislative Analyst’s Office 19 2017-18 BUDGET LAO Publications This report was prepared by Caitlin O’Neil and reviewed by Drew Soderborg. The Legislative Analyst’s Office (LAO) is a nonpartisan office that provides fiscal and policy information and advice to the Legislature. To request publications call (916) 445-4656. This report and others, as well as an e-mail subscription service, are available on the LAO’s website at www.lao.ca.gov. The LAO is located at 925 L Street, Suite 1000, Sacramento, CA 95814. 20 Legislative Analyst’s Office www.lao.ca.gov