Almost as soon as state voters approved the criminal justice reform measure Proposition 57 in 2016, Alexei Kavanaugh believed his days at Mule Creek State Prison were numbered, and release from state prison was close.

Kavanaugh was serving a 14-year, eight-month sentence after pleading guilty to a handful of crimes: identity theft, prescription drug fraud, making a criminal threat and being a felon in possession of a weapon. The charges stemmed from a 10-day crime spree he embarked on in the early days of 2012, and his sentence was inflated because of his prior criminal record.

But Proposition 57, approved by 65 percent of state voters, held out hope. Under the new law, inmates with convictions for nonviolent crimes, serving a determinate sentence — one with a limited number of years, as opposed to life in prison — were eligible for parole after completing the full term for the “base term,” or primary crime, for which they were sentenced. For Kavanaugh, who had a three-year base term starting in 2013, that meant he was eligible as soon as the law became effective, potentially cutting off more than a decade from his sentence.

Yet Kavanaugh was rejected twice for early parole in 2017 and again in 2018. He was finally released at the start of 2020, but only after he successfully sued the state for not following Proposition 57 rules. In July 2019, San Diego Superior Court Judge Howard Shore issued a stern ruling in Kavanaugh’s case, concluding that the California Department of Corrections and Rehabilitation had devised rules for inmates like Kavanaugh that violated the intent of Proposition 57.


He said then that the current rules were “void” and that the agency had to draw up new procedures that complied with the law.

It was one of several rulings by judges around the state over the past several years striking down the rules the department had devised for releasing inmates. And while voters may have thought in 2016 they were approving a law that would drain the overcrowded state prisons of nonviolent offenders serving long sentences, that has not been the case.

In the past 2 1/2 years, 20 percent of all eligible nonviolent offenders with determinate sentences have been granted parole, according to corrections department data. Since July 2017, 2,603 inmates were granted release, while parole was denied to 10,397.

In a handful of court cases from the Bay Area to San Diego, judges have struck down the regulations the department devised for inmates eligible for early parole under Proposition 57. In one case in 2018, an appeals court said rules that barred nonviolent Three Strikes inmates from early parole consideration were not compatible with the proposition. Then last April, the 1st District Court of Appeal issued a broader decision, ruling that the department’s use of a screening and referral process to determine who was eligible for early release was illegal.


In the ruling, the judges noted that the screening process — which had excluded from parole consideration one third of eligible inmates — “is at odds with the clear language” of Proposition 57.

Under that system a single person reviewed the records of eligible inmates and referred them to the parole board only if they met eight criteria established by the department. Those criteria required an inmate not to have any serious disciplinary violations while in prison, which the department said would show the inmate posed an unreasonable risk to public safety.

But the court ruled that process was fatally flawed because Proposition 57 said eligible inmates would be given “parole consideration,” and the court said that phrase mean consideration by by the members of the parole board — not a single department employee reviewing an inmate file.

“What they have been doing is thwarting the will of the voters,” said Richard Braucher, the lawyer who brought the case on behalf of inmate Tijue McGhee. “It appears they are making it harder and harder for inmates who qualify for release.”


Since that decision, the department has gone back and drafted yet another set of regulations for inmates, which are not yet final.

A spokesman for the Department of Corrections and Rehabilitation said the agency could not comment on the issue of how many nonviolent inmates are being paroled, because Kavanaugh’s case as well as several other inmates are on appeal, and the agency does not comment on pending litigation. The department has argued in those cases that the screening process was within its discretion, and that not having a screening process would mean the parole board would have thousands more parole cases annually — a large workload that might have the unintended consequence of fewer inmates being released.

Other inmates, like Kavanaugh, have challenged the law and won on similar grounds. Kavanaugh argued that not having a hearing violated the proposition and his due process rights. Even though he was released on Jan. 5, after Shore’s ruling in his favor, the case remains active because the state Attorney General’s Office appealed the judge’s ruling.

Kavanaugh, who has helped other nonviolent inmates file petitions on their cases, said the department is simply dragging its feet to keep inmates in prison for as long as they can. He said the screening process now struck down was no more than a “paper review” of the inmate’s file, and not the more expansive parole board hearing where inmates are present, have a lawyer and can answer questions and make their case to parole board officers.


“There are are thousands of inmates being denied Prop 57 parole because they are saying basically you haven’t done enough time — though that is not how they put it,” he said.