Suggestion on Youth Offender Parole Regulations
All feedback discussed and/or received as of 3/2/15
Contents
YO Defined – Reached consensus but one issue remains ...................................................... 2
1. Proposed regulation §2440(c)(4) -- STILL CONSIDERING .................................... 2
2. Proposed regulation §2440(c)(5) -- CONSENSUS ..................................................... 2
YO Qualification Process – Reached full consensus.............................................................. 2
1. Notification - Proposed regulation §2441(a) and (b) -- CONSENSUS....................... 2
2. Non-determinations by CDC - Proposed regulation §2441(c) -- CONSENSUS ........ 3
3. Appeal Process §2441(d) -- CONSENSUS ................................................................. 3
4. Review of CDCR Determinations by the Board §2441(e) -- CONSENSUS .............. 3
5. NOT IN REGULATIONS: Adjusting the DOM ........................................................ 3
Consultation Meetings – Reached provisional agreement ..................................................... 3
1. Discussion of commitment offense – SOME AGREEMENT, STILL CONSIDER ... 3
2. Written recommendations – AGREED, BUT REVIEW TEXT.................................. 3
3. Missed consultations – AGREED, BUT REVIEW TEXT.......................................... 3
Appointed Counsel – Reached provisional agreement ........................................................... 4
1. Money on the books – AGREED, BUT REVIEW TEXT .......................................... 4
2. Failure to contact 45 days prior to hearing – AGREED, BUT REVIEW TEXT ........ 4
Psych Evals – DISCUSSED BUT REMAIN UNDECIDED ON SPECIFIC CHANGES TO
REGULATORY TEXT. ......................................................................................................... 4
1. Amenability reports. .................................................................................................... 4
2. Breakdown of Youth Factors. ........................................................................................ 4
3. Youth factors cannot be used “against” the youth offender. ......................................... 4
4. Juvenile crimes shall not be considered in the Static-99 ............................................... 5
5. Disciplinary Record. ...................................................................................................... 5
6. Training. ........................................................................................................................ 5
7. Process to challenge: ..................................................................................................... 5
8. Unavailability of programs. ........................................................................................... 5
9. Evals prior to 2014 ........................................................................................................ 5
10. Notice: ......................................................................................................................... 5
Documents in parole packet: .................................................................................................. 6
For those with hearings prior to 2014 ..................................................................................... 7
Suitability and Unsuitability Factors ...................................................................................... 7
1. Institutional behavior ................................................................................................... 7
2. Growth and Maturity: .................................................................................................. 7
3. Unstable social history and previous record of violence ............................................. 8
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4. Age............................................................................................................................... 8
5. Commitment Offense .................................................................................................. 8
6. Separate list.................................................................................................................. 9
Consideration of Youth Factors .............................................................................................. 9
1. Define “growth and maturity” --EC ............................................................................ 9
2. Spell out what it is to “consider” the hallmark features of youth -- KB...................... 9
3. Define great weight. –KB, FG ..................................................................................... 9
4. Support letters .............................................................................................................. 9
Youth Parole Eligibility Dates .............................................................................................. 10
Post-hearing procedures ....................................................................................................... 10
MISCELLANEOUS ............................................................................................................. 10
Appendix 1: Suggested Suitability/Unsuitability Factors for Youth Offender Parole
Hearings HRW/ FSFY, 11/13/13.......................................................................................... 12
Appendix 2: Letter to BPH Mosely 11/13/13 ...................................................................... 15
Appendix 3: Proposed Regulatory Text ................................................................................ 2
Appendix 4: Text of SB 260 .................................................................................................. 9
YO Defined – Reached consensus but thrown open by new version
We have reached consensus on one change, and are still considering another change. See
Appendix 3, proposed regulatory text §2440(c).
1. Proposed regulation §2440(c)(4) -- STILL CONSIDERING
We are still considering whether to remove the clause concerning disqualification on
the basis of convictions in prison that become the controlling offense. If we leave the
clause in, it will read: “The inmate was convicted of a crime or enhancement which
the inmate committed after reaching age 18, and for which a court sentenced the
inmate to his or her longest term of imprisonment.”
2. Proposed regulation §2440(c)(5) -- CONSENSUS
We reached consensus that crimes with “malice aftorethought” as a necessary element
should be specified as including the following crimes: Murder (PC 187); attempted
murder (PC 664/187); conspiracy to commit murder (PC 182/187); solicitation to
commit murder (PC 653f(b)); assault by a person serving a life sentence that is with a
deadly weapon or that is likely to produce great bodily injury (PC 4500).
YO Qualification Process – Reached full consensus
We reached consensus on four changes which are described below and are included in
proposed regulatory text §2441. See Appendix 3
1. Notification - Proposed regulation §2441(a) and (b) -- CONSENSUS
Prisoners shall be notified of their eligibility upon entry to prison and upon conviction
for a crime that disqualifies them. (We are skeptical that this will happen, but
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Elizabeth will discuss with CDCR.) Notification of the appeal process should be on
the YO qualification notice.
2. Non-determinations by CDC - Proposed regulation §2441(c) -- CONSENSUS
There shall be an appeal process not only for denials of eligibility, but also for failures
to be notified.
3. Appeal Process §2441(d) -- CONSENSUS
After the 602 appeal is complete, the appeal shall go directly to BPH.
4. Review of CDCR Determinations by the Board §2441(e) -- CONSENSUS
On a quarterly basis, BPH shall obtain a list of every person entering prison who was
under the age of 18 at the time of the crime – and of every person who was found
unqualified for SB 260 on the basis of conduct upon entering prison. On a quarterly
basis, BPH is to review qualification determinations for all persons on that list. BPH
shall publish the list of people they conclude are unqualified, and the basis for this
conclusion.
(Changes made on proposed regs doc.)
5. NOT IN REGULATIONS: Adjusting the DOM
Case Record Specialists follow the DOM and the DOM is updated with changes to
Title 15. We should propose language for the DOM on SB 260 eligibility.
Consultation Meetings – Reached provisional agreement
We reached provisional agreement on the following three issues. See proposed regulatory
text §2443 in Appendix 3
1. Discussion of commitment offense – SOME AGREEMENT, STILL CONSIDER
a. We agreed that there shall be no recording of an inmate’s description of the
commitment offense.
b. We disagreed as to whether the inmate must be warned that incriminating
statements can be used against him at subsequent hearings.
2. Written recommendations – AGREED, BUT REVIEW TEXT
a. We agreed that written recommendations shall be included in the C-File and
in the parole packet.
b. We agreed that the Board shall make a finding as to whether recommended
programs are available at the institution where the prisoner is currently
incarcerated. If such programs are not available, the Board shall
recommend to CDCR that the inmate be transferred to an institution where
recommended programs are available.
c. FOR CDCR, NOT BPH REGULATIONS: CDCR shall give great weight
to these recommendations in making transfer decisions. (We are skeptical
that this will happen, but Elizabeth will discuss with CDCR.)
3. Missed consultations – AGREED, BUT REVIEW TEXT
a. We agreed that failure to have a consultation hearing shall constitute good
cause for a waiver.
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b. Question: There’s no reason why this should apply only to youth offenders.
Can we recommend inserting into Title 15 § 2253(b)(3) so that it applies to
all prisoner’s?
Appointed Counsel – Reached provisional agreement
These are changes that do not apply specifically to youth offenders and would appear
elsewhere in the regulations (at §§ 2251, 2253). As such, the changes are not reflected in
the proposed regulatory text for §§ 2240-22447 below.
1. Money on the books – AGREED, BUT REVIEW TEXT
a. We agreed that $1500 on the books should not preclude appointed counsel,
and that a better marker would be $5000. Further, we agree that the
Institution should not be able to take money on the books when counsel is
appointed.
b. NOTE: The current regulation is: “A prisoner may receive reasonable
assistance in preparing for the hearing.” Tit. 15, § 2251. We would add “An
inmate who has less than $5000 on the books shall not be precluded from
having counsel appointed. Further, the institution shall not collect funds
from an inmate who has less than $5000 on the books as payment for
services rendered by appointed counsel.”
2. Failure to contact 45 days prior to hearing – AGREED, BUT REVIEW TEXT
a. We agreed that at the outset of each hearing, the Commissioner shall advise
the prisoner of his right to consult with an attorney prior to 45 days before
the hearing. If the first meeting took place within 45 days of the hearing, the
prisoner shall be given the opportunity to waive the hearing. (Alternatively,
the hearing shall be postponed for 45 days.) Title 15 § 2253(b)(3).
Psych Evals – DISCUSSED BUT REMAIN UNDECIDED ON
SPECIFIC CHANGES TO REGULATORY TEXT.
We reached consensus on proposing the following changes -- but we did not arrive at any
conclusions about how to state these changes in the regulatory language. We did agree that
KB would draft an advocacy letter about the psych evals that draws on problems observed
in current reports and proposes changes to address those problems (the letter would be in
addition to – not in lieu of – any changes to the regulatory language that we suggest).
1. Amenability reports.
Psychologists are to consider amenability reports in making their evaluations.
2. Breakdown of Youth Factors.
Psychologists are to consider each of the youth factors (see below for enumeration of
factors) and state whether – and how – each factor applies to the facts of a given case. Each
report should have a heading for each factor so that there is evidence of whether the factor
was considered.
3. Youth factors cannot be used “against” the youth offender.
The youth factors shall not be considered as evidence that tends to increase the likelihood of
recidivism. We discussed adding something along these lines as well: psychologists shall
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not use risk prediction tools that use the youth factors as evidence that increases the
likelihood of recidivism.
4. Juvenile crimes shall not be considered in the Static-99
5. Disciplinary Record.
When considering a youth offender’s disciplinary record in prison, the psychologist must
determine the age of the youth offender at the time of any rules violations, and consider
such violations in light of how long it takes a youth offender to mature and adjust to an
adult prison.
6. Training.
Require specialized training for psychologists who conduct risk assessments for youth
offenders. Or designate a specialist to review all the risk assessments for youth offenders?
[Is this point better made in the advocacy letter and not in the proposed regulatory
language? Is training something that’s generally included in regulations like these?]
7. Process to challenge:
Create a formal “substantial error” or “three factual errors” in a psych evaluation other than
a denial or continuation of scheduled hearing (Title 15 § 2240(d)(e)(f)). Also, a
“substantial error” shall include – but is not limited to – a) an instance in which a youth
factor is used as evidence that increases the current risk of recidivism, and b) unsupported
or contradictory conclusions in a single report.
8. Unavailability of programs.
We didn’t discuss this point, but FG offered the following: The availability or lack of
institutional programming and rehabilitative services, including long waitlists, should be
taken into consideration when determining a prisoner’s progress toward rehabilitation.
Also, repeated transfers beyond the prisoners control should also be taken into account if
they contributed to prisoner’s inability to complete vocational and rehabilitative programs.
(See also “Suitability Factors” and “Consultation Meetings”)
9. Evals prior to 2014
a. We agreed to change the language on this – but we did not agree on how to do it.
The draft of § 2246(c)(1) currently reads: “In assessing the application of the
youth factors to a youth offender, the hearing panel shall not consider the final
risk ratings of a risk assessment, as described in section 2240 of these
regulations, unless the evaluator considered information relating to the inmate’s
youth factors in reaching clinical conclusions regarding the inmate’s risk. All
other relevant and reliable information from any risk assessments may be
considered.” (emphasis applied)
b. We agreed to delete the last sentence. We were undecided on whether to change
“final risk ratings” to “any information.”
10. Notice:
Beth Caldwell/KB: Prisoners shall receive notice that a comprehensive risk assessment
will be performed sixty days prior to the date the assessment. The notice shall a) inform
the prisoner that the psychologist will consider re-entry plans and support letters during the
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evaluation, b) inform the prisoner that if he/she wants the psychologist to consider these
plans and letters, he/she should submit them for inclusion in his/her C-File prior to the
examination. At the examination, psychologists shall ask prisoners whether they received
the notice, and whether they have received any supportive letters that are not yet in the CFile. Rationale: Prisoners often receive supportive letters and develop re-entry plans after
the psychological examination, so these materials are not considered in the comprehensive
risk assessment. Some psychologists assess prisoners at an elevated risk level due to
undeveloped re-entry plans and minimal support. Informing prisoners of the date of the
evaluation gives them an opportunity to have these supportive materials considered during
the assessment – and this will hopefully lead to improved assessments.
Documents in parole packet:
We have not yet discussed this part of the regulations.
1. HR: Meaningful determination of relevancy before documents submitted by DA
can be added to C-file for BPH consideration (it is not sufficient for CDCR staff
who are not lawyers and are not familiar with the Board processes to make the
determination) (Title 15 § 2030(c)).
2. Beth Caldwell/KB: Inclusion of juvenile fitness report (the report prepared on
whether to transfer an individual from juvenile to adult court):
a. Where a juvenile fitness report is included in a prisoner’s C-File, the report shall
be considered by the psychologist who performs the risk assessment, and it shall
be included in the parole packet for consideration by the Board. Rationale: A
fitness report is prepared when an individual is a youth, so in general, it tends to
be written from a more rehabilitative perspective rather than a punitive
perspective. It may often explain the diminished culpability of youth and how
the hallmark features of youth apply in the given case. Fitness reports are often
in the C-file – but because they generally don’t make it into the parole packet –
it is likely that they will get lost in the mix by psychologists, panel attorneys, and
the Board. Inclusion of the report will hopefully focus the psychologist and the
Board on the youth factors. Further, inclusion of the report in the packet will
help attorneys (especially those with limited resources) make an argument about
how the youth factors apply specifically in any given case.
b. BPH (or CDCR?) will take steps to include the juvenile fitness report in the CFile for all youthful offenders. This includes a) including fitness reports in the
C-File from this date forward, and b) assisting prisoners in requesting fitness
reports if those reports are not currently in their C-File. Rationale: In many
cases, the fitness report is not in the C-File. We have heard from prisoners and
attorneys that it is difficult to obtain the fitness report. I am hoping that the
inclusion of a regulation like this will add some institutional clout to record
requests and make these requests more successful.
c. Panel attorneys shall be compensated for reviewing juvenile records, and for
requesting juvenile records that are not already contained in the C-file.
Rationale: panel attorneys currently receive itemized funding as follows:
$25.00 attorney appointment; $50.00 review of board packet, decs, and legal
research; $75.00 C-File review; $75.00 client interview; $175.00 personal
appearance at the hearing. There is no funding for them to request additional
records.
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For those with hearings prior to 2014
We have not yet discussed this part of the regulations.
1. FG and LW: For all people who were denied prior to 1/1/14, the existence of 260
should constitute good cause to advance a hearing. New law = change in
circumstance. LW: but inmate should be able to consult for legal advice about
whether it’s a good idea to advance -- either with previous attorney or new attorney
a. NOTE: We proposed in the letter dated 11/13/13 – see Appendix 2, quoted
here for convenience “Those eligible for the YOPH process but denied
parole prior to 2104 should automatically be granted advancement if they
petition by 7/1/2015. In the alternative, the Board should draft clear factors
for uniform consideration of petitions to advance made by persons eligible
for YOPH.”
2. LW: Those granted parole prior to 2014 who are 260 eligible should be released
asap and should be eligible for expedited 602 process like those re release date
a. NOTE: We proposed in the letter dated 11/13/13 – see Appendix 2, quoted
here for convenience “The Board should review cases of those individuals
who would otherwise be eligible for a YOPH but have already been granted
parole. The Board should issue decisions ordering their immediate release
regardless of the time prescribed in the matrix.”
Suitability and Unsuitability Factors
We discussed these factors in early February, but did not reach conclusions. We have not
yet made changes to proposed regulatory text here.
NOTE: We do have a list of proposed suitability/unsuitability factors that we proposed in
the letter to Howard on 11/13 – see Appendix 1. Comments below relate to this list.
ALSO KB POSTED A NEW SUGGESTED LIST OF SUITABILITY AND
UNSUITABILITY FACTORS THAT IS AVAILABLE ON THE FORUM.
1. Institutional behavior
Group reached some agreement on: Revise “Institutional Behavior” as a factor that
tends to demonstrate unsuitability. The factor currently reads, “Institutional
Behavior. The prisoner has engaged in serious misconduct in prison or jail.”
Revise as: “Institutional Behavior as an Adult. The prisoner has engaged in a
pattern of recent and serious misconduct in prison or jail. In recognition that the
hallmark features of youth tend to exert an influence after age 18, and that this is
especially the case among those who are incarcerated at a young age, misconduct
under the age of 25 does not tend to demonstrate unsuitability for youth offenders.”
We will continue to work on the phrasing of this language to make it more fluid and
we will work with a psychologist to get a letter of support on this point.
2. Growth and Maturity:
FG: The availability or lack of institutional programming and rehabilitative
services, including long waitlists, should be taken into consideration when
determining a prisoner’s progress toward rehabilitation. Also, repeated transfers
beyond the prisoners control should also be taken into account if they contributed to
prisoner’s inability to complete vocational and rehabilitative programs. (See also
Consultation Meetings, Comment 4b)
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3. Unstable social history and previous record of violence
Group reached some consensus on: Make it explicit that “Unstable Social History”
and “Previous Record of Violence” cannot be used as unsuitability factors for youth
offenders. We could suggest something like, “Evidence pertaining to the prisoner’s
social history and previous record of violence as a juvenile shall not be considered
as evidence of current dangerousness.”
4. Age
Group discussed: group leaned toward removing age from the list of suitability
factors; KB favors leaving it on.
5. Commitment Offense
Group discussed: group did not favor a proposal by KB to edit the suitability factor
on commitment offense (1) (D) (“the offense was carried out in a manner which
demonstrates an exceptionally callous disregard for human suffering”). The group
preferred the original proposal to revise that factor as follows: “the prisoner’s
actions in committing the offense were intended to cause excessive suffering.” We
need more work here.
Previous suggestions seem to indicate that we need to change the unsuitability factor
relating to commitment offense (see below), but we don’t have specific suggestions
on how to phrase things:
a. HR: Change language to reflect Lawrence standard.
b. HR: Rephrase or remove language that aggravates for Miller factors.
c. HR: Include language that mitigates for Miller factors.
d. HR: Remove (?) circumstances of commitment offense altogether (LW - if
kept, include specific language re commitment offense and how Miller
factors can't be evidence of lack of insight, callousness, etc). Or actors
relating to the crime must be phrased in terms of the inmate’s
role/intent/participation (because the goal is to predict the dangerousness of
the inmate — not the co-defendants).
e. Get rid of inexplicable (or trivial) motive — or maybe inmate cannot explain
his then-existing motive . . . (LW - get rid of and acknowledge that trivial
motive is a hallmark of youth, so can't be unsuitability factor)
f. FG: Prisoner’s inability to accurately recall details of the crime (as
understood to be true by the courts or board) cannot be used as evidence of
the prisoner’s minimizing responsibility or lack of insight. Youthfulness and
significant time since the commitment offense occurred may play a role in in
ability to accurately recall details, and should require some allowances to be
made regarding discrepancies in the prisoner’s recollection of details of the
offense.
g. KB: “The prisoner intended to inflict excessive human suffering above and
beyond anything that he or she experienced or witnessed as a youth.” The
“callousness” or “excessive” nature of a crime should not count against
youth offenders who first learn about “excessive human suffering” or
“callous disregard for human suffering” by experiencing it themselves.
Youths have “limited control over their own environment and lack the ability
to extricate themselves from horrific, crime-producing settings” – and
Commissioners don’t seem to get how this relates to diminished culpability
for a grave crime. The Board is unlikely to cease considering the
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commitment offense, but perhaps we can get them to consider it through the
lens of the offender’s experience.
6. Separate list
Group agreed that there should be a separate list of suitability and unsuitability
factors for youth offenders as compared to adults. See Appendix 1 – above
comments still need to be incorporated into Appendix 1.
Consideration of Youth Factors
We have not yet discussed this topic.
1. Define “growth and maturity” --EC
as since the time of the crime and relative to age
2. Spell out what it is to “consider” the hallmark features of youth -- KB
“Consideration of the “hallmark features of youth” in comprehensive risk
assessments and suitability decisions requires, at a minimum, consideration of how
each of the following three features applies to the facts of a given case: (1) the
general recklessness of youth, which includes immaturity, increased impulsivity,
and diminished ability to weigh consequences; (2) youths’ limited control over their
environment and their inability to extricate themselves from criminogenic
environments; (3) youths’ heightened vulnerability and susceptibility to negative
influences and outside pressures from both adults and peers. Each of these
hallmarks of youth must be considered in reviewing the life crime, any behavior
prior to the life crime, any choices or statements made during criminal proceedings,
and any behavior in prison prior to the age of 25.”
3. Define great weight. –KB, FG
KB: Below are four alternative standards we can discuss (they all need considerable
thought and development). I listed them in order of weakest to strongest. I favor
the strongest version (iv), but I wonder if there is an advantage to proposing
multiple standards so that the Board could opt for a weaker one (that still has some
teeth), even if they reject the stronger one(s). Note: I used a substantial evidence
standard on the basis of legal research concerning “great weight” elsewhere in
California law.
a. Where the hallmark features of youth are (the primary?) causative factors
underlying the commitment offense, the causative factors of the commitment
offense are presumed to be resolved, unless there is substantial evidence to
the contrary.
b. If the hallmark features of youth are (the primary?) causative factors
underlying the commitment offense, then evidence pertaining to the
commitment offense shall not be considered as evidence of current
dangerousness.
c. If the hallmark features of youth are (the primary?) causative factors
underlying the commitment offense, then the prisoner shall be found suitable
unless there is substantial evidence of current dangerousness.
4. Support letters
EC: Is the Board already required to consider written statements from family,
friends, school, faith, or community organizations? If yes, then should there be
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something special about how this info is treated at YO hearings because it is
specified in the statute?
Youth Parole Eligibility Dates
1. LW: 2442(b): when do they calculate YPED? – it should be as soon as they enter,
for now while they’re catching up, what is the time line? How far before July?
2. EC: How will a YEPD change eligibility for programs, etc as compared to a
MEPD?
3. KB: Do good time credits go toward the YEPD?
4. KB: SB 260 states that youth offenders “shall be eligible for release on parole by
the board during his or her 15/20/25th year of incarceration.” Section 2442 states
that the YPED is the “first day after the inmate will complete 14/19/24 actual years
of incarceration while serving the sentence that includes the controlling offense and
any other crimes or enhancements, committed as a juvenile, arising from the same
case number or any related case numbers.” I’m concerned that this pushes back the
eligibility date in a way that goes beyond the text of SB 260. I’m also concerned
about the ambiguity of “arising from” the same or “related case numbers.” Will
prosecutors be able to start charging youth crimes in a way that circumvents the
spirit of this provision? Could we avoid this concern by saying something like, the
YPED is the “first day after the inmate will complete 14/19/24 years of actual
incarceration after the date of the commission of the controlling offense.” [This
phrasing also has the advantage of helping someone who commits the life crime,
doesn’t get caught, gets incarcerated for something else as a juvenile, and then years
later gets convicted of the life crime.]
Post-hearing procedures
1. LW: 2447(b) – Governor should only be allowed to review certain cases
2. Petitions to advance:
a. EC: Current draft of regulations states that, in determining whether to
advance a hearing, commissioners shall consider the youth factors. EC
proposes that the commissioners shall consider the youth factors “in addition
to other factors normally considered.”
b. LW on 2447(d): – how do they consider youthful factors in deciding whether
to advance?
MISCELLANEOUS
1. LW: Scheduling hearings, 2444(c) – Does this mean they could end up spending
almost one extra year incarcerated?
2. KW: Elimination in Sections 2286(b)(1) and 2407(b)(5) that require and permit,
respectively, the Board to increase the term of confinement based on other, nonlife
counts for which prisoners were convicted, even if the trial court ordered those
other counts to run concurrent with the life count.
HR: Base Term Setting and Matrix — not sure whether they will address
this beyond the drafted Butler regs but obviously the matrix could use an
overhaul. It seems to me that § 2406(d) allowing the board to aggravate the
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term based on certain unalleged/unfound criminal conduct violates federal
constitutional law — Blakeley or one of those.
3. FG: Application of Marcy’s law: the parole board should be given discretion to
deviate from Marcy’s law for all youth offenders under SB 260. May be a
presumption in favor of a three-year denial in cases where board finds prisoner
unsuitable.
i. KB: IN THE NEWEST VERSION OF THE REGULATIONS, THE
BOARD STATES THAT YOUTH FACTORS DO NOT HAVE TO BE
CONSIDERED IN DETERMINING THE SETBACK PERIOD UNDER
MARSY’S LAW. I THINK WE SHOULD DEFINITELY PUSH BACK
ON THIS.
4. HR: Update BWS language to match PC § 4801 (Title 15 §§ 2000(b)(11) and
2239).
a. change "criminal behavior was the result of the victimization" to "give great
weight to any information or evidence that, at the time of the commission of
the crime, the prisoner had experienced intimate partner battering” — just prior
to 1996 or all?
b. change BWS to IPB
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Appendix 1: Suggested Suitability/Unsuitability Factors for Youth
Offender Parole Hearings HRW/ FSFY, 11/13/13
§ (new section number) Determination of Suitability in Youth Offender Parole
Hearings
(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 in Youth Offender Parole Hearings. All relevant,
reliable information available to the panel shall be considered in determining
suitability for parole. Great weight shall be given to suitability factors pertaining
to the diminished culpability of juveniles as compared to adults, the hallmark
features of youth, and any subsequent growth and increased maturity of the
prisoner. Such Other information shall include the circumstances of the prisoner's:
social history; past and present mental state; past criminal history since
incarcerated, 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) Evidence or testimony that the hallmark features of youth as listed in
subsections (e) were causative or contributing factors of the commitment offense
does not demonstrate lack of insight or minimization of the prisoner’s role in the
commitment offense.
(c) (d) Circumstances Tending to Show Unsuitability in Youth Offender
Parole Hearings. 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, except that evidence or testimony regarding
diminished culpability of juveniles as compared to adults and the hallmark
features of youth as listed in subsection (e) cannot be used as evidence of
unsuitability. Circumstances tending to indicate unsuitability include:
(1) Commitment Offense. The prisoner committed the offense in an especially
heinous, atrocious or cruel manner. Giving great weight to Recognizing the
diminished culpability of juveniles, factors related to the commitment offense that
may tend to demonstrate unsuitability include:
(A) Multiple victims were The prisoner intentionally attacked, injured, or killed
multiple victims in the same or separate incidents.
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(B) The offense was The prisoner carried out the offense in a dispassionate and
calculated manner, such as an a carefully planned execution-style murder.
(C) The victim was The prisoner intentionally abused, defiled or mutilated the
victim during or after the offense.
(D) The offense was carried out in a manner which demonstrates an exceptionally
callous disregard for The prisoner’s actions in committing the offense were
intended to cause excessive 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.
(2) Continued Record of Violence. The prisoner has continued to engage in a
pattern of violence against others.
(3) Unstable Social History. The prisoner has a history of unstable or tumultuous
relationships with others.
(3) Failure to Mature. The prisoner has failed to demonstrate growth and
maturity.
(4) Social Relations. The prisoner has failed to establish positive or stable social
relationships as an adult.
(4)(5) Sadistic Sexual Offenses. The prisoner has previously sexually assaulted
another in a manner calculated to inflict unusual pain or fear upon the victim.
(5)(6) Psychological Factors. The prisoner has a lengthy history of severe and
unresolved mental problems related to the offense.
(6) (7) Institutional Behavior. The prisoner has engaged in a pattern of recent
and serious misconduct in prison or jail.
(d)(e) Circumstances Tending to Show Suitability in Youth Offender Parole
Hearings. 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, except that great weight shall
be given to suitability factors pertaining to the diminished culpability of juveniles
as compared to adults, the hallmark features of youth, and any subsequent growth
and increased maturity of the prisoner. 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.
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(2) Stable Social History. The prisoner has experienced reasonably stable
relationships with others.
(3)(1) Signs of Remorse. The prisoner has performed acts which that 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 or she understands the nature and magnitude of the offense.
(4)Motivation for Crime. The prisoner committed crime as the result of
significant stress in his or her life, especially if the stress had built over a long
period of time.
(5)(2) Battered Woman Syndrome. Intimate Partner Battering and Its Effects
Syndrome. At the time of the commission of the crime, the prisoner suffered from
Battered Woman Syndrome Intimate Partner Battering and its effects, as defined
in section 2000(b), and it appears the criminal behavior was related to that
victimization.
(6)(3) 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.
(4) Hallmark Features of Youthfulness. Immaturity, impetuosity (such as acting
without consideration, care, or thinking, or acting based on emotion), susceptibility to
peer pressure, the negative influence of older individuals, or the failure to fully
appreciate the risks and consequences of actions contributed to the prisoner’s
participation in the commitment offense.
(5) Childhood Trauma. The prisoner experienced extended exposure to violence; a
dysfunctional or chaotic family or home environment; or physical, sexual, or
emotional abuse as a child.
(6) Physical or Mental Impairments. Physical or mental impairments in
combination with youthfulness contributed to the prisoner’s participation in the
commitment offense.
(7) Growth and Maturity. The prisoner has demonstrated growth and maturity
during incarceration relative to the prisoner’s age at the time of the offense, age when
he or she entered prison, and age at the time of the parole consideration hearing.
(9)(8) Institutional Behavior. Institutional activities indicate an enhanced ability
to function within the law upon release.
(8)(9) 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.
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Appendix 2: Letter to BPH Mosely 11/13/13
NOTE: I highlighted the things that are contained in this letter but not mentioned in
any of the suggestions above (but I did not highlight things that have to do with the
backlog because those don’t seem relevant for regulations at this time).
Suitability/Unsuitability Factors in the Administrative Directives
Newly enacted California Penal Code 3051 requires the Board to review and revise existing
regulations and adopt new ones to ensure that Youth Offender Parole Hearings (YOPH)
provide a “meaningful opportunity” for release. The Legislature intended the YOPH
process to create an increased likelihood of parole for youth offenders as compared to
parole rates under the existing process. This will be accomplished in part by requiring
special consideration of the mitigating “hallmark features of youth” and eliminating what
could be called bias against youthfulness in existing suitability/ unsuitability factors. The
relevant case law defines these hallmark features, and describes both the lessened
culpability of youth at the time of a crime and the greater potential of youth to rehabilitate
as compared to adults. Additionally, this new law requires these factors to be given “great
weight,” indicating their primacy.
Suggestions
Review and change suitability/unsuitability factors
Attached are initial suggestions for revisions and additions to the suitability and
unsuitability factors.
A clear statement in regulations that youthfulness is a mitigating or suitability factor.
New, comprehensive Title 15 sections for the YOPH process Both for the sake of clarity
and to convey the legislative intent for YOPH to be a new type of parole hearing, the
YOPH regulations, even those retained from the regular parole process, should be
published in a new section of the regulations.
Prioritization of Hearings
It seems to us that one of the more daunting aspects of your task ahead is scheduling
hearings for the backlog cases of individuals who will be eligible for an initial parole
hearing as of January 1, 2014. We estimate that number to be about 1,000.
Suggestions
Prioritize cases by lowest security level
Scheduling hearings first for those with the lowest security level will increase the number
of people paroled early on in the process.
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Schedule hearings in groups by prison (NOTE: LW raised a concern about this)
Scheduling hearings grouped together by prison will permit easier training for and
specialization by attorneys and facilitate the training process for all involved.
Consultations by the Board for the Backlog Cases and Addressing an Immediate Need for
Legal Consultation
The role of the Board in providing the Cal Penal Code 3041(a) consultation in the sixth year
prior to a first parole hearing will be crucial going forward. In essence, the new law calls for
an enhanced documentation hearing, with the Board providing valuable information and
recommendations to assist the prisoner in a meaningful timeframe. We believe this new
process will help people understand what they need to do to become suitable.
A consultation is also essential for people who are immediately eligible in 2014 and those
whose first hearing will occur in the next six years. Although these individuals will not
benefit from the advantages of a consultation six years prior to their first hearing, the
consultation will provide an important opportunity to help people understand what is
expected in the new process.
In addition, those who are immediately eligible in 2014 should carefully consider whether
to waive their initial hearing. Legal advice on whether to proceed is essential.
Suggestions
Set first hearings later in the year
Postpone initial hearings in the backlog group until a consultation can occur for each
individual eligible for first parole hearing as of January 1, 2014.
Conduct consultations
Provide a Board consultation for each person in the backlog group.
Provide one-time legal consultation
The Board should contract with a nonprofit law firm or law school to provide brief legal
counsel on the new parole process and advice on whether to proceed or delay the initial
hearing.
Assist in provision of general legal information to inmates Work with CDCR to permit a
nonprofit law firm or law school to provide in-prison workshops for inmates eligible for
YOPH.
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Youthfulness Cannot be Used as Evidence of Lack of Insight
Case law and the intent of the new law require commissioners to examine culpability and
the actions of a prisoner at the time of the crime in light of youthfulness. Relevant are both
general factors and factors specific to the individual. We are concerned that without
clarifying directives, evidence or testimony about how youthfulness played a role in an
individual’s criminal behavior could be construed as trying to minimize responsibility for
the commitment offense, or considered lack of insight.
Suggestion
Evidence of youthfulness
A new regulation clarifying that evidence or testimony about the status of being a
youth at the time of the crime cannot be the basis for finding lack of insight into the
crime.
Persons Already Found Suitable, But Serving Time Prescribed by the Matrix As you know,
the new law provides for parole upon a finding of suitability. Those prisoners who would
otherwise eligible for the YOPH process but have been found suitable for parole prior to
January 1, 2014 and are serving time prescribed by the matrix should be immediately
released.
Suggestion
Immediate release
The Board should review cases of those individuals who would otherwise be eligible for a
YOPH but have already been granted parole. The Board should issue decisions ordering
their immediate release regardless of the time prescribed in the matrix.
Parole Hearings Already Set for 2014
Although the numbers may be few, those who already have a parole hearing date set in
2014 are, of course, entitled to a YOPH. However, these individuals may be at a
disadvantage without the benefit of consultation, psychological evaluations that do not
comply with the new law’s requirements, or adequate time to consult with counsel.
Suggestion
Good cause to postpone or waive a hearing
The existence of the new law should uniformly constitute good cause to either postpone a
hearing for six months or to waive a hearing for the periods set forth in Section 2240
without regard to the regular 45-day timeframe.
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Persons Denied Parole Prior to 2014
Those people who are eligible for a YOPH but were denied parole prior to 2014 and had their
hearing set off should have an opportunity for a YOPH. Although it could, in many cases, be
difficult to determine whether an individual was denied parole based on what would now be
impermissible criteria, there is a strong argument that the enactment of the new law creates
changed circumstances warranting a new hearing or advancing the next scheduled hearing.
Suggestions
Automatic Advancement
Those eligible for the YOPH process but denied parole prior to 2104 should automatically be
granted advancement if they petition by 7/1/2015.
Uniform Consideration of petitions
In the alternative, the Board should draft clear factors for uniform consideration of petitions to
advance made by persons eligible for YOPH.
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Appendix
3: Proposed Regulatory
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Text
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Our changes in red
PRO POSE D REG ULAT ORY T EXT
Proposed additions are indicated by underline and deletions are indicated by strikethrough.
BARCLAYS OFFICIAL CALIFORNIA CODE OF REGULATIONS TITLE 15.
CRIME PREVENTION AND CORRECTIONS DIVISION 2. BOARD OF
PAROLE HEARINGS
CHAPTER III. PAROLE RELEASE
Article 14. Parole Consideration Hearings for Youth Offenders is added to read as follows:
ARTICLE 14. PAROLE CONSIDERATION HEARINGS FOR YOUTH OFFENDERS
§ 2440. Youth Offender Defined.
(a) A youth offender is an inmate who committed his or her controlling offense prior to reaching
age 18, was sentenced to a determinate term or a life term, and is not disqualified based on any
factors listed in subdivision (c) of this section.
(b) For purposes of determining whether an inmate qualifies as a youth offender, the “controlling
offense” is the single crime or enhancement for which any sentencing court imposed the longest
term of imprisonment.
(c) Inmates who committed their controlling offenses prior to reaching age 18 are disqualified as
youth offenders under this article if one or more of the following factors exist:
(1) The inmate received a sentence of life without the possibility of parole;
(2) The inmate’s sentence on the controlling offense is enhanced for a prior felony conviction
under Penal Code sections 1170.12 or 667(b)-(i);
(3) The inmate’s sentence on the controlling offense is enhanced as a one-strike sex offense
under Penal Code section 667.61;
(4) The inmate committed any crime or enhancement after reaching age 18 for which the
sentencing court sentenced the inmate to his or her longest term of imprisonment; OR “The
inmate was convicted of a crime or enhancement which the inmate committed after reaching
age 18, and for which a court sentenced the inmate to his or her longest term of imprisonment.”
(5) The inmate committed any offense one of the following offenses after reaching age 18:
murder (PC 187); attempted murder (PC 664/187); conspiracy to commit murder (PC 182/187);
solicitation to commit murder (PC 653f(b)); assault by a person serving a life sentence that is
with a deadly weapon or that is likely to produce great bodily injury (PC 4500). after reaching
age 18 that includes “malice aforethought” as a necessary statutory element of the offense; or
(6)The inmate committed any offense after reaching age 18 for which the inmate was sentenced
to a life term of any length.
Note: Authority cited: Section 12838.4, Government Code; and Sections 3051(e), 3052, and
5076.2, Penal Code. Reference: Sections 667, 667.61, 1170.12, 3051, Penal Code.
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§ 2441. Youth Offender Qualification Process.
(a) Correctional Case Records Services of the department determines upon admission to prison
and the initial classification decision whether an inmate qualifies as a youth offender under
section 2440 of these regulations. Every inmate who was under the age of 18 years old at the
time of his or her controlling offense shall be notified as to his or her youth offender
qualification. The notice shall include instructions about how to appeal the determination.
(b) If an inmate is disqualified on the basis of factors enumerated at §2440 (c), a determination
of this disqualification shall be made, and the inmate shall be notified of the determination,
within 45 days of the judgment of conviction.
(c) Youth offender determinations by the department are subject to the appeal process found in
Title 15, California Code of Regulations, section 3084-3084.9. Inmates contesting a youth
offender disqualification or failure to issue a determination by the department must submit a
CDCR Form 602 Inmate Appeal to Correctional Case Records Services of the department
under that appeal process.
(d) An inmate contesting a youth offender determination or failure to issue a determination
who exhausts the CDCR Form 602 Inmate Appeal may submit a request for review to the
Board of Parole Hearings. The Board’s legal counsel shall review the youth offender status of
the inmate and issue its determination with 60 days of receipt of the request for review.
(e) The Board of Parole Hearings shall on a quarterly basis review the department’s youth
offender disqualifications determinations, the eligibility of all inmates entering prison who
were under the age of 18 at the time of their controlling offense for whom the department
made no determination, and the qualification of those whose eligibility has changed to
ineligible in the preceding quarter.
Note: Authority cited: Section 12838.4, Government Code; and Sections 3051(e), 3052, and
5076.2, Penal Code. Reference: Section 3051, Penal Code; and Sections 2440 and 3084.1,
California Code of Regulations, Title 15.
§ 2442. Youth Parole Eligibility Dates.
(a) A Youth Parole Eligibility Date (YPED) is set according to the following criteria:
(1) If the controlling offense is a determinate term of any length, the YPED is the first day after
the inmate will complete 14 actual years of incarceration while serving the sentence that includes
the controlling offense and any other crimes or enhancements, committed as a juvenile, arising
from the same case number or any related case numbers;
(2) If the controlling offense is a life term of less than 25 years to life, the YPED is the first day
after the inmate will complete 19 actual years of incarceration while serving the sentence that
includes the controlling life offense and any other crimes or enhancements, committed as a
juvenile, arising from the same case number or any related case numbers; or
(3) If the controlling offense is a life term of 25 years to life, the YPED is the first day after the
inmate will complete 24 actual years of incarceration while serving the sentence that includes the
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T enhancements, committed as a juvenile, arising
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from the same case number or any related case numbers.
(b) (1) Correctional Case Records Services of the department calculates the YPED for all
inmates qualified as youth offenders.
(2) YPED calculations by the department are subject to the appeal process found in Title 15,
California Code of Regulations, sections 3084-3084.9. Inmates contesting a YPED calculation
by the department must submit a CDCR Form 602 Inmate Appeal to Correctional Case Records
Services of the department under that appeal process.
(c) For purposes of this section, “incarce ration” means detention in any city or county jail,
local juvenile facility, state mental health facility, Division of Juvenile Justice facility, or
department facility.
Note: Authority cited: Section 12838.4, Government Code; and Sections 3051(e), 3052, and
5076.2, Penal Code. Reference: Section 3051, Penal Code; and Sections 3084.1, California Code
of Regulations, Title 15.
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§ 2443. Consultations.
(a) Regardless of whether the youth offender was sentenced to a determinate term or a life term,
the board shall meet with each youth offender during the sixth year prior to his or her minimum
eligible parole date (MEPD) or YPED, whichever occurs first, for the purposes of reviewing and
documenting the youth offender’s activities and conduct pertinent to both parole eligibility and
to the awarding or withholding of post-conviction credit. During this consultation, the board
shall provide the youth offender information about the parole hearing process, legal factors
relevant to his or her suitability or unsuitability for parole, and individualized recommendations
for the youth offender regarding his or her work assignments, rehabilitative programs, and
institutional behavior. Statements that a youth offender makes concerning the commitment
offense during the consultation described in subdivision (a), shall not be recorded. The board
shall make a finding of whether recommended work assignments and rehabilitative programs are
available at the institution where the youth offender is incarcerated.
(b) Within 30 days following the consultation, the board shall issue its positive and negative
findings and recommendations to the youth offender in writing. The findings
(b) The board shall issue the written recommendations described in subdivision (a) to the
California Department of Corrections and Rehabilitation. If recommended work assignments and
rehabilitative programs are not available to a youth offender at the institution where, the board
shall recommend transfer to an institution where the recommended work assignments and
rehabilitative programs are available.
(b) The written recommendations described in subdivision (a) shall be included in the youth
offender’s C-File and in the parole packet.
(c).
(d) The
(e)
©
Note: Authority cited: Section 12838.4, Government Code; and Sections 3051(e), 3052, and
5076.2, Penal Code. Reference: Sections 3041(a) and 3051, Penal Code.
§ 2444. Scheduling of Hearings.
(a) Youth offenders shall be scheduled for their initial parole consideration hearings no later than
one year prior to reaching their MEPD or one year after reaching their YPED, whichever occurs
first.
(b) Subsequent parole consideration hearings shall be set for youth offenders in accordance with
Penal Code 3041.5(b)(3).
(c) Notwithstanding subdivisions (a) or (b), when a youth offender’s earliest parole release date
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earlier parole eligibility date (MEPDTor
YPED), the board shall not schedule a hearing.
Note: Authority cited: Section 12838.4, Government Code; and Sections 3051(e), 3052, and
5076.2, Penal Code. Reference: Sections 3041.5 and 3051, Penal Code; and Sections 2268, 2270,
2304, and 2306, California Code of Regulations, Title 15.
§ 2445. Comprehensive Risk Assessments
When preparing a risk assessment under this section for a youth offender, pursuant to Penal Code
section 3051, the psychologist shall also take into consideration the youth factors, defined as
(1)the diminished culpability of juveniles as compared to adults, (2) the hallmark features of
youth, and (3) any subsequent growth and increased maturity of a youth offender, in accordance
with Penal Code section 4801(c).
Note: Authority cited: Section 12838.4, Government Code; and Sections 3051(e), 3052, and
5076.2, Penal Code. Reference: Sections 3041.5 and 3051, Penal Code; and Section 2240,
California Code of Regulations, Title 15.
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§ 2446. Parole Consideration Hearings.
(a) Regardless of whether the hearing is scheduled pursuant to a MEPD or YPED, panels
shall conduct parole consideration hearings for youth offenders in compliance with the
requirements for initial and subsequent parole consideration hearings described in this chapter
and Penal Code sections 3040, et seq.
(b)In weighing factors to determine a youth offender’s suitability, as described in sections 2281
and 2402, the hearing panel shall give great weight to any information relating to the inmate’s
youth factors, defined as (1) the diminished culpability of juveniles as compared to adults, (2) the
hallmark features of youth, and (3) any subsequent growth and increased maturity of a youth
offender, in accordance with Penal Code section 4801(c).
(c) The following additional requirements shall apply to all parole consideration hearings for
youth offenders:
(1) In assessing the application of the youth factors to a youth offender, the hearing panel shall
not consider the final risk ratings of a risk assessment, as described in section 2240 of these
regulations, unless the evaluator considered information relating to the inmate’s youth factors in
reaching clinical conclusions regarding the inmate’s risk. All other relevant and reliable
information from any risk assessments may be considered.
(2) The panel shall review and consider any submitted written statements that provide
information about the youth offender before the controlling offense or the youth offender’s
growth and maturity since the controlling offense from a youth offender’s family members,
friends, school personnel, faith leaders, or representatives from community-based organizations.
(3) In determining when to set the next hearing date for unsuitable youth offenders, the hearing
panel shall consider all relevant and reliable information relating to the inmate’s youth factors, as
defined in subdivision (b).
(4) Hearing panels shall not select a base term or calculate an adjusted base term for youth
offenders.
(d) Nothing in this article is intended to alter the rights of victim at parole consideration hearings.
Note: Authority cited: Section 12838.4, Government Code; and Sections 3051(e), 3052, and
5076.2, Penal Code. Reference: Sections 3041, 3041.5, 3046(c), 3051, and 4801(c), Penal Code;
and Sections 2240, 2281, and 2402, California Code of Regulations, Title 15.
§ 2447. Post-Hearing Procedures.
(a) Pursuant to subdivision (c) of Penal Code section 3046, a finding of suitability for a
youth offender is subject to the board’s decision review process described in sections 20412042 of
these regulations and the Governor’s review process described in Penal Code sections 3041.1
and 3041.2, as applicable.
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(b)Notwithstanding any other provisions of this Chapter, if a decision finding a youth
offender suitable for parole is affirmed following review by the board and Governor, the
board shall notify the department that the inmate is immediately eligible for release, subject
to any applicable writs, detainers, holds, or warrants.
(c) If a youth offender reaches his or her EPRD before the date of his or her next hearing
and is released, the board shall cancel the hearing.
(d)When determining whether to advance a youth offender’s next hearing following a petition
to advance hearing date pursuant to subdivision (d) of Penal Code section 3041.5 or following
an administrative review pursuant to paragraph (4) of subdivision (b) of Penal Code section
3041.5, commissioners and deputy commissioners shall consider the youth factors as defined
in subdivision (b) of section 2445 of these regulations.
Note: Authority cited: Section 12838.4, Government Code; and Sections 3051(e), 3052, and
5076.2, Penal Code. Reference: Sections 3041.1, 3041.2, 3041.5, 3046, and 3051, Penal Code;
and Sections 2041 and 2042, California Code of Regulations, Title 15.
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Appendix 4: Text of SB 260
CHAPTER 312
An act to amend Sections 3041, 3046, and 4801 of, and to add Section
3051 to, the Penal Code, relating to parole.
[Approved by Governor September 16, 2013. Filed with Secretary of State
September 16, 2013.]
legislative counsel’s digest
SB 260, Hancock. Youth offender parole hearings.
Existing law provides that the Secretary of the Department of Corrections
and Rehabilitation or the Board of Parole Hearings, or both, may, for
specified reasons, recommend to the court that a prisoner’s sentence be
recalled, and that a court may recall a prisoner’s sentence. When a defendant
who was under 18 years of age at the time of the commission of a crime
has served at least 15 years of his or her sentence, existing law allows the
defendant to submit a petition for recall and resentencing, and authorizes
the court, in its discretion, to recall the sentence and to resentence the
defendant, provided that the new sentence is not greater than the initial
sentence.
This bill would require the Board of Parole Hearings to conduct a youth
offender parole hearing to consider release of offenders who committed
specified crimes prior to being 18 years of age and who were sentenced to
state prison. The bill would make a person eligible for release on parole at
a youth offender parole hearing during the 15th year of incarceration if the
person meeting these criteria received a determinate sentence, during the
20th year if the person received a sentence that was less than 25 years to
life, and during the 25th year of incarceration if the person received a
sentence that was 25 years to life. The bill would require the board, in
reviewing a prisoner’s suitability for parole, to give great weight to the
diminished culpability of juveniles as compared to adults, the hallmark
features of youth, and any subsequent growth and increased maturity of the
prisoner in accordance with relevant case law. The bill would require that,
in assessing growth and maturity, psychological evaluations and risk
assessment instruments, if used by the board, be administered by licensed
psychologists employed by the board and take into consideration the
diminished culpability of juveniles as compared to that of adults, the
hallmark features of youth, and any subsequent growth and increased
maturity of the individual. The bill would permit family members, friends,
school personnel, faith leaders, and representatives from community-based
organizations with knowledge about the young person prior to the crime or
his or her growth and maturity since the commission of the crime to submit
statements for review by the board.
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Existing law requires the board to meet with each inmate sentenced
pursuant to certain provisions of law during his or her 3rd year of
incarceration for the purpose of reviewing his or her file, making
recommendations, and documenting activities and conduct pertinent to
granting or withholding postconviction credit.
This bill would instead require the board to meet with those inmates,
including those who are eligible to be considered for parole pursuant to a
youth offender parole hearing, during the 6th year prior to the inmate’s
minimum eligible parole release date. The bill would also require the board
to provide an inmate additional, specified information during this
consultation, including individualized recommendations regarding the
inmate’s work assignments, rehabilitative programs, and institutional
behavior, and to provide those findings and recommendations, in writing,
to the inmate within 30 days following the consultation.
Existing law, added by Proposition 8, adopted June 8, 1982, and amended by
Proposition 36, adopted November 6, 2012, commonly known as the
Three Strikes law, requires increased penalties for certain recidivist offenders
in addition to any other enhancement or penalty provisions that may apply,
including individuals with current and prior convictions of a serious felony,
as specified.
Existing law, as amended by Proposition 83, adopted November 7, 2006,
commonly known as Jessica’s Law, requires a person convicted of certain
felonies under specified circumstances to be committed to prison for a term
of years to life.
This bill would exempt from its provisions inmates who were sentenced
pursuant to the Three Strikes law or Jessica’s Law, or sentenced to life in
prison without the possibility of parole. The bill would not apply to an
individual to whom the bill would otherwise apply, but who, subsequent to
attaining 18 years of age, commits an additional crime for which malice
aforethought is a necessary element of the crime or for which the individual
is sentenced to life in prison.
The people of the State of California do enact as follows:
SECTION 1. The Legislature finds and declares that, as stated by the
United States Supreme Court in Miller v. Alabama (2012) 183 L.Ed.2d 407,
“only a relatively small proportion of adolescents” who engage in illegal
activity “develop entrenched patterns of problem behavior,” and that
“developments in psychology and brain science continue to show
fundamental differences between juvenile and adult minds,” including “parts
of the brain involved in behavior control.” The Legislature recognizes that
youthfulness both lessens a juvenile’s moral culpability and enhances the
prospect that, as a youth matures into an adult and neurological development
occurs, these individuals can become contributing members of society. The
purpose of this act is to establish a parole eligibility mechanism that provides
a person serving a sentence for crimes that he or she committed as a juvenile
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the opportunity to obtain release when he or she has shown that he or she
has been rehabilitated and gained maturity, in accordance with the decision
of the California Supreme Court in People v. Caballero (2012) 55 Cal.4th
262 and the decisions of the United States Supreme Court in Graham v.
Florida (2010) 560 U.S. 48, and Miller v. Alabama (2012) 183 L.Ed.2d 407.
Nothing in this act is intended to undermine the California Supreme Court’s
holdings in In re Shaputis (2011) 53 Cal.4th 192, In re Lawrence (2008) 44
Cal.4th 1181, and subsequent cases. It is the intent of the Legislature to
create a process by which growth and maturity of youthful offenders can
be assessed and a meaningful opportunity for release established.
SEC. 2. Section 3041 of the Penal Code is amended to read:
3041. (a) In the case of any inmate sentenced pursuant to any 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 sixth year
prior to the inmate’s minimum eligible parole release date for the purposes
of reviewing and documenting the inmate’s activities and conduct pertinent
to both parole eligibility and to the granting or withholding of postconviction
credit. During this consultation, the board shall provide the inmate
information about the parole hearing process, legal factors relevant to his
or her suitability or unsuitability for parole, and individualized
recommendations for the inmate regarding his or her work assignments,
rehabilitative programs, and institutional behavior. Within 30 days following
the consultation, the board shall issue its positive and negative findings and
recommendations to the inmate in writing. 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.
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(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
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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.
SEC. 3. Section 3046 of the Penal Code is amended to read:
3046. (a) No prisoner imprisoned under a life sentence may be paroled
until he or she has served the greater of the following:
(1) A term of at least seven calendar years.
(2) A term as established pursuant to any other provision of law that
establishes a minimum term or minimum period of confinement under a
life sentence before eligibility for parole.
(b) If two or more life sentences are ordered to run consecutively to each
other pursuant to Section 669, no prisoner so imprisoned may be paroled
until he or she has served the term specified in subdivision (a) on each of
the life sentences that are ordered to run consecutively.
(c) Notwithstanding subdivisions (a) and (b), a prisoner found suitable
for parole pursuant to a youth offender parole hearing as described in Section
3051 shall be paroled regardless of the manner in which the board set release
dates pursuant to subdivision (a) of Section 3041, subject to subdivision (b)
of Section 3041 and Sections 3041.1 and 3041.2, as applicable.
(d) The Board of Prison Terms shall, in considering a parole for a
prisoner, consider all statements and recommendations which may have
been submitted by the judge, district attorney, and sheriff, pursuant to Section
1203.01, or in response to notices given under Section 3042, and
recommendations of other persons interested in the granting or denying of
the parole. The board shall enter on its order granting or denying parole to
these prisoners, the fact that the statements and recommendations have been
considered by it.
SEC. 4. Section 3051 is added to the Penal Code, to read:
3051. (a) (1) A youth offender parole hearing is a hearing by the Board of
Parole Hearings for the purpose of reviewing the parole suitability of any
prisoner who was under 18 years of age at the time of his or her controlling
offense.
(2) For the purposes of this section, the following defi
shall apply:
(A) “Incarceration” means detention in a city or county jail, a local
juvenile facility, a mental health facility, a Division of Juvenile Justice
facility, or a Department of Corrections and Rehabilitation facility.
(B) “Controlling offense” means the offense or enhancement for which
any sentencing court imposed the longest term of imprisonment.
(b) (1) A person who was convicted of a controlling offense that was
committed before the person had attained 18 years of age and for which the
sentence is a determinate sentence shall be eligible for release on parole at
a youth offender parole hearing by the board during his or her 15th year of
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incarceration, unless previously released pursuant to other statutory
provisions.
(2) A person who was convicted of a controlling offense that was
committed before the person had attained 18 years of age and for which the
sentence is a life term of less than 25 years to life shall be eligible for release
on parole by the board during his or her 20th year of incarceration at a youth
offender parole hearing, unless previously released or entitled to an earlier
parole consideration hearing pursuant to other statutory provisions.
(3) A person who was convicted of a controlling offense that was
committed before the person had attained 18 years of age and for which the
sentence is a life term of 25 years to life shall be eligible for release on
parole by the board during his or her 25th year of incarceration at a youth
offender parole hearing, unless previously released or entitled to an earlier
parole consideration hearing pursuant to other statutory provisions.
(c) An individual subject to this section shall meet with the board pursuant
to subdivision (a) of Section 3041.
(d) The board shall conduct a youth offender parole hearing to consider
release. At the youth offender parole hearing, the board shall release the
individual on parole as provided in Section 3041, except that the board shall
act in accordance with subdivision (c) of Section 4801.
(e) The youth offender parole hearing to consider release shall provide
for a meaningful opportunity to obtain release. The board shall review and,
as necessary, revise existing regulations and adopt new regulations regarding
determinations of suitability made pursuant to this section, subdivision (c)
of Section 4801, and other related topics, consistent with relevant case law,
in order to provide that meaningful opportunity for release.
(f) (1) In assessing growth and maturity, psychological evaluations and
risk assessment instruments, if used by the board, shall be administered by
licensed psychologists employed by the board and shall take into
consideration the diminished culpability of juveniles as compared to that
of adults, the hallmark features of youth, and any subsequent growth and
increased maturity of the individual.
(2) Family members, friends, school personnel, faith leaders, and
representatives from community-based organizations with knowledge about
the individual before the crime or his or her growth and maturity since the
time of the crime may submit statements for review by the board.
(3) Nothing in this section is intended to alter the rights of victims at
parole hearings.
(g) If parole is not granted, the board shall set the time for a subsequent
youth offender parole hearing in accordance with paragraph (3) of
subdivision (b) of Section 3041.5. In exercising its discretion pursuant to
paragraph (4) of subdivision (b) and subdivision (d) of Section 3041.5, the
board shall consider the factors in subdivision (c) of Section 4801. No
subsequent youth offender parole hearing shall be necessary if the offender
is released pursuant to other statutory provisions prior to the date of the
subsequent hearing.
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(h) This section shall not apply to cases in which sentencing
occurs pursuant to Section 1170.12, subdivisions (b) to (i), inclusive, of
Section 667, or Section 667.61, or in which an individual was sentenced
to life in prison without the possibility of parole. This section shall not
apply to an individual to whom this section would otherwise apply, but
who, subsequent to attaining 18 years of age, commits an additional
crime for which malice aforethought is a necessary element of the crime
or for which the individual is sentenced to life in prison.
(i) The board shall complete all youth offender parole hearings
for individuals who become entitled to have their parole suitability
considered at a youth offender parole hearing on the effective date of
this section by July 1, 2015.
SEC. 5. Section 4801 of the Penal Code is amended to read:
4801. (a) The Board of Parole Hearings may report to the Governor,
from time to time, the names of any and all persons imprisoned in any state
prison who, in its judgment, ought to have a commutation of sentence or
be pardoned and set at liberty on account of good conduct, or unusual term
of sentence, or any other cause, including evidence of intimate partner
battering and its effects. For purposes of this section, “intimate partner
battering and its effects” may include evidence of the nature and effects of
physical, emotional, or mental abuse upon the beliefs, perceptions, or
behavior of victims of domestic violence if it appears the criminal behavior
was the result of that victimization.
(b) (1) The board, in reviewing a prisoner’s suitability for parole
pursuant to Section 3041.5, shall give great weight to any information
or evidence that, at the time of the commission of the crime, the prisoner
had experienced intimate partner battering, but was convicted of an
offense that occurred prior to August 29, 1996. The board shall state on
the record the information or evidence that it considered pursuant to this
subdivision, and the reasons for the parole decision. The board shall
annually report to the Legislature and the Governor on the cases the
board considered pursuant to this subdivision during the previous
year, including the board’s decisions and the specific and detailed
findings of its investigations of these cases.
(2) The report for the Legislature to be submitted pursuant to paragraph
(1) shall be submitted pursuant to Section 9795 of the Government Code.
(3) The fact that a prisoner has presented evidence of intimate partner
battering cannot be used to support a finding that the prisoner lacks insight
into his or her crime and its causes.
(c) When a prisoner committed his or her controlling offense, as
defined in subdivision (a) of Section 3051, prior to attaining 18 years
of age, the board, in reviewing a prisoner’s suitability for parole
pursuant to Section 3041.5, shall give great weight to the diminished
culpability of juveniles as compared to adults, the hallmark features of
youth, and any subsequent growth and increased maturity of the
prisoner in accordance with relevant case law.
O
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