BILL ANALYSIS                                                                                                                                                                                                    Ó



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

          Bill No:    SB 230        Hearing Date:    April 28, 2015    
          
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          |Author:    |Hancock                                              |
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          |Version:   |March 24, 2015                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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                            Subject:  Sentencing:  Parole



          HISTORY
          Source:   Author

          Prior Legislation:SB 1363 (Hancock) failed Senate Floor 2014

          Support:  California Public Defenders Association

          Opposition:None known
                                                
          PURPOSE
          
          The purpose of this bill it to provide that once a person is  
          found suitable for parole he or she will be released.
          
          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 inmate's  
          minimum eligible parole release date a panel of two or more  
          commissioners or deputy commissioners shall meet with the inmate  







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          and shall normally set a parole release date. (Penal Code §  
          3041(a))
           
           Existing law provides that the release date shall be set 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 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, and except as provided, normally set a parole release  
          date as provided in Section 3041.5. (Penal Code § 3041(a))

          Existing law provides that any decision of the parole panel  
          finding an inmate suitable for parole shall become final within  
          120 days of the date of the hearing.  During that hearing the  
          board may review the panel's decision.  The decision shall  
          become final unless there was an error of law or an error of  
          fact or new information that should be presented to the board.   
          No decision of the parole panel shall be disapproved and  
          referred for rehearing except by a majority vote of the board,  
          sitting en banc, following a public meeting. (Penal Code §  
          3041(b))

          Existing regulations provide that, based on facts from the  
          underlying crime, an inmate can be held for a longer period of  
          time once they are found suitable for parole.
           
           This bill provides that an inmate found suitable for parole  
          shall be paroled subject to review by the Governor.

          Existing law provides that up to 90 days prior to a scheduled  
          release date, the Governor may request review of a decision by a  
          parole authority concerning the grant or denial of parole to any  
          inmate in state prison. (Penal Code § 3041.1)

          This bill provides instead that any time before an inmate's  








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          release the Governor can make such a request.

          This bill makes technical and conforming changes.

                    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. 

          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  








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          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:

               Under existing law, the Board of Parole Hearings (BPH)  
               holds hearings to determine if an inmate serving a  
               life sentence is suitable for parole. However, because  
               of the confusing, convoluted way parole dates are  
               calculated, an inmate can remain in prison several  
               years after BPH deems him or her suitable.

               Under Penal Code §3041 and pursuant to the settlement  
               in In re Butler (2013), BPH holds an initial  
               suitability hearing for an inmate one year before his  
               or her minimum eligibility parole date. If the inmate  
               is found suitable for parole, BPH then calculates the  
               inmate's "base term."

               The base term is the first step in determining the  
               amount of time before an inmate is paroled. It is  
               determined using a bi-axial matrix that calculates how  
               much time in prison an inmate deserves based on the  
               circumstances of the crime he or she committed. In  
               addition to the time dictated by the base term, BPH  
               can add enhancements for the use of a firearm, or  
               offenses other than the original life sentence. The  








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               result is the "adjusted base term."

               Many of the enhancements added can be problematic. For  
               instance, some are used against an inmate twice; once  
               by the trial judge at sentencing, and again (possibly  
               years later) by BPH when calculating the adjusted base  
               term. This goes against a determinate sentencing  
               system in which enhancements are intended to be used  
               at the front end, at the sentencing stage.

               Some enhancements may also be based on assertions that  
               are unsupported by a jury's finding-of-fact. For  
               instance, a jury could omit finding that the inmate  
               used a firearm. At a parole suitability hearing years  
               later, BPH could assert that in spite of a jury  
               finding to the contrary, it believes the inmate used a  
               firearm and add an additional enhancement to the base  
               term.

               In addition, an enhancement can be added for an  
               additional criminal charge that did not result in a  
               conviction. The only requirement is that BPH believes  
               the facts surrounding the crime are "reliably  
               documented." Again, this would be contrary to the  
               findings-of-fact by a jury at trial, or a decision by  
               a district attorney to drop the criminal charge. 

               At a subsequent parole hearing, BPH further adjusts  
               the adjusted base term, which was calculated using  
               these enhancements. It does so by giving an inmate  
               post-conviction credits for the amount of time he or  
               she has already served in prison. The adjusted base  
               term minus post-conviction credits determines the  
               calculated release date. If that date is in the  
               future, the inmate must serve more time before being  
               paroled.
                
               This perverse result in which an inmate is found  
               suitable for parole but must serve additional time  
               (often years) before actually being paroled is the  
               result of the confusing, convoluted system used to  
               calculate release dates. 

          2.  Release Upon a Finding of Suitability








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          Under existing law a person can be found suitable for parole by  
          the board and still not be released because of the various  
          enhancements that can be added to the person's term.  The first  
          parole hearing is not until the date that seems like the  
          person's sentence (ie. 15 years is 15 to life minus any eligible  
          credits etc.), yet because of the added time a person could be  
          found suitable for parole and held in prison 2, 5, or even 10 or  
          more years beyond that date.  This is the case even though the  
          Board of Parole Hearings, in determining suitability, takes into  
          consideration the facts of the original crime along with the  
          steps the inmate has taken toward rehabilitation and his or her  
          current danger to the public.  To be found suitable for parole  
          the board has found that he or she is not a current danger;  
          however, the current system keeps them in for longer at great  
          expense and no added safety to the public. 

          This bill provides that if an inmate is found suitable he or she  
          shall be released, after the Governor's statutory right of  
          review.  The author believes that this is a truth in sentencing  
          provision.  If a person serves his or her time as imposed by the  
          sentencing court and is found suitable, he or she is released.   
          This will also give the inmate a realistic time frame to work  
          toward rehabilitating himself or herself.  The author believes  
          that to be found suitable by the board and then kept longer  
          because of factors in your original crime, that were already  
          considered by the board,  does not encourage rehabilitative  
          behavior by inmates.

          3.  Change in Time for the Governor to Request a Review of the  
          Parole Decision

          Under existing law the Governor can ask for the review of a  
          parole decision up to 90 days prior to the release. This works  
          under the existing system in which a person can be found  
          suitable for parole but not released for years afterwards.   
          Under this bill once found suitable, a person will be released  
          after the 120 days the Governor has to review parole decisions.   
          Because of this shorter time frame to release, the Governor may  
          not have time to ask for a review of the decision 90 days prior  
          to the release. Thus this bill would allow the Governor to ask  
          for the review any time prior to the release to give the  
          Governor the time to study the decision and determine whether to  
          ask for a review.








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          4.  Support
          
          In support the California Public Defenders Association states:

               The effect of SB 230 is restoration of truth in  
               sentencing. SB 230 would provide that when an  
               individual is found suitable for parole by the Board  
               of Parole Hearings (BPH), that they would actually be  
               granted parole pending review by the Governor. Under  
               the current convoluted system of calculating parole  
               time, an inmate can remain in prison, sometimes  
               upwards of years, after BPH finds them suitable for  
               parole. Under current law, BPH considers and adds  
               additional years to an inmate's incarceration based on  
               previous criminal charges that the inmate was never  
               convicted of or enhancements that the sentencing court  
               already took into account.  This opaque parole system  
               results in inmates who have been found suitable for  
               parole serving additional time (often years) before  
               they are actually paroled.

               SB 230 simplifies our parole system in a basic and  
               commonsense way. It saves money and ensures public  
               safety, by ensuring that suitable inmates are  
               released. 

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