BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 224        Hearing Date:    April 7, 2015    
          
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          |Author:    |Liu                                                  |
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          |Version:   |March 19, 2015                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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                          Subject:  Elderly Parole Program



          HISTORY
          Source:   Californians United for a Responsible Budget; Legal  
                    Services for Prisoners with Children

          Prior Legislation:None applicable

          Support:  A New PATH; AllCare Alliance; American Civil Liberties  
                    Union; American Friends Service Committee; California  
                    Attorneys for Criminal Justice; California Catholic  
                    Conference; California Partnership; California Public  
                    Defenders Association; Californians for Safety and  
                    Justice; Center on Juvenile and Criminal Justice;  
                    Communities United for Restorative Youth Justice;  
                    Courage Campaign; Ella Baker Center for Human Rights;  
                    FACTS EDUCATION and PROJECTS; Fair Chance Project;  
                    Friends Committee on Legislation of California;  
                    Justice Now; Life Support Alliance; Los Angeles  
                    Community Action Network; Prison Law Office; Prison  
                    Policy Initiative; Sisters of St. Joseph of  
                    Carondelet; Western Regional Advocacy Project; several  
                    individuals

          Opposition:California District Attorneys Association; California  
          State Sheriffs' Association









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          PURPOSE
          
          The purpose of this bill is to codify court-ordered elderly  
          parole by reducing the age from 60 to 50 and the time that must  
          be served in prison from 25 to 15 years.
          
          Existing law provides that in the case of any inmate sentenced  
          to an indeterminate sentence the Board of Parole Hearings (the  
          Board) shall meet with each inmate during the sixth year prior  
          to the inmate's eligible parole release date for the purposes of  
          reviewing and documenting the inmates activities and conduct  
          pertinent to both parole eligibility and to the granting and  
          withholding of postconviction credit. (Penal Code § 3041(a))

          Existing law provides that one year prior to the inmates minimum  
          eligible parole release date a panel of two or more  
          commissioners or deputy commissioners shall meet with the inmate  
          and shall normally set a parole release date. (Penal Code §  
          3041(a))
           
           Existing law provides that the release date shall be sent in a  
          manner that will provide uniform terms for offenses of similar  
          gravity and magnitude with respect to their threat to the  
          public, and that will comply with the sentencing rules that the  
          Judicial Council may issue and any sentencing information  
          relevant to the setting of the parole release dates.  The Board  
          shall establish criteria for the setting of parole release dates  
          and in doing so shall consider the number of victims of crime  
          for which the inmate was sentenced and other factors in  
          mitigation or aggravation of the crime. (Penal Code § 3041 (a))

          Existing law provides that one year prior to the inmate's  
          minimum eligible parole release date a panel of two or more  
          commissioners or deputy commissioners shall again meet with the  
          inmate, hall except as provided, normally set a parole release  
          date as provided in Section 3041.5. (Penal Code § 3041(a))

          According to the Three-judge Court order filed February 10, 2014  
          the CDCR must "[f]inalize and implement a new parole process  
          whereby inmates who are 60 years of age or older and have served  
          a minimum of twenty-five years of their sentence will be  
          referred to the Board of Parole Hearings to determine  
          suitability for parole." (February 10, 2014 Order, 2:90-cv-0520  









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          LKK DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown)

          This bill provides that a prisoner shall be considered for  
          parole under the Elderly Parole Program if she or she meets both  
          of the following conditions:
                 The prisoner is 50 years of age or older; and,
                 The prisoner has served 15 years of continued  
               incarcerations on his or her sentence including time served  
               prior to sentencing.

          This bill provides that when considering the release of a  
          prisoner under elderly parole the board shall give special  
          consideration to whether age, time served, and diminished  
          physical condition, if any have reduced the elderly prisoner's  
          risk for future violence.

          This bill provides that elderly parole does not apply to  
          prisoners sentenced to death or to imprisonment for life without  
          the possibility of parole.

          This bill contains uncodified legislative findings.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 










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          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS
          
          1.  Need for This Bill
          
          According to the author:

               SB 224 seeks to codify the existing Elderly Parole  
               Program, implemented by the Brown Administration  









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               following the three-judge panel decision in Coleman v.  
               Brown (2013). This program could be eliminated at any  
               time at CDCR's discretion. The bill also expands the  
               eligibility criteria for inmates to be considered for  
               parole from age 60 years and older and having served  
               25 years on their current sentence, to age 50 years  
               and older and having served 15 years on their current  
               sentence.

               According to a 2012 ACLU report, there is a  
               long-standing consensus among correctional experts and  
               criminologists that "50 years of age is the  
               appropriate point marking when a prisoner becomes  
               "aging" or "elderly."<1> The National Institute of  
               Corrections (NIC) has also used this cutoff in  
               determining what age constitutes "elderly" prisoners.

               The human and financial cost of incarcerating elders  
               is astronomical. Incarcerating elderly prisoners ages  
               50 years and older each year in the United States  
               costs approximately twice as much compared to other  
               age groups.<2> California alone spends approximately  
               $55,000 a year for every inmate that is  
               incarcerated.<3> And in 2014, health care costs  
               comprised the second largest area of prison spending  
               in California; approximately 29% of the state's prison  
               budget (LAO, 2014).<4> Additionally, due to the  
               accumulative impact of day-to-day conditions in  
               prisons, such as high levels of stress, less access to  
               nutritional food, and increased exposure to chronic  
               illness, studies have shown that incarcerated people  
               are roughly ten to fifteen years older physiologically  
               ----------------------

          <1>  
          https://www.aclu.org/files/assets/elderlyprisonreport_20120613_1. 
          pdf
          <2> Ibid.

          <3> CalFacts, December 2014, LAO.

          <4> CalFacts, December 2014, LAO.











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               than they are chronologically.<5> Consequently, these  
               individuals can be expected to suffer from more  
               advanced diseases than their non-incarcerated peers,  
               with treatment and health care costs projected in the  
               millions for elderly prisoners. 

               The elderly inmate population tends to have lower  
               recidivism rates as compared to the general prison  
               population. According to CDCR, in 2012 felony arrests  
               in California for individuals ages 50 and older were  
               among the lowest percentage of all felony arrests for  
               all age groups (for ages 50-59, 7.67% and for ages  
               60-69, 1.73%). Parolees ages 50 years and older who  
               were re-incarcerated for parole violations was  
               significantly lower, as compared to other age groups:  
               8.0% for ages 50-59 and 1.0% for ages 60-69.

               States across the nation are dealing with growing and  
               aging prison populations and the accompanying budget  
               impacts. At least 15 states and the District of  
               Columbia have defined a process for releasing older  
               persons from prison. SB 224 allows California to  
               follow this national trend by modeling Maryland's  
               Geriatric Parole Program, which requires prisoners to  
               have served 15 years until they can be eligible for  
               the parole. (Md. Code Ann., Crim. Law § 14-101(g)).

               Codifying the current elder parole process and  
               expanding it to reach incarcerated elders ages 50  
               years and older who have served 15 consecutive years  
               in prison is a reasonable step towards reducing the  
               cost and overcrowding issues associated with  
               California's prisons. SB 224 furthers the narrative of  
               treating our aging population humanely and  
               compassionately in addition to relieving the burden of  
               imprisonment on taxpayers and the families of older  
               prisoners

          2.  Elderly Parole
          
          In Coleman v. Brown, Plata v. Brown in which the plaintiffs are  
          ---------------------------
          <5>  
          https://www.aclu.org/files/assets/elderlyprisonreport_20120613_1. 
          pdf









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          seeking a reduction in the California prison population, the  
          Three-Judge Court Order of February 10, 2014 required CDCR to  
          create an "elderly parole" program in which prisoners who have  
          reached the age of 60 and served 25 years will be considered for  
          parole. The elderly parole hearings began on October 1, 2014.   
          CDCR's February 2015 status report in response to the February  
          10, 2014 court order states the progress of the elderly parole  
          program stating:

               Parole process for inmates 60 years of age or older  
               having served at least 25 years: The Board continues  
               to schedule eligible inmates for hearings who were not  
               already in the Board's hearing cycle, including  
               inmates sentenced to determinate terms. The Board has  
               scheduled 549 hearings for inmates eligible for  
               elderly parole, resulting in 115 grants, 247 denials,  
               and 26 stipulations to unsuitability. The remaining  
               159 scheduled cases were waived by the inmate,  
               postponed, continued, or cancelled. ."(Defendants'  
               February 2015 Status Report In Response To February  
               10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
               Court, Coleman v. Brown, Plata v. Brown).

          The age 60 was determined because there is a significant  
          reduction in crimes committed by those over 60. According to  
          felony arrest and CDCR admissions data by age:

               In California, individuals age 60 or over were  
               responsible for the lowest percentage of all felony  
               arrests of all age groups in 2012, with the exception  
               of children under the age of 10.  Individuals age 60  
               or over were responsible for 1.9% of all felony  
               arrests. 

          While the data shows that there are still 32,980 felony arrests  
          of people 50-59 years of age those numbers drop 7,454 at age 60.  
          (http://www.cdcr.ca.gov/BOPH/docs/Policy/2012_California_Arrest_a 
          nd_CDCR_Admissions_Data_by_Age_Final.pdf)

          3.  Codification of Elderly Parole
          
          As noted by the author, currently the elderly parole program is  
          in response to the court order and could be stopped by CDCR at  
          any time after the order is lifted.  This bill would codify an  









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          elderly parole program for persons who have reached the age of  
          50 and have served 15 years in prison.

          The sponsor, Legal Services for Prisoners with Children point to  
          a report by the National Institute of Corrections which defines  
          elderly prisoners as those 50 years of age and older as the  
          rationale for lowering the age to 50 years old. (US Department  
          of Justice, National Institute of Corrections An Administrative  
          Overview of the Older Inmate, August 1992)  Prison Law Office,  
          and other supporters also note:

               The human and financial cost of incarcerating elders  
               is astronomical. California may spend two to three  
               times more on elder prisoners, with age-related costs  
               beginning to accumulate at 50 years old, with costs as  
               height as $1,000,000 a year per person for acute care.  
               Furthermore, older people have significantly lower  
               arrest rates. In 2001, the federal arrest rate for  
               persons aged 40 to 44 was .73%. This rate decreases by  
               half every five years dropping to .46% for person  
               45-49.  For elders 50-54 years old, the arrest rate  
               plummets to .26%. There is also a lower risk of  
               recidivism for older prisoners age 50 and older.

          Along with reducing the age for elderly parole, this bill  
          reduces the time that must be served lowering it from 25 years  
          in the current program to 15 years.  The author may wish to  
          consider having the length of time served be 25 years for those  
          who have been sentenced under the three-strikes provisions of  
          the law in order to avoid any potential legal conflicts with  
          that initiative.




          4.  Opposition
          
          The California Sheriffs' Association opposes this bill stating:

               Preliminarily, it should be noted that the state  
               prison population is below the court-ordered benchmark  
               of 137.5 percent of design capacity.  As such, we  
               question whether any additional population reduction  
               measures are warranted at this time.  However, we are  









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               particularly concerned with your measure as it would  
               undermine the lawfully imposed sentences of those  
               convicted of murder and violent sexual offenses.   
               While we recognize the recidivism rate of criminal  
               offenders drops off significantly as offenders age,  
               the likelihood of reoffending is not the sole basis to  
               consider whether someone should be eligible for  
               parole.  We think providing for mandatory parole  
               consideration for all offenders that simply reach the  
               age of 50 will undermine the criminal justice system  
               and negatively impact the lives of victims that will  
               be notified of an offender's potential release

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