Prop. 57 swings pendulum from 'warehousing' to early parole

One of two men who crafted a $3.3 million investment scam around an innovative medical syringe was sentenced to prison last month for more than 35 years.

He could get out in five.

That disparity is created by Proposition 57, approved by California voters last year to reduce the state prison population and give nonviolent offenders an early second chance to mend their ways.

The law, among other provisions, gives the state Board of Parole Hearings greater power in deciding when a non-violent inmate may be eligible for parole.

So far, the board has reviewed the cases of thousands of eligible inmates and granted parole for more than 600, including about 70 who were sentenced in San Diego County.

Among them were people convicted of burglary, drug crimes, vehicle theft, grand theft, elder abuse, vandalism and other crimes.

“People who are sentenced to long terms are being released significantly earlier than they would have been" before Proposition 57, said David Greenberg, a chief deputy in the San Diego District Attorney’s Office.

That fact is seen as a good thing by criminal defense attorneys, including San Diego lawyer Michael Crowley.

“We've gone way overboard in warehousing people,” Crowley said. “The pendulum is swinging back.”

The initiative was backed by Gov. Jerry Brown who is under federal court order to lower the inmate population. That has been accomplished to a large degree by allowing some lower-level offenders to serve their sentences in county jail instead of state prison.

Proposition 57 went further, expanding the “credits” inmates earn that shave months off their prison terms.

Good behavior, earning a high school or college diploma and completing a variety of self-improvement courses such as anger management or substance abuse all go toward earning credits.

When nonviolent inmates are evaluated for early parole, the state board considers their behavior in prison, participation in programs and education, as well as their criminal history and whether they would pose an unreasonable risk to public safety.

If they meet all the criteria in a positive way, they could get out after serving the entire sentence that was imposed for their most serious crime, called the “base term.”

As an example, if someone was sentenced to six years for burglary as the base term, plus additional years for related crimes such as possession of stolen goods or conspiracy and for having prior convictions, he or she could be granted parole after serving just the first six years.

“I don't think voters thought people who receive a significant amount of time for crimes such as residential burglary and assault, who had prior crimes of violence in their history, would benefit from this initiative,” Greenberg said.

Tying early parole to the base term is how Matthew Mazur could get out of prison after serving five years of his sentence of 35 years, 8 months for duping investors into thinking his SafeSnap syringe would be mass-produced by U.S. Medical Instruments Inc.

“I personally will be arguing against it,” said Deputy District Attorney Hector Jimenez when Mazur was sentenced Dec. 15. Jimenez prosecuted Mazur and co-defendant Carlos Manjarrez and opposes early parole in the case.

After a jury in November convicted Mazur of 36 counts including grand theft, theft from an elder and securities fraud, a judge chose one count and imposed the maximum five-year term. The judge ordered sentences for most of the other crimes to run consecutively, piling on the time.

Manjarrez was convicted of 31 similar charges but will be sentenced at a later date.

The state Department of Corrections and Rehabilitation has been keeping track of how many of its roughly 130,000 inmates have been referred to the parole board for early release under Proposition 57 since July. It took the agency six months to solicit public comments and draft the regulations for granting early parole.

Between July 1 and Nov. 30, the parole board reviewed cases for 3,327 inmates. The board approved early parole for 617 of those, and denied parole for 2,710, according to the state’s latest monthly report.

Greenberg has been compiling similar figures for San Diego County cases.

As of the end of December, Greenberg’s office has received notice that 372 inmates prosecuted in San Diego County were eligible for early release. Parole was granted to 71 of them, and denied to 301.

The state sends prosecutors emailed notice each time an inmate is referred for early parole consideration. Prosecutors and any victims who care to comment have 30 days to reply with a letter opposing the parole.

A prisoner can appeal if denied parole, but prosecutors can’t appeal if the parole is granted, under terms of Proposition 57.

Crowley said the parole board is not known for handing out early releases easily.

“Proposition 57 allows the parole board to take a look at whether that's appropriate,” Crowley said. “It’s left to the professionals to determine.”

Greenberg noted that part of the debate over the new law is about who should decide how long a criminal stays in custody — the judges or the parole board.

Also controversial is the state Penal Code that defines what offenses are deemed violent. Among crimes not on that list — and therefore possibly viewed as nonviolent — are assault with force, rape of an unconscious person, battery with serious injury, some domestic violence, some child abuse and exploding a destructive device with intent to commit injury.

Crowley said the prison officials know whether an inmate has worked toward rehabilitation or not, and whether they deserve to serve out extra sentencing enhancements for prior convictions, use of a weapon or criminal gang activity.

“If a person is a model prisoner, it gives the board more power to say, ‘No, these enhancements are not needed,’” said Crowley

He called enhancements “something prosecutors often use as a sledgehammer on the heads of our clients as we're trying to settle a case.”

Prosecutors and judges are mindful of Proposition 57 early parole releases and earned credits when they negotiate sentences now, Greenberg said.

“It is another factor to consider in determining what the appropriate sentence should be,” he said. “The base term has a lot more significance than it did before.”

However, judges can’t just impose the highest sentence to keep the offender in prison as long as possible without considering a range of factors. Judges must balance the circumstances of the case such as whether the defendant has a past criminal history, used violence, inflicted significant harm on the victims or pleaded guilty early in the court process.

“Every case and every defendant is handled individually,” Greenberg said.

He said that because the early parole releases began just six months ago, it’s too early to tell whether it is working out for the best.

“We'll see what the folks do who got out early, see how well they behave. I'm concerned that some folks who get early release due to Prop. 57 will victimize people again,” Greenberg said.

He said the only offenders sent to prison in the past several years — rather than local jail or a diversionary program — are those convicted of serious crimes or have prior convictions known as “strikes.”

“Most people in prison are not career criminals,” Crowley countered. “I don't see Proposition 57 allowing violent people back on the streets to victimize the community.

“It brings rationality to the system.”

pauline.repard@sduniontribune

Twitter: @pdrepard

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