BILL ANALYSIS
AB 1166
Page 1
Date of Hearing: April 21, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 1166 (Nielson) - As Introduced: February 27, 2009
SUMMARY : Authorizes the Board of Parole Hearings (BPH), when
sitting en banc to review a tie vote in deciding parole, to
review only the record of the parole hearing rather than holding
another hearing. Upon en banc review, the BPH shall vote to
either grant or deny parole and render a statement of decision.
EXISTING LAW :
1)Requires the BPH to meet with each 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 of two or more
commissioners or deputy commissioners shall again meet with
the inmate and shall normally set a parole release date, as
provided. No more than one member of the panel shall be a
deputy commissioner. In the event of a tie vote, the matter
shall be referred for an en banc hearing by the BPH. 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 BPH shall establish criteria for
the setting of parole release dates and in doing so shall
consider the number of victims of the crime for which the
inmate 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 for
an en banc hearing by the BPH. In case of a review, a
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majority vote in favor of parole by the BPH members
participating in an en banc hearing is required to grant
parole to any inmate. [Penal Code Section 3041(a).]
2)States the BPH, sitting en banc, 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. After the
effective date of this subdivision, 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
period, the BPH may review the panel's decision. The panel's
decision shall become final pursuant to this subdivision
unless the BPH finds that the panel made an error of law, or
that the panel's decision was based on an error of fact, or
that new information should be presented to the BPH, any of
which when corrected or considered by the BPH has a
substantial likelihood of resulting in a substantially
different decision upon a rehearing. In making this
determination, the BPH shall consult with the commissioners
who conducted the parole consideration hearing. No decision
of the parole panel shall be disapproved and referred for
rehearing except by a majority vote of the BPH, sitting en
banc, following a public hearing. [Penal Code Section
3041(b).]
3)States legislative intent that during times when there is no
backlog of inmates awaiting parole hearings, life parole
consideration hearings or life rescission hearings, hearings
will be conducted by a panel of three or more members, the
majority of whom shall be commissioners. The BPH shall report
monthly on the number of cases where an inmate has not
received a completed initial or subsequent parole
consideration hearing within 30 days of the hearing date
required by existing law, unless the inmate has waived the
right to those timeframes. That report shall be considered
the backlog of cases for purposes of this provision, and shall
include information on the progress toward eliminating the
backlog, and on the number of inmates who have waived their
right to the above timeframes. The report shall be made
public at a regularly scheduled meeting of the BPH and a
written report shall be made available to the public and
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transmitted to the Legislature quarterly. [Penal Code Section
3041(c).]
4)Provides that for purposes of this section, an en banc hearing
by the BPH is defined as a hearing conducted by a committee of
nine randomly selected commissioners who are specifically
appointed to hear adult parole matters, selected by the
chairperson. The committee shall be comprised of a majority
of commissioners holding office on the date the matter is
heard by the committee. [Penal Code Section 3041(e).]
5)States that at all hearings for the purpose of reviewing a
prisoner's parole suitability, or the setting, postponing, or
rescinding of parole dates, the following shall apply:
a) At least 10 days prior to any hearing by the BPH, the
prisoner shall be permitted to review his or her file,
which will be examined by the BPH, and shall have the
opportunity to enter a written response to any material
contained in the file;
b) The prisoner shall be permitted to be present to ask and
answer questions and to speak on his or her own behalf;
c) Unless legal counsel is required by some other provision
of law, a person designated by the California Department of
Corrections and Rehabilitation (CDCR) shall be present to
ensure that all facts relevant to the decision be
presented, including, if necessary, contradictory
assertions as to matters of fact that have not been
resolved by departmental or other procedures;
d) The prisoner shall be permitted to request and receive a
stenographic record of all proceedings; and,
e) If the hearing is for the purpose of postponing or
rescinding of parole dates, the prisoner shall have rights
set forth in existing law. [Penal Code Section
3041.5(a)(1) to (5).]
6)States that within 10 days following any meeting where a
parole date has been set, the BPH shall send the prisoner a
written statement setting forth his or her parole date, the
conditions he or she must meet in order to be released on the
date set, and the consequences of failure to meet those
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conditions. [Penal Code Section 3041.5(b)(1).]
7)Provides that within 20 days following any meeting where a
parole date has not been set for the reasons stated in current
law, the BPH shall send the prisoner a written statement
setting forth the reason or reasons for refusal to set a
parole date, and suggest activities in which he or she might
participate that will benefit him or her while he or she is
incarcerated. The BPH shall hear each case annually
thereafter, except the BPH may schedule the next hearing no
later than the following:
a) Two years after any hearing at which parole is denied if
the BPH 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 [Penal Code
Section 3041.5(b)(2)(A)]; and,
b) Up to five years after any hearing at which parole is
denied if the prisoner has been convicted of murder and the
BPH 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 the
BPH 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. The BPH shall adopt procedures
that relate to the criteria for setting the hearing between
two and five years. [Penal Code Section 3041.5(b)(2)(B).]
8)Provides that within 10 days of any BPH action resulting in
the postponement of a previously set parole date, the BPH
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.
[Penal Code Section 3041.5(b)(3).]
9)Provides that within 10 days of any BPH action resulting in
the rescinding of a previously set parole date, the BPH 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 and in accordance with current
law. [Penal Code Section 3041.5(b)(4).]
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FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 737 (Romero,
Chapter 10, Statutes of 2005) reorganized what is now the
Department of Corrections and Rehabilitation, and in doing so,
inaccurately labeled the en banc review of a tie vote in a
parole hearing as a "hearing" rather than as a "review."
Because the en banc review is merely and properly a review of
the hearing that has already occurred, and which resulted in a
tie vote, labeling this review as a "hearing" is problematic,
because the term 'hearing' implies that specific due process
rights must occur, which include having the inmate present.
However, at the time of an en banc review, this "hearing" has
already occurred, with all appropriate rights afforded to the
inmate. Therefore, it is necessary to clarify that that en
banc review of a tie vote is not a full "hearing" as defined
by the Penal Code, otherwise we risk a court decision that
would force extraordinarily costly and duplicative
proceedings.
"The Board of Parole Hearings (BPH) currently conducts en banc
reviews of parole hearings that result in a tie vote.
However, several unpublished court decisions have ruled that
unintended changes made by Senate Bill (SB) 737 (Romero,
Chapter 10, Statutes of 2005) create a requirement for a full
en banc hearing in those cases (instead of the intended
review), to include many due process rights established for
parole hearings in Penal Code (PC) 3041.5, and not
applicable in reviews. Under current practice, however, a
full hearing is not granted when an en banc review of a tie
vote takes place, because this procedure is rightfully
considered a review of the full hearing that resulted in a tie
vote, rather than a new hearing itself. If a published court
decision makes the same interpretation of the changes enacted
by SB 737 as the unpublished decisions have, then BPH will be
required to dramatically alter its en banc review process to
conduct new full hearings, which would be extraordinarily
costly and duplicative of due process proceedings which have
already been provided."
2)Proposition 9 : Proposition 9 was passed by the voters on
November 7, 2008 and made several changes to parole review in
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California. According to the Legislative Analyst's Office,
"[Proposition 9]: extends the time (from between 1 and 5
years to between 3 and 15 years) that individuals with a life
sentence who are denied parole must generally wait for another
parole consideration hearing; increases the number of people
who can attend and testify at such hearings with victims;
extends the deadline (from 10 days to 15 days) for probable
cause hearings to take place after parolees are charged with
violating their parole, and; extends the deadline (from 35
days to 45 days) for parole revocation hearings. These
changes may conflict with a federal court order in Valdivia v.
Schwarzenegger. It limits state-appointed counsel to parolees
who are indigent and cannot defend themselves, which may also
conflict with the Valdivia court order." [Proposition 9:
Victim's Bill of Rights Ac of 2008, Legislative Analyst's
Office, Presented to the Assembly and Senate Committees on
Public Safety, September 23, 2009, pg. 2.] In late March, the
federal court in the Valdivia decision ruled the portions of
Proposition 9 related to counsel appointment and the
timeliness of parole revocation hearings are void and may not
be enforced in a manner contrary to the court's ruling in
Valdivia. [See Valdivia vs. Schwarzenegger (2009) NO. CIV.
S-94-671 LKK/GGH, (Cal. Ed. Dist.).]
3)Parole Review Schedule : Pursuant to determinate sentencing,
most offenses have a fixed term. However, there is a narrow
class of offenders sentenced to an indeterminate term such as
15- or 25-years-to-life. [In re Norman G. Morrall (2002) 102
Cal.App.4th 280.] When a prisoner is eligible for parole, a
notice from the BPH is sent to the inmate as to the time, date
and nature of the hearing. [Penal Code Section 3041(b)(1).]
If parole is denied, the inmate is generally entitled to
annual review thereafter. However, there are a few different
circumstances in which the BPH may review parole less
frequently after initial parole denial. Parole may be
reviewed every two years if the BPH finds there is no
reasonable likelihood that parole would be granted the
following year. [Penal Code Section 3041.5(b)(2)(A).] This
bill changes that review schedule by authorizing the BPH to
review parole every two years, rather than annually, for an
offender whose parole was denied. This bill also states the
BPH may deny parole review up to a total of four years under
certain circumstances. Also, parole review may be every five
years if the inmate was convicted of murder. This bill states
that subsequent review may occur every 10 years rather than
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five if the BPH finds it is not reasonable to believe parole
would be granted during the following years. [Penal Code
Section 3041.5(b)(2)(B).] This bill provides that when
resolving a tie vote en banc, the BPH need not rehear the
evidence, but may instead examine the record in order to rule
on parole.
4)Valdivia and Rutherford : In 1994, Jerry Valdivia brought suit
against CDCR and the Board of Parole Terms (now the Board of
Parole hearings) for constitutional violations in parole
revocation procedures. The Court held the parole revocation
system used in California violated the due process clause of
the 14th Amendment by allowing a delay of up to 45 days or
more before providing the parolee an opportunity to be heard
regarding the reliability of the probable cause determination.
[Valdivia vs. Schwarzenegger (2002) 206 F.Supp. 2nd 1068,
1077]. Based on that ruling, CDCR engaged in a stipulated
order for injunctive relief where it agreed to make
affirmative changes to its policies and procedures. Those
changes included a specific time limit for determining
probable cause and providing timely and effective assistance
of counsel for those facing revocation.
In 2004, Jerry Rutherford filed a writ of habeas corpus in the
Marin County Superior Court seeking an order to show cause as
to why he had not yet received a statutory parole suitability
hearing. Upon closer review, the court found several other
inmates were in the same situation and certified those inmates
who were not receiving parole hearings as a class. In January
2006, the court found that the BPH acted in defiance of the
law by refusing to hear more than 3,000 requests for parole.
The BPH indicated to the court in 2001 that the BPH would
reduce the backlog and provide timely hearings within 21
months. However, when the BPH reappeared in court over four
years later, the backlog had increased by 55%.
Representatives from the BPH stated the primary reason for the
backlog was vacancies on the BPH. The court ordered to the
BPH to develop and implement a plan that will reduce the
backlog so as to comply with current law. [In re Rutherford
(2006) Case no. SC135399A.] The court placed the following
requirements on the BPH and the CDCR: by May 2007, the CDCR
must develop and implement a statewide, networked system for
scheduling and tracking parole consideration hearings; by
September 2007, the CDCR must eliminate the backlog of overdue
parole hearings; and, the BPH may not deny further parole
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consideration for more than one year in the case of prisoners
who have formerly been denied for one year, absent a
significant change in circumstances, which must be clearly
stated on the record.
5)Prior Legislation :
a) AB 79 (Galgiani) of the 2007-2008 Legislative Session,
would have authorized the BPH to schedule subsequent parole
hearings for prisoners sentenced to an indeterminate term
for murder every 10 years rather than every five years of
the BPH finds it is not reasonable to expect that parole
would be granted at a hearing during the following years
and states its basis for the finding in writing. AB 79 was
never heard by this Assembly Committee.
b) AB 1629 (Runner) of the 2007-2008 Legislative Session,
would have extended the time in which the BPH may hold a
subsequent parole hearing for an offender sentenced to an
indeterminate term for the crime of murder from every five
years to no sooner than five, ten or fifteen years. AB
1629 failed passage in this Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
Opposition
Taxpayers for Improving Public Safety
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744