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California Appeals Court Says Prop. 57 Doesn’t Require In-Person Parole Hearings

by Kevin W. Bliss

On March 28, 2022, the California Court of Appeals for the Third Appellate District ruled that a new “paper review” process for parole consideration did not violate the equal protection or due process rights of state prisoners affected by it.

After a federal district court ordered the California Department of Corrections and Rehabilitation (CDCR)—for the second time in five years—to implement measures that would reduce overall prison population to 137.5% of designed capacity, California voters passed Proposition 57 in November 2016. [See: PLN, July 2011, p.1; and Jan. 2017, p.12.]

That ballot measure added Amendment 32 to Article I of the state’s constitution, which reads in part: “Any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.”

In 2017, Larry Bailey applied for early parole consideration under this provision. At the time he had served just three years of a 28-year sentence for assault with a deadly weapon and leaving the scene of an accident, after he got into an argument with another homeless man in a Sears parking lot and ran him over with the truck in which Bailey and his girlfriend were living, breaking several of the victim’s ribs.

The Board of Parole Hearings (BPH) denied Bailey’s application that year and another filed the next. Bailey appealed both denials and, after they were affirmed by BPH, he filed for a writ of habeas corpus in state Superior Court for Sacramento County, arguing among other things that his due-process and equal-protection rights were violated by BPH’s policy of conducting a “paper review” without an in-person hearing he could attend.

The superior court agreed and granted Bailey habeas relief, ordering CDCR to amend its newly established rules to accommodate in-person parole hearings. CDCR appealed.

Taking up the case then, the Court of Appeals noted first that Bailey’s claim had not been mooted by BPH’s subsequent decision to grant him parole. Getting to the heart of the matter, the Court agreed that the clear purpose of Proposition 57 was to promote rehabilitation and reduce high prison population, along with its associated costs. But it found nothing in the plain language to require an in-person parole hearing.

The regulations that CDCR promulgated to create the new parole category allow prisoners to submit material in support of their bids, challenge adverse rulings, and receive reviews from uninterested third parties, all of which serve to preserve prisoners’ rights to due process and equal protection, the Court said.

On top of that, foregoing in-person hearings reduces costs and promotes efficiency in rehabilitation, the Court added, thereby conforming to the intent of the ballot measure that voters approved by a 64.5% to 35.5% margin.

Thus the lower court’s decision was reversed and CDCR’s promulgated regulations were declared appropriate. See: In re Bailey, 76 Cal. App. 5th 837 (2022).

Bailey filed a petition for review with the state Supreme Court which was then denied on July 13, 2022. See: In re Bailey, 2022 Cal. LEXIS 3907.

He was represented in his appeal by counsel appointed by the Court, Byron C. Lichstein of Lichstein and Plummer in Auburn.

When Bailey was released in October 2021, he had served 26% of his sentence, drawing strong opposition from the office of Sacramento County District Attorney Ann Marie Shubert, whose letter opposing Bailey’s original 2017 parole application noted he also had prior convictions dating back to 1969 for assault with a deadly weapon, robbery, being a felon in possession of a firearm, first-degree burglary and vehicle theft—all of which had been used to pile an extra 24 years in enhancements on his sentence, as noted by the Court in an earlier decision affirming his conviction. See: People v. Bailey, 2015 Cal. App. Unpub. LEXIS 4589.

Without those, Bailey actually served nearly twice the term that his conviction would otherwise carry. 

Additional source: Sacramento County District Attorney’s Office

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Related legal case

People v. Bailey