SAN FRANCISCO (CN) — California’s highest court will soon decide whether Proposition 57 — an initiative passed by voters in 2016 that expanded parole to all inmates convicted of nonviolent felonies — should apply to a convicted rapist and child molester serving 35 years to life after repeatedly slashing his girlfriend with a knife.
A jury found Gregory Gadlin guilty of assault with a deadly weapon in 2007, a crime considered a nonviolent felony under Proposition 57 that would entitle him to a parole hearing.
Deputy Attorney General Charles Chung said Gadlin’s two prior sexual crimes from the 1980s render him ineligible. Ralph Diaz, then secretary of the Department of Corrections and Rehabilitation made a reasonable decision to exclude registered sex offenders from early parole consideration under Proposition 57 after determining that the “overwhelming majority include physical violence, coercion, duress, and lack of consent.”
Chung said Diaz also considered the unique risk registered sex offenders pose to public safety.
“The decision to exclude registered sex offenders was also informed by the promises made by Governor Jerry Brown to the voters in the ballot materials,” Chung told the California Supreme Court at a hearing Wednesday. “It is reasonable for the department to consider the ballot materials when deciding how to exercise the rule-making authority conferred on it so as to implement the program in a way that the voters expected. That is what Secretary Diaz did here when he outlined the reasons for excluding these registered sex offenders.”
In granting Gadlin’s habeas corpus petition in 2019, an appellate court found the constitutional amendment enacted by Proposition 57 made clear that “early parole eligibility must be assessed based on the conviction for which an inmate is now serving a state prison sentence (the current offense), rather than prior criminal history.”
The crime Gadlin is currently doing time for was his “third strike” under California’s Three Strikes law, hence the 35 years-to-life sentence. An appellate court held in 2018 that “nonviolent” three strikes offenders are eligible for parole hearings.
Chief Justice Tani Cantil-Sakauye said the language of the constitutional amendment is the crux of the case.
“In what way does the department justify denying Mr. Gadlin the opportunity for early parole consideration based on a prior, when there appears to be nothing in the language of the constitutional amendment that even mentions a prior conviction,” Cantil-Sakauye asked.
Chung said the law does not mandate that a registered sex offender must be included either. Instead, Proposition 57 contained a provision allowing the corrections department to adopt regulations furthering the goal of determining early parole consideration eligibility for “nonviolent” felons that “protect and enhance public safety.”
Justice Mariano-Florentino Cuéllar said the public safety enhancement provision appears to give the secretary unlimited power.
But Chung said Diaz has the discretion to carry out Proposition 57 based on what the voters could reasonably expect. California already excluded sex offenders from early parole prior to Proposition 57, and “the secretary did not find an indication that the voters intended for the department to change that policy,” Chung said.
“Would it have been permissible for the secretary to determine that any person who has in the past been convicted of any violent felony would be ineligible for consideration for parole under this constitutional provision?” Justice Leondra Kruger asked.
Chung said likely not, as the Proposition 57 ballot materials said nothing about past violent offenses.
“But the implication in your argument is that CDCR can in fact can exclude from parole eligibility anybody convicted of a violent offense,” Cuellar pushed.
“Not necessarily, unless there are things like there are with past connections for sex offenses that are linking those past offenses to issues of public safety,” Chung said.
Gadlin’s attorney Janice Bellucci said Diaz ignored the will of the voters and rewrote the language of Proposition 57 to categorically exclude any prisoner required to register as a sex offender from the possibility of early parole. “By doing so, CDCR treats every sex offense as a violent offense,” she said.
Bellucci said the corrections department does not have the authority to decide who is eligible to receive a parole hearing, adding that not every inmate who receives one is granted parole. But it would be nonetheless wrong, she argued, to shut out a broad category of offenders from parole consideration.
“It also captures nonviolent misdemeanor offenses, for example indecent exposure,” she said. “The problem is they have painted with too broad a brush there and they have basically said every sex offense is a violent offense.”
Cantil-Sakauye asked Bellucci if Gadlin’s case would be affected by Proposition 20, an initiative on this year’s ballot that if passed would increase the number of crimes considered violent felonies that are restricted from early parole, including Gadlin’s assault with a deadly weapon conviction.
Bellucci said Proposition 20 should not be applied to Gadlin since his case has been pending for so long. “At the time this case was filed, there was no Proposition 20 and [assault with a deadly weapon] was considered a nonviolent offense,” she said.