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Old 07-16-2004, 09:49 PM
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Default fw from another group -Parole fact sheet

SB 1522 ( Vasconcellos)

PAROLE FACT Sheet

Penal Code §304 1 (“the statute”) governs the granting of parole. This statute, as written, contains no evidentiary standard for making parole determinations, but does establish a presumption of parole suitability within subsection (a) which states the Board of Prison Terms (“the Board”) “shall normally set a parole date... .“ after the inmate’s minimum eligible parole date.

California Code of Regulations, Title 15, § 2402, of the Board’s regulations reflects subsection (b) of the statute’s prohibition against setting a parole date if the panel finds that the inmate’s parole poses “an unreasonable risk of danger” to “public safety.”

In 2002, the Board held 4826 hearings for parole eligible inmates and denied parole to 97.2%. The board granted 134 parole dates, but 101 of those were reversed. Thus in 2002, parole was ultimately denied to 99.3% of eligible inmates.

In 2003, the Board held 4498 hearings for parole eligible inmates and denied parole to 96.9%. The board granted 140 parole dates, but 121 of those were reversed. Thus in 2003, parole was ultimately denied to 99.6% of eligible inmates.

Despite the presumptive language of Penal Code §304 1, nearly all paroles are denied and the BPT decisions were frequently accompanied by the use of boilerplate language at each hearing that denies parole based upon the gravity of the inmate’s commitment offense.

Over the past 5 years, more than 100 published and unpublished rulings have been issued by California and federal courts which have reversed or criticized the Board’s decisions, directed or expedited new decisions or parole releases, ordered BPT to conduct new hearings that conform to §3041, and chastised BPT for basing parole decisions upon less than “some” evidence, or basing decisions upon no evidence whatsoever. See, e.g., Biggs v. Terhune ( Cir. 2003) 334 F.3d 910; McQuillion v. Duncan ( Cir. 2002) 306 F.3d 895; In re Rosenkrantz (2000) 80 Cal.App.4 409; In re Ramirez (2001)94 Cal.App.4th 549.

It is estimated 1,000 or more cases on this subject have been filed in the State’s backlogged courts. The cost of this litigation to taxpayers is in the tens of million of dollars annually.

Approximately 5,000 of the nearly 21,000 indeterminate life term inmates have attained maximum parole suitability and been adjudged by BPT’s forensic experts to no longer pose “an unreasonable risk of danger [ public safety.” Since many of these inmates are elderly and cost more to keep incarcerated (averaging approximately $50,000 each annually due to the needs for their advanced age accompanied by increasing medical care costs, and repeated BPT hearings having the same outcome), these inmates alone are costing the State approximately $250,000,000 annually — not counting litigation costs and awards against the State.

Supporting Case Law

Based upon the construction given the statute by these recent courts, these cases support the proposition that a burden of proof is upon the Board, which burden must be consistent with the presumption in the statute.

In re Rosenkrantz (2000) 80 Cal.App.4th 409, acknowledged the federal circuit ruling in McQuillion v. Duncan about the presumptive liberty interest within the statute, but it did so as a matter of state law. The court also holds “The Board of Prison Terms is authorized by statute to determine parole suitability, and to exercise its discretion in deciding whether to grant or deny parole. ( Pen . Code, § 3040, 5075 et seq.; In re Fain (1983) 145 Cal. App. 3d 540, 548.) That discretion, although broad, is not absolute, and the Board’s decisions must be supported by “some evidence.”

McQuillion v. Duncan ( Cu. 2002) 306 F.3d 895, 901-903, defined PC 3041 under federal constitutional standards as creating an “expectancy of release” which is a presumptive liberty interest entitled to federal constitutional protection. This expectancy of release is a presumptive default in the statute and the liberty interest is created not at the time of a parole hearing, but upon the conviction of the individual.

Bi v . Terhune 334 F.3d 910, 914. Based upon the construction given the statute by these recent courts, these cases support the proposition that a burden of proof is upon the Board, which burden must be consistent with the presumption in the statute.

In re John E. Dannenberg on Habeas Corpus. A095299 (2002), found

“ offense must be especially grave compared to other offenses for the exception provided in subdivision (b) to apply. The Board must use only the gravest offenses as grounds for refusing to set a parole release date if it is to fulfill its obligation to normally set release dates so as to provide uniform terms for similar offenses.... Some murders are more cruel or callous than others, and it is the Board’s duty to distinguish among them [ *469] when weighing the gravity of an offense to determine an inmate’s suitability for parole.”

Biggs v. Terhune 334 F.3d 910, 914

“The Supreme court in Greenholtz v. Inmates of Nebraska Penal 442 U.S. 1, 7, 11-12, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), and Board of Pardons v. Allen 482 U.S. 369, 373, 107 S. Ct.

2415, 96 L. Ed. 2d 303 (1987), established that: ‘while there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence, a state’s statutory scheme, if it used mandatory language, creates a presumption that parole release will be granted when or unless certain designated are made and thereby gives rise to a constitutional liberty interest.”

In re Ramirez 94 Cal. App. 4th (2001), A092699

“{The circumstances of any past offense, even any murder, are not necessarily a sufficient ground for the Board to refuse to set a parole release date. All violent crime demonstrates the perpetrator’s potential for posing a grave risk to public safety, yet parole is mandatory for violent felons serving determinate sentences (Pen. Code, § 30Q0, subd. (b)(1).) And the Legislature has clearly expressed its intent that when murderers — who are the great majority of inmates serving indeterminate sentences — approach their minimum eligible parole date, the Board “shall normally set a parole release date.” (Pen. Code, § 3041, subd. (a).) The Board’s authority to make an exception based on the gravity of a life term inmate’s current or past offenses should not operate so as to swallow the rule that parole is “normally” to be granted Otherwise, the Board’s case-by-case rulings would destroy the proportionality contemplated by Penal Code section 3041, subdivision (a), and also by the murder statutes, which provide distinct terms of life without possibility of parole, 25 years to life, and 15 years to life for various degrees and kinds of murder. (Pen. Code, § 190 et seq.) Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.”

Terhune v. Superior Court 65 Cal.App. 4 864, 872-873, holds the Board may not alter, omit, enlarge, or diminish their own power, and its rules and regulations must be consistent with the enabling statutes, and any rule or regulation to the contrary is null and void.

People v. Yates 34 Cal.3d 644 , 194 CaLRptr. 765; 669 P.2d 1 (1983)

“Murder without special circumstances ( 190, “25 years to life” for first degree, “15 years to life” for second degree) and conspiracy to commit murder ( 182, punishable as prescribed for first degree murder) currently carry the only “indeterminate” life sentences as defined by the Clough line of cases.... {The Clough line of cases holding that an indeterminate life sentence is not a life term...

In re Jeanice D. 28 Cal.3d 210 (1980)

“ individual sentenced under the statute will not automatically receive a determinate term of life imprisonment... [ shall range from 25 years to life... It is, of course, an established principle that ambiguities in penal statutes must be construed in favor of the offender, not the prosecution.”

Weaver v. Graham 450 U.S. 24 (1981)

“We have previously recognized that a prisoner’s eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judges calculation of the sentence to be imposed.”

FACT SHEET

SB 1522 (Vasconcellos) - Parole

16.5% of our prison population is comprised of Lifers who are eligible for parole. Most of our elderly prison population is comprised of Lifers who are eligible for parole.

Under existing law (PC 3041), when Indeterminately Sentences inmates approach their minimum eligible parole date, the Board “shall normally set a parole release date unless public safety requires a more lengthy period of incarceration.

California Code of Regulations, Title 15 Division 2 for the Board of Prison Terms, § 2402, further guides the BPT in determining parole suitability, and suggests “Circumstances tending to indicate unsuitability include:., the prisoner committed the offense in an especially heinous, atrocious or cruel manner... .“ and provides examples for such acts as sadistic sexual offenses, dispassionate and calculated offense, and mutilation.

In 2002, the Board of Prison Terms held 4826 parole hearings and denied parole to 97.2% of eligible prisoners. The board granted 134 parole dates, but 101 (or 98.0%) were reversed. In 2002, parole was denied to 99.3% of parole eligible prisoners.

In 2003, the Board of Prison Terms held 4498 parole hearings and denied parole to 96.9% of eligible prisoners. The board granted 140 parole dates, but 121 (or 95.3%) were reversed. In 2003, parole was denied to 99.6% of parole eligible prisoners.

Under existing case law, the Board of Prison Terms is required to perform two distinctly different functions: 1) set a “primary term” based upon the codification of punishment by the application of the Matrix, and 2) consider if the inmate is suitable for parole and early release.

In current practice, however, the Board of Prison Terms combines both functions but does not set a primary term as required by decisional law unless a person is first found suitable for parole.

In re Rodriguez 14 Cal.3d 639 (1975), declared the Board of Prison Terms “must fix terms within the statutory range that are not disproportionate to the culpability of the individual offender... the maximum may not be disproportionate to the individual prisoner’s offense. .. and “ basic term-fixing responsibility of the Authority is independent of the Authority’s power to grant parole and of its discretionary power to later reduce the term thus fixed, which fixed, constitutionally proportionate, term we shall hereafter refer to as the “primary term.”

In re John E. Dannenberg, on Habeas Corpus. A095299 (2002), found

“ offense must be especially grave compared to other offenses for the exception provided in subdivision (b to apply. The Board must use only the gravest offenses as grounds for refusing to set a parole release date if it is to fulfill its obligation to normally set release dates so as to provide uniform terms for similar offenses.... Some murders are more cruel or callous than others, and it is the Board’s duty to distinguish among them [ when weighing the gravity of an offense to determine an inmate’s suitability for parole,”

Bi v. Terhune 334 F.3d 910, 914

“The Supreme court in Greenholtz v. Inmates of Nebraska Penal 442 U.S. 1, 7, 11-12, 99 S. Ct. 2100, 60 L. Ed. 2d 668 (1979), and Board of Pardons v. Allen 482 U.S. 369, 373, 107 S. Ct

2415, 96 L. Ed. 2d 303 (1987), established that: ‘while there is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence, a state’s statutory scheme, if it used mandatory language, creates a presumption that parole release will be granted when or unless certain designated findings are made and thereby gives rise to a constitutional liberty interest.”

In re Ramirez 94 Cal. App. 4th (2001), A092699

“ circumstances of any past offense, even any murder, are not necessarily a sufficient ground for the Board to refuse to set a parole release date. All violent crime demonstrates the perpetrator’s potential for posing a grave risk to public safety, yet parole is mandatory for violent felons serving determinate sentences (Pen. Code, § 3000, subd. (b)( 1).) And the Legislature has clearly expressed its intent that when murderers — who are the great majority of inmates serving indeterminate — approach their minimum eligible parole date, the Board “shall normally set a parole release date.” (Pen. Code, § 3041, subd. (a).) The Board’s authority to make an exception based on the gravity of a life term inmate’s current or past offenses should not operate so as to swallow the rule that parole is “normally” to be granted Otherwise, the Board’s case-by-case rulings would destroy the proportionality contemplated by Penal Code section 3041, subdivision (a), and also by the murder statutes, which provide distinct terms of life without possibility of parole, 25 years to life, and 15 years to life for various degrees and kinds of murder. (Pen. Code, § 190 et seq.) Therefore, a life term offense or any other offenses underlying an indeterminate sentence must be particularly egregious to justify the denial of a parole date.”

People v. Yates 34 Cal.3d 644, 194 CaLRptr. 765; 669 P.2d 1 (1983)

“Murder without special circumstances ( 190, “25 years to life” for first degree, “15 years to life” for second degree) and conspiracy to commit murder ( 182, punishable as prescribed for first degree murder) currently carry the only “indeterminate” life sentences as defined by the dough line of cases.... [ Clough line of cases holding that an indeterminate life sentence is not a life term...

In re Jeanice D. 28 Cal.3d 210 (1980)

“ individual sentenced under the statute will not automatically receive a determinate term of life imprisonment... But shall range from 25 years to life... It is, of course, an established principle that ambiguities in penal statutes must be construed in favor of the offender, not the prosecution.”

Weaver v. Graham 450 U.S. 24 (1981)

“We have previously recognized that a prisoners eligibility for reduced imprisonment is a significant factor entering into both the defendant’s decision to plea bargain and the judges calculation of the sentence to be imposed.

BACKGROUND

SB 1522 — When it Comes to Parole: Public Safety & Fairness

The primary purpose of law enforcement and corrections is to promote the public safety of all Californians.

To promote this goal, the Board of Prison Terms ought to always utilize fair and objective criteria when determining which life-term inmates are suitable for parole. In doing so, we as a state can assure our parole system is protected against abuse.

SB 1522 promotes public safety by providing a clear and objective threshold for keeping dangerous offenders behind bars in a manner which will be upheld by our courts, while still ensuring fair and uniform parole determinations that comply with the courts’ requirements. The measure is designed to ensure that the Board’s evidentiary standard is upon clear and convincing evidence, and identical to the standard our courts will employ when reviewing the Board’s determinations.

SB 1522 will bring the Legislative, Judicial, and Executive Branches onto alignment with respect to the granting or denial of parole, by incorporating the courts’ holdings into the statute and by ensuring its uniform application and interpretation by the Board, the courts, crime victims, and all other key stakeholders. In accomplishing this, the bill will serve to eliminate political influence over the Board’s decisions.

Over the past several years a growing number of state and federal court decisions have criticized and reversed many of the Board’s parole determinations as not complying with the State’s parole statutes and the requirements of due process. Since the statutes and the Board’s regulations prescribe no standard for parole determination or its review, the courts have thereby imposed their own.

This important legislation will strengthen Penal Code Section 3041 by codifying standards that are reasonable and those set down by the courts, will ensure consistent and reasonable parole determination that will protect public safety, and will reduce the current substantial tax expenditures for litigation and rehearings.

If you have any questions about SB 1522, please contact Mart Gray, 445-9740.

The following is a composite of figures and costs as of December, 2003-May 2004. The figures

and costs were compiled through several sources including, but not limited to: California

Department of Corrections; The Sacramento Bee; Professor Jonathan Turley-Testimony to the

Joint Hearing of the Senate Subcommittee on Aging and Long Term Care, Senate Committee on

Public Safety Committee on the California Correctional System, February 25, 2003; the

California Budget Project 2003; the Department of Justice; the Legislative Analysts Office; the

Rand Corporation.

TERM-LIFE INMATES - FIGURES/COSTS/STATE SAVINGS BY RELEASE

23,500 inmates incarcerated in the State of California-including men, women. & children

(1980)

94,000 inmates incarcerated in the State of California-including men, women, & children

and is operating at 177 percent capacity. Housing 2 inmates in 1-man cells has become the norm

(1990)

3-Tier bunking w/gymnasiums and day rooms converted to ‘dormitories becomes the norm

(1997)

160,000 inmates incarcerated in the State of California-including men, women, & children

(2003)

162,456 inmates incarcerated in the State of California-including men. women, & children and is

operating at 194 percent of capacity

(2004)

24,111 term-life inmates (as of November 2002) 8,000 (approx.) before BPT at least once; 5,000 (approx.) no longer a threat to society Cost per inmate: $26,690 (2002-2003 CDC info)

26,933 term-life inmates (as of May 2004) 10,000 (approx.) before BPT at least once;

5,550 (approx.) no longer a threat to society) Cost per inmate: $30,939 (2004)

By finding suitable for parole and releasing term-life inmates using the 2002 total of 5,000 term- life the State of California would

SAVE: (rounded to nearest dollar)

760 (approx. 7-life as of 2003)

-100 (never to be found suitable)

660 ( a cost of @ $30,000 per year per inmate = $23 Million

3,201 (approx. 15-life; 25-life-over age 55

before BPT at least twice)

3,201 x $30,000 per year per inmate = $ 96 Million

1,000 (approx. 7-15-25-life-sick, dying, terminally ill)

1,000 x $70,000 per year per inmate = $ 70 Million

1,500 (approx. old, sick, dying, terminally ill- inc. all inmates)

1,500 x $70,000 per year per inmate = $105 Million TOTAL SAVINGS TO STATE = $297 Million

THIS TOTAL SAVINGS REPRESENTS 2002 ABOVE COSTS WHICH HAVE INCREASED

OVER THE PAST TWO YEARS AND NOW REPRESENTS A TOTAL SAVINGS TO THE

STATE FOR 2004-2005 OF: OVER $350 MILLION

***It costs $1 million dollars to house a person sentenced to life in prison for 40 years.

***Approximately 700 California term-life inmates have served at least 27-30 years; Additionally, 4,000 have served 20-27 years

The time served by term-life inmates has increased from an average of 21 years to 29 years between 1991 and 1997---Increases are NOT the result of more crime, rather longer mandatory sentences and more restrictive parole are the most responsible.

***Should California continue to incarcerate term-life inmates up to and through a 40 year period, the state of California will have spent over 1 Billion dollars in incarcerating over 5,000 term-life inmates who have been deemed no longer a threat to society.

***Studies by the Rand Corporation show that term-life inmates who are paroled, commit less

than 2% of all crimes; other studies show term-life inmates who are paroled commit less than 1%

of all crimes. Yet, California spends $1.4 Billion on parole(New York Times)

***California percentage of state inmates serving life sentences is 18.1 percent, and ranks 3rd in the nation for term-life inmates.

***The STATE of California ranks #1 in incarceration, along with the COUNTRIES of China and Singapore

***BOARD OF PRISON TERMS:

Governor’s May Revision: To increase budget by $117,000 Million in 20U4-U4-proposal to fund

the increased term-life prisoner population related workload

Total BPT Budget 2004-05: $35.5 Million

Over last four years, BPT heard over 9,000 cases-presently running 3-4 mos. late, 202 full-time employees = $28,400,000 annually

8 Commissioners = $92,000 annually, plus benefits and per diem

1 Chairperson = over $100,000 annually

As of 02/15/03, it was reported the BPT was being badly managed, and is well above staffing needs. The Board, however, was asking to increase their budget by $31 Million and fill 24 vacant deputy commissioner positions

***GPS Monitoring System - $2,500.00 per year per inmate vs. $30,000+ to $70,000 per year per inmate. Presently (2004) the Department of Corrections will implement the GPS

Monitoring System for 500 SEXUAL PREDITORS scheduled to be released before the end of 2004. These individuals are more likely to recommit murder or sexual abuse against a child than any other inmate paroled, and yet, are required to be released by court mandate.

***Department of Corrections as of August 2003 and continuing through 2004 - $550 Million over budget

***Medical costs for California inmates in 2002 fiscal year was $663 Million Dollars

***Governor May Revision 2004-2005 for the Department of Corrections:

Originally reductions o $450,000

May Revision: $190,000

Youth & Adult Corrections Budget will INCREASE by $1.7 Million dollars

***Reclassify Psychiatric Care Physicians with Nurse Practitioners for a total savings of $1.4 Million in savings---IMPACT ON TERM-LIFE INMATES---DUE TO BPT REQUIREMENTS OF PSYCHIATRIC REPORTS AT TIME OF BPT Hearings

***The cost for feeding one inmate is $2.45 per day

The Governor’s May Revised Budget includes a reduction of lunches, which will save the state $1.2 million dollars or 0.00 1 in the budget cut.

Inmate Families PAY FOR COLLECT Calling & VISITING VENDING FOOD:

***State of California General Fund 2000-2001 Fiscal Year took in $26 Million in inmate/family collect calls

***State of California General Fund 2001-2002 Fiscal Year took in $53 Million in inmate/family collect calls

APPLIED TO VICTIMS RIGHTS ORGS THROUGH CDC

***visiting: 250 visitors(approx) x $30.00 per visit x 4 days = $30,000 x 33 prisons = $990,000

each 4 days of visiting x 4 wks = $4 Million

250 visitors (approx) x $30.00 per visit x 2 days = $15,000 x 33 prisons

= $495,000 each 2 days of visiting x 4 wks $2 Million

APPLIED TO THE STATE GENERAL FUND

SB 1522 will also save enormous tax expenditures in the form of thousands of costly lawsuits heretofore filed to either effect compliance with the statute or its interpretation.

Under existing law the Board of Prison Terms “shall normally” set a release date for inmates unless their particular offense was especially egregious. However, the Board only normally denies parole, in violation of statute, and the only remedy is then through the courts with costly lawsuits which the state frequently loses.

LITIGATION

Over the past 5 years, more than 100 published and unpublished rulings have been issued by California and federal courts which have reversed or criticized the Board’s decisions, directed or expedited new decisions or parole releases, ordered BPT to conduct new hearings that conform to §3041, and chastised BPT for basing parole decisions upon less than ‘some” evidence, or basing decisions upon no evidence whatsoever. See, e.g., Biggs v. Terhune (gt Cir. 2003) 334 F.3d 910; McQuilion v. Duncan ( Cir. 2002) 306 F.3d 895; In re Rosenkrantz (2000) 80 Cal.App.4th 409; In re Ramirez (2001) 94 Cal,App.4th 549.

It is estimated 1,000 or more cases on this subject have been filed in the State’s backlogged courts. The cost of this litigation to taxpayers is in the tens of million of dollars annually.

SAVINGS on IN MATE COSTS

Approximately 5,000 of the nearly 21,000 indeterminate life term inmates have attained maximum parole suitability and been adjudged by BPT’s forensic experts to no longer pose “an unreasonable risk of danger [ public safety.” Since many of these inmates are elderly and cost more to keep incarcerated (averaging approximately $50,000 each annually due to the needs for their advanced age accompanied by increasing medical care costs, and repeated BPT hearings having the same outcome), these parole suitable inmate alone are costing the State approximately $250,000,000 annually — not counting litigation costs and awards against the State. If a mere 5% of the 21,000 Lifer population was recognized by the state as eligible for parole, and paroled, the state stands to save $52.5 million.

WASTED $ DURING PAROLE BOARD HEARINGS

In 2002, the Board held 4826 hearings for parole eligible inmates and denied parole t697.2%. The board granted 134 parole dates, but 101 of those were reversed. Thus in 2002, parole was ultimately denied to 99.3% of eligible inmates. (99.3% of the Board’s budget was spent on this practice).

In 2003, the Board held 4498 hearings for parole eligible inmates and denied parole to 96.9%. The board granted 140 parole dates, but 121 of those were reversed. Thus in 2003, parole was ultimately denied to 99.6% of eligible inmates. (99.6% of the Board’s budget was spent on this practice).

PAROLE IS CHEAPER THAN INCARCERATION

Parole costs a small fraction of incarceration. Exact savings unknown but believed to cost less than 1112 of incarceration.

OPPONENTS MAY ARGUE SB 1522 WILL INCREASE LITIGATION COSTS.

Initially, if the Board continues its illegal practices, then the type of lawsuits already underway may continue. However, as the Board comes into compliance with statute then the litigation will subside because the complaints will become moot
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