BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 1363 (Hancock) 3
As Amended: April 21, 2014
Hearing date: April 29, 2014
Penal Code
MK:sl
SENTENCING: PAROLE
HISTORY
Source: Jon Streeter, Keker &Van Nest L.L.P
Prior Legislation: None
Support: American Friends Service Committee; Californians United
for a Responsible Budget; Center on Juvenile and
Criminal Justice; Friends Committee on Legislation of
California; Justice Now; Lawyers Committee for Civil
Rights; Legal Services for Prisoners With Children;
Root & Rebound; Rubicon Programs; Taxpayers for
Improving Public Safety
Opposition:California District Attorneys Association; San Diego
County District Attorney; Citizen's for Law and Order,
Inc.; Crime Victims Action Alliance
KEY ISSUES
SHOULD THE BOARD OF PAROLE HEARINGS USE THE ABSTRACT OF JUDGMENT TO
HELP DETERMINE THE BASE TERM AND ADJUSTED BASE TERM FOR AN INMATE?
WHEN AN INMATE IS FOUND SUITABLE FOR PAROLE SHOULD HE OR SHE BE
RELEASED, SUBJECT TO REVIEW BY THE GOVERNOR?
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IF AN INMATE HAS SERVED BEYOND HIS OR HER ADJUSTED BASE TERM AND IS
DENIED PAROLE SHOULD THAT DENIAL BE SUPPORTED BY SUBSTANTIAL
EVIDENCE WITH RESPECT TO THE ENTIRE RECORD?
PURPOSE
The purpose of this bill is to make changes to the parole
process so that an inmate's base term is calculated based on
findings by the court and that once found suitable an inmate is
released.
Existing law provides that in the case of any inmate sentenced
to an indeterminate sentence the Board of Parole Hearings (the
Board) shall meet with each inmate during the sixth year prior
to the inmate's eligible parole release date for the purposes of
reviewing and documenting the inmates activities and conduct
pertinent to both parole eligibility and to the granting and
withholding of postconviction credit. (Penal Code � 3041(a))
Existing law provides that one year prior to the inmate's
minimum eligible parole release date a panel of two or more
commissioners or deputy commissioners shall meet with the inmate
and shall normally set a parole release date. (Penal Code �
3041(a))
Existing law provides that the release date shall be set in a
manner that will provide uniform terms for offenses of similar
gravity and magnitude with 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 setting of the parole release dates. The Board shall
establish criteria for the setting of parole release dates and
in doing so shall consider the number of victims of crime for
which the inmate was sentenced and other factors in mitigation
or aggravation of the crime. (Penal Code � 3041 (a))
This bill provides that the board shall establish criteria for
setting of parole release dates and in doing so shall consider:
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The gravity and magnitude of the offense with respect to
the threat to public safety;
The number of victims of the crime for which the inmate
was sentenced and other factors in mitigation or
aggravation of the crime; and,
The abstract of judgment.
Existing law provides that 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 except as provided, normally set a parole release
date as provided in Section 3041.5. (Penal Code � 3041(a))
This bill provides also that the panel shall in every case
establish the inmate's base term of incarceration by applying
the criteria.
Existing law provides that 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 hearing the
board may review the panel's decision. The decision shall be
come final unless there was an error of law or an error of fact
or new information that should be presented to the board. No
decision of the parole panel shall be disapproved and referred
for rehearing except by a majority vote of the board, sitting en
banc, following a public meeting. (Penal Code � 3041(b))
This bill provides instead that a decision of the parole panel
shall not be disapproved and referred for rehearing by the board
except by a majority vote of the commissioners reviewing the
decision, sitting en ban, following a public meeting.
Existing regulations provide that, based on facts from the
underlying crime, an inmate can be held for a longer period of
time once they are found suitable for parole.
This bill provides that an inmate found suitable for parole
shall be paroled subject to review by the Governor.
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Existing law provides that an en banc review by the board means
a review conducted by a majority of commissioners holding office
on the date the matter is heard by the board. An en banc review
shall be conducted in compliance with the following:
The commissioners conducting the review shall consider
the entire record of the hearing that resulted in the tie
vote;
The review shall be limited to the record of the
hearing;
The board shall separately state reasons for its
decision to grant or deny parole; and,
A commissioner who was involved in the tie vote shall be
recused from consideration of the matter in the en banc
review. (Penal Code � 3041 (e))
This bill provides that when the board states the reasons for
their decision, the board's stated reasons shall demonstrate, on
the record, an individualized consideration of all relevant
factors. In the case of an inmate who has served beyond his or
her base term of incarceration, a decision by the board to deny
parole shall be supported by substantial evidence and with
respect to the entire record.
This bill provides that the board shall collect and maintain
statistics that show, annually, the number of inmates in state
prison who are serving a term in excess of their base terms of
incarceration, as adjusted by applicable enhancements or
credits, and the percentage of all cases decided each year in
which the board, in its final decision, by a panel or the board
sitting en banc, has declined to find an inmate suitable for
parole, despite the fact that the inmate has served a sentence
beyond the base term of incarceration, as adjusted by applicable
enhancements of credits, and shall submit a report to the
legislature on the information.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
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relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
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of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
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the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
SB 1363 will restore truth in sentencing by ensuring
that an inmate who is found suitable for parole by BPH
is actually granted parole. This existing parole system
is confusing and convoluted. It often leads to perverse
results in which inmates are found suitable for parole
but must serve additional time (often years) before
actually being paroled. This is because many of the
enhancements used to calculate the adjusted base term
are problematic for various reasons.
For instance, many enhancements are used against an
inmate twice; once by the trial judge at sentencing,
and again (possibly years later) by BPH when
calculating the adjusted base term. This flies in the
face of a determinate sentencing system in which
enhancements are intended to be used at the front end,
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at the sentencing stage.
Many enhancements can also be based on assertions that
are unsupported by a jury's finding-of-fact. For
instance, a jury could omit finding that a defendant
used a firearm in commission of the crime. At a parole
suitability hearing years later, BPH could assert that
in spite of a jury finding to the contrary, it believes
the defendant used a firearm and add an additional
enhancement to the base term.
In addition, under existing regulations, an enhancement
can be added for an additional criminal charge that did
not result in a conviction. The only requirement is
that BPH believes the facts surrounding the crime are
"reliably documented." Again, this would be contrary to
the findings-of-fact by a jury at trial, or a decision
by a district attorney to drop the criminal charge.
Finally, BPH can currently undo a trial judge's
decision whether multiple life terms should be served
concurrently or consecutively.
2. Setting of the Base Term
A person who is convicted of an indeterminate sentence receives
a parole hearing within one year of his or her minimum eligible
parole date. At that time the parole board determines the
inmate's "base term" and "adjusted base term." The parole board
panel calculates the base term and adjusted base term looking at
the gravity of the base crime taking into account the
circumstances of that crime. This can include adding time
because of a use of a firearm, whether or not that was already
included in the crime or was dismissed, and adding terms for
additional offenses even if the judge had ordered them to be
served concurrently.
This bill would still allow the parole board to look at the
gravity offense and number of victims but also requires they use
the abstract of judgment from the sentencing court. If the
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court thought that the terms should be consecutive, then the
board of parole shall consider them consecutive and increase the
term according. On the other hand, if the court thought the
terms should be concurrent, then the board shall consider them
concurrent. If an offense was charged but the person was
acquitted or it was otherwise dismissed, then it should not be
used years later by the parole board to lengthen a base term.
This would place the base term more in the hands of the
sentencing court and not with the parole board years later.
3. Release Upon a Finding of Suitability
Under existing law a person can be found suitable for parole by
the board and still not be released because of the various
enhancements that can be added to the person's term. The first
parole hearing is not until the date that seems like the
person's sentence (ie. 15 years is 15 to life minus any eligible
credits etc.), yet because of the added time a person could be
found suitable for parole and held in prison 2, 5, or even 10 or
more years beyond that date. This is the case even though the
board in determining suitability does take into some
consideration the facts of the original crime along with the
steps the inmate has taken toward rehabilitation and his or her
current danger to the public. To be found suitable for parole
the board has found that he or she is not a current danger;
however, the current system keeps them in for longer at great
expense and no added safety to the public.
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This bill provides that if an inmate is found suitable he or she
shall be released, after the Governor's statutory right of
review. The author believes that this is a truth in sentencing
provision. If a person serves his or her time as imposed by the
sentencing court and is found suitable, he or she is released.
This will also give the inmate a realistic time frame to work
toward rehabilitating himself or herself. The author believes
that to be found suitable by the board and then kept longer
because of factors in your original crime does not encourage
rehabilitative behavior by inmates.
4. Higher Standard From Keeping Beyond Base Term
Many inmates are denied parole and kept beyond their adjusted
base terms. This bill provides that if an inmate is kept
beyond his or her base term of incarceration, a decision by the
board to deny parole shall be supported by substantial evidence
and with respect to the entire record. This is an increase from
the current standard. The board will have to have more support
for their parole denial when an inmate is kept in longer. The
sponsor believes this is a good separation of powers check.
When a person is denied by parole the courts can check to make
sure there is substantial evidence to back their denial which is
stronger than the current "some evidence" standard.
5. Statistics and Report
This bill requires that the board keep statistics on the number
of inmates in state prison serving a term in excess of their
base term that have been denied parole and to report that
information annually to the Legislature. The author hopes that
these statistics will give the Legislature insight into how the
parole process is working.
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