BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
1
1
6
AB 1166 (Nielsen) 6
As Introduced February 27, 2009
Hearing date: July 7, 2009
Penal Code
JM:mc
PAROLE HEARINGS FOR LIFE PRISONERS
HISTORY
Source: California Department of Corrections and Rehabilitation
Prior Legislation: Proposition 9, November 2008 General Election
SB 737 (Romero) - Ch. 10, Stats. 2005
SB 778 (Burton) - Ch. 131, Stats.2001
Support: Crime Victims United; California District Attorneys
Association
Opposition:None known
Assembly Floor Vote: Ayes 73 - Noes 0
KEY ISSUE
UNDER EXISTING LAW, WHERE THERE IS A TIE VOTE IN A HEARING TO
CONSIDER RELEASE ON PAROLE OF A LIFE-TERM INMATE, THE MATTER SHALL
BE REFERRED FOR AN EN BANC PROCEEDING BY THE ENTIRE BOARD.
SHOULD GOVERNING LAW EXPLICITLY STATE THAT THE BOARD IN THE EN BANC
PROCEEDING SHALL ONLY REVIEW THE RECORD OF THE PAROLE HEARING THAT
(More)
AB 1166 (Nielsen)
PageB
RESULTED IN A TIE VOTE, AND NOT HOLD A HEARING AT WHICH THE INMATE
WOULD HAVE SPECIFIED DUE PROCESS RIGHTS?
PURPOSE
The purpose of this bill is to provide that where there is a tie
vote in a parole consideration hearing, the resulting en banc
proceeding by the entire board shall only consider the record of
the hearing that produced the tie vote, rather than hold a new
hearing at which the inmate would have due process rights.
Existing constitutional law decisions of the United States
Supreme Court provide that "while "there is no constitutional ?
right of a convicted person to be conditionally released before
the expiration of a valid sentence" a state's statutory scheme,
if it uses mandatory language, "creates a presumption that
parole release will be granted" when or unless certain
designated findings are made, and thereby gives rise to a
constitutional liberty interest. (Greenholtz v. Inmates of
Nebraska Penal (1979) 442 U.S. 1; Board of Pardons v. Allen
(1987) 482 U.S. 369.)
Existing decisions of the Federal 9th Circuit Court of Appeal
have found that "[t]he California parole scheme uses mandatory
language and is largely parallel to the schemes found in
Greenholtz and Allen to give rise to such a [due process
liberty] interest [in a parole grant]." (McQuillion v. Duncan
(9th Cir. 2002) 306 F.3d 895, 901.) The California Supreme
Court has recognized a life-term inmate's due process rights
under the California Constitution. (In re Rosenkrantz (2002) 29
Cal.4th 616, 654-655.)
Existing law requires the Board of Parole Hearings (BPH) to meet
with each life-term inmate during the third year of
incarceration to review the inmate's file, make recommendations,
document activities and conduct pertinent to granting or
withholding post-conviction credit. One year prior to the
minimum eligible parole release date a panel of two or more
AB 1166 (Nielsen)
PageC
commissioners or deputy commissioners shall meet with the inmate
and shall normally set a parole release date, as specified. 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. (Pen. Code 3041,
subd. (a).)
Existing law states that the hearing panel, or 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, demonstrates that public safety requires a more
lengthy period of incarceration for this individual, and that a
parole date cannot be fixed at this meeting. (Pen. Code 3041,
subd. (b).)
Existing law provides that a 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 it comply with Judicial Council sentencing rules and
any sentencing information relevant to the setting of parole
dates. (Pen. Code 3041, subd. (a).)
Existing law provides that the BPH shall establish criteria for
the setting of parole release dates and 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. (Pen. Code 3041, subd. (a).)
Existing law provides that, where feasible, at least one panel
member shall have been present at the last meeting, unless the
last meeting was the initial meeting. A panel member may
request review of any decision regarding parole for an en banc
hearing by the BPH. In case of a review, a majority vote in
favor of parole by the BPH members participating in an en banc
hearing is required to grant parole. (Pen. Code 3041, subd.
(a).)
Existing law provides that a finding that an inmate is suitable
for parole shall be final within 120 days of the hearing at
AB 1166 (Nielsen)
PageD
which that finding is made. The BPH may review the panel's
decision. The decision shall become final unless the BPH finds
that the panel made an error of law, the decision was based on
an error of fact, or new information should be presented to the
BPH, any of which has a substantial likelihood of resulting in a
substantially different decision upon a rehearing by the BPH.
The BPH shall consult with the commissioners who conducted the
hearing. No panel decision shall be disapproved and referred
for rehearing except by a majority vote of the BPH, sitting en
banc, following a public hearing. (Pen. Code 3041, subd.
(b).)
Existing law states legislative intent that during times when
there is no backlog of inmates awaiting parole and related
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 law, unless the inmate has waived that right. The
report shall consider the backlog of cases and report on the
progress toward eliminating the backlog and on the number of
inmates who have waived their right to a hearing within
statutory time limits. The report shall be made public at a
regularly scheduled BPH meeting and a written report shall be
made publicly available and transmitted to the Legislature
quarterly. (Pen. Code 3041, subd. (c).)
Existing law defines an en banc hearing by the BPH as a hearing
conducted by a committee of nine randomly selected commissioners
who are 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. (Pen. Code 3041, subd. (e).)
Existing law states that at all parole suitability hearings, or
hearings for setting, postponing, or rescinding of parole dates,
the following shall apply:
At least 10 days prior to any hearing by the BPH, the
AB 1166 (Nielsen)
PageE
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.
The prisoner shall be permitted to be present to ask and
answer questions and to speak on his or her own behalf.
The prisoner or the prisoner's counsel, however, may not
ask questions of a victim or victim's representative, as
specified.
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.
The prisoner and a victim or victim representative, as
specified, shall be permitted to request and receive a
stenographic record of all proceedings.
If the hearing is for the purpose of postponing or
rescinding of parole dates, the prisoner shall have the
right to request a witness to attend the hearing. That
witness shall be called unless the hearing officer states
specific reasons on the record to deny the request. The
prisoner, under the direction of the hearing officer, has
the right to question all witnesses. (Pen. Code 3041.5
(a)(1)-(5), 2932, subd. (c)(3)-(4).)
Existing law provides that "the board shall set a date to
reconsider parole that ensures a meaningful consideration of
whether the inmate is suitable for release." (Pen. Code
3041.5, subd. (a)(6).)
Existing law states that within 10 days of a meeting where a
parole date has been set, the BPH shall send the prisoner a
written statement of the inmate's parole date, the conditions
for release and consequences of failure to meet those
conditions. (Pen. Code 3041.5 (b)(1).)
Existing law provides that within 20 days following any meeting
AB 1166 (Nielsen)
PageF
where a parole date has not been set for the reasons stated in
current law, the BPH shall send the prisoner a written statement
of the reason or reasons for refusal to set a parole date. The
statement shall suggest activities that will benefit the inmate
during his or her incarceration. The BPH, after considering the
views of the victim and the safety of the victim and the public,
shall schedule the next hearing as follows:
Fifteen (15) years after any hearing at which parole is
denied, unless the BPH finds by clear and convincing
evidence that the criteria for setting parole dates do not
require a more lengthy incarceration than 10 additional
years. (Pen. Code 3041.5, (b)(3)(A));
Ten (10) years after any hearing at which parole is
denied, unless the BPH finds by clear and convincing
evidence that the criteria for setting parole dates do not
require a more lengthy incarceration than seven additional
years. (Pen. Code 3041.5 (b)(3)(B).)
Three, five or seven years, because the criteria for
setting parole dates require a more lengthy incarceration,
but no more than seven years.
The board may, after considering the views of the
victim, advance a hearing to an earlier date when new
information or circumstances establish a reasonable
likelihood that additional incarceration pursuant to the
above timelines is not necessary.
Existing law 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. (Pen. Code 3041.5, subd. (b)(5).)
Existing law 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
AB 1166 (Nielsen)
PageG
the reason or reasons for that action and shall schedule the
prisoner's next hearing within 12 months and in accordance with
current law. (Pen. Code 3041.5, subd. (b)(6).)
Existing law provides that the BPH shall conduct a (subsequent)
hearing as a de novo hearing. Findings made at previous
hearings shall be considered, but are not binding, on a later
panel. The BPH, when requested by the victim of when a victim
is deceased or unavailable, shall admit prior recorded or
memorialized statements or a victim or witness. (Pen. Code
3041.5, subd. (c).)
Existing law allows an inmate, once in a three-year period, to
make a written request to the BPH to advance a hearing date.
The request shall state the new circumstances or information
indicating that release would likely be granted at an advanced
hearing. A copy of the request shall be sent to the victim.
The BPH shall have power to summarily deny a request that does
not comply with statutory requirements or does not state changed
circumstances. Denial of an inmate's request may be reviewed
only for "manifest abuse of discretion." (Pen. Code 3041.5,
subd. (d).)
This bill authorizes the Board of Parole Hearings (BPH), when
sitting en banc to review a tie vote of a parole hearing panel,
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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
AB 1166 (Nielsen)
PageH
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<1>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
----------------------
<1> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
AB 1166 (Nielsen)
PageI
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<2>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
---------------------------
<2> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
AB 1166 (Nielsen)
PageJ
COMMENTS
1. Need for This Bill
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 Section 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
AB 1166 (Nielsen)
PageK
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. Rutherford-Lugo Class Action Case Concerning Untimely Parole
Hearings
In 2004, life-term inmate Jerry Rutherford<3> 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 parole
suitability hearing. The trial court found that numerous other
inmates were in the same situation and certified the case a
class action. (In re Rutherford, Marin Co. No. SC135399A.)
In early 2006, the court found that the BPH had illegally failed
to hear more than 3,000 requests for parole. In 2001, the BPH
had informed the court that it would reduce the backlog and
provide timely hearings within 21 months. However, when the BPH
reappeared in court in 2006, the backlog had increased by 55%.
The BPH told the court that vacancies in the BPH largely caused
the backlog. The court ordered BPH and CDCR to develop and
implement a networked system for scheduling and tracking parole
consideration hearings by May, 2007. The court further ordered
the BPH and CDCR to eliminate the backlog of overdue parole
hearings by September, 2007.<4>
According to counsel involved in the Rutherford-Lugo litigation,
the BPH failed to meet a September 2007 deadline to eliminate
the backlog. The court granted the BPH an extension until June,
2009. According to counsel and CDCR, there is currently a
---------------------------
<3> Mr. Rutherford died prior to May 5, 2006. On that date, the
court appointed inmate Lugo as the class representative.
<4> The court's order that multi-year denials must be justified
by a significant change of circumstances was reversed by the
Court of Appeal in In re Lugo (2008) 164 Cal.App.4th 1522.
AB 1166 (Nielsen)
PageL
backlog of approximately 80 to 100 cases. The BPH and counsel
in Rutherford-Lugo do not expect the backlog to grow,
particularly in light of major changes to the laws concerning
the setting of a new parole hearing following denial of parole.
(See, Comment #3 on the changes to parole setting enacted in
Proposition 9 of the November 2008 election.)
3. Proposition 9 (Marsy's Law) of the November 2008 General
Election changes Substantive and Procedural Laws Concerning the
Granting of Parole and the Form of Parole Hearings
Proposition 9 of the November 7, 2008, General Election made
several major changes to parole review in California.
The Legislative Analyst's Office described the provisions of the
proposition that are relevant to this bill:
[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. [The
initiative also] increases the number of people who
can attend and testify at such hearings with victims.
The implementation of Proposition 9 should substantially
decrease the number of hearings conducted by the board. Whether
or not this decrease will occur quickly likely depends on the
outcome of challenges that the law may not be applied
retroactively. That is, a law that changes the punishment for a
crime can only be applied to crimes committed after the
enactment of the law. Inmates who currently await parole
hearings will argue that Proposition 9 - particularly the
extended denial periods - cannot be applied to them.
On December 15, 2008, the BPH implemented the provisions of
Proposition 9 that substantially extended the time for the
scheduling of the next parole hearing following denial of
parole. As of that date, numerous inmates should have had their
parole consideration heard, but the hearings were continued
without the fault of the inmate. CDCR and the BPH agreed as
AB 1166 (Nielsen)
PageM
part of the Rutherford-Lugo litigation that Proposition 9 would
not be applied as to these inmates.
CDCR representatives have told Committee staff that the hearing
backlog has been greatly reduced. (Counsel for the inmates in
the Rutherford-Lugo case agree with CDCR on this point.)
However, CDCR has informed Committee staff that the BPH has
recently lost some commissioners. Further, CDCR states that
commissioners have been forced to work very long hours -
essentially double shifts - in holding parole hearings at
prisons across the state and that the hearing schedule requires
difficult travel. Thus, CDCR believes that the BPH must
continue to use two-person panels, composed of one commissioner
and one deputy commissioner.
WILL PROPOSITION 9 SUBSTANTIALLY REDUCE THE NUMBER OF PAROLE
HEARINGS THE BOARD MUST HOLD, THEREBY LIMITING THE NEED FOR
TWO-PERSON HEARING PANELS?
BECAUSE TWO-PERSON HEARINGS THAT CAN PRODUCE TIE VOTES WERE
NECESSARY BECAUSE OF A SERIOUS BACKLOG IN PAROLE SUITABILITY
HEARINGS FOR LIFE-TERM INMATES HAVE LARGELY BEEN ELIMINATED, AND
BECAUSE PROPOSITION 9 COULD SUBSTANTIALLY REDUCE THE NUMBER OF
"LIFER" PAROLE HEARINGS, SHOULD THIS BILL INCLUDE A SUNSET
CLAUSE?
4. Recent Trial Court and unpublished Appellate Decisions have
Held that an Inmate has Due Process Rights in an en banc
Proceeding concerning a Tie Vote of a Parole Hearing Panel
Background on Legislation Concerning Two-Person Hearing Panels
and Referral of Tie Votes to the Board for an en banc Proceeding
to Grant or Deny Parole
Penal Code Section 3041, subdivision (d), states legislative
intent that parole hearings for life-term inmates be conducted
by a "panel of three or more members, the majority of whom shall
be commissioners." However, a backlog of hearings resulted in
statutory changes allowing BPH to hold hearings "by a panel or
two or more commissioners or deputy commissioners " Only one
AB 1166 (Nielsen)
PageN
deputy commissioner may sit on a panel. (Pen. Code 3041,
subd. (a).)
From 2001 through 2005, subdivision (d) of Section 3041 stated
that two-person panels were to be conducted on an "emergency
basis and only until December 31, 2005." The current provisions
of subdivision (d) - stating legislative intent to provide
three-person panels in times of no backlog - were enacted in
2005.<5>
Since 2001, the governing law has provided that a tie vote of a
two-person hearing panel shall be referred to the board for an
en banc proceeding. In 2005, SB 737 (Romero) amended
subdivision (a) of Section 3041 to state that the en banc
proceeding of the BPH to address a tie vote shall be a
"hearing." Prior to enactment of SB 737, subdivision (a) stated
that tie votes shall be referred to the full board (en banc) for
a "decision" to break the tie.
An Prum (unpublished Appellate Decision): An Inmate is entitled
to Due Process Hearing Rights at the en banc Proceeding
An Prum was committed to prison for the first-degree murder of
his common-law wife. It appears that Prum stabbed her when he
became jealous and angry because she had received a telephone
call from another man. He was sentenced to prison for a term of
26 years to life
Prum's parole hearing was held in 2005. At that time, Section
3041, subdivision (a), stated that a tie vote shall be submitted
to the full board for a "decision." The deputy commissioner
found Prum suitable for parole, but the commissioner did not.
Prum was notified that his parole suitability would be
---------------------------
<5> According to the Senate Public Safety Committee analysis of
SB 787 of 2001, the practice of the BPH had been to assign two
commissioners and one deputy commissioners for parole hearings.
Tie votes would not occur in such hearings. SB 787 allowed one
commissioner and one deputy commissioner to conduct hearings
until December 31, 2003. That date was extended to December 31,
2005 by AB 2 (Bogh) Ch. 1., Stats. 2004.
AB 1166 (Nielsen)
PageO
considered by the board at its next executive meeting and that
he could submit a written statement. The board invited the
Orange County District Attorney's Office, Prum's counsel, and a
friend of the victim to attend to board meeting in order to
express their views on Prum's parole. Oral statements could not
exceed five minutes. A written statement could be submitted in
lieu of attending the hearing. At the en banc proceeding, there
was no discussion of An Prum's case and no one appeared to
address the matter. An Prum's counsel submitted a letter
arguing for a grant of parole, but he did not attend the en banc
proceeding. The board denied parole.
In a petition for a writ of habeas corpus Prum argued that he
was entitled to the due process hearing rights set out in Penal
Code Section 3041.5 when his case was "referred to the full
board for a decision," as Section 3041 read until January 1,
2006. The appellate court (4th Dist.) granted the writ in an
unpublished order. The court agreed that the en banc proceeding
to decide whether Prum should be granted or denied parole was a
hearing at which he was entitled to the due process rights
applicable to parole hearings.
The court in Prum's case described a life-term inmate's parole
due process rights:
Section 3041.5 provides that "[a]t all hearings for
the purpose of reviewing a prisoner's parole
suitability, or the setting, postponing, or rescinding
of parole dates[]" (italics added), the inmate is
entitled to notice of the hearing; an opportunity to
review his file and to enter a written response to any
material contained therein; the right to be present at
the hearing, to ask questions and to speak on his own
behalf; representation by an attorney; a stenographic
record of the proceedings; and a written decision
setting forth the reasons for the decision.
The court rejected the argument of the Attorney General that the
en banc proceeding was simply a review of the parole hearing
that resulted in the tie vote:
AB 1166 (Nielsen)
PageP
The definition of "review" implies facts have already
been determined, the record is closed, and the matter
is now subject to inspection. Had the en banc
proceeding consisted solely of the evidence before
the panel at the hearing in February and the
transcript of that hearing, a better case could be
made the April proceeding was a review of the panel's
decision rather than a hearing. ? By receiving and
considering information outside the record of the
[two-person] hearing the en banc proceeding was
consistent with the Board's definition of a hearing in
order to "decid[e] factual and dispositional
questions."
The court in Prum also looked to the legislative history of
relevant bills, particularly SB 778 (Burton) Ch. 141, Stats.
2001 and SB 737 (Romero) Ch. 10, Stats. 2005. The court found
no support in the history for a conclusion that the Legislature
intended that a person whose parole hearing resulted in a tie
vote would not be entitled to the due process rights applicable
to a parole hearing in a resulting en banc proceeding. It noted
that the statutory amendments in 2005 specifically described the
en banc proceeding to consider a tie vote as a "hearing."
Davis: Superior Court Habeas Corpus Decision that an Inmate is
entitled to a Hearing at the en banc Proceeding
Bruce Davis is an inmate serving a life sentence following a
1972 conviction for murder. The Los Angeles County Superior
Court granted Davis' petition for a writ of habeas corpus. The
two-person panel in Davis' August 31, 2006, parole hearing
issued a split decision (tie vote). The full board, in an en
banc meeting on November 20, 2006, found Davis unsuitable for
parole.
The court described the en banc proceeding thus:
The en banc proceeding ? was a closed meeting. The
board did not consider the record from the August,
AB 1166 (Nielsen)
PageQ
2006, hearing, as the record was not yet available.
The panel did not consider the most recent Board
Report. The panel did not issue a separate statement
of reasons for its decision. (Davis order, p. 1.)
The court noted that the board had heard public comments
regarding Davis' suitability for parole at an open
executive meting prior to the closed proceeding in which
the decision was made. Davis was allowed to submit a
written statement for the proceeding, but he was not
allowed to attend or speak at the proceeding.
The court noted with some significance that Penal Code
Section 3041, subdivision (a), as amended in 2005,
specifically referred to a "hearing" by the board.
Previously, subdivision (d) referred to a "decision" of the
board following a tie vote by a hearing panel. The court
found that the clear terms of the statute required that
Davis be given a hearing before the board. Penal Code
Section 3041.5 grants the inmate due process rights to be
present, to ask and answer questions and to speak on his or
behalf at all hearings conducted to review an inmate's
suitability for parole.
The court rejected an argument that the entire board merely
reviewed the decision of the panel. The court noted that a
tie vote of a panel is not a "decision" that the board can
review. The en banc proceeding is a separate hearing to
determine an inmate's suitability for parole. The same
rights apply to an en banc proceeding that apply to a
hearing in front of a two-person or three-person panel.
SHOULD THE BPH AND CDCR EXPECT A PUBLISHED OPINION THAT
WILL REQUIRE THE BPH TO GRANT INMATES FULL DUE PROCESS
HEARING RIGHTS AT AN EN BANC PROCEEDING FOLLOWING A TIE
VOTE OF A TWO-PERSON PAROLE HEARING PANEL?
5. Review of the Record by the Entire Board of the Hearing
that Resulted in a Tie Vote
AB 1166 (Nielsen)
PageR
This bill provides that in an en banc proceeding following
a tie vote by a two-person panel at a parole suitability
hearing, the board shall "review the record that was before
the panel ." The bill does not define what constitutes
"the record" of the hearing before the panel.
Parole hearings are typically tape-recorded. Various
documents, written and electronically recorded statements
and other items are considered by the panel in deciding
whether or not the inmate is suitable for parole. The
inmate and the victim or victim representative is entitled
to a stenographic record of the proceedings.
It should be noted that the board did not review the record
of the panel hearing in the Davis matter, discussed above.
It appears that the board may have only considered short
statements, including a five minute statement of counsel.
The court did not note whether or not the prosecutor or a
representative of the victim addressed the board.
It also appears that in an en banc proceeding to break a
tie vote of a two-person panel, the board invites the
inmate, counsel for the inmate, the prosecutor, the victim
or victim representative. The court in Prum noted that
such matters would constitute new information or evidence.
Consideration of new evidence at the en banc proceeding
would not be consistent with a review of the proceedings
below. It is suggested that if the board conducts a review
of the hearing that resulted in a tie vote, the review
should be limited to the information and evidence
considered by the panel. Further, it is suggested that the
board in an en banc proceeding should be directed to review
the entire record that was considered by the panel.
The court in the Davis matter appeared to criticize the
board's failure to make a separate statement of reasons for
finding Davis unsuitable for parole. The board in the en
banc proceeding simply incorporated by reference the
findings of the commissioner who found Davis unsuitable.
The failure of the board to state reasons arguably prevents
AB 1166 (Nielsen)
PageS
an inmate from learning what he must do to become eligible
for parole. Further, the failure of the board to state
reasons for its decision does not allow adequate review of
the panel decision by a court.
SHOULD THIS BILL DEFINE WHAT CONSTITUTES "THE RECORD" FOR
PURPOSES OF AN EN BANC REVIEW OF A HEARING THAT RESULTED IN
A TIE VOTE OF THE TWO-PERSON PANEL?
IN SUCH AN EN BANC, SHOULD THE BPH BE LIMITED TO CONSULTATION
WITH THE PANEL MEMBERS AND CONSIDERATION OF THE RECORD OF THE
HEARING?
SHOULD THE BOARD BE DIRECTED TO REVIEW THE ENTIRE RECORD THAT
WAS CONSIDERED BY THE HEARING PANEL?
IN REVIEWING A TIE VOTE AND ISSUING A DECISION TO GRANT OR DENY
PAROLE, SHOULD THE BOARD BE REQUIRED TO ISSUE A SEPARATE
STATEMENT OF REASONS FOR ITS DECISION?
***************