BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 128|
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THIRD READING
Bill No: SB 128
Author: Polanco (D)
Amended: 5/19/99
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 4-2, 4/20/99
AYES: Vasconcellos, Burton, Johnston, Polanco
NOES: McPherson, Rainey
SENATE APPROPRIATIONS COMMITTEE : 8-3, 5/27/99
AYES: Johnston, Alpert, Bowen, Burton, Escutia, McPherson,
Perata, Vasconcellos
NOES: Kelley, Leslie, Mountjoy
NOT VOTING: Johnson, Karnette
SUBJECT : Board of Prison Terms: determination of parole
dates for
indeterminately sentenced inmates
SOURCE : Author
DIGEST : The purpose of this bill is to revise the statutory
requirements used by the Board of Prison Terms to set - or
not set - parole dates for indeterminately sentenced state
inmates eligible for parole; those revisions include that
the Board shall discuss with the inmate at the initial
meeting what the subsequent process will be for determining
the inmate's eligibility for parole, prepare an inmate
performance plan for the inmate, and require the panel to
review the inmate's suitability for parole, based upon the
inmate's performance plan, and that the Board shall set a
CONTINUED
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release date if the Board finds that the inmate is making
satisfactory progress on his or her inmate performance
plan, unless the Board makes certain findings.
The bill makes related changes and contains legislative
intent language.
ANALYSIS : Existing law creates the Board of Prison Terms
(BPT) composed of nine commissioners, each of whom shall be
appointed by the Governor, with the advice and consent of
the Senate, for a term of four years and until the
appointment and qualification of his successor.
Commissioners shall be eligible for reappointment. (Penal
Code section 5075)
The BPT shall have the power to allow parole for prisoners
imprisoned in the state prisons for indeterminate sentence
terms and eligible for parole, e.g. an inmate convicted of
second degree murder shall be punished by imprisonment in
the state prison for a term of fifteen years to life.
(Penal Code sections 3040 and 190(a))
Existing law (Penal Code section 3041) provides that:
The BPT meet with each indeterminately sentenced inmate
during the third year of incarceration for the purposes of
reviewing the inmate's file, making recommendations, and
documenting activities and conduct pertinent to granting or
withholding post-conviction credit.
One year prior to the inmate's minimum eligible parole
release date a panel consisting of at least two BPT
commissioners shall again meet with the inmate and shall
normally set a parole release date as provided in Section
3041.5.
The release date shall be set in a manner that will provide
uniform terms for offenses of similar gravity and magnitude
in 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 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 the crime
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for which the prisoner was sentenced and other factors in
mitigation or aggravation of the crime. At least one
commissioner of the panel shall have been present at the
last preceding meeting, unless it is not feasible to do so
or where the last preceding meeting was the initial
meeting. Any person on the hearing panel may request
review of any decision regarding parole to the full Board
for an en banc hearing. In case of such a review, a
majority vote of the full Board of Prison Terms in favor of
parole is required to grant parole to any prisoner.
The panel or Board shall set a release date unless it
determines that the gravity of the current convicted
offense or offenses, or the timing and gravity of current
or past convicted offense or offenses, is such that
consideration of the public safety requires a more lengthy
period of incarceration for this individual, and that a
parole date, therefore, cannot be fixed at this meeting.
For the purpose of reviewing the suitability for parole of
those prisoners eligible for parole under law prior to the
adoption of the determinate sentencing law (July 1, 1977),
the Board shall appoint panels of at least two persons to
meet annually with each such prisoner until such time as
the person is released pursuant to such proceedings or
reaches the expiration of his term as otherwise specified.
Existing law (Penal Code section 3041.5) provides that
indeterminately sentenced inmates shall have specified
rights at a parole hearing and that if parole date is not
set for an inmate eligible for parole, the BPT shall hear
each case annually thereafter, except the Board may
schedule the next hearing no later than the following:
Two years after any hearing at which parole is denied, if
the Board finds that it is not reasonable to expect that
parole would be granted at a hearing during the following
year and states the bases for the finding.
Up to five years after any hearing at which parole is
denied if the prisoner has been convicted of murder, and
the Board finds that it is not reasonable to expect that
parole would be granted at a hearing during the following
years and states the bases for the finding in writing. If
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the Board defers a hearing five years, the prisoner's
central file shall be reviewed by a deputy commissioner
within three years at which time the deputy commissioner
may direct that a hearing be held within one year. The
prisoner shall be notified in writing of the deputy
commissioner's decision.
Within 10 days of any Board action resulting in the
postponement of a previously set parole date, the Board
shall send the prisoner a written statement setting forth a
new date and the reason or reasons for that action and
shall offer the prisoner an opportunity for review of that
action.
Within 10 days of any Board action resulting in the
rescinding of a previously set parole date, the Board shall
send the prisoner a written statement setting forth the
reason or reasons for that action, and shall schedule the
prisoner's next hearing within 12 months, as specified.
This bill revises Penal Code section 3041, as follows:
Adds that at the initial inmate interview the BPT shall:
1.Discuss with the inmate what the subsequent process will
be for determining the inmate's eligibility for parole,
including the timeline and procedures of parole
eligibility hearings.
2.Discuss the inmate's minimum eligible release date and
the significance of it, and what factors are important in
finding an inmate eligible for parole.
3.Discuss and prepare an inmate performance plan for the
inmate, which shall consist of specific requirements that
the BPT determines the inmate must meet in order to be
eligible for parole and which may include participation
in educational classes, job skills training, substance
abuse classes, life skills classes, victim offender
awareness programs, or other activities that are relevant
to the inmate's personal and criminal history. The plan
may emphasize the importance of offender accountability,
victim restitution, and remaining free of discipline
problems, including abstention from involvement with
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prison gangs or other activities that lead to rules
violations. The requirements shall be realistic,
achievable, and relevant to that inmate.
The bill provides that in the case of an inmate who has
already had the meeting required above, the board would be
required to prepare the inmate performance plan for the
next scheduled parole hearing or any other meeting set for
that inmate.
The bill states that it is not the intent of the
Legislature in requiring the performance plan meeting that
any additional hearings for an inmate need be set. Rather,
it is the intent of the Legislature that those inmate
performance plans be one additional requirement in the
process that is already occurring to evaluate an inmate for
parole.
Deletes the existing reference to the BPT considering ". .
. the number of victims of the crime for which the prisoner
was sentenced and other factors in mitigation or
aggravation of the crime."
Adds that if the BPT "determines that an inmate is not
suitable for parole, it shall state in writing specifically
why the inmate is being denied parole, and what he or she
must do to become suitable, consistent with his or her
inmate performance plan."
Revises the requirement that the BPT shall set a release
date unless certain factors -- "consideration of public
safety" -- exist to instead provide that:
1.A release date shall be set if the inmate is making
satisfactory progress on his or her inmate performance
plan, unless the Board finds that the inmate's release
would pose an unreasonable risk of danger to society,
create a substantial risk that the inmate will not
conform to a condition or conditions of parole, or
depreciate the seriousness of the offense for which the
inmate was convicted and promote disrespect of the law.
2.The determination of suitability shall be based on the
record as a whole, including any performance or
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psychological evaluations included in the inmate's file.
3.The Board shall specify in writing the reasons for its
determination.
The bill contains the following legislative intent
language:
The Legislature finds and declares as follows:
The primary purpose of the Department of Corrections and
the state prison system is to promote and enhance public
safety.
Providing inmates early advice and direction regarding how
each of them can best prepare themselves for living safely
upon parole will greatly diminish the probability that they
will revictimize the public once released.
The author's background about this bill includes the
following:
California Penal Code section 3041 currently requires the
Board of Prison Terms to meet with an inmate serving an
indeterminate sentence during the third year of
incarceration to review the inmate's file and make
recommendations. The BPT is also required to meet with
each inmate one year prior to the inmate's minimum eligible
release date and normally set a release date.
This bill requires the BPT to meet with the inmate and
discuss the parole process and prepare an inmate
performance plan. The inmate performance plan would then
be the basis for the BPT's determination of suitability and
would direct the BPT to set a release date if it finds the
inmate is making satisfactory progress. This bill focuses
on four major issues:
Financial Considerations - California's inmate population
continues to grow at a rapid rate. Currently, there are
close to 20,000 inmates serving life terms with the
possibility of parole. The cost of incarcerating each
inmate is on the average of $25,000 per year and will
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continue to rise. Under this bill the BPT must further
define existing parole criteria to ensure for public safety
and to ensure that the inmate serves a prison term that is
proportionate to the offense committed. Incarcerating an
inmate past this point results in wasting taxpayer money
and contributes to the problem of prison overcrowding...
Administrative Discretion - The BPT is an administrative
agency that conducts over 2,000 "lifer hearings" a year.
Although criteria is in the statute, we have found the BPT
uses that criteria in a arbitrary way resulting in less
than 1% of all inmates serving life terms being found
suitable for parole. Moreover, the inmate is left with no
clear idea of how to make him or herself suitable. This
bill ensures that the BPT will make uniform, rational, and
less arbitrary decisions. The BPT will be required to
specify in writing the reasons for its decisions and what
the inmate must do to become eligible for parole. By
implementing criteria that are well defined, the
possibility of an erroneous decision is reduced, as is the
opportunity for the abuse of discretion.
Inmate Responsibility - Under this bill the inmate will be
given the responsibility for his/her own reintegration into
society by creating an inmate performance plan early in the
inmate's sentence. The current arbitrary decision-making
process by the BPT is actually counter-productive. An
inmate has no incentive to begin and complete a program
because all efforts can be summarily dismissed at the
hearing. Correctional staff will benefit by using the
performance plan as an inmate management tool. An inmate
with a clear vision of what is required to gain parole is
more likely to be discipline free than an inmate that has
no idea of what the parole suitability standards are and
feels he has nothing to lose by acting out.
Notions of Justice - The BPT appears to be using ambiguous
standards for parole suitability that gives rise to
disparate treatment among inmates. This bill creates a
system that promotes sentences that are proportionate to
the offense committed and reinforces the state's commitment
to uniform sentencing. Narrowly defined criteria provide
an essential tool to determine that like crimes are
punished in a similar fashion. Furthermore, the BPT would
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be required to use only relevant factors in making its
parole suitability determinations and would be accountable
for their decisions by putting the specifics in writing.
Recent Statistics Pertaining to Release Dates Set by the
BPT
In a February 10, 1998, letter from the BPT to the author,
the following information was provided:
During the 1995 calendar year, 6 inmates were found
suitable [for set parole release dates]; during the 1996
calendar year, 9 inmates were found suitable. . . . The
Department of Corrections indicates . . . that 26 and 56
inmates were released to parole for the 1996 and 1997
calendar years, respectively. This includes not only those
that had been found suitable in previous years by the . . .
(BPT), but those that had been ordered released by the
courts. . . . As of January 31, 1998 there were 17,938 life
prisoners with the possibility of parole. There were 513
life prisoners that have served over 20 years or longer.
As of January 2, 1999, the CDC indicates that there were
19,519 life prisoners with the possibility of parole in the
system.
The BPT has been conducting approximately 2,100 hearings
each year for the past five years with about a quarter of
those being initial hearings and three quarters of those
being subsequent hearings.
The Board has adopted regulations to implement their
mandate for considering and setting parole release dates
for indeterminately sentenced inmates eligible for parole
(Title 15, California Code of Regulations, Sections 2000 et
seq.) Specific regulations are established for different
categories of life prisoners, such as those sentenced
before - or after - specified dates, sex offenders, and
habitual offenders. Following are a few of those
regulations which are representative of the approach taken
by the BPT:
Board decisions as to parole suitability shall include a
statement that the Board has reviewed all information
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received from the public and its conclusion as to whether
the person would pose a threat to the public if released on
parole. (Section 2040)
Regardless of the length of time served, life prisoners
shall be found unsuitable for and denied parole if in the
judgment of the panel the prisoner will pose an
unreasonable risk of danger to society if released from
prison. (Section 2281(a))
The following circumstances each tend to indicate
unsuitability for release. These circumstances are set
forth as general guidelines; the importance attached to any
circumstance or combination of circumstances in a
particular case is left to the judgment of the panel.
Circumstances tending to indicate unsuitability include
(Sections 2281 and 2402):
1. Commitment Offense. The prisoner committed the offense
in an especially heinous, atrocious or cruel manner. The
factors to be considered include:
A. Multiple victims were attacked, injured or killed
in the same or separate incidents.
B. The offense was carried out in a dispassionate and
calculated manner, such as an execution-style murder.
C. The victim was abused, defiled or mutilated during
or after the offense.
D. The offense was carried out in a manner which
demonstrates an exceptionally callous disregard for
human suffering.
E. The motive for the crime is inexplicable or very
trivial in relation to the offense.
2. Previous Record of Violence. The prisoner on previous
occasions inflicted or attempted to inflict serious
injury on a victim, particularly if the prisoner
demonstrated serious assaultive behavior at an early age.
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3. Unstable Social History. The prisoner has a history of
unstable or tumultuous relationships with others.
4. Sadistic Sexual Offenses. The prisoner has previously
sexually assaulted another in a manner calculated to
inflict unusual pain or fear upon the victim.
5. Psychological Factors. The prisoner has a lengthy
history of severe mental problems related to the offense.
6. Institutional Behavior. The prisoner has engaged in
serious misconduct in prison or jail.
Circumstances Tending to Show Suitability. The following
circumstances each tend to show that the prisoner is
suitable for release. The circumstances are set forth as
general guidelines; the importance attached to any
circumstance or combination of circumstances in a
particular case is left to the judgment of the panel.
Circumstances tending to indicate suitability include:
1.No Juvenile Record. The prisoner does not have a record
of assaulting others as a juvenile or committing crimes
with a potential of personal harm to victims.
2.Stable Social History. The prisoner has experienced
reasonably stable relationships with others.
3.Signs of Remorse. The prisoner performed acts which tend
to indicate the presence of remorse, such as attempting
to repair the damage, seeking help for or relieving
suffering of the victim, or the prisoner has given
indications that he understands the nature and magnitude
of the offense.
4.Motivation for Crime. The prisoner committed his crime
as the result of significant stress in his life,
especially if the stress had built over a long period of
time.
5.Lack of Criminal History. The prisoner lacks any
significant history of violent crime.
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6.Age. The prisoner's present age reduces the probability
of recidivism.
7.Understanding and Plans for Future. The prisoner has
made realistic plans for release or has developed
marketable skills that can be put to use upon release.
8. Institutional Behavior. Institutional activities
indicate an enhanced ability to function within the law
upon release.
The BPT regulations include parole criteria guidelines for
specified crimes along with a base term matrix for
specified crimes; factors in mitigation and aggravation are
also included, for example the following pertains to life
prisoners eligible for parole:
1.The panel shall set a base term for each life prisoner
who is found suitable for parole. The base term shall be
established solely on the gravity of the base offense,
taking into account all of the circumstances of that
crime. The base offense is the most serious of all life
offenses for which the prisoner has been committed to
prison.
2.The base term shall be established by utilizing the
appropriate matrix of base terms provided in this section
for the base offense of which the prisoner was convicted.
The panel shall determine the category most closely
related to the circumstances of the crime. The panel
shall impose the middle base term reflected in the matrix
unless the panel finds circumstances in aggravation or
mitigation.
3.If the panel finds circumstances in aggravation or in
mitigation as provided . . . the panel may impose the
upper or lower base term provided in the matrix, stating
the specific reason for imposing such a term. A base
term other than the upper, middle or lower base term
provided in the matrix may be imposed by the panel if
justified by the particular facts of the individual case.
(Section 2282)
The suggested base term matrix choices in Section 2282 are
based on specific circumstances, such as second degree
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murder with a prior relationship to the victim and the
victim died of indirect acts of the inmate (16, 17, 18
years and up depending on other circumstances).
Similar criteria are established for both specified crimes
with a life sentence and for "habitual offenders" sentenced
to life terms with a statutory base.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
Fiscal Impact (in thousands)
Major Provisions 1999-2000 2000-01 2001-02
Fund
Performance plans $ 115 $ 230 $ 230
General
SUPPORT : (Verified 5/28/99)
California Attorneys for Criminal Justice
Friends Committee on Legislation
California Catholic Conference
RJG:jk 5/29/99 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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