BILL ANALYSIS Ó
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