Q Other than prison record, what are the most important factors considered for parole suitability decisions?
A There are four primary factors:
- THE Commitment Offense: Even after the Lawrence decision, the Commitment Offense remains a major suitability factor. But except for the absolute worst-of-the-worst aggravated Commitment Offenses, it can only be used to deny parole if a “nexus” exists between it and current dangerousness i.e., if it was committed while the inmate was drunk and he or she has taken no AA, had 115s for pruno, denies have a substance abuse problem, and has no relapse prevention plan for the streets, a nexus exists between a major cause of the Commitment Offense (alcohol) and current dangerousness (a decent likelihood he or she will get drunk and commit crimes if released). To use the Commitment Offense to deny parole without this nexus violates an inmate’s constitutionally protected liberty interest in parole, more so the longer he or she has been in prison and/or if they have served the base portion of their sentence (the 15 in 15-life, not the MEPD).Sadly, the California Supreme Court and most lower courts don’t agree with this, so the Board and Governor will likely continue to play the IR&R denial/reversal game. As a result, your loved one’s IR&R needs to be as strong as possible.Denying an inmate for claiming innocence (or not admitting to the “official” version of the Commitment Offense is illegal per Penal Code Section 5011(b) and Title 15 Section 2236 (Board cannot require an inmate to admit guilt to earn parole). Still the Board and Governor often ignore this law and most of our courts still let them get away with it. In Shaputis II, the court “rewrote” this law by adding its own right- wing wrinkle: the Board can deny an inmate for claiming innocence (or for standing on a version of the Commitment Offense different from the “official” version, UNLESS THE DENIAL (OR VERSION) IS PLAUSIBLE.
- INSIGHT, RESPONSIBIILTY, & REMORSE (IR&R): To earn parole, your loved one must convince the Board (and Governor) he or she has insight into, accept full responsibility and feel genuine remorse for the Commitment Offense. They can show IR&R during their psych evaluation, by writing an insight statement to give/read to the Board, and/or a letter of remorse to the victim/VNOKs (even if they have no plans to send it), and/or by expressing it orally at the hearing.
- PAST CRIMINAL RECORD: While the Board in denying parole cites your loved ones priors, “an escalating pattern of criminality”, or a “failure to benefit from society’s prior attempts at rehabilitation”, etc., as static factors priors generally are no longer important absent a nexus to current dangerousness.However, the Board will weigh his or her responses to its questions about their priors carefully to see if they are truly accepting responsibility for them and, if it believes theyare minimizing them will attempt to connect that minimization to possible minimizing of the Commitment Offense to create the nexus to current dangerousness.
- UNSTABLE SOCIAL HISTORY/SIGNIFICANT STRESS IN YOUR LIFE: These are hard factors to comprehend. The Board often cites Unstable Social History (USH) as a basis for denial, even though abuse your loved one suffered at home, hardships they were subjected to, past substance abuse, or an unstable relationship with the victim, are not evidence of USH. On the other hand, the existence of significant stress in his or her life at the time of the Commitment Offense (ie., substance abuse, severe family or emotional turmoil) is a factor the Board is required to consider and weigh IN FAVOR of granting a youthful offender parole.
Q How can my relative or friend, prepare for his or her parole hearing?
A The FAQ page of Hearing Preparation Tips will help your loved one get started. It is derived from my experience representing 2000+ inmates at parole hearings and in writ petitions in court. THIS FAQ PAGE IS FOR INFORMATIONAL PURPOSES ONLY AND IS NOT MEANT AS LEGAL ADVICE AS TO YOUR PARTICULAR SITUATION.
Q What are the chances of getting paroled?
A California Penal Code 3041 states that parole shall normally be granted to life term inmates unless they pose a current “unreasonable risk of danger” if released. This means parole is the rule (at least 50% of lifers who go to hearing should be granted parole).However, grants are rare (since 2008 about 20%; from 1990-2008 about 3%) and even though governor reversals have decreased from about 75% to 15%, they still happen too often. The Governor and the Board get away with this because our right wing courts turn a blind eye to violations of the statute. This was changing until 12/29/11 when the Cal Supreme Court decided Shaputis II. I did the oral argument for Shaputis and was confident he would win, but the court distorted and ignored key facts and tightened the already unconstitutional and nearly toothless “some evidence” standard of review even more. This gave the Board and Governor almost unlimited discretion to deny parole and further handcuffed the lower courts in reviewing those denials.Because it is in this rigged casino that you are trying to win your freedom, you and your loved one need to understand the law. You need to understand how the Board, Governor, and the courts apply and misapply the law. Your loved one should also make his or her prison programming/parole plans so excellent and his or her Insight into, Responsibility and Remorse for (IR&R) the Commitment Offense so complete and genuine that the Board, the Governor, or the courts cannot concoct any reasons for denying parole.
Q Can you share some tips when discussing IR&R?Here are a few (directed to your loved one):
- Do not minimize your role in the Commitment Offense, even if it was minimal (i.e. you just drove the car, you weren’t the shooter). Accept full responsibility (tell the Board you are just as guilty as the shooter) where appropriate. Let your attorney argue your role was minimal.
- Don’t blame external factors, such as abusive family background, drug abuse, poverty.
- You can say these factors contributed to the Commitment Offense, but make clear that you were responsible for your actions (i.e. you chose to get high that day/join the gang).
- To demonstrate insight, explain what you’ve learned in prison about why you committed the Commitment Offense and why you won’t re-offend if released. If possible, use an example of how you properly handled a recent situation that you would not have handled properly on the streets, based upon what you’ve learned in prison (i.e. you avoided a fight on the yard by using techniques you learned in an anger management seminar).
- Remorse means feeling bad about your crimes as well as understanding the suffering and pain you caused. But it must come from the heart. Don’t over-intellectualize remorse.
- Prepare a letter to the victim/family. CDCR’s Office of Victim & Survivor Rights and Services no longer accepts these letters due to budget cuts. So bring a copy to the hearing.
- A Step 8 list of all the people you’ve harmed is another great way to show remorse.
- Performing volunteer/charitable work and/or making contributions to charity are great ways to show remorse by showing you making amends. Do as much of this as you can!
Q What are the most important post-conviction factors considered for parole decisions?
- PRISON DISCIPLINARY RECORD: Your loved one’s prison behavior is obviously an important factor in determining his or her parole suitability. If they have a recent CDC-115, regardless of what for, the Board will almost certainly deny them. Though not a formal rule, many Board members will automatically give them a denial if they have a 115 within three years of the hearing. Others use five years. Three types of 115s are especially bad: 1. violence; 2. substance abuse; and 3. cell phones. STAY AWAY FROM CELL PHONES!!! The Board takes cell phone 115s very, very seriously and a cell phone 115 could kill their shot at being paroled for years. Also, it is now a crime for an inmate to possess a cell phone, so they could also end up having a consecutive sentence for this tacked on to their prison time. Whatever their reasons for using the phone, IT ABSOLUTELY, POSITIVELY ISN’T WORTH IT!
- SELF-HELP/THERAPY PROGRAMS: YOUR LOVED ONE SHOULD SIGN UP AND ATTEND AS MANY PROGRAMS AS ARE AVAILABLE!!!This is vital. The Board wants to know that they are doing all they can to rehabilitate themself. Often, by attending self-help/therapy programs (“SH/T”) they gain the maturity and knowledge to develop I, R & R into the crime and in the Board’s eyes be rehabilitated. Inmates who receive dates can show the Board years of SH/T, particularly in substance abuse (especially if they had a substance abuse problem), anger management, and victims’ awareness. And they will deny parole if they don’t think he or she has taken enough SH/T or hasn’t internalized the programs.If there is no SH/T available, they can get self-help books from the prison library or you can order them for your loved one from an on-line bookstore, and they can read and do book reports on them to bring to the hearing. They should be prepared to discuss the books with the Board. If your loved one reads scriptures, they should let the Board know which portions they’ve read and what they learned from them.
- PSYCHOLOGICAL EVALUATION: Since Lawrence held evidence of a present serious psychiatric condition and/or lack of Insight MAY constitute the nexus necessary to find your loved one a present danger to society, to have a real shot at parole, he or she wants a violence risk rating of “low”. Any higher rating, ie “moderate”, and the Board will often say the psych evaluation isn’t supportive of release and will cite it as a basis for denial. And a “high” risk pretty much kills any shot at parole.
- PAROLE PLANS: While having viable parole plans is a factor showing suitability for parole, THE LACK OF PAROLE PLANS IS NOT A FACTOR SHOWING UNSUITABILITY. Nevertheless, the Board does deny parole for lack of parole plans and while your loved one could fight this in court, it is in his or her best interests to have solid parole plans.
Q Are there any important updates, changes, and propositions that a inmate must know about?
- PROP 9 (MARSY’S LAW)/1045 PETITIONS TO ADVANCE HEARING: Marsy’s Law is alive and well and being regularly abused by victims’ rights groups. While holding Marsy’s Law constitutional, the California Supreme Court made two potentially helpful rulings in Vicks: 1) the passage of time MIGHT be the change in circumstances necessary to entitle your loved one to advance his or her hearing, and 2) the Board can and should review denials on its own to determine whether an earlier hearing should be given. As a result, the Board automatically reviews all 3-year denials (unless the inmate has a “high” risk assessment) about a year after the hearing to see if the hearing may be advanced. Many are, and many petitions to advance are being granted, so even with a lengthy denial, if your loved one programs really well, he or she stands a chance of having their next parole hearing held earlier.
- CONFIDENTIAL INFORMATION: The Board is more and more denying parole based on confidential information, the substance of which it will not disclose. Usually, it will be information that did not result in your loved one being prosecuted criminally or receiving a 115 or 128. This is beyond horrible and if our courts were fair and impartial would be blatantly illegal. But they aren’t. We are fighting this, and just before a hearing, the Board is providing attorneys and inmates with a list and brief description of confidential memos that might be used at the hearing. This is still inadequate, but the best we can get at the moment. In the meantime, your loved one should make sure they or their attorney object at the beginning of the hearing (unless the Panel states on the record that confidential information will not be used at the hearing) to the Board using confidential information without first giving them access to it and sufficient time to defend against it. The objection will likely be overruled, but they must make it anyway to protect their rights.
- There are many new resentencing possibilities and, for inmates whose commitment offense was non-violent, opportunities for earlier parole hearings. Your loved one needs a competent attorney to help him or her determine if eligible for resentencing or to navigate these new parole possibilities.
Q What about juvenile convicts?
A If your loved one was under 18 at the time of the Commitment Offense (he or she does not qualify if are LWOP or death penalty), and have not committed certain serious crimes after turning 18, their next and all future hearings will be Youthful Offender Parole Hearings (“YOPH”s), at which, great weight must be given “to the diminished culpability of juveniles as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity” in determining your parole suitability. This is a relatively new process, so it is not yet possible to give any depth on how these hearings should be conducted, and what follows will necessarily be general:
- If your loved one is serving a determinate sentence he or she will be eligible for a YOPH once they have served 15 years (including CYA or county jail time).
- If they are serving a life sentence of less than 25-life (concurrent/consecutive sentences and enhancements do not stack to push them to 25-life or more), they will be eligible for a YOPH once you’ve served 20 years (including CYA or county jail time).
- If they are serving a life sentence of 25 or more-life, they will be eligible for a YOPH once they’ve served 25 years (including CYA or county jail time).
But if they are already eligible for a initial parole hearing, or have already had a regular parole hearing and are past their MEDP, their next hearing will be held as a YOPH, even if they haven’t served the requisite number of years (15, 20, or 25).
- Prior to the YOPH they will be given a new or updated psychological evaluation by the Board at which the doctor is required to accord great weight to their age and circumstances at the time of the Commitment Offense.
- The suitability requirements in Penal Code Section 3041 and Title 15 Section II still apply to YOPHs. But the hallmarks of your loved one’s youth at the time of the Commitment Offense must be given “great weight” as well. What “great weight” means, no one yet knows, but for sure his or her prison program, including disciplinary record, as well as their IR&R for the Commitment Offense, will still be significant factors at the YOPH.
- “Hallmarks of youth” include immaturity, impulsivity, recklessness, lessened responsibility, lessened ability to anticipate and appreciate consequences, imperviousness to punishment, susceptibility to negative family/peer influences, and lessened capacity to overcome/escape dysfunctional home environments or crime-producing settings
- People who knew your loved one at or before the Commitment Offense (ie, teachers, doctors, counselors, family members) and/or people who have known him or her since the Commitment Offense may submit letters at which they discuss their hallmarks of youth before and leading up to the time of the Commitment Offense and/or their growth since the Commitment Offense.- These letters will be critical tools to help them show that their hallmarks of youth should lessen your responsibility for the Commitment Offense, and how they’ve changed since then. It will obviously be difficult to obtain letters from many people who might in a position to comment on how they were many years ago, so as soon as they know they are eligible for a YOPH, you and they should start trying to get these letters together.
– Try to have these letters in your loved one’s C-file prior to his or her new psych eval, as they will help the doctor understand their hallmarks of youth at the time of the Commitment Offense.