BILL ANALYSIS Ó AB 920 Page 1 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. AB 920 Page 2 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 AB 920 Page 3 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.) AB 920 Page 4 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 AB 920 Page 5 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 AB 920 Page 6 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.) AB 920 Page 7 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 AB 920 Page 8 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. AB 920 Page 9 "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 AB 920 Page 10 Analysis Prepared by: Sandy Uribe / PUB. S. / (916) 319-3744