BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 1593(Ma)
As Amended March 29, 2012
Hearing date: June 12, 2012
Penal Code
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PAROLE:
INTIMATE PARTNER BATTERING
HISTORY
Source: Author
Prior Legislation: AB 220 (ACoPS) - Chapter 215, Stats. 2005
SB 499 (Burton) - Chapter 652, Stats. 2000
AB 231 (Kuehl) - Chapter 905, Stats. 1995
AB 3436 (Friedman) - Chapter 1138, Stats. 1992
Support: The California Public Defenders Association; California
Attorneys for Criminal Justice; California Habeas
Project; Legal services for Prisoners with Children;
California Catholic Conference, Inc.
Opposition:California District Attorneys Association
Assembly Floor Vote: Ayes 51 - Noes 20
KEY ISSUES
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SHOULD THE BOARD OF PAROLE HEARINGS GIVE GREAT WEIGHT TO ANY
INFORMATION OR EVIDENCE THAT AT THE TIME OF THE COMMISSION OF
THE CRIME THE PRISONER HAD EXPERIENCED INTIMATE PARTNER
BATTERING WHEN REVIEWING A PRISONER'S SUITABILITY FOR PAROLE?
(CONTINUED)
SHOULD THE LAW PROVIDE THAT THE BOARD OF PAROLE HEARINGS SHALL NOT
USE THE FACT THAT A PERSON GIVES EVIDENCE OF INTIMATE PARTNER
BATTERING TO SUPPORT A FINDING THAT A PRISONER LACKS INSIGHT INTO
HIS OR HER CRIME AND ITS CAUSES?
PURPOSE
The purpose of this bill is to require the Board of Parole
Hearings (BPH), when reviewing a prisoner's suitability for
parole, to give great weight to any information or evidence
that, at the time of the commission of the crime, the prisoner
had experienced intimate partner battering and provide that they
cannot use the fact that the prisoner brought in the evidence to
find that a prisoner lacks insight to his or her crime.
Existing law provides that at all hearings for the purpose of
reviewing a prisoner's parole suitability, or the setting,
postponing, or rescinding of parole dates, with the exception of
en banc review of tie votes, the following shall apply:
At least 10 days prior to any hearing by 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.
The prisoner shall be permitted to be present, to ask
and answer questions, and to speak on his or her own
behalf. Neither the prisoner nor the attorney for the
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prisoner shall be entitled to ask questions of any person
appearing at the hearing.
Unless legal counsel is required by some other provision
of law, a person designated by the Department of
Corrections and Rehabilitation 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 any victim or next of kin 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 right
to have witnesses called, unless the person conducting the
hearing has specific reasons to deny this request, and the
prisoner shall have the right to question all witnesses.
The BPH shall set a date to reconsider whether an inmate
should be released on parole that ensures a meaningful
consideration of whether the inmate is suitable for release
on parole. (Penal Code � 3041.5(a).)
Existing law requires at any hearing for the purpose of setting,
postponing, or rescinding a parole release date of a prisoner
under a life sentence, the prisoner shall be entitled to be
represented by counsel. BPH shall 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. BPH shall notify the
prosecutor and the Attorney General at least 30 days prior to
the date of the hearing. (Penal Code � 3041.4.)
Existing law states that the hearing shall be conducted as a de
novo hearing. Findings made and conclusions reached in a prior
parole hearing shall be considered in but shall not be deemed to
be binding upon subsequent parole hearings for an inmate, but
shall be subject to reconsideration based upon changed facts and
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circumstances. When conducting a hearing, the BPH shall admit
the prior recorded or memorialized testimony or statement of a
victim or witness, upon request of the victim or if the victim
or witness has died or become unavailable. At each hearing the
BPH shall determine the appropriate action to be taken based on
the criteria set forth in paragraph (3) of subdivision (a) of
Section 3041. (Penal Code � 3041.5(c).)
Existing law states that BPH, in deciding whether to release the
person on parole, shall consider the entire and uninterrupted
statements of the victim or victims, next of kin, immediate
family members of the victim, and the designated representatives
of the victim or next of kin, if applicable, made pursuant to
this section and shall include in its report a statement whether
the person would pose a threat to public safety if released on
parole. (Penal Code � 3043(d).)
Existing law requires BPH to record parole hearings and
transcribe recordings of those hearings within 30 days of any
hearing. Those transcripts, including the transcripts of all
prior hearings, shall be filed and maintained in the office of
the Board of Prison Terms and shall be made available to the
public no later than 30 days from the date of the hearing. No
prisoner shall actually be released on parole prior to 60 days
from the date of the hearing. At any hearing, the presiding
hearing officer shall state his or her findings and supporting
reasons on the record. (Penal Code � 3042(b) and (c).)
Existing law states that in a criminal action, expert testimony
is admissible by either the prosecution or the defense regarding
intimate partner battering and its effects, including the nature
and effect of physical, emotional, or mental abuse on the
beliefs, perceptions, or behavior of victims of domestic
violence, except when offered against a criminal defendant to
prove the occurrence of the act or acts of abuse which form the
basis of the criminal charge. (Evidence Code �1107(a).)
Existing law authorizes BPH to report to the Governor, from time
to time, the names of any and all persons imprisoned in any
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state prison who, in its judgment, ought to have a commutation
of sentence or be pardoned and set at liberty on account of good
conduct, or unusual term of sentence, or any other cause,
including evidence of intimate partner battering and its
effects. Defines "intimate partner battering and its effects" to
include evidence of the nature and effects of physical,
emotional, or mental abuse upon the beliefs, perceptions, or
behavior of victims of domestic violence where it appears the
criminal behavior was the result of that victimization. (Penal
Code � 4801(a).)
This bill provides that BPH shall give great weight to any
information or evidence that at the time of the commission of
the crime, the prisoner had experienced intimate partner
battering, but was convicted of an offence that occurred prior
to August 29, 1996.
Existing law requires BPH, in reviewing a prisoner's suitability
for parole to consider any information or evidence that, at the
time of the commission of the crime, the prisoner had
experienced intimate partner battering, but was convicted of the
offense prior to the enactment of Section 1107 of the Evidence
Code. The BPH shall state on the record the information or
evidence that it considered pursuant to this subdivision, and
the reasons for the parole decision. The BPH shall annually
report to the Legislature and the Governor on the cases the BPH
considered pursuant to this subdivision during the previous
year, including the BPH's decision and the findings of its
investigations of these cases. (Penal Code � 4801(b)(1).)
This bill mandates BPH to include in its annual report to the
Legislature and the Governor specific and detailed findings of
its investigations of cases where a prisoner had experienced
intimate partner battering at the time of the offense.
This bill states that the fact that a prisoner has presented
evidence of intimate partner battering cannot be used to support
a finding that the prisoner lacks insight into his or her crime
and its causes.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
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court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
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According to the author:
Under current law, the Board of Prison Terms, also
known as the Parole Board, has the authority to
consider IPB as a factor in the suitability of the
prisoner's parole. Under SB 499 (2000), the Board is
also required to make a finding in the record on the
facts considered by the Parole Board. The Parole Board
is then required to report annually to the Legislature
and the Governor on the parole decisions involving IPB.
However, the Parole Board's report does not offer
concrete details of how the Parole Board evaluates the
IPB claims.
Currently, when a domestic violence victim is
questioned by the parole board on the crimes they
committed, the victim often discusses the history of
their victimization and their prior abuse. The Parole
Board often considers this acknowledgement of
victimization as "lack of insight" and denies their
parole.
In 2001, California enacted SB 799 to allow domestic
violence victims to file habeas corpus claims for
crimes relating to IPB before January 1992. However,
the California Supreme Court did not hear an IPB case
until August 29, 1996, in People v. Humphrey. Later the
Legislature changed Penal Code Section 1473.5 to
reflect the date of this decision. However, Penal Code
Section 4801 referring to IPB in Parole Board hearings
has not been amended to reflect the date of the Court's
decision.
AB 1593 requires that the parole board give great
weight to any information or evidence that proves the
prisoner experienced intimate partner battering (IPB)
and its effects at the time the crime was committed.
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AB 1593 ensures the date the crime took place is
consistent with date established in current IPB statute
(Penal Code 1473.5).
AB 1593 will also prohibit the parole board
commissioners from using "lack of insight" as evidence
to deny suitability in cases involving IPB.
2. " Give Great Weight to "
Evidence of intimate partner battering has been part of what the
Board of Parole Hearings (BPH) could use for a reason for
commuting a sentence since SB 3436 (Friedman) was passed in
1992. Bills since then have defined what at the time was called
"battered woman syndrome" (AB 231 (Kuehl) 1995); required that
the board consider whether a prisoner had experienced battered
woman syndrome at the time of the offense and was sentenced
prior to 1991 (SB 499 (Burton) 2000); and, changed the term
"battered woman syndrome" to "intimate partner battering" (AB
220 (ACoPS) 2005).
This bill provides that instead of considering any information
or evidence on intimate partner battering at the time of the
commission of the crime, BPH shall give great weight to any
information or evidence that at the time of the commission of
the offense the prisoner experienced intimate partner battering
but was convicted of the offense prior to August 29, 1996.
Although Evidence Code � 1107 which allows evidence of intimate
partner battering took effect January 1, 1992, its impact was
not made clear until the August 29, 1996 California Supreme
Court ruling in People v. Humphrey (1996) 13 Cal. 4th 1073 which
clarified the purposes for which the evidence was admissible.
In support, the California Public Defender's Association states:
Prisoners who suffered brutal violence, psychological
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and emotional harm and fear of imminent death at the
hands of their intimate partner abusers are serving
decades long prison sentences for offenses ranging from
homicide to other violent offenses. Some did not have
the benefit of consideration of their experience as
domestic violence victims considered during their trial
proceedings and similarly during parole eligibility
reviews. Some of these inmates have little to no prior
conviction record.
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Too often, recommendations against parole release are
made solely due to the charge being homicide related
while placing little weight on evidence showing that
the victim was a domestic violence victim whose charge
was directly related or a result of the battering
experience. AB 1593 steers the focus in the right
direction. The Board of Parole Hearings should not
merely consider but should accord great weight to the
reports of prison psychologists and other clinicians as
well as evidence existing from the trial proceedings
showing that the individual being considered for parole
suitability was a victim of intimate partner battering
and its effects and that the committing offense was
related to the battering experience.
3. Not to be Used to Show Lack of Insight
This bill provides that the fact that a prisoner has presented
of evidence of intimate partner battering cannot be used to
support a finding that the prisoner lacks insight into his or
her crime and its causes. According to supporters of this bill:
"�a]t times, the Board of Parole Hearings has labeled the link
between experience of abuse and involvement in the crime as a
"lack of insight" into the crime and its causes." This bill
provides that entering evidence of intimate battering should not
be used to show lack of insight into the crime.
4. Opposition
In opposition the California District Attorneys Association
states:
Under existing law, BPH is required to consider such
information or evidence regarding IPB, but no bias
toward the impact of such is expressed. Additionally,
existing law (Penal Code section 1473.5) provides a
special writ of habeas corpus that may be prosecuted on
the basis that expert testimony relating to IPB and its
effects was not received in evidence at the trial court
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proceedings. In this regard, we feel that existing law
adequately addresses the impacts of IPB.
This bill effectively gives a person who has previously
filed an unsuccessful writ of habeas corpus based on
IPB the ability to use the same evidence to attempt
gain release from incarceration a second time. We have
not heard a convincing reason why such evidence should
be given more consideration than the statute currently
provides at a parole suitability hearing when it did
not result in habeas relief under existing law.
Further, in this particular case, we feel it is
inappropriate to direct BPH operations legislatively by
expressing a bias toward evidence of IPB, especially if
such evidence was unconvincing to a court in a habeas
proceeding.
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