BILL ANALYSIS Ó
AB 257
Page 1
Date of Hearing: April 26, 2011
Counsel: Milena Nelson
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 257 (Galgiani) - As Amended: March 31, 2011
SUMMARY : Requires the California Department of Corrections and
Rehabilitation to develop a unified statewide electronic mail
(e-mail) victim notification system for notifying victims who
request that notification of parole hearings or release dates
for their offenders be sent to them by e-mail. This system
shall be in place by July 2, 2012.
EXISTING LAW :
1)Requires the Board of Parole Hearings (BPH), upon request, to
notify any victims of any crime committed by the prisoner, or
the next of kin if the victim has died, at least 90 days
before any hearing to review or consider the parole
suitability or the setting of a parole date for any prisoner
in a state prison. ĘPenal Code Section 3043(a)(1).]
2)States that the victim, next of kin, members of the victim's
family, and two representatives have the right to appear,
personally or by counsel, at the hearing and to adequately and
reasonably express his, her, or their views concerning the
prisoner and the case, including, but not limited to the
commitment crimes, determinate term commitment crimes for
which the prisoner has been paroled, any other felony crimes
or crimes against the person for which the prisoner has been
convicted, the effect of the enumerated crimes on the victim
and the family of the victim, the person responsible for these
enumerated crimes, and the suitability of the prisoner for
parole. ĘPenal Code Section 3043(b)(1).]
3)States that BPH shall be responsible for protecting victims'
rights in the parole process. ĘPenal Code Section 3044(a).]
4)States that, upon request, the victim of a domestic violence
crime, as specified, shall be notified of the release of the
parolee and the parolee's location and parole agent or
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officer. ĘPenal Code Section 3053.2(f).]
5)States that the victim or next of kin to the victim is
entitled to be notified, upon request, of any parole
eligibility hearing and of the right to appear, either
personally or by other means specified, to reasonably express
his or her views, and to have his or her statements
considered. ĘPenal Code Section 679.02(a)(5).]
6)Requires the county district attorney, probation department
and victim-witness coordinator confer and establish an annual
policy to decide, for convictions involving a violent offense,
as specified, which one of their agencies shall inform each
witness who was threatened by the defendant following the
defendant's arrest, and each victim or next of kin of the
victim of that offense of the right to request and receive a
notice of any hearing to review or consider the parole
suitability or the setting of a parole date for any prisoner
in a state prison. ĘPenal Code Section 679.03(a).]
7)States that the victim of a crime is entitled to be informed,
upon request, of the conviction, sentence, place and time of
incarceration, or other disposition of the defendant, the
scheduled release date of the defendant, and the release of or
the escape by the defendant from custody. ĘCal. Const. Art. I
Section 28(b)(12).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Parole Hearings : Prisoners serving indeterminate sentences
that include the possibility of parole are not entitled to
release on parole, but are entitled to be considered for
parole. BPH is tasked with making the determination at a
parole consideration hearing. The hearing consists of a
two-person panel, consisting of two commissioners or a
commissioner and a deputy commissioner. The issue is whether
the prisoner, who has been sentenced to life in prison with
the possibility of parole, should be release from custody.
The standard is whether or not the inmate currently poses an
unreasonable risk to the public safety.
BPH examines the commitment offense, prior criminal and social
history, the prison disciplinary record, the prisoner's
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programming while incarcerated, psychological reports,
confidential information, and input from the public. The
prisoner attempts to persuade the panel that he or she is
suitable by testifying and presenting documents. The prisoner
in turn is questioned by the hearing panel, the district
attorney, and his or her attorney. Finally, the district
attorney, the prisoner's attorney and the prisoner make
closing statements. Thereafter, a victim or next of kin of a
victim may make an oral statement, or submit an audio- or
video-taped statement about the crime and its impact. In
addition, any member of the public may submit a letter to the
BPH on the issue of whether the prisoner should be paroled,
and it must be considered by the hearing panel.
2)Marsy's Law : On November 4, 2008, the voters of the State of
California approved Proposition 9, the Victims' Bill of Rights
Act of 2008: Marsy's Law, a ballot initiative to provide all
victims with rights and due process. The passage of
Proposition 9 drastically changed parole review. Before
Proposition 9, existing law provided a few different
circumstances in which the BPH may review parole less
frequently after initial parole denial. Parole was reviewed
every two years if the BPH found there was no reasonable
likelihood that parole would be granted the following year.
Since Proposition 9, the BPH must set parole schedules after
denial based on the views and interests of victims as follows:
rather than every two years if BPH finds no reasonable
likelihood of parole, BPH may schedule a review 15 years after
any hearing at which parole is denied assuming the
commissioners do not find clear and convincing evidence to do
otherwise, and then may set the date every 10 years. ĘPenal
Code Section 3041.5(b)(2)(A), as amended by Proposition 9.]
Also, prior to Proposition 9, parole review was every five years
if the inmate was convicted of murder. Proposition 9 states
that subsequent review may occur every 10 years rather than
five unless the BPH finds clear and convincing evidence does
rule otherwise and may then set the date every seven years.
Proposition 9 also made the following changes to parole
hearings:
a) The BPH shall conduct a parole hearing as a de novo
hearing. Findings made and conclusions reached in a prior
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parole hearing shall be considered, but shall not be deemed
to be binding, upon subsequent parole hearings for an
inmate, but shall be subject to reconsideration based upon
changed facts and circumstances. When conducting a
hearing, the BPH shall admit the prior recorded or
memorialized testimony or statement of a victim or witness
upon request of the victim or if the victim or witness has
died or become unavailable. At each hearing, the BPH shall
determine the appropriate action to be taken based on the
criteria set forth, as specified.
b) An inmate may request that the BPH exercise its
discretion to advance a hearing to an earlier date, by
submitting a written request to the BPH, with notice, upon
request, and a copy to the victim which shall set forth the
change in circumstances or new information that establishes
a reasonable likelihood that consideration of the public
safety does not require the additional period of
incarceration of the inmate.
c) The BPH shall have sole jurisdiction, after considering
the views and interests of the victim, to determine whether
to grant or deny a written request, and its decision shall
be subject to review by a court or magistrate only for a
manifest abuse of discretion by the board. The BPH shall
have the power to summarily deny a request that does not
comply with the provisions, as specified, or that does not
set forth a change in circumstances or new information, as
specified, that in the BPH's judgment is sufficient to
justify the action, as specified.
d) An inmate may make only one written request during each
three-year period. Following either a summary denial of a
request or the BPH's decision after a hearing to not set a
parole date, the inmate shall not be entitled to submit
another request for a hearing until a three-year period of
time has elapsed from the summary denial or BPH decision.
e) The BPH or its successor in interest shall be the
state's parole authority and shall be responsible for
protecting victims' rights in the parole process.
f) To protect a victim from harassment and abuse during the
parole process, no person paroled from a California
correctional facility following incarceration for an
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offense committed on or after the effective date of this
act shall, in the event his or her parole is revoked, be
entitled to procedural rights other than the following:
i) A parolee shall be entitled to a probable cause
hearing no later than 15 days following his or her arrest
for violation of parole.
ii) A parolee shall be entitled to an evidentiary
revocation hearing no later than 45 days following his or
her arrest for violation of parole.
iii) A parolee shall, upon request, be entitled to
counsel at state expense only if, considering the request
on a case-by-case basis, the BPH or its hearing officers
determine the parolee is indigent; and considering the
complexity of the charges, the defense, or because the
parolee's mental or educational capacity, he or she
appears incapable of speaking effectively in his or her
own defense.
g) In the event the parolee's request for counsel, which
shall be considered on a case-by-case basis, is denied, the
grounds for denial shall be stated succinctly in the
record.
h) Parole revocation determinations shall be based upon a
preponderance of evidence admitted at hearings, including
documentary evidence, direct testimony, or hearsay evidence
offered by parole agents, peace officers, or a victim.
i) Admission of the recorded or hearsay statement of a
victim or percipient witness shall not be construed to
create a right to confront the witness at the hearing.
j) The BPH is entrusted with the safety of victims and the
public and shall make its determination fairly,
independently, and without bias and shall not be influenced
by or weigh the state cost or burden associated with just
decisions. The BPH must accordingly enjoy sufficient
autonomy to conduct unbiased hearings, and maintain an
independent legal and administrative staff. The BHP shall
report to the Governor.
3)Related Legislation :
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a) AB 44 (Logue) would extend from 45 to 60 days the time
in which CDCR must notify local law enforcement and the
district attorney that an inmate convicted of a violent
felony is going to be released on parole in the
jurisdiction. AB 44 is pending a vote on the Assembly
floor.
b) AB 648 (Block) would require a person applying for an
Executive pardon or commutation to at least 30 days prior
to the Governor acting to give notice to the district
attorney in the county where the conviction occurred. AB
648 is pending a vote on the Assembly floor.
c) AB 886 (Cook) would prohibit the court from releasing
victim impact statements to the public prior to being heard
in court. AB 886 is pending a vote on the Assembly floor.
d) AB 1281 (Garrick) would allow a victim or next of kin of
a victim to participate at a parole suitability hearing by
means of audio-conferencing. AB 1281 will be heard by this
Committee today.
4)Previous Legislation : AB 2290 (Bradford), of the 2009-10
Legislative Session, would have required CDCR to notify local
law enforcement not less than 60 days prior to the scheduled
release of an inmate who is scheduled to be released on
non-revocable parole. AB 2290 was vetoed. In his veto
message, the Governor stated:
"This measure is unnecessary because CDCR currently provides
this information to local law enforcement. Moreover, this
measure would unnecessarily specify the use of a particular
data system, which could limit the department's flexibility to
make improvements and updates to the current system. For
these reasons, I am unable to sign this bill."
REGISTERED SUPPORT / OPPOSITION :
Support
None
Opposition
AB 257
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None
Analysis Prepared by : Milena Nelson / PUB. S. / (916)
319-3744