BILL ANALYSIS
AB 1166
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1166 (Nielsen)
As Amended July 9, 2009
3/4 vote
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|ASSEMBLY: |73-0 |(May 14, 2009) |SENATE: |39-0 |(August 24, |
| | | | | |2009) |
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Original Committee Reference: PUB. S.
SUMMARY : Authorizes the Board of Parole Hearings (BPH), when
sitting en banc as specified 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.
The Senate amendments :
1)Require an en banc review be conducted in compliance with the
following:
a) The commissioners conducting the review shall consider
the entire record of the hearing that resulted in the tie
vote;
b) The review shall be limited to the record of the
hearing. The record shall consist of the transcript or
audiotape of the hearing, written or electronically
recorded statements actually considered by the panel that
produced the tie vote, and any other material actually
considered by the panel. New evidence or comments shall
not be considered in the en banc proceeding; and,
c) BPH shall separately state reasons for its decision to
grant or deny parole.
2)States a commissioner who was involved in the tie vote shall
be recused from consideration of the matter in the en banc
review.
EXISTING LAW :
AB 1166
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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
majority vote in favor of parole by the BPH members
participating in an en banc hearing is required to grant
parole to any inmate.
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
AB 1166
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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.
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 time frames. 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
transmitted to the Legislature quarterly.
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.
AS PASSED BY THE ASSEMBLY , this bill authorized the 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.
FISCAL EFFECT : According to the Senate Appropriations
Committee, pursuant to Senate Rule 28.8, negligible state costs.
AB 1166
Page 4
COMMENTS : 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."
Please see the policy committee for a full discussion of this
bill.
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744
FN: 0002170