BILL ANALYSIS                                                                                                                                                                                                    



                                                                     AB 920


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          Date of Hearing:  April 14, 2015
          Counsel:               Sandra Uribe



                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                                  Bill Quirk, Chair





          AB  
                        920 (Gipson) - As Amended  April 8, 2015


                       As Proposed to be Amended in Committee


          SUMMARY:  Allows a victim, next of kin, or victim's attorney to  
          obtain a copy of the packet prepared by the parole board for  
          purposes of a parole-suitability hearing.  Specifically, this  
          bill:  

          1)Authorizes the victim, victim's next of kin, or victim's  
            attorney to request a copy of the parole board packet.

          2)Requires the Board of Parole Hearings (BPH) to provide the  
            packet, if requested, at the same time that the information is  
            given to the district attorney.  

          3)Requires the BPH to redact any confidential information in the  
            board packet before providing it to the victim, or the  
            victim's attorney.

          4)Allows the victim or next of kin to submit relevant documents  
            related to any subject about which they have a right to be  
            heard, including recommendations regarding the grant of  
            parole.









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          5)States that any other information possessed by the victim or  
            next of kin which is not contained in the board packet shall  
            be submitted in writing to BPH no later than 10 days before  
            the hearing.

          EXISTING LAW:  

          1)Provides guidelines for the BPH to schedule parole hearings  
            for prisoners in California Department of Correction and  
            Rehabilitation for whom they are appropriate. (Pen. Code,   
            3041.5.)





          2)Allows the prisoner, at least 10 days prior to the parole  
            suitability hearing, to review his or her file which will be  
            examined by the board, and gives the prisoner the opportunity  
            to file a written response to any material contained in the  
            file.  (Pen. Code,  3041.5, subd. (a)(1).)



          3)Allows the prisoner to be present at the hearing, to ask and  
            answer questions, and to speak on his or her own behalf.   
            (Pen. Code,  3041.5, subd. (a)(2).)

          4)Entitles the victim or next of kin if the victim has died, 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.  (Pen. Code,   
            679.02, subd. (a)(5).)

          5)Requires the BPH to give at least 30-day's notice to the  
            superior court judge, the defendant's trial attorney, the  
            district attorney, and the investigating law enforcement  
            agency, about an upcoming parole-review hearing.  (Pen. Code,  
             3042.)

          6)Requires the BPH, upon request, to notify any victims of any  








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            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.  (Pen. Code,  3043,  
            subd. (a)(1).)

          7)Provides that the victim, next of kin, members of the victim's  
            family, and two designated 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.  (Pen. Code,  3043, subd.  
            (b)(1).)

          8)Provides that any statement by a representative designated by  
            the victim or next of kin may cover any subject about which  
            the victim or next of kin has the right to be heard, including  
            any recommendation regarding the granting of parole.  (Pen.  
            Code,  3043, subd. (b)(2).)

          9)Requires BPH, in deciding whether to release the person on  
            parole, to consider the entire and uninterrupted statements of  
            the victim or victims, next of kin, immediate family members  
            of the victim, and the designated representatives, if  
            applicable, and shall include in its report a statement  
            whether the person would pose a threat to public safety if  
            released on parole.  (Pen. Code,  3043, subd. (d).)

          10)Permits the victim, his or her next of kin, immediate family  
            members, or two representatives to provide a statement in  
            writing or a recorded statement in lieu of making a personal  
            appearance.  (Pen. Code,  3043.2, subd. (a)(1).)

          11)Allows the victim to appear by means of videoconferencing, if  
            it is available at the hearing site.  (Pen. Code,  3043.25.)









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          FISCAL EFFECT:  Unknown

          COMMENTS:                                             

          1)Author's Statement:  According to the author, "Our justice  
            system is based on principles of fair treatment and equal  
            rights. However, when the victim of a crime is not allowed  
            access to information relevant to the parole hearing of their  
            assailant, which is provided to the inmate's attorney seeking  
            release, there is not equality for both sides. AB 920  
            addresses this disparate treatment by requiring that an  
            attorney designated by a crime victim or their next of kin is  
            granted the same rights to discovery as the inmate's attorney  
            and district attorney during a parole hearing."

          2)Victim's Bill of Rights:  On November 4, 2008, the voters  
            approved Proposition 9, the Victims' Bill of Rights Act of  
            2008:  Marsy's Law.  This measure amended the California  
            Constitution to provide additional rights to crime victims.   
            In pertinent part, for purposes of this bill, the initiative  
            allows a victim "[t]o 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.  (Cal. Const., article I,   
            28(b)(12).)

          Marsy's Law also amended increased victims' rights with regards  
            to lifer parole-suitability hearings.  Specifically, it did  
            the following:

                     Expanded the definition of "victim" related to who  
                 can attend a hearing;

                     Allows victims to attend hearings without being  
                 questioned by the prisoner or the prisoner's attorney;

                     Expanded the scope of persons entitled to a  
                 stenographic recording of the proceedings;

                     Requires the BPH to consider all of the victim's  
                 statements when determining whether to release a prisoner  








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                 on parole;

                     Requires the BPH, when denying parole to consider  
                 the victim's safety, among other circumstances, in  
                 determining the length of the denial period;

                     Requires the BPH, upon request, to send notice to  
                 victims and victim's next of kin if the victim died, 90  
                 days prior to any hearing to review or consider the  
                 parole suitability or the setting of a parole date; and  
                 to confirm the date, time and place of the hearing no  
                 later than 14 days prior to the hearing date;

                     Expanded the scope of persons allowed to act as  
                 victim representatives at parole hearings, and allows  
                 representatives to make a statement even when the victim,  
                 or victim's next of kin, also makes a statement;

                     Permits victims to have notice and to submit written  
                 statements concerning a prisoner's request for  
                 advancement of his/her hearing date;

                     Allows victims, victim's next of kin and their  
                 representatives to make statements which reasonably  
                 express their views concerning the prisoner, including,  
                 but not limited to the crimes committed, the effect of  
                 the crimes on the victim and the victim's family, and the  
                 prisoner's suitability for parole.   
                 (  http://www.cdcr.ca.gov/BOPH/marsys_law.html  .) 

            This bill would expand the rights of victims at parole  
            suitability hearings by allowing the victim, next of kin, or  
            victim's attorney access to the information given to the  
            inmate's attorney and the district attorney.  The bill also  
            allows the victim or next of kin to submit relevant documents  
            pertaining to any subject about which the victim has a right  
            to be heard.

          1)Parole Grant Rate by Presence of Victim at Suitability  
            Hearing:  In 2011 Stanford Law School's Criminal Justice  
            Center published a study examining the rates of release for  
            parolees serving life sentences.  One of the factors  








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            considered was whether a victim appeared at the hearing, with  
            "victim" being broadly defined to include not only the  
            immediate victim, but also a friend, family member, or  
            acquaintance of the victim.  The report notes, "There is a  
            statistically significant difference in the grant rate between  
            hearings at which victims are present and hearings at which  
            victims are not present. The effect is in the expected  
            direction: when victims attending hearings, the grant rate is  
            less than half the rate when victims do not attend.  A more  
            nuanced analysis of the relationship between victim  
            participation and disposition rates might identify the reasons  
            for this correlation.  In particular, a better tracking of  
            when victims most commonly participate in  
            hearings-particularly whether they typically appear primarily  
            at initial or first subsequent suitability hearings - could  
            explain why their participation is associated with parole  
            denials."  (Weisberg et al. Life in Limbo: An Examination of  
            Parole Release for Prisoners Serving Life Sentences with the  
            Possibility of Parole in California (Sept. 2011) pp. 19-20,  
            <  https://www.law.stanford.edu/sites/default/files/child-page/16 
            4096/doc/slspublic/SCJC_report_Parole_Release_for_Lifers.pdf  .)  


          2)California Constitutional Limitations on Amending a Voter  
            Initiative:  Because Proposition 9 was a voter initiative, the  
            Legislature may not amend the statute without subsequent voter  
            approval unless the initiative permits such amendment, and  
            then only upon whatever conditions the voters attached to the  
            Legislature's amendatory powers.  (People v. Superior Court  
            (Pearson) (2010) 48 Cal.4th 564, 568; see also Cal. Const.,  
            art. II,  10, subd. (c).) The purpose of California's  
            constitutional limitation on the Legislature's power to amend  
            initiative statutes is to protect the people's initiative  
            powers by precluding the Legislature from undoing what the  
            people have done, without the electorate's consent.  Courts  
            have a duty to jealously guard the people's initiative power  
            and, hence, to apply a liberal construction to this power  
            wherever it is challenged in order that the right to resort to  
            the initiative process is not improperly annulled by a  
            legislative body.  (Proposition 103 Enforcement Project v.  
            Quackenbush (1998) 64 Cal.App.4th 1473.)









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          Proposition 9 provides:  "The statutory provisions of this act  
            shall not be amended by the Legislature except by a statute  
            passed in each house by roll-call vote entered in the journal,  
            three-fourths of the membership of each house concurring, or  
            by a statute that becomes effective only when approved by the  
            voters.  However, the Legislature may amend the statutory  
            provisions of this act to expand the scope of their  
            application, to recognize additional rights of victims of  
            crime, or to further the rights of victims of crime by a  
            statute passed by a majority vote of the membership of each  
            house."  

          Because this bill expands victim's rights at parole hearings, it  
            is consistent with the intent of the initiative.    
          
          3)Argument in Support:  According to Crime Victims United of  
            California, the sponsor of this bill, "Under Marsy's Law crime  
            victims have a constitutional right to have representation at  
            all proceedings, including parole hearings. Under Penal Code  
            Section 3043, the victim, victim next of kin or victim's  
            representative/attorney has the right to attend the hearing  
            and to express his/her views regarding the inmate and the  
            case, including but not limited to, the commitment crime(s),  
            determinate term commitment crime(s) for which the inmate has  
            been convicted, the effect of the crime(s) on the victim and  
            the family of the victim, the suitability of the inmate for  
            parole, and more. And while the inmate's Board Packet is  
            provided to Board Commissioners, the inmate's attorney and  
            district attorney prior to the parole hearing, the victim,  
            victim's next of kin or victim's attorney is not provided that  
            information despite the fact that it is read in to the public  
            record and as such is not confidential. Such information may  
            be relevant to the victim making their case for any  
            recommendation regarding the granting of parole and as such,  
            the victim, victim's next of kin or victim's attorney should  
            be provided those documents ahead of the hearing consistent  
            with the timelines laid out in statute for providing them to  
            the inmate's attorney and district attorney.

          "AB 920 seeks to better inform the victim, victim's next of kin  
            or victim's attorney as they prepare to speak at a parole  
            hearing by providing them with the same information provided  








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            to the inmate's attorney and district attorney that will  
            ultimate make the case for or against parole of that inmate."

          4)Argument in Opposition:  The Law Offices of Rosen Bien Galvan  
            & Grunfeld writes, "This firm represents prisoners in two  
            class action lawsuits against the California Department of  
            Corrections and Rehabilitation (CDCR), one of which includes  
            the Board of Parole Hearings as a defendant. The first class  
            action is Coleman v. Brown. The class we represent in Coleman  
            consists of the approximately 38,000 prisoners in the  
            California Department of Corrections (CDCR) with severe mental  
            illness. Many of the class members are life prisoners who  
            regularly appear before the Board of Parole Hearings. The  
            second class action is Armstrong v. Brown. The Armstrong class  
            consists of approximately 8,000 disabled prisoners with  
            impairments in vision, hearing, mobility or learning. There  
            are multiple court orders in Armstrong that require the Board  
            of Parole Hearings to make the lifer process accessible to  
            persons with disabilities, and we regularly monitor lifer  
            parole suitability hearings as part of that case.

          "We oppose Assembly Bill 920 because it would cause disclosure  
            of confidential medical and mental health information  
            protected by federal law to the victim or the victim's next of  
            kin. The board packet contains significant information  
            protected by state and federal privacy statutes, including but  
            not limited to the federal Health Insurance Portability and  
            Accountability Act of 1996 (HIPAA) and the California  
            Confidentiality of Medical Information Act. In addition, we do  
            not believe it would be possible for the Board to accurately  
            sort through the documents in the packet and to redact  
            confidential medical information in a manner that would  
            resolve these privacy claims. The recent amendment regarding  
            redaction of confidential information does not address this  
            problem, as it does not define confidential information,  
            leaving the Board free to apply the customary standard in  
            corrections, which limits confidential information to  
            information that would reveal the identity of a confidential  
            informant or otherwise endanger the safety of persons within  
            the institution. This standard does nothing to protect  
            confidential mental health and medical information.









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          "The current life process already gives victims and victims'  
            families significant opportunities to influence the Board's  
            decision making, and the new law's provisions are not  
            necessary to permit victims and victims' next of kin to fully  
            and meaningfully participate in the process.

          "We urge you to reconsider these unwise provisions which violate  
            federal law and are not needed to advance the goals of the  
            legislation. The lifer review process is already excessively  
            political and punitive towards life prisoners."

          5)Related Legislation:  AB 487 (Gonzalez) requires that when an  
            inmate requests to advance a parole hearing, notice be sent to  
            the district attorney of the county in which the offense was  
            committed, in addition to the victim.  AB 487 is pending  
            hearing in the Assembly Appropriations Committee.

          REGISTERED SUPPORT / OPPOSITION:
          
          Support


          Crime Victims United of California (Sponsor)
          Association for Los Angeles Deputy Sheriffs
          California State Lodge, Fraternal Order of Police
          Long Beach Police Officers Association
          Los Angeles County Professional Peace Officers Association
          Los Angeles Police Protective League
          Riverside Sheriffs Association
          Sacramento County Deputy Sheriffs' Association
          Santa Ana Police Officers Association


          Opposition

          California Attorneys for Criminal Justice
          California Public Defenders Association
          Legal Services for Prisoners with Children
          Rosen Bien Galvan & Grunfeld LLP











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          Analysis Prepared  
          by:              Sandy Uribe / PUB. S. / (916) 319-3744