BILL ANALYSIS
SB 128
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Date of Hearing: July 13, 1999
Chief Counsel: Harrry M. Dorfman
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Mike Honda, Chair
SB 128 (Polanco) - As Amended: May 19, 1999
SUMMARY : Requires the Board of Prison Terms (BPT) to set a
release date during the third year of incarceration for an
inmate making "satisfactory progress" on his or her performance
plan, unless the BPT makes a specified finding that nullifies
the need to set a release date. Specifically, this bill :
1)Declares the Legislature's finding that the primary purpose of
the California Department of Corrections (CDC) and the state
prison system is to promote and enhance public safety.
2)Declares the Legislature's finding that providing inmates
early advice and direction how best to live safely upon parole
will greatly diminish the probability that inmates will
re-offend.
3)Requires the BPT, during an inmate's third year of
incarceration, to meet with each inmate to discuss the
following:
a) What the subsequent process will be for determining the
inmate's eligibility for parole (including the timeline and
procedures of parole eligibility hearings);
b) What the inmate's minimum eligible release date is and
the significance of it; and,
c) What factors are important in finding an inmate eligible
for parole.
4)Requires the BPT at the meeting described in #3 above to
discuss and prepare an inmate performance plan, which consists
of the following requirements that the BPT considers the
inmate must meet in order to be eligible for parole:
a) Participation in educational classes;
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b) Job skills training;
c) Substance abuse classes;
d) Life skills classes;
e) Victim offender awareness programs;
f) Other activities relevant to the inmate's personal and
criminal history;
g) The importance of offender accountability;
h) The importance of victim restitution; and,
i) The importance of remaining free of discipline problems
(including abstention from involvement with prison gangs or
other activities that lead to rules violations).
5)Requires at least two BPT commissioners to meet with each
inmate one year before an inmate's minimum eligible parole
date to review his or her suitability for parole and to
consider setting a date for parole.
6)Requires the BPT to state in writing why an inmate is being
denied parole if the BPT so decides.
7)Requires the BPT to set a release date if the BPT finds that
the inmate is making "satisfactory progress" on his or her
inmate performance plan, unless the BPT finds:
a) That the inmate's release would pose an unreasonable
risk of danger to society;
b) That the inmate's release would create a substantial
risk that the inmate will not conform to a condition or
conditions of parole; or,
c) That the inmate's release would depreciate the
seriousness of the offense for which inmate was convicted
and promote disrespect of the law.
8)Requires the determination of suitability for parole to be
based on an inmate's record as a whole, including any
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performance or psychological evaluations included in the
inmate's file. Further requires the BPT to specify in writing
the reasons for its determination.
9)Declares the Legislature's intent not to require additional
hearings for an inmate or additional personnel to perform the
hearings. "Rather, it is the intent of the Legislature that
those inmate performance plans be one additional requirement
in the process that is already occurring to evaluate an
inmate's suitability for parole."
EXISTING LAW :
1)Requires the BPT to meet with each inmate who was sentenced to
an indeterminate term during the third year of incarceration
to review the inmate's file, make recommendations, and
document activities and conduct pertinent to granting or
withholding post-conviction credit. (Penal Code Section
3041(a).)
2)Requires at least two BPT commissioners to meet with an inmate
one year before the inmate's minimum eligible parole date and
"normally" set a parole release date. (Penal Code Section
3041(a).)
3)Requires the BPT to set a release date unless it determines
that the gravity of the current convicted offense(s), or the
timing and gravity of current or past convicted offense(s), is
such that consideration of public safety requires a more
lengthy period of incarceration and that a parole date cannot
be fixed at this meeting. (Penal Code Section 3041(b).)
4)Provides for the following at all hearings convened for the
purpose of reviewing a prisoner's parole suitability, or
setting, postponing, or rescinding a parole date:
a) At least 10 days before the hearing, the inmate may
review his or her file and may enter a written response to
any material contained in the file;
b) The inmate shall be permitted to be present, to ask and
answer questions, and to speak on his or her own behalf;
c) Unless legal counsel is required by some provision of
law, a CDC designee must be present to ensure that all
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facts relevant to the decision be presented;
d) The inmate shall be permitted to request and receive a
stenographic recording of all proceedings;
e) Within 10 days following a meeting where a parole date
has been set, the BPT must send the prisoner a written
statement setting forth the parole date, the conditions
that must be met in order to be released on that date, and
the consequences of failing to meet those conditions;
f) Within 20 days following a meeting where a parole date
has not been set, the BPT must send the inmate a written
statement setting forth the reasons for refusing to set a
date, and suggest activities that will benefit him or her
during incarceration;
g) Within 10 days of any BPT action resulting in the
postponement of a previously set parole date, the BPT must
send the inmate a written statement setting forth a new
date, and the reason(s) for that action, and offer the
inmate an opportunity to review that action; and,
h) Within 10 days of any BPT action rescinding a previously
set parole date, the BPT must send the inmate a written
statement setting forth the reason(s) for that action and
shall schedule the next hearing within 12 months.
(Penal Code Section 3041.5(a)-(b).)
5)Guarantees representation by counsel at any hearing for the
purpose of setting, postponing, or rescinding a parole date of
a prisoner under a life sentence. (Penal Code Section
3041.7.)
6)Authorizes a victim or the victim's next of kin to appear at
the hearing and "adequately and reasonably express his or her
views concerning the crime and the person responsible."
(Penal Code Section 3043.)
7)Requires that an inmate serving a life sentence must serve at
least seven years before being paroled. (Penal Code Section
3046.)
8)Authorizes the BPT to establish and enforce rules and
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regulations under which inmates may be allowed to go on parole
outside the state prison. (Penal Code Section 3052.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement. According to the author, "This bill is
about the discretion of the BPT. In the Penal Code, the
Legislature has given the BPT the discretion to determine who
is suitable for parole. This bill proposes to redefine how
the BPT makes such a determination by requiring them to
develop an inmate performance plan for every inmate with a
life term. The BPT would then use that plan to ultimately
determine whether that inmate has proven that he or she is
suitable to be released back into the community.
"Although many would argue with the need for change in this
area, a recent hearing, convened by the Joint Legislative
Committee on Prison Construction and Operations, showed the
necessity for this bill.
"The Penal Code creates a presumption that an inmate be given a
release date, after a certain minimum period of incarceration,
unless certain findings are made. At the hearing, we heard
from many witnesses who testified that, in practice, the
opposite is true. In fact, granting a release date is the
exception, not the rule. Less than 1% of all life term
inmates are given a release date.
"Witnesses testified at the hearing to the following examples of
abuses of discretion, and arbitrary standards for
decision-making:
a) A recent state court judge (a Wilson appointee) found
that BPT commissioners misapplied and misunderstood the
law, were explicitly biased against the inmate, and were
discriminatorily selective about which facts they
considered.
b) Disproportionate sentences being applied to lifers -
both disproportionate to the crime and disproportionate to
crime partners.
c) BPT Commissioners ignoring the will of the sentencing
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judge, victim's family, or prosecuting attorney, who agreed
with an inmate's suitability for parole, or of
psychologists who found inmates to be 'less dangerous than
the average citizen, if they were to be released.'
d) Commissioners offering 'deals' to inmates - if they
waive their hearing, they will deny them parole for fewer
years than if they go ahead with it.
e) Inmates who were unanimously found suitable for parole,
only to have their release date later rescinded for no
reason other than that the subsequent hearing panel was
comprised of different commissioners.
f) A former BPT Commissioner (ex-district attorney) who
testified to the political, not legal, nature of the
decisions being made.
"The courts are getting involved in these cases because the
BPT isn't doing their job. The taxpayers not only pay those
legal bills, bur pay these commissioners good salaries to make
judgment calls about whether inmates would be a public safety
risk. Yet, they are rubber-stamping each case - not making
any distinctions - treating all inmates like they were Charles
Manson.
"The taxpayers pay for the psychiatrists who evaluate these
inmates. Commissioners, with no psychology background,
routinely ignore those evaluations and make their own
determination.
"This bill is not about early release. It does not require
the BPT to let out people after a minimum term.
"This bill is about fairness and uniformity. It is requiring
the BPT to follow some consistent guidelines, and to look at
each case individually, to determine when someone is suitable
to be released in the community, given the totality of the
circumstances.
"This bill is also about taxpayer dollars and public safety.
We pay $4 billion per year to warehouse 160,000 inmates. Our
prisons are overcrowded and yet we refuse to give up the beds
of inmates who have 'done their time' so that inmates who are
more violent, habitual criminals can stay locked up.
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"The recidivism rate for non-life term felons is around 70%.
The recidivism rate for life-term felons is about 3%. Thus,
once a lifer is paroled (only after intense scrutiny), the
threat to public safety is very low."
2)Will This Bill Result in Prisoners Serving a Life Term
"Getting Out Early"? Probably not. The language of the bill
broadly calls for the BPT to set a release date "if the Board
finds that the inmate is making satisfactory progress on his
or her inmate performance plan." This bill's language sets a
condition that must be met before setting a release date:
satisfactory progress on the performance plan. The term
"satisfactory progress" is not further defined, and probably
cannot be, because the nature of the process is subjective
depending on the point of view of the BPT's commissioners who
hear a particular case, rather than determined by reference to
objective criteria. Thus, the BPT can make a subjective
determination that a particular life-term inmate has not made
"satisfactory progress" on the performance plan and thereby
avoid setting a release date.
Further, this bill grants the BPT other options if the BPT
decides that a particular inmate should not be released
"early." Even if the inmate has made "satisfactory progress"
on the performance plan, the BPT can enter one of several
broadly worded specified findings and accordingly refuse to
set a release date. For example, the BPT can find that "the
inmate's release would pose an unreasonable risk of danger to
society?." This language offers plenty of room to the BPT to
classify an inmate as a danger. It is likely that an inmate
with any appreciable violence in his or her background whom
the BPT classified as a "danger to society" would have little
recourse to challenge such a finding. Similarly, it is
unlikely that an inmate with a history of property crimes or
drug sales whom the BPT classified as a danger to society
would successfully challenge such a finding. In short, the
terms of this bill probably will not change too much the small
number of release dates for life-term inmates.
3)Does This Bill Effect Significant Changes to the Existing
Parole Scheme? The centerpiece of this bill, according to the
author's statement, is the "inmate performance plan." The
plan by definition contains the requirements the inmate must
meet to be eligible for parole (see #4 above). The BPT has
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the power to implement these requirements now in the absence
of a new statutory command because existing law gives the BPT
the power to make rules and regulations governing parole.
(Penal Code Section 3052). Existing law also requires the BPT
to meet with each inmate serving an indeterminate sentence and
make recommendations, and document activities and conduct
pertinent to the grant or denial of post-conviction credit.
This existing provision encompasses the idea of the
performance plan to some extent. Existing law requires the
BPT to meet one year before the minimum eligible parole date
and "normally" set a parole date. However, the BPT is not
obligated to set a parole date if the gravity of the current
offense(s), or the timing and gravity of past and current
offense(s), calls for longer incarceration in order to protect
public safety. (Penal Code Section 3041(b).) This language
sounds similar to the "danger to society" language proposed by
this bill.
4) Will the BPT Alter Current Practices Without Legislative
Command? The author has offered some anecdotal evidence that
the BPT currently does not follow the existing statutory
commands. Does the BPT dispute these claims? Does the BPT
offer explanations for the departures from what the statutes
require? Does the BPT have detailed policies and procedures
beyond the existing statutory language to demonstrate how the
commissioners are supposed to conduct these hearings? Would
the author's concerns be adequately addressed if the BPT
adopted the proposed scheme as part of its operating
procedures?
5)Arguments in Opposition .
a) According to the California Police Chiefs Association
(CPOA) and the California Peace Officers' Association
(CPCA), ". . . Specifically, CPOA and CPCA would request
that the language of Section 3041(a) which provides that
'The requirements shall be realistic, achievable, and
relevant to that inmate' be deleted. The unintended
consequence of this section is to bias the entire process
in favor of granting parole. The requirements of a plan
should not be 'curved' toward the pool of inmates, but
instead should be objective, focusing on the safety of
those who do not violate the law, and the feelings of
closure so important to victims.
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"CPOA and CPCA also request that the language of current law
that focuses on the gravity of the convicted felon's crimes
be reinstated into the bill. SB 128 eliminated the
provision that provides that '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.' CPOA and CPCA
respectfully request that this language be restored.
"CPOA and CPCA also request the restoration of the following
language of current law that was deleted by SB 128: '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.'"
b) According to the Peace Officers Research Association of
California (PORAC), "PORAC understands the importance of
preparing an inmate for possible release back into the
community, and the development of an inmate performance
plan for the inmate and the Board of Prison Terms to use as
a guide to help insure the inmate is ready for release.
However, to use this inmate performance plan as the sole
criteria for the release of inmates ties the hands of the
board of Prison Terms and is extremely unfair to the
victims and victims' families that inmates normally leave
in the wake of their crimes.
"PORAC is asking that you reinstate the criteria used by the
Board of Prison Terms in current law regarding the number
of victims of the crime for which the prisoner was
sentenced and other factors in mitigation or aggravation of
the crime.
"Also, PORAC would ask that you reinstate the criteria in
Section (b), which states: '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's safety requires
a more lengthy period of incarceration for this individual,
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and that a parole date, therefore, cannot be fixed at this
meeting.'"
c) According to the California Correctional Peace Officers
Association, "Generally, such an inmate is a 'lifer',
incarcerated for an extremely serious crime. The measure
fundamentally changes the 'rules of the game' whereby the
Board of Prison Terms considers a life prisoner eligible
for parole. Historically, the burden of proof rests upon
an inmate to demonstrate their rehabilitation. The board
of Prison Terms has historically been reluctant to accept
claims of rehabilitation given the seriousness of crimes
represented by these criminals. Try as we might, there is
no particular formula of treatment that can guarantee the
rehabilitation of a felon. There in lies the problem.
"SB 128 presumes that the Board of Prison Terms can adopt a
formula for rehabilitation that is applicable to any inmate
that they review. As long as an inmate follows these
prescribed steps they, in essence, should be granted
parole. The requirements of the bill mandate the Board to
give a formula to guarantee a release date. The bill then
puts the onus back on the Board as to why a release date is
not granted. While there is discretion provided to the
board for issues that, 'depreciate the seriousness of the
offense for which the inmate was convicted and promote
disrespect to the law', which we appreciate, we believe the
onus on the board is inappropriate.
"Correctional experts are still grappling to find successful
programming for rehabilitating low end felons. If research
remains divided on how to best rehab the low end offenders,
it seems overly ambitious and dangerous to public safety,
to begin that drill for those who are incarcerated for much
more serious crimes."
REGISTERED SUPPORT / OPPOSITION :
Support
California Attorneys for Criminal Justice
California Catholic Conference
Friends Committee on Legislation
32 Private Citizens
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Opposition
California Correctional Peace Officers Association
California Peace Officers Association
California Police Chiefs Association
Citizens for Law and Order
Doris Tate Crime Victims Bureau
Memory of Victims Everywhere to Rescue Justice
Peace Officers Research Association of California
San Diego Police Officers Association
Three Private Citizens
Analysis Prepared by : Harry Dorfman / PUB. S. / (916) 319-3744