California Parole Board – Lifer Hearings

California Parole Board – Lifer Hearings

Life inside California prisons is a reality for thousands of persons, yet this world is largely unknown to people on the street. As a

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California Parole Board

defense attorney I have represented hundreds of inmates appearing before the California Parole Board. This essay is an explanation of the parole process in California based on my experiences and opinions. It is a lengthy essay but these are very important hearings that can last many hours. There has been much written about prison over crowding and the resultant costs. But I could find no detailed accounts of what actually goes on in a life consideration hearing. The order of events that I explain below does follow a set plan, but it varies from case to case. It is my intention to take the mystery out of these proceedings so that other attorneys and inmates may be better prepared. For the general reader, I ask that you consider when is enough time served and when, if ever, can a society forgive those who have murdered.

The California Parole Board (henceforth the Board) decides if an inmate serving a life term is suitable for release to the community. (1) Being a lifer means you received a sentence of “15 to life” or “25 to life,” so you must serve out the 15 years or the 25 years (or whatever minimum number received at sentencing) before you become eligible for parole.

The legal question before the Board is to determine whether the release of the inmate would pose an unreasonable risk of harm to the public. With over 40,000 lifers, California has one-quarter of the country’s life-sentenced population. (2) Of this number, approximately 26,000 inmates are serving a life sentence in California and are eligible for parole consideration. (3)

So how does a lifer make parole? Given that the lifer population mostly consists of murders and others convicted of the most violent and heinous crimes, only a select few are approved for release. Then the final decision is up to the Governor. It takes many years of preparation for the inmate to be able to prove that they are suitable for release.

At a typical parole consideration hearing, the persons present include: a Commissioner and Deputy Commissioner, a District Attorney, the inmate and their attorney, the victim(s) and/or next of kin and correctional officers for security. The hearings are tape recorded.

The Commissioner or Deputy Commissioner (henceforth the Commissioner) begins the hearing by making sure that reasonable accommodation is made for the inmate such that they can participate fully in the hearing despite having any disabilities. The Commissioner will then explain that the purpose of the hearing is not to retry the case, but to determine the suitability of the inmate for release. The court record of the conviction is accepted as a true fact. The Commissioner will then read the facts of the commitment offense into the record. Following this the DA has the opportunity to add to the crime facts from any other official reports.

Then the inmate has the opportunity to discuss the crime facts. This is optional. Inmates who are maintaining innocence or have an appeal pending may choose not to discuss the crime facts. Also if an inmate has appeared on numerous occasions before the Board and previously discussed the crime facts at length, they may choose not to add further discussion. This is the first important strategy call of the inmate that needs to be discussed with counsel in advance of the hearing. In determining suitability, the Board will evaluate the inmate’s degree of “insight into the causes of criminality” and their degree of “regret and remorse.” This may be difficult or impossible to do if the inmate is not open to discuss the crime facts. But there are some pros and cons either way.

After a record is made of the crime facts, the Commissioner will then review some of the family history and personal life events of the inmate prior to incarceration. The Commissioner then will make an extensive review of the inmate’s central file. The “C file” is a voluminous account of every significant event affecting the inmate that has occurred since the inmate has been in the custody of the institution. Events documented in the C file include: every educational class the inmate has attended and/or completed, every vocational class, every counseling session or program, work performance reports and positive and negative reports from prison staff. All of these events are highly significant and will have a direct impact on the Board’s decision. It is not unusual that hundreds of pages of reports and transcripts are reviewed in preparation for each hearing.

In order to be deemed suitable for release, the inmate must show that they are in control of their life and are moving consistently in a positive direction. This is done by completing educational programs, vocational programs and participating in counseling and self-help programs. As the years roll by, the inmate will accumulate “positive or negative chronos.” These staff reports are then read into the record at the parole suitability hearing. The inmate needs to accumulate as many significant positive chronos as possible. Conversely, if the inmate has violated prison rules, been convicted of any new offenses or performed poorly in any class or program, then these “negative chronos” are read into the record. Having even one recent negative chrono may be a basis for the Board to deny parole. As all of this history and past events are read into the record, the inmate is given the opportunity to speak and make a full explanation. If the inmate speaks, he is subject to cross examination by the District Attorney.

Another important report in the C file is the psychological evaluation. This detailed evaluation is made by prison staff psychologists or psychiatrists. Over the course of years, there may be many psychological reports showing progress or decline in the inmate’s positive behavior. Although there is no way to definitively assess risk of re-offending or predict future violence, the psychological report will follow a standard format of evaluation and testing to reach a conclusion of the inmate’s propensity for future violence. Such likeliness may be high, moderate or low. A report that assesses the inmate’s propensity for future violence as “moderate” is likely sufficient to prevent the inmate from being deemed suitable for release.

The next part of the hearing is to consider testimony from the victim and/or next or kin. From time to time surviving family members will be personally present to state how the crime has affected them. Given the severity of these crimes, this part of the hearing is often extremely emotionally charged. In most cases there are only letters from the families involved that are read into the record by the Commissioner. Letters are also considered from law enforcement agencies and the community at large.

The next opportunity to speak is given to the District Attorney who typically opposes the release of the inmate. But there are cases where the DA’s position may be favorable or “no position.” The typical DA position, however, will be an opposition to parole for a set number of years. The Board has discretion to deny parole 15, 10, 7, 5 or 3 years. If the inmate is clearly not yet suitable, it is advantageous to try and secure a DA recommendation for the minimum time.

Finally the inmate has the opportunity to present their case for release. A key component for favorable consideration is the quality of his/her parole plans. The inmate needs to secure stable housing and economic self-sufficiency, such as bona fide job offers, and have clear documentary evidence for all these plans. Weak or no parole plans are frequent reasons that the  Board will deny parole. The inmate needs to devote much preparation to developing evidence of sound parole plans and providing this evidence to the Board in advance of the hearing.

Because many crimes of violence involve drugs or alcohol, another key component of parole plans is the presence of a relapse prevention plan. It is insufficient that the inmate may have been clean and sober and involved in AA/NA for twenty years. The prison is a highly controlled environment. Stresses and opportunities for relapse are very different on the outside. A relapse prevention plan must involve having a sponsor on the outside and detailed plans to attend sobriety related programs in a location that is nearby the proposed residence.

After the inmate has fully explained their parole plans and why they are suitable for release, closing arguments are presented by legal counsel on both sides. The case is then recessed while the Board deliberates. After an hour or so, everyone is called back into the hearing room and the Board will state their decision on the record. If parole is denied, the Board will state the duration of time for the denial. Importantly, the Board will then explain their reasons for the denial and make specific recommendations for the inmate to follow. After the years pass and the inmate comes up for another parole consideration hearing, the next Board will look closely at the recommendations made at the prior hearing and evaluate the inmate’s compliance. Failure to fully comply with all recommendations is a frequent basis for denial of parole.

At this time I work with selected inmates and their families and supporters in preparation for parole consideration hearings. Inquiries for legal services should be directed to my office at 11440 W. Bernardo Court, Suite 300, San Diego, CA 92127. Telephone: (760) 735-6100. Email: edward@ewickerlaw.com. For more information see: www.ewickerlaw.com.

NOTES
(1) http://www.cdcr.ca.gov/BOPH/lifer_parole_process.html
(2)http://whowhatwhy.com/2013/09/18/hard-time-prisons-are-packed-with-more-lifers-than-ever/
Also see: http://sentencingproject.org/doc/publications/inc_Life%20Goes%20On%202013.pdf
(3) http://www.cjcj.org/news/6102

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