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Overview of Lifer Parole Hearing Process

BACKGROUND

The lifer parole hearing is held at a facility’s designated hearing room. The inmate and his or her attorney sit across from the hearing panel. The inmate’s suitability is considered from a myriad of factors that generally consist of pre-conviction factors [commitment offense, prior criminal history, and prior social, family, educational, and job history], post conviction factors [institutional programming, discipline and psychological evaluation] and parole plans. However, a hearing is far from a “one-size” fits all approach. The Commissioners have reviewed the c-file and assess a wide range of individual factors of each case. Their final decision is based upon a balance between consideration of the inmate and public safety.

PRIOR TO THE HEARING

Remind yourself that you should be cooperative, courteous and considerate to the hearing panel. Up until this time you have probably heard many things about various commissioners and the Board of Parole Hearings in general. Put all that aside and concern yourself with how you intend to comport yourself during the hearing.

Listen to each question that the panel asks, carefully. Allow the hearing panel member to complete the question before you start speaking. This is important. First, you may think that the board is asking for different information than what they are seeking. Second, this will allow you to gather your thoughts and give the most honest and accurate response that you can give under the circumstances.

If you do not understand a question, never guess at the answer. If this be the case than politely tell the panel that you don’t understand the question and ask that the panel member repeat or clarify the question or the information they seek.

Depending upon the security level of the institution at least one correction officer will be present in the hearing room during the hearing.

When you enter the hearing room, sit down and get situated. Organize the documents that you have brought with you. If you have new documents such as offers of employment or residence to present to the Board that arrived late and did not make it into your “c” file you may present these to the Board when they ask you or your attorney if you have any additional documents to present to the panel. Some Board members may ask for all the documents at the commencement of the hearing. Others will defer and request that you wait to present the new documents at the applicable time during the hearing.

PRELIMINARY MATTERS

The Commissioner will begin by announcing the date, time and location [state facility name] of the hearing. Next, the Commissioner states the inmate’s name and whether this is the initial hearing or the number of the subsequent hearing of the inmate along with the inmate’s name and CDC number.

Next, the Commissioner will state the date the inmate was received and from what particular County the inmate was received from; the controlling offense for which the inmate was committed, case number, counts, sentence, additional counts and the inmate’s minimum eligible parole date.

The Commissioner will announce that the hearing is being recorded “and for the purpose of voice identification that each person in the room will state their name, spell the last name and when it comes to the inmate than the inmate will spell his/her last name and give the CDC number”.

The Commissioners, attorneys, inmate, victim’s next of kin and/or victim [if present] and anyone else present will give their names and spell them. The Commissioner will make note of the fact that a corrections officer is present for purposes of voice identification.

a.ADA Rights

The Commissioner will announce that he or she has reviewed the 1073 and DECS system

The Commissioner will indicate that a written statement is on the table in front of you. He will request for you to read the statement. The statement is a recitation regarding your rights under the case of Armstrong v. Davis applicable to any disability you may have.

The inmate will be given time to read the statement. When the inmate looks up the Commissioner will ask what it means to the inmate. The inmate than tells the Commissioner in his own words what the statement means.

Usually the Commissioner will additionally ask if you need any help with disabilities for the hearing; whether or not you can see the Commissioner, hear the Commissioner. The Commissioner will say that he saw you walk into the hearing room and whether or not you had any problems walking to the hearing.

You will also be asked if you can read. If you cannot read or your reading ability is limited this is your time to tell the Board. This could be important later if you are asked to read a document or confirm or clarify information that is written. Your attorney can assist you in reading and explain the written material to you. Of course if you are able to read this page chances are that your reading ability is more than adequate.

The Commissioner will ask if you have any learning disabilities, if you have ever been part of the mental health system at CDCR such as CCCMS or EOP; if you take any psychotropic medications and if yes, are you taking them currently.

Last, if you have any physical problems at all this is the time to tell the Board. For example, if you have back problems and need to get up and stretch every so often, tell the Board. If you take blood pressure medication and it compels you to urinate more often than most than tell the Board. The Board should be accommodating for anything similar that may effect your ability to give effective testimony. Otherwise, your attorney should raise an objection that your ADA rights have been compromised.

b.Hearing Rights

The Commissioner will announce that, “We have had the opportunity to review your central file and your prior decisions and you will be given the opportunity to correct or clarify the record as we proceed”. Other rights you will be advised of include:

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Not here to change the findings of the Court;

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Not here to retry your case;

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Panel accepts as true the findings of the Court;

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The panel is present for the purpose of determining your suitability for parole.

The commissioner will ask your attorney if he/she has reviewed your rights regarding the hearing. You will then be asked whether or not your attorney has met with you and reviewed the hearing procedures and rights.

Occasionally, this may pose a hesitation on the inmate. The hearing rights under Penal Code section are contained on form BPT 1002.

They include:

LIFER INMATE: NOTICE OF HEARING RIGHTS

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Purpose of Hearings: The purpose of a parole consideration hearing is to determine if you are suitable for parole [15 CCR §§ 2281/2402]. The purpose of a progress hearing is to determine if a parole release date should be advanced [15 CCR § 2269]. The purpose of a rescission hearing is to determine if a parole date should be taken away or postponed [15 CCR § 2450];

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Right to Hearing: One year prior to your minimum eligible parole date a parole consideration hearing will be held [PC § 3041[a]. You are entitled to a parole consideration hearing each year thereafter unless the hearing panel denies parole for more than one year [PC §§ 3041, 3041.5];

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Right to Be Present, Speak; Waiver; Absence: You have a right to attend the hearing, ask and answer questions, and speak on your own behalf [PC § 3041.5]. You may waive this right. If you do not attend the hearing, a decision will be made in your absence [15 CCR § 2247];

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Attorney: You are entitled to be represented by an attorney at parole consideration and rescission hearings [PC § 3041.7]. You may waive that right [15 CCR § 2256]. If you are unable to afford counsel [have less than $1,500 in cash and accounts] an attorney will be provided at state expense [15 CCR § 2256];

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Notice: You will be notified of the week during which the hearing will be held at least one month before the hearing [15 CCR § 2246]. You will be given reasonable notice of the time, date, and place of the hearing;

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Witnesses: At parole consideration and progress hearings, you may not call witnesses [PC §§ 3041.5]. At a rescission hearing, you may call evidentiary witnesses [15 CCR § 2465];

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Others Who May Attend the Hearing: At parole consideration hearings, the district attorney [or representative] from the county in which the offense was committed will be invited to the hearing to represent the interests of the people [PC § 3041.7]. At parole consideration hearings, notice of the hearing will also be given to the judge, prosecutor and your trial attorney [PC § 3042]. The victim or next of kin or their designated representative may also attend and address the hearing panel [PC § 3043];

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Review of File; Opportunity to Present Evidence: You have the right to review non-confidential documents in your prison central file [PC § 3041.5]. You may enter a written response to any material in the file and may present relevant documents to the hearing panel [15 CCR §§ 2247, 2249]. At a rescission hearing you may call evidentiary witnesses and may request that witnesses [including adverse witnesses] or documents be subpoenaed [15 CCR § 2465];

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Assistance In Preparing for the Hearing; Assistance In Communications: You may receive reasonable assistance in preparing for the hearing. If you are unable to effectively communicate due to language difficulties or a physical or mental disability, appropriate assistance will be provided to you. [15 CCR § 2251];

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Voluntary Waivers: Waiving means not having your hearing. You may request to waive your hearing for any reason, for one, two, three, four or five years from the date of the hearing. Your request should be reasonable, in writing, and made at least 45 days prior to the hearing date. Waiver requests made less than 45 days prior to the hearing date will not be approved unless you can show a good reason for the request and explain why the waiver request was not submitted 45 days prior to the hearing [15 CCR § 2253];

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Stipulations: Stipulating means that you are not ready for parole. You can ask the Board not to have another hearing for three, five, seven, ten or fifteen years from the date of the hearing. Your request should explain why you are not ready for parole. Your request should also explain when you will be ready for parole. The Board will approve your request if it is reasonable;

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Postponements: Postponing means putting off your hearing date. You may request to postpone your hearing to give you time to get information to show the Board that you are ready for parole. The board will grant your postponement request only if you show that you did not and could not have known about the need for a postponement sooner than when you made the request. You must also show that you tried your best, but were not able to get the information essential to your hearing [15 CCR § 2253];

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Impartial Hearing Panel: You are entitled to a hearing by an impartial hearing panel and may request the disqualification of one or more panel members where grounds for disqualification exist [15 CCR § 2250];

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Record; Decision: You are entitled to a copy of the record of the hearing upon request [15 CCR § 2254]. You are entitled to a copy of the decision which includes the information considered and the reasons for the decision. [15 CCR § 2255].

Chances are that these rights were presented to you on Form BPT 1002 by your counselor approximately six months prior to the hearing. Sometimes you will have forgotten that you actually signed the form or that you were made aware of your hearing rights.

Next, the Commissioner will ask the Deputy Commissioner if the panel will use any confidential information during the hearing. If any confidential information will be used, the panel will go “off the record” for that portion of the hearing. It will be recorded on a separate audio tape.

The commissioner will pass a hearing checklist, marked Exhibit 1 to the inmate’s attorney and the District Attorney, if present. The checklist is a list of documents that are contained in the file given to your attorney, the district attorney and the hearing panel. The list of the Commissioner is presented to your attorney in order to ensure that all parties are working off of the same set of documents. If your attorney does not have all of the documents that the panel has in their possession this is the time for your attorney to notify the panel that any documents may be missing or has not adequately reviewed the documents. It does not happen very often but sometimes a recent document such as a psychological evaluation may not have reached your file prior to the hearing. Any missing document should be given to you and your attorney and a recess should be requested to review the document.

You will be asked if you have any additional documents to present to the panel. These documents include but are not limited to recent 128a chronos, parole plans and recent offers of employment, residence and/or letters of support from the community. It is advisable to present the original documents to the panel and bring two copies. One copy should be for your attorney and one copy should be for yourself. This is because as the panel makes reference to each document you and your attorney will have the opportunity to refer to each document at the same time as the Board and this will make it easier to respond to any questions.

Your attorney will be asked at this time whether or not he or she has any preliminary objections. In addition, counsel may challenge the impartiality of the panel or a panel member to the hearing panel itself; the inmate has the burden of proving that the panel or any member is not impartial.

Next, your attorney will be asked whether or not you will be speaking at the hearing. The deputy commissioner will swear in the inmate by giving an oath to tell the truth.

A.THE COMMITMENT OFFENSE AND SOCIAL HISTORY

Upon the conclusion of preliminary matters the Board will discuss your social history and the commitment offense. The Commissioner will incorporate by reference the facts of the commitment offense from the appellate court decision or if no appellate court opinion is available then the Probation Officer’s Report will be used. The panel will find “as true” the record of the appellate court decision or the Probation Officer’s report. The inmate may refuse to admit guilt or to discuss the facts of the crime pursuant to Penal Code §5011(b); and 15 California Code of Regulations §2236 any refusal may not be held against the inmate. However, as a practical matter it is rare that inmate’s who does not demonstrate an ability to speak openly and honestly regarding the crime and their remorse and insight associated with the crime are not usually found suitable for parole.

TOO SPEAK OR NOT TO SPEAK, THAT IS THE QUESTION

However, this is a very tricky aspect of the hearing where offering any form of legal advice is confusing at best. Two schools of thought exist as to whether an inmate should exercise his or her right not to admit guilt of a crime when the inmate has been convicted of the crime or accepted some form of guilty plea.

The first school of thought is where some believe that inmates who fail to discuss their culpability in the commitment offense have virtually no chance of being found suitable for parole.

The second school of thought believe that the inmate has no obligation to discuss the crime, and doing so can only create further questioning by the panel which will ultimately be used to deny parole. The inmate should seek professional assistance in such matters. There is no “one size fits all” answer to such a question. Any manner to proceed must be based on the facts and circumstances of each inmate, the facts of the case and the ability of the inmate to demonstrate adequate insight and remorse for the victim.

Given the fact that the BPH has so much power and discretion in determining an inmate’s suitability for parole, it is highly improbable to establish that a finding of unsuitability was improperly based on the inmate's decision to exercise his or her rights.

An inmate who discusses the facts of the crime should be more than adequately prepared to be questioned about the life crime by the hearing panel and the district attorney's representative. The inmate must be honest, open and intimately familiar with the facts [example: If a weapon was used, the inmate must be able to discuss where the weapon was obtained, from whom was the weapon obtained, why was he/she in possession of the weapon, etc.]. Ultimately, whether or not the inmate chooses to discuss the facts of the crime, the panel determines the extent of the inmate’s participation in the crime.

When negative factors exist to show the granting of suitability is unlikely the commitment offense should not be discussed. Two reasons exist.

First, Inmate testimony at an initial hearing is particularly dangerous because the inmate is unfamiliar with the procedure, may be particularly stressed—out, and under the best of circumstances is very unlikely to receive a date. Testimony regarding the life crime cannot benefit the inmate in future hearings. Testimony may do a great deal of harm in fact because such testimony about the offense or related matters can and will be used by subsequent panels to impeach the inmate at future hearings and therefore may cause irreparable harm.

Second, as a rule, the BPH perceive anything but complete candor and honesty as a minimization of the facts and/or refusal to accept responsibility for the offense. The BPH will conclude in this scenario that the inmate has failed to come to grips with the commitment offense and lacks remorse and insight thus finding that the inmate [at this time] is an unsuitable candidate for parole [and still poses an unreasonable risk of danger to society].

If other factors suggest that there is a realistic chance of obtaining a parole date, the inmate should consider discussing the life crime. All things being equal, it is unrealistic for a life inmate to expect a finding of suitability unless he or she can discuss that offense in detail [Exceptions exist where the inmate spoke to the life crime at prior hearings, but not at the hearing where suitability was found].

When discussing the life crime the inmate must be prepared to express genuine remorse for his or her actions and how the offense has affected the victim, victim’s family, and the community. The testimony should also demonstrate a deep understanding of what was going on in the inmate’s internal and external life that led up to and contributed to the commission of the offense. In short, the inmate must be transparent in a self-critical assessment of any discussions of any and all circumstances involving the commitment offense. The inmate must use language that is direct and honest. Any language such as “[SEE NOTES FROM CIM]” should be avoided as they will suggest a minimization of the conduct and failure to take full responsibility of the inmate’s actions regarding a victim or co-defendant. Ultimately, this will result in a denial of parole.

LIFER HEARING TESTIMONY REGARDING THE LIFE CRIME

1.Commitment Offense

The BPH will discuss the commitment offense with the inmate. The BPH will read the facts of the commitment offense from either the probation officer’s report or the Appellate Decision. The Board will talk about your “feelings” about the commitment offense. Your “feelings” in general include such things as your remorse, insight, responsibility and understanding the magnitude of the commitment offense. Of course these matters are all subjective. This section of the hearing is one of the most important and stressful if not the most stressful, part of the hearing.

The panel will consider the base offense and other commitment offenses of the inmate's conduct before, during and after the crime.

In determining suitability, the Board considers the nature and gravity of the commitment offense and specifically how the offense was particularly troubling, offensive, disturbing, reckless, etc.

The panel will discuss with you the nature of how you committed the offense. If a murder was committed the board will consider how the crime was committed and if they consider the act to have been committed in an especially heinous, atrocious or cruel, manner including all of the following that may apply depending upon the circumstances:

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multiple victims were attacked, injured, and/or killed in the same or separate incidents;

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the offense was carried out in a dispassionate and calculated manner, such as an execution-style murder;

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the victim was abused, defiled, or mutilated during or after the offense;

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the offense was carried out in a manner which demonstrates an exceptionally callous disregard for human suffering;

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the motive for the crime is inexplicable or very trivial in relation to the offense

Throughout the discussion of the commitment offense, the Board will attempt to determine based on what you say and how you say it and the totality of the record whether or not you understand the horrific nature of the crime. The panel will discuss such factors as:

Insight into the causative factors of the crime [i.e. your current attitude and mindset towards the crime then and now];

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Can you communicate significant insight into what was occurring in your internal and external life at the time of the crime and the events occurring in your life that led up to the crime.

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Communicate the factors in your life that contributed to your commission of the crime [must be more than, “I was drunk”, “I was High” or “I was stupid];

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Avoid at all costs any and all self-involved, absorbed thinking and/or sense of entitlement.

Understands the magnitude of the crime, identifies the victims and the nature and magnitude of how the crime has affected the victim and the victim’s family;

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[at a minimum] Do you know the victim’s name and the person’s age at the time of the commitment offense?

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Have you made a list of the victim’s you hurt?

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Can you articulate who has the crime affected indirectly?

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Can you articulate how the crime has affected the community?

Takes responsibility for the crime: Does not minimize the crime or transfer responsibility to a co-defendant and/or victim;

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Do you minimize your participation in the crime?

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Blame others?

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Fail to take responsibility for the crime and/or other crimes?

Has a totally different mindset today than at the time of the occurrence of the commitment offense

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Demonstrate to the Board that you have done the hard work required and expected of you during your time of incarceration and in so doing you have transformed your past mental state of criminality and antisocial behavior to a present mental state of responsibility and an enhanced ability to conform your conduct to the norms of society.

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Communicate to the Board through your documented institutional history and the attitude that you carry with you in the hearing that your past attitude towards the crime is unconnected and distinct from your present attitude towards the crime.

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No longer associates with gangs, disruptive groups or criminal elements.

e.Shows Genuine Remorse

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Articulate the acts you have performed in an attempt to repair the damage; that seek help for the victim; and/or that seek to relieve the suffering of the victim;

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Is your attitude of remorse sincere?

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Can you put yourself in the shoes of the victim and feel what the victim feels?

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Have you attempted to make amends to the victim or victim’s family? [i.e. written letter of remorse to the victim through the Victim’s assistance unit?];

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attempted to pay court ordered restitution

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attempted to perform community service work during incarceration;

Other considerations that tend to demonstrate unsuitability or that have made a finding of suitability difficult in the past. You must be able to explain why these are not presently a concern and should no longer be considered a concern to the panel.

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Inconsistencies about the life crime, or any other inconsistencies especially with regard to criminal conduct before or after the commitment offense including institutional conduct [be specific].

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Credibility concerns;

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Problematic statement[s] or opinions in the record [i.e. probation report, Board reports, past panels, inmate letters/statements, etc.];

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Psychological evaluations indicating that the inmate poses a risk of violence if released.

2.Social History

The inmate’s social history is everything that occurred in life prior to coming to prison. The BPH will discuss the inmate’s childhood, upbringing, family, relationships and employment, if any. The BPH will discuss substance abuse history, if any and past criminality, if any. When prior criminality is discussed the BPH considers prior convictions and “bad acts” or prior incidents with the law that ultimately did not result in a conviction. Please note that arrest reports have been found to be unreliable to support a finding of unsuitability by the Supreme Court. Your attorney should raise an objection if such information is utilized by the BPH.

An inmate’s social history may sometimes be discussed prior to the panel discussing the life crime. The BPH will sometimes use the inmate’s social history chronology to transition into the topic of the life crime.

Below is an incomplete checklist of topics that may be discussed at a parole suitability hearing applicable to the inmate’s personal history.

a.Unstable Social History

The issues regarding an “unstable social history” include but are not limited to the following areas:

1.Prior Criminality [some but not all factors may apply to your situation]

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Violence: The Inmate, on previous occasions inflicted or attempted to inflict serious injury on a victim, specifically;

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The prior violent behavior is particularly disturbing because it demonstrated assaultive behavior at a young age;

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Sadistic Sexual Offenses: The Inmate previously sexually assaulted another in a manner calculated to inflict unusual pain or fear upon the victim, specifically

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A pattern of past criminal activity exists in the inmates background.

The inmate has a history of unstable or tumultuous relationships with others, as evidenced by:

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Lengthy arrest history which illustrates instability in the inmate's life;

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Failed previous grants of probation and/or parole. The panel will emphasize this fact especially if the commitment offense occurred while the inmate was on probation and/or parole.

The inmate failed to profit from society's previous attempts to correct his/her criminality. Such attempts include:

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Juvenile arrests;

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Juvenile Probation

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Juvenile Camp

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CYA Commitment

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Adult previous arrests

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Adult Probation

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County Jail

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Prior Prison Term

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Parole

Problematic Relationships with parents, siblings, romantic relationships, employer, and/or school authorities. Specifically, this includes but is not limited to such things as:

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Gang activity

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Drug/Alcohol use, abuse and/or Addiction

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High School Dropout

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Run-away

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Fights

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Other:

Other “pre-commitment factors” that the panel may consider when discussing your “social history” may include such past matters:

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Family background, relationship with family members;

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Education;

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Employment;

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Military service;

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Psychological issues;

The good news is that despite any or all of the immutable factors [i.e. factors that will never change] above are true, the panel wants to know if you have worked to [re]establish ties with family members and establish ties with people and organizations in the community that can lend moral or financial support once you are released to the community. This can include but is not limited to re-establishing ties with a parent through writing and phone calls and establishing ties with an AA sponsor, organization or other entity from the community in the geographic location where you hope to parole.

II.POST CONVICTION FACTORS: Everything you have done since Incarceration for commitment offense

Institutional Behavior

The phase of the hearing regards institutional adjustment and behavior. By this time the Deputy Commissioner has been silent for most of the hearing and now conducts this part of the hearing with the inmate's C-file as a reference.

This phase of the hearing ordinarily addresses five areas (“compliance areas”) in which the inmate must demonstrate progress in order to obtain a parole date: education, vocational training, self-help and therapy [i.e. self-help programs should address issues specific to the inmate and his/her past history including but not limited to addiction, victim awareness groups, inmate-youth prevention groups, anger management and stress reduction]; psychological evaluation reports, laudatory “chronos” and disci¬plinary history [in-prison misconduct].

The BPH considers prison misconduct that resulted in discipline [i.e. 115’s and 128’s]. The more recent the in-prison misconduct the more likely is a denial of suitability until such time that the inmate can show a sustained history of complying with the rules of the institution. Should a serious and recent charge of misconduct [115] be found and upheld against an inmate the more the inmate should consider a hearing waiver. Generally, an inmate should have at least 5 years of disciplinary behavior prior to an expectation of being found suitable [as one factor of suitability]

In short, the panel seeks to learn any relevant information about the inmate’s incarceration that reflects rehabilitation or lack thereof. Specifi¬cally, the panel evaluates the “compliance areas”. Demonstrating a strong participation in these “compliance” areas help show the inmate’s enhanced ability to function within the law upon release. In other words the BPH will discuss what the inmate has been doing while in the custody of the California Department of Corrections [CDCR] that has enabled the inmate to become a good citizen in the community upon release [i.e. job skills, obey the law, function socially, etc].

1.Education

A lifer inmate is expected to have upgraded educationally by doing such things as learning English, obtaining a GED, completing college courses, earning an AA degree and/or a college degree.

If the inmate has not yet obtained a GED the panel attempts to learn why the inmate has not yet done so. The panel may inquire in to such areas as a possible learning disability, problems with sight, previous head injury or perhaps a lack of motivation.

An inmate must obtain at least a high school equivalency [GED or a high school diploma] if he or she is capable of doing so. Some inmates participate in college level courses either by correspondence or at the institution [the later is rare]. College level courses are obviously viewed positively but certainly not required.

2.Vocational training

An inmate should upgrade vocationally by obtaining a certification in a vocation, and/or acquired core competency in a vocational skill through P.I.A or generally complete a vocational training program within a recognized trade, i.e. heating and air conditioning, office services, auto body, computer technology, etc. These skills are considered by the panel as enhancing the inmate’s ability to function in the community because the vocation provides marketable job skills upon release.

Vocational programs are not available at level 4 prisons. This is one more reason that an inmate should work to lower their classification score. A classification score of under 51 will allow the inmate to transfer to a level 3 prison where programming is available.

Further, to obtain vocational skill is difficult in times of Government budget cuts and general economic malaise. However, the inmate should at a minimum put him or herself on a waiting list for such vocational training or gain work experience at the institution that may translate into a marketable skill in the free sector.

One thought is that an inmate may also make efforts to obtain a vocation through a correspondence course if possible. Please note that in the event that the inmate was an experienced professional or tradesperson prior to incarceration, this requirement may be waived. This should be with the caveat that the inmate can minimally upgrade him or herself in the trade or profession where he or she previously worked.

Last, inmates of advanced age unlikely to obtain a vocation and/or employment upon release may have the requirement waived if someone in this class of people can demonstrate a prospective ability to obtain income from Social Security benefits or similar public aid. In addition, one or more job offers from relatives with offers to train the inmate may suffice in individual cases. Obviously two or more vocations are regarded positively.

3.Work

The panel will also consider whether the inmate has done well or excelled at work assignments while incarcerated. Specifically the panel will consider the work assignments that have been performed. The inmate should make sure that positive work reports/laudatory chronos/letters of recommendation/etc., are noted in the inmate’s “c-file”. This documented recognition may indicate among other things the inmate’s work ethic, ability to cooperate with others and/or organizational skills that will hopefully serve the inmate well upon release. Again, some jobs may translate to marketable skills in the community.

4.Self-help

Lifer inmates are expected to avail themselves of all available self-help pro¬grams. In the institutional setting, individual and group psychotherapy is not an option. Thus, the BPH expects inmates to attend rehabilitative group programs that apply to the inmate on a personal level—i.e. domestic violence, alcohol drug abuse, etc. The most common groups are Alcoholics or Narcotics Anonymous. Other groups exist to deal with other personal mental health issues such as anger and stress management, violence prevention, and youth diversion, among others. The availability of such programs varies from institution to institution.

Once the panel asks what programs the inmate has participated in, the panel seeks the inmate’s understanding of what the inmate has learned through the program and how it applies to the inmate’s daily life. For example, if the inmate makes a claim that he or she has learned the 12 steps, the inmate should be prepared to recite any and all of the steps and to describe how a specific step applies to the inmate’s personal life.

If the inmate’s life crime involved drugs or alcohol, the panel expects the inmate to actively participate in substance abuse prevention counseling [i.e. recognize triggers, coping mechanism and an overall relapse prevention plan] and to demonstrate documented plans for substance abuse counseling in the community if paroled [contact with a sponsor in the community of parole]. In other words, strong parole candidates have obtained information prior to the hearing regarding programs in the geographic area of parole plans, and many already have AA or NA sponsors, or other support systems, available to them outside the prison system.

In addition, the inmate should be prepared to talk about how any of the programs have helped to develop genuine remorse for the victim; how the programs will allow the inmate to avoid destructive/antisocial/criminal behavior in the future [especially the type of behavior that contributed to the commitment offense]; If the inmate makes a claim of sobriety can the inmate articulate the clean and sober date and if so the inmate should be prepared to speak about any experience or event triggered that triggered light bulb to come on. If an inmate claims a clean and sober date in 2000 the inmate should be prepared to explain the past 115 for pruno in 2003.

Some institutional programs may be limited and not issue-specific to certain problems. For example, an inmate may have perpetrated domestic violence in the past and the current institution lacks programs and groups addressing such issues. In this instance, the inmate should seek counseling materials from the outside and submit documentation at the hearing in the form of a report that thoroughly summarizes the materials studied, including the basic principles presented in the materials and the general knowledge that the inmate has learned through such materials but more importantly how the inmate has integrated those principles into his or her life.

Alternatively, where certain self-help/programming are not available some Commissioners suggest that the inmate find counseling materials such as self-help books in the library; read and write book reports outlining the basic principles and how the inmate applies the principles to his or her life.

5.Disciplinary History

The inmate should demonstrate an ability to function within the rules as evidenced by the lack of serious disciplinary problems over the past 5—10 years [at least 5 years minimum] prior to the hearing date. The panel will consider the proximity in time of your most recent discipline and whether the inmate requires more distance between latest 115 and being found suitable. The panel will also consider the nature, frequency and seriousness of previous discipline of the inmate.

If the inmate has any disciplines currently pending that could affect outcome of hearing the inmate needs to postpone the hearing until a determination on the 115 has been concluded.

If the inmate has participated in gang activity or disruptive groups the inmate will not be found suitable until the inmate disassociates with such groups and debriefed.

Classification scores specifically are not considered at the hearing. However, for a commitment offense of murder the lowest classification score one can obtain is 19 and will be viewed more favorable than a higher classification score.

At a minimum the inmate should strive to obtain a classification score of less than 51 points (level-three prison custody or less), which will allow the inmate to transfer, to a prison with programming availabil¬ity. Ideally, where possible, the inmate should work toward incarceration at a level-two prison.

Ultimately, where the inmate is serious about being found suitable it is especially important to refrain from any and all gang and/or disruptive group activity; refrain from any disciplines that are [especially] in way related to drug/alcohol and/or contraband possession, use or sale; refrain from any and all violent acts; and last don’t dare obtain or possess a cell phone if you wish to be found suitable in the near future.

Psychological reports

In some ways the psychological report is almost as important as the BPH hearing itself. At a minimum the psychological report serves as background information that can serve to suggest to the Commissioner and Deputy Commissioner a preconceived notion of who you are. Conversely, the psychological report can greatly influence the outcome of a finding of unsuitability. Thus, an inmate should be prepared as much for the psychological evaluation if not more, than for the suitability hearing, itself.

In either case, it is your job to act as a guide to assist the commissioners and the psychologist to the realization that “you get it”.

Hearing panels learn about whatever psychological issues [if any] were contributing factors to the commitment offense; the inmate’s current psychological state of mind and the likelihood that the inmate will resort to future criminal acts and the ultimate question of the current “danger to society” that an inmate will pose to society.

Of paramount importance an inmate must realize that such preparation for the day of the hearing or evaluation starts years before either. And if you have been preparing, you must also demonstrate to the BPH that the strides you are making will continue after the hearing and into the future and beyond in the community.

In other words, your job is to show each the transformation in your life from the person you were on the day of the commitment offense [and years, months, and weeks leading up to the commitment offense]; demonstrate your metamorphosis to where you are today—completely changed in your state of mind and way of thinking. Then you must demonstrate that you have made a sincere commitment to sustaining the change beyond the gates of the prison and for your future existence in the community.

You must be able to articulate your state of mind then and now, insight into the crime, remorse for the victim, taking full responsibility for the heinous act[s] that you committed. You must demonstrate through your commitment to and application of self help programming, education, vocational training, institutional employment and disciplinary free behavior that your mental state and way of thinking is completely changed and you have an “enhanced” ability to function in public and will be a law-abiding citizen who pays their taxes and plays by the rules of society.

Both the BPH and psychologist must know you have moved on from the psychological issues that led up to the commitment offense. Both seek to learn the likelihood of your returning to the bad conduct of your past. To be sure these events for most have long past and the result of choices made were many years ago. But let’s not forget that the reason most are presently incarcerated is because the commitment offense was heinous and left a path of pain and destruction for the victim, the victim’s family and the community.

Based upon all of the above factors the psychologist will use various preconceived [mainly] statistical tests to rate your chances of returning to your previous lifestyle of violence, illegal conduct, addictions, personality disorders; and grade you accordingly—low, moderate and high.

The overall risk assessment is expressed as the psychologist’s opinion of an inmate’s risk to succeed or fail on parole. The BPH makes note of the overall risk assessment. Those who are found to have an overall low risk of future dangerousness is much more likely to be paroled than those who have an overall moderate or high overall assessment.

Summary:

Present Matters—Since the last hearing have you performed or attempted to perform the recommendations of the previous board [i.e. remain discipline free, learn a vocation, attend NA/AA, obtained a GED, etc…], and have you…

Stayed disciplinary free;

Availed self of any available vocational training

Vocational Training: Availed self of any vocational training if available;

Work history: Have you received any laudatory chromos since previous hearing?

Have you made yourself more marketable by learning a new job skill since your last hearing?

Have you had a new psychological evaluation since your last hearing and has your “overall risk assessment” improved?

Do you get it?

Have you participated in such programs related to your past conduct that may include anger management, stress management, religious services, philosophical training, spiritual training, charitable events and other activities which will help shows an enhanced ability to function and manage your behavior when released to society?

III.PAROLE PLANS

After institutional adjustment is considered, the panel considers the inmate’s parole plans The panel will consider primarily whether or not the parole plans are realistic consisting of a residence, employment, transportation, medical care [if inmate has any medical issue requiring care] continued programming, a source of community support and other considerations.

Each area of the parole plans requires that the inmate seek and receive documentation of every

aspect of the plan being offered. The BPH requires documented verification of each portion of the parole plans including contact information to confirm that the information presented by the inmate is accurate and truthful. Should there be a finding of suitability

The BPH reviews the inmate’s letters that verify the plans, making them part of the record.

The BPH will always discuss at least in part some aspects of the letters with the inmate.

1.Residential Plans

Several considerations exist regarding plans for a place to live. First, for an inmate that has been incarcerated for a lengthy period, having community or faith based transitional housing as the center piece of residential plans is ideal and preferred. The major reason is that all lifers have been incarcerated for an extensive period of time. The world has changed considerably in the past 20-30 years and seems to be changing faster with each year. Transitional housing offers the inmate an opportunity for a finite period of time to “have one foot in and one foot out” of society. It will allow the inmate the opportunity to “ease” their way back in to society as much as practical.

In addition, most transitional residences offer the requisite programming, employment and/or employment referrals/resources, etc., transportation, programming, etc. The length of the stay at transitional housing varies but most last anywhere for six months to two years.

Next, the panel would ideally prefer that the inmate have back-up residential plans. While this may not be a requirement of the law it is important as a practical matter. Often a close family member will offer their residence. The inmate may prefer to live in the residence of the family member and choose this offer over transitional housing as the inmate yearns to be united with their family. This is understandable however an inmate should seriously consider transitional housing as a temporary mode for their adjustment to society.

When the inmate paroles to a residence considerations that the panel will inquire are such things as whether any members of the household have a criminal background; do any members of the household use illicit drugs or drink alcohol; are there any weapons in the household, etc. The panel will inquire as to the size of the house and whether there will be room enough for the number of persons living at the house or apartment with the addition of the lifer inmate. If drugs or alcohol is in your background the panel will want to know if anyone uses drugs or alcohol in the residence. If the inmate has a background as a sex offender the panel will inquire whether the residence is in close proximity to a school or if minor children live in the residence.

Also, where applicable the panel will inquire the role of spouse, children, grandchildren [if any] in the inmate’s plans for parole. One example may be where an inmate intends to care for an elderly parent upon release. If the inmate lacks experience in care for the elderly, the inmate may be further questioned by the panel regarding not only their ability to attend to the needs of the parent but the tremendous 24-7 time investment that such a well-meaning undertaking may entail. The BPH may conclude that to assume such responsibility is not realistic given the vast scope of issues that an inmate transitioning to society faces.

Employment

Offers of Employment from an employer should be in writing. If you do not have an offer of employment [or even if you do] you may also demonstrate that you have other marketable skills that can be utilized to obtain employment upon release. The inmate may possess marketable skills such as skills gained in the “Prison Industry Authority” [PIA] that can be put to use upon release; Skills obtained through work during incarceration; Vocational skills acquired during incarceration; Skills obtained through College classes; Skills obtained prior to incarceration if still marketable [if the technology has changed have you upgraded this skill set?].

The inmate should submit employment plans for the geographic area for which they are submitting plans to reside. Any offer of employment should be in close proximity to the planned residence of the inmate for the practical purpose of transportation to and from the jobsite. The California Code of Regulations [only] require “marketable skills” however the most formidable parole plans include offers of employment.

An elderly inmate that can demonstrate prospective income from Social Security benefits may have the requirement waived. In addition, one or more job offers from relatives with offers to train the inmate may suffice in individual cases. Multiple vocations [of course] are regarded positively.

Continued Programming:

If alcohol, drugs, domestic violence, rage, etc. was part of the commitment Offense and/or past pattern of criminality and/or contributed to an unstable social history, the inmate should show documented proof of continued programming in a community facility near the location of the residence of parole plans. The inmate should be able to articulate and have documented verification of an NA/AA sponsor lined up in the community whom you may contact for personal substance abuse issues.

Very important to show the BPH of continued sobriety and abstinence is a comprehensive relapse prevention plan regarding the inmate’s drug addiction, alcohol use and/or past criminal lifestyle and/or gang activity. The panel expects the inmate to identify the triggers that could cause the inmate to return to previous life style and all of the coping mechanisms that the inmate plans to use to confront the triggers. The ability to articulate a comprehensive relapse prevention plan should be confirmed by a written plan.

Too many inmates tell the BPH at the hearing that “they don’t have a problem anymore” or “I’m done with drugs” or something similar. The panel will retort by stating that ability to stay away from substance use in a controlled environment is not synonymous with remaining alcohol/drug free in free society as the availability of substances is much more prevalent in the free society. Whether or not you believe this is true, the BPH believes that it is true. The bottom line is “just do it”. Just have that comprehensive relapse prevention plan, be prepared to articulate it and also have it written down on paper to submit to the panel.

Support in the Community:

If in the past the inmate experienced reasonably stable relationships with others, the panel will inquire if the inmate still maintains the same level of support. If the inmate did not experience a stable social history at some point has the inmate initiated communication and maintained stable relationships with others in the community.

These relationships can be with family members, [non-criminal] associations whom you have reconnected with; clergy and spiritual individuals and even a new spouse. The panel will inquire the frequency that the inmate talks, write letters or receive visits from any of these people.

In addition, the BPH will review and consider letters of support from all persons in the community whom the inmate maintains contact and are willing to help the in some manner [physical, emotional, financial, etc.].

It may be beneficial that some of the letters touch upon the change that the author has seen in the inmate since the life crime and in the years leading up to the hearing.

Location of parole plans

First, the panel considers whether or not the residence is located in the State of California. Inmates are usually most familiar with the County where the commitment offense occurred as this is where they resided, have family ties to the community and are most familiar with the geographic location even if it has been 20—30 years since the commencement of incarceration. Hearing inmates are often times under the mistaken belief that they must parole to the County of commitment in the State of California. Currently, an inmate may parole to any county in the State of California [exceptions apply].

In fact, most often it is in the interest of the public and the inmate’s interest to be paroled to a County other than the County of the Commitment offense. The inmate may no longer have ties to the community from where they came. Further, the inmate may have transitional housing opportunities or employment opportunities in another County. Though a significant amount of time has passed since the commencement of incarceration, the possibility exists that past criminal associations may continue to inhabit the same community and as a practical matter would not be within the public safety for an inmate to return to the same area.

In the event that a parolee wishes to transfer to another state, under the Interstate Compact for Adult Offender Supervision [ICAOS], California can request transfer of a paroling offender to another state signatory to the ICAOS up to 120 days before the planned prison release date [See http://www.interstatecompact.org]. As a practical matter the inmate themselves must petition for an out-of-state transfer but not until the inmate has been granted parole. Thus, if the only support is outside California, then the inmate should find a transitional living arrangement such as a half-way house.

When requesting a transfer of parole to a different county, it is important to stress the existence of strong family ties and support, offers of employment or more opportunities for education or vocational programs, and the availability of drug treatment Programs. It may be important to point out that a transfer of parole to a different county will help ensure a successful parole because the inmate/parolee will be away from whatever influences led to his imprisonment.

The bottom line is that the BPH can parole the inmate to the county where he or she is most likely to succeed on parole.

Immigration Issues and Parole Plans

If the inmate has an immigration hold upon him placed by the federal authorities, the inmate is sure to be deported once released based upon a finding of suitability. In this example, the inmate should base their residential parole plans upon their Country of citizenship. This may be particularly difficult if the inmate has resided in the United States since a young age and lacks information regarding family in the foreign country.

The inmate should develop parole plans for both California and in the country of deportation in the event that a question exists as to whether the inmate will be deported. Both parole plans should include an offer of residential placement and a job offer. Any offer of employment should be in close proximity to each other for purposes of transportation. The regulations [only] require “marketable skills” however the most formidable parole plans include offers of employment.

Other:

Transportation:

The panel will inquire regarding whether the inmate will have access to transportation. They will ask by what method the inmate is going to transport him/herself to work, shopping, programming, etc. The panel will also inquire about the proximity of the residence location employment location. Some inmates are fortunate that a family member is willing to provide an automobile others will rely on public transportation. When public transportation is the intended method it could be helpful to have the bus route, train route or other method documented at least from an internet map.

Medical Issues:

If the inmate has serious medical issues that require treatment or care the inmate should to the best of their ability provide information regarding a medical provider’s name and contact information in close proximity to their place of residence. The inmate should also have obtained information regarding the method of payment whether it be a form of public assistance that the inmate may qualify for or some other method.

Future Goals:

If the inmate has future plans to work towards and obtain a realistic and worthy goal in the free society such as earning a college degree, attending culinary school, owning a business, etc. or anything else that will allow the inmate to earn an honest living. Stay away from communicating lofty goals to the BPH such as intending to support yourself through painting, writing or directing movies in Hollywood. No matter how extremely talented and intelligent the inmate may be, the BPH will view these as unrealistic unless the inmate has been employed in these areas prior to incarceration.

Conclusion:

Parole plans must be realistic consisting of at a minimum, a residence, employment, continued programming and a source of community support. All plans must be documented on paper to the greatest extent possible. Finally, the inmate should be able to articulate and discuss all aspects of the plan including but not limited to a comprehensive relapse prevention plan and specific programs available in the community which the inmate expects to avail him herself upon release.

CONCLUDING MATTERS:

Notices:

Once the BPH has discussed the inmate’s life before prison, during prison and life as the inmate hopes for it to be after prison, the BPH announces the parties to whom they have sent notice of the parole suitability hearing. The parties to whom notice is sent include the trial judge, the defendant’s attorney, the prosecuting attorney, the investigating law enforcement agency at least 30 days before the hearing. The notice allows those entitled to notice a right to submit a statement of views in support of or opposition to parole. These letters usually oppose a finding of suitability.

Clarifying Questions for Inmate

An Assistant District Attorney [D.A.] from the County of the commitment offense will be present to ask the inmate clarifying questions. The D.A. may also appear by teleconference or by telephone. If the D.A. fails to appear, usually the D.A.’s office will send a letter opposing parole. Rarely, does a D.A. not oppose parole of the inmate.

If the questions go beyond the scope of what the inmate talked about during the hearing an objection can be made on the record and the inmate can choose not to respond to the question. The D.A. may also ask about the inmate’s rehabilitative efforts while incarcerated.

After the D.A. has asked clarifying questions the inmate’s Attorney can ask clarifying questions. The questions should serve to correct inaccuracies in the panel’s understanding of the facts of the crime, prior criminal background, in-prison behavior, and in-prison accomplishments. Here, the attorney can also give the inmate an opportunity to address the subject of remorse for the offense and any additional insight not previously discussed that led to commitment and for his or her involve¬ment in other crimes or activities that produced victims. In the event that an inmate has written a letter to the victim or victim’s family through the victim’s assistance unit in Sacramento, then this could also be the time to ask the inmate about the letter and the subject of remorse. If the subject has not been broached earlier in the hearing the inmate should submit the letter that has been sent to the victim’s family to the BPH at this time.

CLOSING STATEMENTS:

At the conclusion of the hearing, the D.A. from the county of commit¬ment, gives a closing argument of the people’s position. Here, 99.9% of the time the D.A. opposes against parole of the inmate and the length of the denial they seek.

After the D.A. from the county of commit¬ment this is followed by the inmate’s counsel gives a closing argument of why suitability should be found, the appropriate matrix to use in setting the term or in the alternative the extent of any denial. Here, the inmate’s attorney should put the inmate in the most favorable light possible towards a finding of suitability. This is also the time that the inmate’s attorney should rebut the accuracy and arguments of the D.A.’S statements.

Counsel for the inmate should state panel why the inmate should be paroled or, if a denial is unavoidable, the reasons why a short denial is appropriate.

At this point the inmate may make a closing statement but is not required to make a closing statement. In the event that the inmate makes a closing statement at least two-thirds or more of the statement should focus on remorse for the victim and “insight” into the crime taking no less than full responsibility for the tragic events that occurred. Of course an exception to this rule is when an inmate maintains their innocence.

Next, if the victim and/or victim's family is present they may choose to make a closing statement. The victim and/or victim’s family when present are always represented by a member of the staff of the victim’s assistance unit. The inmate must realize that he or she can never address the victim and/or victim’s family directly but only through the BPH commissioners who are present. The victim statements usually consist of the traumatic impact the crime has had on their life. Also, they will talk about the victim and the victim’s life. Sometimes, a victim’s family may display a photograph of the victim as they speak. They may also comment upon the inmate’s demeanor and their opinion of the inmate’s suitability for parole. No matter what, when the victim and/or victim’s family are present it is always filled with emotion. However, the victim and/or victim's family more often than not do not usually attend suitability hearings.

At this time the BPH go off the record and deliberates by themselves upon their decision regarding the inmate’s suitability. The participants wait for the decision outside the hearing room. This is a good time for the inmate to debrief with their attorney if they so choose.

DECISION:

The panel adjourns to consider the matter, and then returns to announce its decision on suitability. The decision usually takes anywhere from 20 minutes to 1 hour. If the panel finds the inmate suitable for parole, it must then set a term.

If the inmate is found unsuitable for parole the denial period can be 3, 5, 7, 10 or 15 years. These period are based upon “Marsy’s Law” otherwise known as Proposition 9 passed by the voters of the State of California on November 4, 2008. Marsy’s Law requires that the BPH must first consider a 15 year denial period for the inmate. If the panel finds through the “clear and convincing evidence” standard that the inmate does not require a 15 year denial period [based upon public safety and considering the victim] than the BPH must consider a 10 year denial period, Likewise for a 7 year denial period. No such evidentiary standard is codified for 7, 5 or 3 year denial periods. The denial of suitability must be based upon if the panel determines that the gravity of the current offense or the timing and gravity of current or past offenses, is such that public safety requires a more lengthy incarceration period.

Should or new information arise or circumstances change to make it reasonably likely that considering the victim and public safety that the inmate does not require an additional period of incarceration, the inmate may petition the BPH to advance the next hearing. The inmate may only petition the BPH once during the denial period to have a hearing date moved ahead.

If the inmate intends to petition the BPH for a hearing date to be moved up the inmate should be confident that he or she ready for parole otherwise the filing of the petition will be fruitless.

An inmate should always obtain a copy of the hearing transcript and among [many] other things should read the decision of the panel to learn the reasons stated for the finding of unsuitability. Use this as feedback to prepare for the next hearing. For example, if the panel tells the inmate to obtain a G.E.D. then by all means do so before the next hearing. Don’t even think about petitioning to have the hearing date advanced until a G.E.D. is obtained. Further, if a section such as Math is keeping one from obtaining a G.E.D. than attempt to get a tutor for math. The bottom line is that it shows the BPH you are taking their advice, are serious about improving your life and are motivated to do what is needed to be done for self-improvement which translates into an [eventual] finding of suitability.

POST SCRIPT

The above is nowhere intended to be an exhaustive overview of the process. It is meant merely to familiarize the inmate regarding the procedural order of the hearing, topics to be discussed at the hearing, some practical considerations and various subjects that concern the inmate rights and obligations. No “one-size fits all” method applies to each inmate. Rather, the inmate’s situation and circumstances must be considered in light of the applicable law and the inmate’s past history, institutional progress, pragmatic plans for the future and a realistic evaluation of potential success in the free society.