BILL ANALYSIS
SENATE COMMITTEE ON Public Safety
Senator John Vasconcellos, Chair S
1999-2000 Regular Session B
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SB 128 (Polanco)
As Amended March 4, 1999
Hearing date: April 6, 1999
Penal Code
SH:jm
BOARD OF PRISON TERMS -
DETERMINATION OF PAROLE DATES
FOR INDETERMINATELY SENTENCED INMATES
HISTORY
Source: Author
Prior Legislation: None
Support: California Attorneys for Criminal Justice; Friends
Committee on
Legislation; California Catholic Conference; individual
letters
Opposition:
Doris Tate Crime Victims Bureau; Justice for Homicide
Victims; City of Simi Valley (letter sent regarding bill as
introduced); Chief of Police, City of
Santa Ana (as introduced); Chief of Police, City of
Stockton (as introduced); individual letters
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KEY ISSUES
EXISTING LAW PROVIDES THAT THE BOARD OF PRISON TERMS SHALL
CONSIDER AND SET PAROLE RELEASE DATES FOR ELIGIBLE
INDETERMINATELY SENTENCED STATE INMATES, AS SPECIFIED.
(CONTINUED)
SHOULD THE STATUTORY REQUIREMENTS USED BY THE BOARD OF PRISON TERMS TO SET -
OR NOT SET - PAROLE DATES FOR INDETERMINATELY SENTENCED STATE INMATES BE
REVISED, INCLUDING THAT:
THE BOARD SHALL DISCUSS WITH THE INMATE AT THE INITIAL MEETING WHAT THE
SUBSEQUENT PROCESS WILL BE FOR DETERMINING THE INMATE'S ELIGIBILITY FOR
PAROLE?
THE BOARD SHALL PREPARE AN INMATE PERFORMANCE PLAN FOR THE INMATE AND REVIEW
THE INMATE'S SUITABILITY FOR PAROLE BASED UPON THE INMATE'S PERFORMANCE
PLAN?
THE BOARD SHALL SET A RELEASE DATE IF THE BOARD FINDS THAT THE INMATE IS
MAKING SATISFACTORY PROGRESS ON HIS OR HER INMATE PERFORMANCE PLAN, UNLESS
THE BOARD MAKES CERTAIN FINDINGS?
SHOULD RELATED CHANGES BE MADE?
PURPOSE
The purpose of this bill is to revise the statutory
requirements used by the Board of Prison Terms to set - or
not set - parole dates for indeterminately sentenced state
inmates eligible for parole; those revisions include that
the Board shall discuss with the inmate at the initial
meeting what the subsequent process will be for determining
the inmate's eligibility for parole, prepare an inmate
performance plan for the inmate, and require the panel to
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review the inmate's suitability for parole, based upon the
inmate's performance plan, and that the Board shall set a
release date if the Board finds that the inmate is making
satisfactory progress on his or her inmate performance
plan, unless the Board makes certain findings; and to make
related changes.
Existing law creates the Board of Prison Terms (BPT)
composed of nine commissioners,
each of whom shall be appointed by the Governor, with the
advice and consent of the Senate, for a term of four years
and until the appointment and qualification of his
successor. Commissioners shall be eligible for
reappointment. (Penal Code section 5075)
The BPT shall have the power to allow parole for prisoners
imprisoned in the state prisons for indeterminate sentence
terms and eligible for parole, e.g. an inmate convicted of
second degree murder shall be punished by imprisonment in
the state prison for a term of fifteen years to life.
(Penal Code sections 3040 and 190(a))
Existing law (Penal Code section 3041) provides that:
The BPT meet with each indeterminately sentenced
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 consisting of at least two BPT
commissioners shall again meet with the inmate and
shall normally set a parole release date as provided
in Section 3041.5.
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
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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 Board 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 prisoner 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 to the
full Board for an en banc hearing. In case of such a
review, a majority vote of the full Board of Prison
Terms in favor of parole is required to grant parole
to any prisoner.
The panel or Board 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.
For the purpose of reviewing the suitability for
parole of those prisoners eligible for parole under
law prior to the adoption of the determinate
sentencing law (July 1, 1977), the Board shall appoint
panels of at least two persons to meet annually with
each such prisoner until such time as the person is
released pursuant to such proceedings or reaches the
expiration of his term as otherwise specified.
Existing law (Penal Code section 3041.5) provides that
indeterminately sentenced inmates shall have specified
rights at a parole hearing and that if parole date is not
set for an inmate eligible for parole, the BPT shall hear
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each case annually thereafter, except the Board may
schedule the next hearing no later than the following:
Two years after any hearing at which parole is denied,
if the Board finds that it is not reasonable to expect
that parole would be granted at a hearing during the
following year and states the bases for the finding.
Up to five years after any hearing at which parole is
denied if the prisoner has been convicted of murder,
and the Board finds that it is not reasonable to
expect that parole would be granted at a hearing
during the following years and states the bases for
the finding in writing. If the Board defers a hearing
five years, the prisoner's central file shall be
reviewed by a deputy commissioner within three years
at which time the deputy commissioner may direct that
a hearing be held within one year. The prisoner shall
be notified in writing of the deputy commissioner's
decision.
Within 10 days of any Board action resulting in the
postponement of a previously set parole date, the
Board 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.
Within 10 days of any Board action resulting in the
rescinding of a previously set parole date, the Board
shall send the prisoner a written statement setting
forth the reason or reasons for that action, and shall
schedule the prisoner's next hearing within 12 months,
as specified.
This bill revises Penal Code section 3041, as follows:
Adds that at the initial inmate interview the BPT
shall:
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discuss with the inmate what the subsequent
process will be for determining the inmate's
eligibility for parole, including the timeline and
procedures of parole eligibility hearings.
discuss the inmate's minimum eligible release
date and the significance of it, and what factors
are important in finding an inmate eligible for
parole.
discuss and prepare an inmate performance plan
for the inmate, which shall consist of specific
requirements that the BPT determines the inmate must
meet in order to be eligible for parole and which
may include participation in educational classes,
job skills training, substance abuse classes, life
skills classes, or other activities that are
relevant to the inmate's personal and criminal
history. The plan may emphasize the importance of
remaining free of discipline problems, including
abstention from involvement with prison gangs or
other activities that lead to rules violations. The
requirements shall be realistic, achievable, and
relevant to that inmate.
Deletes the existing reference to the BPT considering
". . . the number of victims of the crime for which
the prisoner was sentenced and other factors in
mitigation or aggravation of the crime."
Adds that if the BPT "determines that an inmate is not
suitable for parole, it shall state in writing
specifically why the inmate is being denied parole,
and what he or she must do to become suitable,
consistent with his or her inmate performance plan."
Revises the requirement that the BPT shall set a
release date unless certain factors - "consideration
of public safety" - exist to instead provide that:
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a release date shall be set if the inmate is
making satisfactory progress on his or her inmate
performance plan, unless the Board finds that the
inmate's release would pose an unreasonable risk of
danger to society, create a substantial risk that
the inmate will not conform to a condition or
conditions of parole, or depreciate the seriousness
of the offense for which the inmate was convicted
and promote disrespect of the law.
the determination of suitability shall be based
on the record as a whole, including any performance
or psychological evaluations included in the
inmate's file.
The Board shall specify in writing the reasons for its
determination.
COMMENTS
1. Need for This Bill
The author's background about this bill includes the
following:
California Penal Code section 3041 currently requires
the Board of Prison Terms to meet with an inmate
serving an indeterminate sentence during the third
year of incarceration to review the inmate's file and
make recommendations. The BPT is also required to
meet with each inmate one year prior to the inmate's
minimum eligible release date and normally set a
release date.
This bill requires the BPT to meet with the inmate and
discuss the parole process and prepare an inmate
performance plan. The inmate performance plan would
then be the basis for the BPT's determination of
suitability and would direct the BPT to set a release
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date if it finds the inmate is making satisfactory
progress. This bill focuses on four major issues:
Financial Considerations - California's inmate
population continues to grow at a rapid rate.
Currently, there are close to 20,000 inmates
serving life terms with the possibility of
parole. The cost of incarcerating each inmate is
on the average of $25,000 per year and will
continue to rise. Under this bill the BPT must
further define existing parole criteria to ensure
for public safety and to ensure that the inmate
serves a prison term that is proportionate to the
offense committed. Incarcerating an inmate past
this point results in wasting taxpayer money and
contributes to the problem of prison
overcrowding...
Administrative Discretion - The BPT is an
administrative agency that conducts over 2,000
"lifer hearings" a year. Although criteria is in
the statute, we have found the BPT uses that
criteria in a arbitrary way resulting in less
than 1% of all inmates serving life terms being
found suitable for parole. Moreover, the inmate
is left with no clear idea of how to make him or
herself suitable. This bill ensures that the BPT
will make uniform, rational, and less arbitrary
decisions. The BPT will be required to specify in
writing the reasons for its decisions and what
the inmate must do to become eligible for parole.
By implementing criteria that are well defined,
the possibility of an erroneous decision is
reduced, as is the opportunity for the abuse of
discretion.
Inmate Responsibility - Under this bill the
inmate will be given the responsibility for
his/her own reintegration into society by
creating an inmate performance plan early in the
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inmate's sentence. The current arbitrary
decision-making process by the BPT is actually
counter-productive. An inmate has no incentive
to begin and complete a program because all
efforts can be summarily dismissed at the
hearing. Correctional staff will benefit by
using the performance plan as an inmate
management tool. An inmate with a clear vision
of what is required to gain parole is more likely
to be discipline free than an inmate that has no
idea of what the parole suitability standards are
and feels he has nothing to lose by acting out.
Notions of Justice - The BPT appears to be using
ambiguous standards for parole suitability that
gives rise to disparate treatment among inmates.
This bill creates a system that promotes
sentences that are proportionate to the offense
committed and reinforces the state's commitment
to uniform sentencing. Narrowly defined criteria
provide an essential tool to determine that like
crimes are punished in a similar fashion.
Furthermore, the BPT would be required to use
only relevant factors in making its parole
suitability determinations and would be
accountable for their decisions by putting the
specifics in writing.
2. Recent Statistics Pertaining to Release Dates Set by
the BPT
In a February 10, 1998, letter from the BPT to the author,
the following information was provided:
During the 1995 calendar year, 6 inmates were found
suitable [for set parole release dates]; during the
1996 calendar year, 9 inmates were found suitable. . .
. The Department of Corrections indicates . . . that
26 and 56 inmates were released to parole for the 1996
and 1997 calendar years, respectively. This includes
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not only those that had been found suitable in
previous years by the . . . (BPT), but those that had
been ordered released by the courts. . . . As of
January 31, 1998 there were 17,938 life prisoners with
the possibility of parole. There were 513 life
prisoners that have served over 20 years or longer.
As of January 2, 1999, the CDC indicates that there were
19,519 life prisoners with the possibility of parole in the
system.
The BPT has been conducting approximately 2,100 hearings
each year for the past five years with about a quarter of
those being initial hearings and three quarters of those
being subsequent hearings.
3. How the BPT Works - Current Procedures
The Board has adopted regulations to implement their
mandate for considering and setting parole release dates
for indeterminately sentenced inmates eligible for parole
(Title 15, California Code of Regulations, Sections 2000 et
seq.) Specific regulations are established for different
categories of life prisoners, such as those sentenced
before - or after - specified dates, sex offenders, and
habitual offenders. Following are a few of those
regulations which are representative of the approach taken
by the BPT:
Board decisions as to parole suitability shall include
a statement that the
Board has reviewed all information received from the
public and its conclusion
as to whether the person would pose a threat to the
public if released on
parole. (Section 2040)
Regardless of the length of time served, life
prisoners shall be found unsuitable for and denied
parole if in the judgment of the panel the prisoner
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will pose an unreasonable risk of danger to society if
released from prison. (Section 2281(a))
The following circumstances each tend to indicate
unsuitability for release. These circumstances are
set forth as general guidelines; the importance
attached to any circumstance or combination of
circumstances in a particular case is left to the
judgment of the panel. Circumstances tending to
indicate unsuitability include (Sections 2281 and
2402):
(1) Commitment Offense. The prisoner committed
the offense in an especially heinous, atrocious
or cruel manner. The factors to be considered
include:
(A) Multiple victims were attacked, injured
or killed in the same or separate
incidents.
(B) The offense was carried out in a
dispassionate and calculated manner, such
as an execution-style murder.
(C) The victim was abused, defiled or
mutilated during or after the offense.
(D) The offense was carried out in a manner
which demonstrates an exceptionally
callous disregard for human suffering.
(E) The motive for the crime is inexplicable
or very trivial in relation to the
offense.
(2) Previous Record of Violence. The prisoner on
previous occasions inflicted or attempted to
inflict serious injury on a victim,
particularly if the prisoner demonstrated
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serious assaultive behavior at an early age.
(3) Unstable Social History. The prisoner has a
history of unstable or
tumultuous relationships with others.
(4) Sadistic Sexual Offenses. The prisoner has
previously sexually assaulted another in a
manner calculated to inflict unusual pain or
fear upon the victim.
(5) Psychological Factors. The prisoner has a
lengthy history of severe
mental problems related to the offense.
(6) Institutional Behavior. The prisoner has
engaged in serious misconduct in prison or
jail.
Circumstances Tending to Show Suitability. The
following circumstances each tend to show that the
prisoner is suitable for release. The circumstances
are set forth as general guidelines; the importance
attached to any circumstance or combination of
circumstances in a particular case is left to the
judgment of the panel. Circumstances tending to
indicate suitability include:
(1) No Juvenile Record. The prisoner does not
have a record of assaulting others as a
juvenile or committing crimes with a potential
of personal harm to victims.
(2) Stable Social History. The prisoner has
experienced reasonably stable
relationships with others.
(3) Signs of Remorse. The prisoner performed
acts which tend to indicate the presence of
remorse, such as attempting to repair the
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damage, seeking help for or relieving suffering
of the victim, or the prisoner has given
indications that he understands the nature and
magnitude of the offense.
(4) Motivation for Crime. The prisoner committed
his crime as the result of significant stress
in his life, especially if the stress had built
over a long period of time.
(5) Lack of Criminal History. The prisoner lacks
any significant history of violent crime.
(6) Age. The prisoner's present age reduces the
probability of recidivism.
(7) Understanding and Plans for Future. The
prisoner has made realistic plans for release
or has developed marketable skills that can be
put to use upon release.
(8) Institutional Behavior. Institutional
activities indicate an enhanced ability to
function within the law upon release.
The BPT regulations include parole criteria guidelines for
specified crimes along with a base term matrix for
specified crimes; factors in mitigation and aggravation are
also included, for example the following pertains to life
prisoners eligible for parole:
The panel shall set a base term for each life prisoner
who is found suitable for parole. The base term shall
be established solely on the gravity of the base
offense, taking into account all of the circumstances
of that crime. The base offense is the most serious
of all life offenses for which the prisoner has been
committed to prison.
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The base term shall be established by utilizing the
appropriate matrix of
base terms provided in this section for the base
offense of which the prisoner
was convicted. The panel shall determine the category
most closely related to
the circumstances of the crime. The panel shall
impose the middle base term
reflected in the matrix unless the panel finds
circumstances in aggravation or
mitigation.
If the panel finds circumstances in aggravation or in
mitigation as provided . . .
the panel may impose the upper or lower base term
provided in the matrix, stating the specific reason
for imposing such a term. A base term other than the
upper, middle or lower base term provided in the
matrix may be imposed by the panel if justified by the
particular facts of the individual case. (Section
2282)
The suggested base term matrix choices in Section 2282 are
based on specific circumstances, such as second degree
murder with a prior relationship to the victim and the
victim died of indirect acts of the inmate (16, 17, 18
years and up depending on other circumstances).
Similar criteria are established for both specified crimes
with a life sentence and for "habitual offenders" sentenced
to life terms with a statutory base.
4. Opposition to This Bill
The Doris Tate Crime Victims Bureau included in its letter
of opposition that:
Current law says that the Board shall set a release
date unless it determines that the gravity of the
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current convicted offense or offenses, or the timing
and the gravity of current or past convicted offenses,
is such that consideration of the public safety
requires a more lengthy period of incarceration than
the minimum required by law. . . . Many dedicated
people have worked very hard over the last two decades
to make Californians safer and to reduce the rate of
violent crime in our state. We have made significant
progress in that effort. Legislation, such as this
bill . . . will only benefit criminals and will do
nothing to enhance the well being of those who want to
live safely with their friends and families in our
communities.
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