IMPORTANT CASES AND STATUTES
Significant Case Law
Armstrong v. Davis (9th Cir 2001) 275 F3d 849
Plaintiffs brought this action in 1994 to challenge California's treatment of disabled inmates and parolees. After years in the courts it finally changed the treatment of California Prisoners that suffer from a disability. Today, it is the policy of the California Department of Corrections (CDC) to provide access to its programs and services to inmates and parolees with disabilities, with or without reasonable accommodation, consistent with legitimate penological interests. No qualified inmate or parolee with a disability as defined in Title 42 of the United States Code, Section 12102 shall, because of that disability, be excluded from participation in or denied the benefits of services, programs, or activities of the Department or be subjected to discrimination. All institutions/facilities housing inmates with disabilities will ensure• that housing and programming are reasonable and appropriate in a manner consistent with their mission and Department policy.
The Disability Placement Program (DPP) applies to all of the Department's institutions/facilities, all programs that the Department provides or operates, and to all inmates who have disabilities that affect a major life activity whether or not the disabilities impact placement. Relevant to Lifer Parole Hearings the case ensures that reasonable accommodation shall be afforded inmates/parolees with disabilities, e.g., vision, speech, hearing impaired, and learning disabled inmates, to ensure equally effective communication with staff, other inmates, and, where applicable, the public. Auxiliary aids which are reasonable, effective, and appropriate to the needs of the inmate/parolee shall be provided when simple written or oral communication is not effective. Such aids may include bilingual aides (inmates, parolees, or staff), qualified interpreters, readers, sound amplification devices, captioned television/video text displays, Telecommunication Devices for the Deaf (TDD), audiotaped texts, braille materials, large print materials, and signage. The Lifer’s Attorney should thoroughly exhaust any and all possible disabilities and seek accommodation of those disabilities to ensure that any disability is not an impediment to being fully heard. During preliminary matters at Lifer Parole Hearings the commissioner reviews the inmate’s rights regarding accommodations for disabled prisoners under the Americans with Disabilities Act.
In re Rosenkrantz (2002) 29 Cal. 4th 616
Petition for review after the Court of Appeal affirmed an order granting relief in a proceeding for a writ of habeas corpus. Includes the following issues: (1) When the Governor, pursuant to Penal Code section 3041.2, determines that a prisoner should not be released on parole, reversing a contrary decision of the Board of Prison Terms, is the Governor's decision subject to judicial review? (2) If so, what is the standard of review for such a decision? (3) In Rosenkrantz, did the "law of the case" doctrine preclude the Governor from exercising his power under Penal Code section 3041.2 to reverse a parole decision of the Board of Prison Terms where the Court of Appeal had previously found no evidence in the record to support the Board's decision that petitioner Rosenkrantz was unsuitable for parole and the Board had then granted parole under the compulsion of that decision?
The court noted that lifers have a due process liberty interest because the parole statute gives them an expectation of release unless the Board or governor finds them unsuitable. But the Board and governor have “great” and “almost unlimited” discretion, because they are predicting the dangerousness of criminals—a highly subjective analysis. To respect the separation of powers between the executive and judiciary, Rosenkrantz stated that courts should only determine whether some evidence supports the decision to deny parole; courts must neither assess facts independently nor require substantial evidence. Although deferential, this review is necessary because anything less strict would permit officials to deny parole without any factual basis, which would offend due process.
Rosenkrantz required the Board to provide a written explanation of its decision, because without it, courts have nothing to review. Correspondingly, if the Board or governor can almost always point to the circumstances of the crime in order to satisfy the “some evidence” requirement, then the judiciary would effectively have nothing further to review, and would always uphold the denial. In effect, a lifer’s right to due process would be abrogated with no recourse. It is well established that a policy of rejecting parole solely on the basis of the type of offense, without individualized treatment and due consideration, deprives an inmate of due process of law.
In re Dannenberg (2005) 34 Cal. 4th 1061
In this case involving a second degree murderer, the Supreme Court of the State of California considered how the Board of Prison Terms (Board or BPT) may determine that a prisoner with an “indeterminate” life sentence, having served the minimum period of confinement required by statute, is nonetheless presently unsuitable for the setting of a fixed parole release date because the gravity of the inmate’s offense indicates a continuing danger to public safety. The issue was whether the Board may refuse a parole date on this ground only after evaluating the offender’s crime against others of similar gravity and against its own uniform-term “matrices,” and concluding that the offense is particularly egregious by those comparative standards, or whether it need conduct such a comparative analysis only after it determines that the inmate is suitable for parole.
The court concluded that California’s parole statutes allow the Board to find unsuitability without engaging in a comparative analysis of other offenses or applying “uniform term” principles, and that the Board adhered to state law in Dannenberg’s case, also disposes of his contention that he was denied federal due process rights arising from his protected liberty interest, and expectation, in a “uniform” parole release date.
In re Lawrence (2008) 44 Cal. 4th 1181
Petition for review after the Court of Appeal granted a petition for writ of habeas corpus. This case includes the following issue: In making parole suitability determinations for life prisoners, to what extent should the Board of Parole Hearings, under Penal Code section 3041, and the Governor, under Article V, section 8(b) of the California Constitution and Penal Code section 3041.2, consider the prisoner's current dangerousness, and at what point, if ever, is the gravity of the commitment offense and prior criminality insufficient to deny parole when the prisoner otherwise appears rehabilitated.
In May 2007, the Court of Appeal applied a “some evidence” review standard that was first introduced in In re Rosenkrantz. There, the California Supreme Court held that judges could review the facts of a denial, but only to determine whether the decision was supported by “some evidence” related to the ads statutory factors. The Lawrence Court of Appeal held that the governor had failed to provide “some evidence” that Lawrence would unreasonably endanger public safety upon release. The court rejected the use of the crime committed thirty-five years ago as evidence of dangerousness: the crime did not indicate clear heinousness and Lawrence’s exemplary rehabilitation mitigated its predictive value.
The California Supreme Court affirmed, holding that the proper standard of review for parole suitability decisions is “whether ‘some evidence’ supports the conclusion that the inmate is unsuitable for parole because he or she currently is dangerous.” The court found that this standard properly focused the review on whether the inmate remains a threat to public safety, which is consistent with the language and purpose of the parole statutes. The court held that the commitment offense by itself will not always prove current dangerousness, particularly if there is strong evidence of suitability.
For example, the governor’s reliance on the circumstances of the original murder failed to outweigh Lawrence’s progress in prison. Ultimately, the court explained that the focus on current dangerousness was implied in the Rosenkrantz “some evidence” standard and therefore consistent with precedent. But rather than imitating Rosenkrantz, Lawrence sharpened the “some evidence” analysis into a new “current dangerousness” inquiry, which exhibits less deference and greatly expands the power of the judiciary to overrule the Board and governor while better protecting the due process rights of prisoners.
Lawrence significantly expanded judicial review by highlighting that an inmate’s right to due process includes “individualized treatment and due consideration.” The governor may continue to overturn Board decisions by connecting evidence of statutory factors to the inmate’s current dangerousness. Courts must determine if the governor or Board articulated focusing on the nexus and not just the existence of evidence, Lawrence gave courts greater discretion to conclude that the Board or governor failed to show some evidence of current dangerousness. Courts, post-Lawrence, can now closely scrutinize the quality of the evidence to determine if it substantively
relates to current dangerousness.
Because the original “some evidence” standard left courts with little to no authority to overrule parole denials, any greater judicial discretion will lead to an increased likelihood that courts will grant parole. By requiring courts to focus on the nexus between the evidence of statutory factors and current dangerousness, Lawrence increased the authority of the judiciary to effectively scrutinize parole denials. Rather than being merely a speed bump on the way to a parole denial, post-Lawrence courts can assert themselves in their proper role as a safeguard against arbitrary decisions. In overruling parole denials, these courts have articulated the demands of due process: the Board or the governor can only deny parole if, after an individualized consideration, it finds evidence of statutory factors that rationally indicate current dangerousness. Rather than facing a rubberstamp denial, inmates who have rehabilitated themselves now have a realistic possibility of being granted parole.
The key question for courts after Lawrence, therefore, is not whether there is some evidence in the record, but whether there is some evidence of current dangerousness. Lawrence requires courts to ensure that the Board and the governor provide reasoning that establishes a rational nexus between evidence of statutory factors and an inmate’s “current dangerousness.” Although this review standard seems self-evident, this explicit clarification is critical to protect the due process rights of lifers.
In re Shaputis (2008) 44 Cal. 4th 1241
Petition for review after the Court of Appeal granted a petition for writ of habeas corpus presented the following issues: (1) In assessing whether “some evidence” supports a decision by the Governor to deny parole, is the inquiry limited to whether the reasons stated have a factual basis or should a reviewing court also examine whether the evidence supports a finding that the inmate presents an unreasonable current risk of danger to the public? (2) When a reviewing court determines the Governor’s parole decision is not supported by sufficient evidence, should it remand the matter to the executive branch to proceed in accordance with due process, or should it order the inmate's immediate release?
The Supreme Court held that, “the determination whether an inmate poses a current danger is not dependent upon whether his or her commitment offense is more or less egregious than other, similar crimes. Nor is it dependent solely upon whether the circumstances of the offense exhibit viciousness above the minimum elements required for conviction of that offense. Rather, the relevant inquiry is whether the circumstances of the commitment offense, when considered in light of other facts in the record, are such that they continue to be predictive of current dangerousness many years after commission of the offense. This inquiry is, by necessity and by statutory mandate, an individualized one, and cannot be undertaken simply by examining the circumstances of the crime in isolation, without consideration of the passage of time or the attendant changes in the inmate’s psychological or mental attitude.
The Board or the Governor could base a denial-of-parole decision upon the circumstances of the offense, or upon other immutable facts such as an inmate’s criminal history, but some evidence will support such reliance only if those facts support the ultimate conclusion that an inmate continues to pose an unreasonable risk to public safety. Accordingly, the relevant inquiry for a reviewing court is not merely whether an inmate’s crime was especially callous, or shockingly vicious or lethal, but whether the identified facts are probative to the central issue of current dangerousness when considered in light of the full record before the Board or the Governor.”
In re Shaputis (2011) 53 Cal. 4th 192 (Shaputis II)
Petitioner was convicted of the second degree murder of his wife in 1987. Petitioner was sentenced to 15 years to life, plus two years for a gun use. The Governor's reversal of petitioner's 2006 grant of parole was reversed by the Court of Appeal. The Case went to the California Supreme Court.
On review the Supreme Court clarified the proper scope of the court’s review of the Board’s or the Governor’s decision regarding parole suitability. The Court held that 1. The essential question in deciding whether to grant parole is whether the inmate currently poses a threat to public safety. 2. That question is posed first to the Board and then to the Governor, who draw their answers from the entire record, including the facts of the offense, the inmate‘s progress during incarceration, and the insight he or she has achieved into past behavior. 3. The inmate has a right to decline to participate in psychological evaluation and in the hearing itself. That decision may not be held against the inmate. Equally, however, it may not limit the Board or the Governor in their evaluation of all the evidence. 4. Judicial review is conducted under the highly deferential―some evidence standard. The executive decision of the Board or the Governor is upheld unless it is arbitrary or procedurally flawed. The court reviews the entire record to determine whether a modicum of evidence supports the parole suitability decision. 5. The reviewing court does not ask whether the inmate is currently dangerous. That question is reserved for the executive branch. Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the evidence.
In other words, Shaputis II found the question in determining suitability for parole is whether the inmate currently poses a public safety threat. This issue is directed first to the BPH and then to the Governor, who may review the entire record in evaluating the inmate's progress during incarceration. The Supreme Court ruled that the Court of Appeal erred in re-weighing the evidence relied upon by the executive branch when it found petitioner unsuitable for parole.
Shaputis spoke at some length regarding the nebulous issue of insight. It stated that the inmate's insight into the life crime is a relevant factor in determining current dangerousness. An inmate's decision not to participate in the parole hearing or psychological evaluations prepared for the hearing may not be held against him, but such lack of involvement does not limit the BPH or the Governor in their evaluation of the evidence.
A court reviewing a parole determination must employ the highly deferential “some evidence” standard, which requires it to uphold the executive branch’s decision as long as there is a “modicum of evidence” to support the parole suitability finding. The question whether the inmate is currently dangerous is reserved to the executive branch. The reviewing court is not authorized to reweigh the evidence—it must uphold the parole suitability finding if “there is a rational nexus between the evidence and the ultimate determination of current dangerousness”
In re: Prather (2010) 50 Cal. 4th 238
This case presented the following issue: When a court determines the Board of Parole Hearings abused its discretion in denying parole to an inmate, may it order the Board to find the inmate suitable for parole unless new and different evidence of the inmate's conduct in prison subsequent to the parole hearing at issue supports a determination that the inmate currently poses an unreasonable risk of danger to society if released on parole? The Prather Court ruled that when a court determines that the Board has abused its discretion in denying parole, “the court should grant the prisoner's petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter conduct a new hearing consistent with due process”.
The decision resolved an inconsistency that caused various interpretations by appellate courts based upon decisions in Lawrence and Shaputis, regarding determinations that the Board abused its discretion in denying parole by fashioning a wide array of divergent remedies, engendering a conflict in the law with regard to the proper procedure for evaluating and resolving parole cases. The Prather court ruled that these orders improperly infringed on the authority of the Board and its statutory duty to consider all facts in the full record.
Key Provisions under Sections of the California Penal Code
PENAL CODE §§3040-3073
3040. The Board of Prison Terms shall have the power to allow prisoners imprisoned in the state prisons pursuant to subdivision (b)of Section 1168 to go upon parole outside the prison walls and enclosures. The board may parole prisoners in the state prisons to camps for paroled prisoners established under Section 2792.
3041. (a) In the case of any inmate sentenced pursuant to any provision of law, other than Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, the Board of Parole Hearings shall meet with each 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 of two or more commissioners or deputy commissioners shall again meet with the inmate and shall normally set a parole release date as provided in Section 3041.5. No more than one member of the panel shall be a deputy commissioner. In the event of a tie vote, the matter shall be referred for an en banc review of the record that was before the panel that rendered the tie vote. Upon en banc review, the board shall vote to either grant or deny parole and render a statement of decision. The en banc review shall be conducted pursuant to subdivision (e). 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 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 inmate 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 for an en banc hearing by the board. In case of a review, a majority vote in favor of parole by the board members participating in an en banc review is required to grant parole to any inmate.
(b) The panel or the board, sitting en banc, 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. After the effective date of this subdivision, 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 period, the board may review the panel's decision. The panel's decision shall become final pursuant to this subdivision unless the board finds that the panel made an error of law, or that the panel's decision was based on an error of fact, or that new information should be presented to the board, any of which when corrected or considered by the board has a substantial likelihood of resulting in a substantially different decision upon a rehearing. In making this determination, the board shall consult with the commissioners who
conducted the parole consideration hearing. 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.
(c) For the purpose of reviewing the suitability for parole of those inmates eligible for parole under prior law at a date earlier than that calculated under Section 1170.2, the board shall appoint
panels of at least two persons to meet annually with each inmate until the time the person is released pursuant to proceedings or reaches the expiration of his or her term as calculated under Section 1170.2.
(d) It is the intent of the Legislature that, during times when there is no backlog of inmates awaiting parole hearings, life parole consideration hearings, or life rescission hearings, hearings will be conducted by a panel of three or more members, the majority of whom shall be commissioners. The board shall report monthly on the number of cases where an inmate has not received a completed initial or subsequent parole consideration hearing within 30 days of the hearing date required by subdivision (a) of Section 3041.5 or paragraph (2) of subdivision (b) of Section 3041.5, unless the inmate has waived the right to those timeframes. That report shall be considered the backlog of cases for purposes of this section, and shall include information on the progress toward eliminating the backlog, and on the number of inmates who have waived their right to the above timeframes. The report shall be made public at a regularly scheduled meeting of the board and a written report shall be made available to the public and transmitted to the Legislature quarterly.
(e) For purposes of this section, 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:
(1) The commissioners conducting the review shall consider the entire record of the hearing that resulted in the tie vote.
(2) The review shall be limited to the record of the hearing. The record shall consist of the transcript or audiotape of the hearing, written or electronically recorded statements actually considered by the panel that produced the tie vote, and any other material actually considered by the panel. New evidence or comments shall not be considered in the en banc proceeding.
(3) The board shall separately state reasons for its decision to grant or deny parole.
(4) A commissioner who was involved in the tie vote shall be recused from consideration of the matter in the en banc review.
3041.1. Up to 90 days prior to a scheduled release date, the Governor may request review of any decision by a parole authority concerning the grant or denial of parole to any inmate in a state prison. The Governor shall state the reason or reasons for the request, and whether the request is based on a public safety concern, a concern that the gravity of current or past convicted offenses may have been given inadequate consideration, or on other factors. When a request has been made, a randomly selected committee comprised of nine commissioners specifically appointed to hear adult parole matters and who are holding office at the time, shall review the
parole decision. In case of a review, a vote in favor of parole by a majority of the commissioners on the committee shall be required to grant parole to any inmate. In carrying out any review, the board shall comply with the provisions of this chapter.
3041.2. (a) During the 30 days following the granting, denial, revocation, or suspension by a parole authority of the parole of a person sentenced to an indeterminate prison term based upon a
conviction of murder, the Governor, when reviewing the authority's decision pursuant to subdivision (b) of Section 8 of Article V of the Constitution, shall review materials provided by the parole authority.
(b) If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision.
3041.5. (a) 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:
(1) At least 10 days prior to any hearing by the Board of Parole Hearings, the prisoner shall be permitted to review his or her file which will be examined by the board and shall have the opportunity to enter a written response to any material contained in the file.
(2) 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 prisoner shall be entitled to ask questions of any person appearing at the hearing pursuant to subdivision (b) of Section 3043.
(3) 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.
(4) The prisoner and any person described in subdivision (b) of Section 3043 shall be permitted to request and receive a stenographic record of all proceedings.
(5) If the hearing is for the purpose of postponing or rescinding of parole dates, the prisoner shall have rights set forth in paragraphs (3) and (4) of subdivision (c) of Section 2932.
(6) The board 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.
(b) (1) Within 10 days following any meeting where a parole date has been set, the board shall send the prisoner a written statement setting forth his or her parole date, the conditions he or she must meet in order to be released on the date set, and the consequences of failure to meet those conditions.
(2) Within 20 days following any meeting where a parole date has not been set, the board shall send the prisoner a written statement setting forth the reason or reasons for refusal to set a parole date, and suggest activities in which he or she might participate that will benefit him or her while he or she is incarcerated.
(3) The board shall schedule the next hearing, after considering the views and interests of the victim, as follows:
(A) Fifteen years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than 10 additional years.
(B) Ten years after any hearing at which parole is denied, unless the board finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates enumerated in
subdivision (a) of Section 3041 are such that consideration of the public and victim's safety does not require a more lengthy period of incarceration for the prisoner than seven additional years.
(C) Three years, five years, or seven years after any hearing at which parole is denied, because the criteria relevant to the setting of parole release dates enumerated in subdivision (a) of Section 3041 are such that consideration of the public and victim's safety requires a more lengthy period of incarceration for the prisoner, but does not require a more lengthy period of incarceration for the prisoner than seven additional years.
(4) The board may in its discretion, after considering the views and interests of the victim, advance a hearing set pursuant to paragraph (3) to an earlier date, when a change in circumstances or new information establishes a reasonable likelihood that consideration of the public and victim's safety does not require the additional period of incarceration of the prisoner provided in paragraph (3).
(5) 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.
(6) 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 in accordance with paragraph (3).
(c) The board shall conduct a parole hearing pursuant to this section 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 circumstances. When conducting a hearing, the board 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 board shall determine the appropriate action to be taken based on the criteria set forth in paragraph (3) of subdivision (a) of Section 3041.
(d) (1) An inmate may request that the board exercise its discretion to advance a hearing set pursuant to paragraph (3) of subdivision (b) to an earlier date, by submitting a written request
to the board, with notice, upon request, and a copy to the victim which shall set forth the change in circumstances or new information that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration of the inmate.
(2) The board shall have sole jurisdiction, after considering the views and interests of the victim to determine whether to grant or deny a written request made pursuant to paragraph (1), and its decision shall be subject to review by a court or magistrate only for a manifest abuse of discretion by the board. The board shall have the power to summarily deny a request that does not comply with the provisions of this subdivision or that does not set forth a change in circumstances or new information as required in paragraph (1) that in the judgment of the board is sufficient to justify the action described in paragraph (4) of subdivision (b).
(3) An inmate may make only one written request as provided in paragraph (1) during each three-year period. Following either a summary denial of a request made pursuant to paragraph (1), or the decision of the board after a hearing described in subdivision (a) to not set a parole date, the inmate shall not be entitled to submit another request for a hearing pursuant to subdivision (a) until a three-year period of time has elapsed from the summary denial or decision of the board.
3041.7. 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 and the provisions of Section 3041.5 shall apply. The Board of Parole Hearings 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. The Board of Parole Hearings shall notify the prosecutor and the Attorney General at least 30 days prior to the date of the hearing.
Notwithstanding Section 12550 of the Government Code, the prosecutor of the county from which the prisoner was committed, or his representative, who shall not be the Attorney General, except in cases in which the Attorney General prosecuted the case at the trial level, shall be the sole representative of the interests of the people.
3042. (a) At least 30 days before the Board of Prison Terms meets to review or consider the parole suitability or the setting of a parole date for any prisoner sentenced to a life sentence, the board shall send written notice thereof to each of the following persons: the judge of the superior court before whom the prisoner was tried and convicted, the attorney who represented the defendant at trial, the district attorney of the county in which the offense was committed, the law enforcement agency that investigated the case, and where the prisoner was convicted of the murder of a peace officer, the law enforcement agency which had employed that peace officer at
the time of the murder.
(b) The Board of Prison Terms shall record all those 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.
(c) At any hearing, the presiding hearing officer shall state his or her findings and supporting reasons on the record.
(d) Any statements, recommendations, or other materials considered shall be incorporated into the transcript of the hearing, unless the material is confidential in order to preserve institutional security and the security of others who might be endangered by disclosure.
(e) This section shall not apply to any hearing held to consider advancing a prisoner's parole date due to his or her conduct since his or her last hearing.
(f) (1) The written notice to the judge of the superior court before whom the prisoner was tried and convicted shall be sent by certified mail with return receipt requested.
(2) The judge receiving this written notice may forward to the parole board any unprivileged information from the trial or sentencing proceeding regarding the prisoner, witnesses, or victims,
or other relevant persons, or any other information, that is pertinent to the question of whether the parole board should grant parole or under what conditions parole should be granted. The judge may also, in his or her discretion, include information given to him or her by victims, witnesses, or other persons that bear on the question of the prisoner's suitability for parole.
(3) The parole board shall review and consider all information received from the judge or any other person and shall consider adjusting the terms or conditions of parole to reflect the comments or concerns raised by this information, as appropriate.
(g) Nothing in this section shall be construed as limiting the type or content of information the judge or any other person may forward to the parole board for consideration under any other provision of law.
(h) Any person who receives notice under subdivision (a) who is authorized to forward information for consideration in a parole suitability hearing or the setting of a parole date for a person sentenced to a life sentence under this section, may forward that information either by facsimile or electronic mail. The Department of Corrections shall establish procedures for receiving the information by facsimile or electronic mail pursuant to this subdivision.
3043. (a) (1) Upon request, notice of any hearing to review or consider the parole suitability or the setting of a parole date for any prisoner in a state prison shall be sent by the Board of Parole
Hearings at least 90 days before the hearing to any victim of any crime committed by the prisoner, or to the next of kin of the victim if the victim has died, to include the commitment crimes, determinate term commitment crimes for which the prisoner has been paroled, and any other felony crimes or crimes against the person for which the prisoner has been convicted. The requesting party shall keep the board apprised of his or her current mailing address.
(2) No later than 30 days prior to the date selected for the hearing, any person, other than the victim, entitled to attend the hearing shall inform the board of his or her intention to attend the
hearing and the name and identifying information of any other person entitled to attend the hearing who will accompany him or her.
(3) No later than 14 days prior to the date selected for the hearing, the board shall notify every person entitled to attend the hearing confirming the date, time, and place of the hearing.
(b) (1) The victim, next of kin, members of the victim's family, and two representatives designated as provided in paragraph (2) of this subdivision have the right to appear, personally or by counsel, at the hearing and to adequately and reasonably express his, her, or their views concerning the prisoner and the case, including, but not limited to the commitment crimes, determinate term commitment crimes for which the prisoner has been paroled, any 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 family of the victim, the person responsible for these enumerated crimes, and the suitability of the prisoner for parole.
(2) Any statement provided by a representative designated by the victim or next of kin may cover any subject about which the victim or next of kin has the right to be heard including any recommendation regarding the granting of parole. The representatives shall be designated by the victim or, in the event that the victim is deceased or incapacitated, by the next of kin. They shall be designated in writing for the particular hearing prior to the hearing.
(c) A representative designated by the victim or the victim's next of kin for purposes of this section may be any adult person selected by the victim or the family of the victim. The board shall permit a representative designated by the victim or the victim's next of kin to attend a particular hearing, to provide testimony at a hearing, and to submit a statement to be included in the hearing as provided in Section 3043.2, even though the victim, next of kin, or a member
of the victim's immediate family is present at the hearing, and even though the victim, next of kin, or a member of the victim's immediate family has submitted a statement as described in Section 3043.2.
(d) The board, 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.
(e) In those cases where there are more than two immediate family members of the victim who wish to attend any hearing covered in this section, the board shall allow attendance of additional immediate family members to include the following: spouse, children, parents, siblings, grandchildren, and grandparents.
3043.1. Notwithstanding any other provision of law, a victim, his or her next of kin, or any immediate family member of the victim who appears at any hearing to review or consider the parole suitability or the setting of a parole date for any prisoner pursuant to Section 3043 shall be entitled to the attendance of one person of his or her own choosing at the hearing for support. The person so chosen shall not participate in the hearing nor make comments while in attendance.
3043.2. (a) (1) In lieu of personal appearance at any hearing to review the parole suitability or the setting of a parole date, the Board of Prison Terms shall permit the victim, his or her next of
kin, immediate family members, or two representatives designated for a particular hearing by the victim or next of kin in writing prior to the hearing to file with the board a written, audiotaped, or
videotaped statement, or statement stored on a CD Rom, DVD, or any other recording medium accepted by a court pursuant to Section 1191.15 or by the board, expressing his or her views concerning the crime and the person responsible. The statement may be personal messages from the person to the board made at any time or may be a statement made pursuant to Section 1191.16, or a combination of both, except that any statement provided by a representative designated by the victim or next of kin shall be limited to comments concerning the effect of the crime on the victim.
(2) A representative designated by the victim or the victim's next of kin for purposes of this section must be either a family or household member of the victim.
(3) The board shall consider any statement filed prior to reaching a decision, and shall include in its report a statement of whether the person would pose a threat to public safety if released on parole.
(b) Whenever an audio or video statement or a statement stored on a CD Rom, DVD, or other medium is filed with the board, a written transcript of the statement shall also be provided by the person filing the statement.
(c) Nothing in this section shall be construed to prohibit the prosecutor from representing to the board the views of the victim, his or her immediate family members, or next of kin.
(d) In the event the board permits an audio or video statement or statement stored on a CD Rom, DVD, or other medium to be filed, the board shall not be responsible for providing any equipment or resources needed to assist the victim in preparing the statement.
3043.25. Any victim, next of kin, members of the victim's immediate family, or representatives designated for a particular hearing by the victim or next of kin in writing prior to the hearing who have the right to appear at a hearing to review parole suitability or the setting of a parole date, either personally as provided in Section 3043, or by a written, audiotaped, or videotaped statement as provided in Section 3043.2, and any prosecutor who has the right to appear pursuant to Section 3041.7, shall also have the right to appear by means of videoconferencing, if videoconferencing is available at the hearing site. For the purposes of this section, "videoconferencing" means the live transmission of audio and video signals by any means from one physical location to another.
3043.3. As used in Sections 3043, 3043.1, 3043.2, and 3043.25, the term "immediate family" shall include the victim's spouse, parent, grandparent, brother, sister, and children or grandchildren who are related by blood, marriage, or adoption. As used in Sections 3043 and
3043.2, the term "household member of the victim" means a person who lives, or was living at the time of the crime, in the victim's household, and who has, or for a deceased victim had at the time of the crime, an intimate or close relationship with the victim.
3043.5. (a) This section shall be known as the "Condit-Nolan Public Participation in Parole Act of 1984."
(b) Any person interested in the grant or denial of parole to any prisoner in a state prison shall have the right to submit a statement of views in support of or in opposition to the granting of parole. 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. Upon completion of its review, the board shall include in its report a statement that it has reviewed all information received from the public and its conclusion as to whether the person would pose a threat to the public safety if released on parole.
3043.6. Any person authorized to appear at a parole hearing pursuant to Section 3043, or a prosecutor authorized to represent the views of the victim, his or her immediate family, or next of kin, pursuant to Section 3043.2, shall have the right to speak last before the board in regard to those persons appearing and speaking before the board at a parole hearing. Nothing in this section shall prohibit the person presiding at the hearing from taking any steps he or she deems appropriate to ensure that only accurate and relevant statements are considered in determining parole suitability as provided in law, including, but not limited to, the rebuttal of inaccurate statements made by any party.
3044. (a) Notwithstanding any other law, the Board of Parole Hearings or its successor in interest shall be the state's parole authority and shall be responsible for protecting victims' rights in the parole process. Accordingly, to protect a victim from harassment and abuse during the parole process, no person paroled from a California correctional facility following incarceration for an offense committed on or after the effective date of this act shall, in the event his or her parole is revoked, be entitled to procedural rights other than the following:
(1) A parolee shall be entitled to a probable cause hearing no later than 15 days following his or her arrest for violation of parole.
(2) A parolee shall be entitled to an evidentiary revocation hearing no later than 45 days following his or her arrest for violation of parole.
(3) A parolee shall, upon request, be entitled to counsel at state expense only if, considering the request on a case-by-case basis, the board or its hearing officers determine:
(A) The parolee is indigent; and
(B) Considering the complexity of the charges, the defense, or because the parolee's mental or educational capacity, he or she appears incapable of speaking effectively in his or her own defense.
(4) In the event the parolee's request for counsel, which shall be considered on a case-by-case basis, is denied, the grounds for denial shall be stated succinctly in the record.
(5) Parole revocation determinations shall be based upon a preponderance of evidence admitted at hearings including documentary evidence, direct testimony, or hearsay evidence offered by parole agents, peace officers, or a victim.
(6) Admission of the recorded or hearsay statement of a victim or percipient witness shall not be construed to create a right to confront the witness at the hearing.
(b) The board is entrusted with the safety of victims and the public and shall make its determination fairly, independently, and without bias and shall not be influenced by or weigh the state cost or burden associated with just decisions. The board must accordingly enjoy sufficient autonomy to conduct unbiased hearings, and maintain an independent legal and administrative staff. The board shall report to the Governor.
PENAL CODE §5011
5011. (a) The Department of Corrections shall not require, as a condition for any form of treatment or custody that the department offers, an admission of guilt to any crime for which an inmate was committed to the custody of the department.
(b) The Board of Prison Terms shall not require, when setting parole dates, an admission of guilt to any crime for which an inmate was committed.
Key Provisions under Title 15 California Code of Regulations §2281
§ 2281. Determination of Suitability
(a) General. The panel shall first determine whether a prisoner is suitable for release on parole. Regardless of the length of time served, a life prisoner shall be found unsuitable for and denied parole if in the judgment of the panel the prisoner will pose an unreasonable risk of danger to society if released from prison.
(b) Information Considered. All relevant, reliable information available to the panel shall be considered in determining suitability for parole. Such information shall include the circumstances of the prisoner's: social history; past and present mental state; past criminal history, including involvement in other criminal misconduct which is reliably documented; the base and other commitment offenses, including behavior before, during and after the crime; past and present attitude toward the crime; any conditions of treatment or control, including the use of special conditions under which the prisoner may safely be released to the community; and any other information which bears on the prisoner's suitability for release. Circumstances which taken alone may not firmly establish unsuitability for parole may contribute to a pattern which results in a finding of unsuitability.
(c) Circumstances Tending to Show Unsuitability. 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:
(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 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.
(d) 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 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) Battered Woman Syndrome. At the time of the commission of the crime, the prisoner suffered from Battered Woman Syndrome, as defined in section 2000(b), and it appears the criminal behavior was the result of that victimization.
(6) Lack of Criminal History. The prisoner lacks any significant history of violent crime.
(7) Age. The prisoner's present age reduces the probability of recidivism.
(8) 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.
(9) Institutional Behavior. Institutional activities indicate an enhanced ability to function within the law upon release.
