BILL ANALYSIS �
AB 1281
Page 1
Date of Hearing: April 26, 2011
Consultant: Stefani Salt
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1281 (Garrick) - As Amended: April 25, 2011
SUMMARY : Provides that at a hearing regarding parole
suitability or the setting of a parole date, a victim, next of
kin, immediate family member of a victim or designated
representative and any prosecutor with the right to appear, as
specified, has the right to appear by means of audioconferencing
if it is available at the hearing site. Specifically, this
bill :
1)Requires that if audioconferencing is available at the hearing
site, parties with the right to appear, as specified, have the
right to appear via audioconferencing.
2)Defines "audioconferencing" as the live transmission of audio
signals by any means from one physical location to another.
EXISTING LAW :
1)Declares that a victim, next of kin, members of the victim's
family, and two representatives, as specified, have the right
to appear, personally or by counsel, at a hearing considering
parole suitability or the setting of a parole date and to
adequately and reasonably express their views concerning the
prisoner and the case, including, but not limited to
commitment crimes, determinate term commitment crimes for
which the prisoner has been paroled, other felony crimes or
crimes against the person for which the prisoner has been
convicted, the effect of the enumerated crimes on the victim
and the victim's family, the person responsible for these
crimes, and the prisoner's suitability for parole. �Penal
Code Section 3043(b)(1).]
2)Mandates that a prisoner under a life sentence is entitled to
be represented by counsel, as specified, at a hearing for the
purpose of setting, postponing or rescinding a parole release
date. States that the Board of Parole Hearings (BPH) must
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provide by rule for the invitation of the prosecutor of the
county from which the prisoner was committed, or his
representative, to represent the interests of the people at
the hearing. Requires BPH to notify the prosecutor and the
Attorney General at least 30 days prior to the date of the
hearing. Provides that, notwithstanding Government Code
Section 12550, the prosecutor of the county from which the
prisoner was committed, as specified, shall be the sole
representative of the interests of the People. (Penal Code
Section 3041.7.)
3)States that any victim, next of kin, members of the victim's
immediate family or a representative designated by the victim
or next of kin, as specified, who have the right to appear at
a hearing to review parole suitability or the setting of a
parole date, either personally or by written, audiotaped or
videotaped statement, as specified, and a prosecutor who has
the right to appear, as specified, also has the right to
appear by means of videoconferencing if it is available at the
hearing site. Defines "videoconferencing" as live
transmission of audio and video signals from one physical
location to another. (Penal Code Section 3043.25.)
4)Defines "immediate family" as the victim's spouse, parent,
grandparent, brother, sister, and children or grandchildren
who are related by blood, marriage or adoption. (Penal Code
Section 3043.3.)
5)Permits the victim, next of kin, immediate family, or two
representatives designated for a particular hearing by the
victim or next of kin, as specified, to file with the Board of
Prison Terms (BPT) a written, audiotaped or videotaped
statement, or statement stored on a CD Rom, DVD or another
recording medium accepted by a court, expressing his or her
views concerning the crime and the person responsible, as
specified. Requires BPT to consider these statements prior to
reaching a parole decision. Clarifies that BPT is not
responsible for providing equipment or resources needed to
assist the victim in preparing the statement. (Penal Code
Section 3043.2.)
6)Mandates that BPH, in deciding whether to release a person on
parole, must consider the entire and uninterrupted statements
of the victim or victims, next of kin, immediate family
members of the victim and the designated representatives.
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�Penal Code Section 3043(d).]
7)States that any person interested in the grant or denial of
parole to a prisoner in a state prison has the right to submit
a statement of views in support of or opposition to the
granting of parole. Provides that the board, in deciding
whether to release the person on parole, shall review all
information received from the public to insure that the
gravity and timing of all current or past convicted offenses
have been given adequate consideration and to insure that the
safety of the public has been adequately considered. �Penal
Code Section 3043.5(b).]
8)Declares that in order to preserve and protect a victim's
rights to justice and due process, a victim shall be entitled
to the following rights �Cal. Const. Art. 1 Section 28(b)]:
a) To reasonable notice of all public proceedings,
including delinquency proceedings, upon request, at which
the defendant and the prosecutor are entitled to be present
and of all parole or other post-conviction release
proceedings, and to be present at all such proceedings
�Cal. Const. Art. 1 Section 28(b)(7)];
b) To be informed of all parole procedures, to participate
in the parole process, to provide information to the parole
authority to be considered before the parole of the
offender, and to be notified, upon request, of the parole
or other release of the offender �Cal. Const. Art. 1
Section 28(b)(15)];
c) To have the safety of the victim, the victim's family
and the general public considered before a parole or other
post-judgment release decision is made. �Cal. Const. Art.
1 Section 28(b)(16).]
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "Penal Code
Section 3043.25 is the statute governing the prosecutor's
right to appear at a parole hearing via video conferencing.
In many cases, video conferencing is not available at the
hearing site, or breaks down at the last minute. In some
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cases, the inmate does not have a good chance of receiving a
parole grant, and in those circumstances the cost to
personally attend the hearing outweighs the benefits
associated with personal attendance. This amendment would
provide that in those situations, a speaker phone, or other
device, could be used to allow audio conferencing as well as
video conferencing at parole hearings. Used wisely, this
additional option could save money and still give us a voice
at appropriate hearings. Although �BPH] has allowed audio
conferencing many times at parole hearings, it is not done
consistently. A change in the law would correct this and
allow for this option at the prosecutor's discretion so long
as a speaker phone is available at the hearing site."
2)Background : According to the information provided by the
author, "�Penal Code Section] 3043.25 allows 'video
conferencing' but does not explicitly state 'or audio
conferencing.' It is our experience that many sites do not
have videoconferencing available at their facilities and if
they do it is not reliable. We are seeking to save travel
costs by allowing prosecutors and victims to 'appear' via
audio conferencing."
3)The Right to Attend a Parole Hearing - Victims' Rights : The
rights of victims have been codified in California statutes
and the Constitution. Regarding parole hearings, a victim has
a right to be notified of a hearing, a right to appear at the
hearing and a right to submit a recorded statement in lieu of
appearance. BPH hearing panels are occasionally intimidated
by the appearance of victims or victims' representatives and
are disinclined to grant parole because of their statements
regardless of a prisoner's suitability for parole.
a) Victim's Right to be Notified of a Hearing: The victim
of a crime committed by the prisoner, or the victim's next
of kin if the victim is deceased, may request that BPH
notify them of a parole suitability hearing. �Penal Code
Section 3043(a).] Notice must be sent at least 30 days
before the hearing. �Penal Code Section 3043(a).]
b) Victim's Right to Appear at the Hearing: The victim,
next of kin, members of the victim's family and two
representatives of the victim or next of kin, may appear
personally or by counsel and express their views about the
crime and the person responsible for the crime. �Penal
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Code Section 3043(b).] A representative's statement may
concern any subject that the victim or next of kin has the
right to address, including a recommendation regarding the
granting of parole. �Penal Code Section 3043(b)(2).] A
representative can provide testimony or submit a statement
even though the victim, next of kin or a member of the
victim's immediate family is present at the hearing or has
submitted a written, audiotaped or videotaped statement.
�Penal Code Section 3043(c).] The victim, next of kin,
victim's immediate family or designated representative has
the right to appear by means of videoconferencing, in lieu
of personal appearance, if videoconferencing is available
at the hearing site. (Penal Code Section 3043.25.)
The victim, the victim's representative or next of kin, or
the prosecutor, when representing the views of the victim,
the victim's family or the next of kin, has the right to
speak last at the parole hearing. (Penal Code Section
3043.6.) However, this right is subject to the power of
the person presiding at the hearing to take appropriate
steps to ensure that only accurate and relevant statements
are considered in determining parole. (Penal Code Section
3043.6.) Such steps can include permitting the prisoner or
his or her attorney to rebut inaccurate statements. (Penal
Code Section 3043.6.)
c) Victim's Right to Submit a Recorded Statement: In lieu
of a personal appearance, the victim, next of kin,
immediate family members or two designated representatives,
may submit a written, audiotaped or videotaped statement.
�Penal Code Section 3043.2(a)(1).] BPH must consider any
statement filed before it makes its decision. �Penal Code
Section 3043.2(a)(3).]
4)The District Attorney's Right to Attend a Parole Hearing : All
prison sentences must include a period of parole unless waived
by BPH for good cause. �Penal Code Section 3000(a)(1) and
(b).] Law requires that for a parole hearing for a prisoner
under a life sentence, a representative of the district
attorney's office from the county of conviction must be
invited to attend and participate in the hearing to represent
the People's interests. (Penal Code Section 3041.7.) That
representative should be, but does not have to be, an
attorney. �Penal Code Section 3041.7; See also 15 California
Code of Regulations Section 2030(b) (notice of hearing must be
AB 1281
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sent to district attorney's office at least 30 days before the
hearing).]
If the district attorney representative does not intend to make
a personal appearance at the parole hearing, he or she can
send a letter to BPH stating the position of the prosecution
and the reasons for it. In lieu of a personal appearance, the
district attorney representative may appear by means of
videoconferencing if videoconferencing is available at the
hearing site. (Penal Code Section 3043.25.)
5)Arguments in Support : According to the San Diego County
District Attorney (the sponsor of this bill), "�C]urrently a
prosecutor's attendance at a parole suitability hearing is
only permitted in person or by video conference.
Unfortunately, many times video conferencing is not available
at the site and our deputies must travel to the facility site.
. . . This amendment will allow prosecutor and victim, or
next of kin, the ability to attend via telephone/audio
conferencing at considerable savings.
"In our office, a prosecutor's travel expenses for in-person
attendance for one or more hearings grouped together at the
same prison can range in price from $90 to over $1,000. This
depends on the hearing site and distance from originating
city, duration of the trip (number of hearings scheduled, and
hours or days required to attend), and method of
transportation chosen (air, rental car, private auto or county
vehicle). Video conferencing averages about $170 per hearing.
This cost includes the $48 per hour plus additional $152 fee
per month for the system. An average hearing takes
approximately 3.5 hours to conduct, with many hearings lasting
considerably longer.
"Telephonic/audio conferencing is significantly less expensive
than both of these alternatives. Long distance telephone
lines cost an average of .36 a minute with a base fee of
$48.00 a month. Using the average hearing time, this comes
out to approximately $15.00 per hearing, without regard to the
distance of the prison. Substantial savings would be realized
if telephonic/audio attendance at parole suitability hearings
were to be permitted."
6)Previous Legislation :
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a) Proposition 9, the Victims' Rights and Protection Act of
2008, also known as Marsy's Law, approved November 4, 2008
and effective November 5, 2008, expanded the rights of
crime victims, including their rights regarding parole
hearings.
b) SB 1516 (Machado), Chapter 289, Statutes of 2004,
expanded the list of persons who may provide testimony or
submit statements to BPT to include a victim, next of kin,
member of the victim's immediate family, or two designated
representatives.
REGISTERED SUPPORT / OPPOSITION :
Support
San Diego County District Attorney (Sponsor)
Crime Victims of California
Opposition
None
Analysis Prepared by : Stefani Salt / PUB. S. / (916) 319-3744