Rebutting the presumption: an empirical analysis of parole deferrals under Marsy's Law.

• Author: Friedman, David R.
• Position: California

INTRODUCTION I. THE LIFER PAROLE HEARING A. To Grant or Deny: The Parole Suitability Decision B. Recent Judicial Scrutiny C. Marsy's Law and the Parole Deferral Decision II. PAST EMPIRICAL WORKS A. Evaluating Institutional Behavior B. Evaluating the Severity of the Commitment Offense C. Evaluating Parole Readiness D. Parole Deferrals III. METHODOLOGY A. Data Collection and Sample Selection B. Coding Methods C. Control Indices D. Methods of Analysis E. Limitations IV. FINDINGS A. Analysis of the Coded Dataset 1. Extralegal factors a. Race b. Gender c. Attorney type d. Identity of commissioner e. Presence at hearing 2. Public safety factors a. Individual factors b. Indices B. Analysis of Control Dataset 1. Race 2. Gender 3. Attorney type 4. Identity of commissioner 5. Commitment offense 6. Age 7. Mental health status V. DISCUSSION RECOMMENDATIONS & CONCLUSION APPENDIX A: DIAGRAM OF CALIFORNIA LIFER PAROLE HEARING PROCESS APPENDIX B: THE FACTORS APPENDIX C: THE INDICES INTRODUCTION

On November 4, 2008, California voters took to the polls to adopt an initiative championing the rights of crime victims. Proposition 9 (more popularly known as Marsy's Law) captured over fifty-three percent of the California vote. (1) Of its many changes to the California Constitution and the California Penal Code, one standout was a shift to less frequent parole hearings for inmates serving life terms. Marsy's Law disrupted the status quo of annual or biennial parole hearings for most inmates and replaced it with a presumption that all inmates would wait fifteen years for their next hearing upon being denied parole.

To fully understand the significance and the impact of Marsy's Law on the parole suitability hearing process, we must take a step back to view the California criminal justice system holistically. California is a rather unique state: it was once heralded as having the nation's premier corrections system for its cutting-edge programs and research between the 1940s and 1960s. (2) But today, some researchers label the California Department of Corrections and Rehabilitation (CDCR) a "paradox of excess and deprivation," (3) or quite plainly a "mess." (4) The CDCR faces chronic overcrowding, a court-ordered mandate to downsize, and ballooning budgetary obligations that are growing faster than the resources allocated to cover them. (5) But perhaps no one statement more accurately describes the state of the system than Governor Arnold Schwarzenegger's 2006 proclamation "that a State of Emergency exists within the State of California's prison system." (6)

As of today, the CDCR oversees over 132,000 prisoners, (7) a marked decrease from the all-time high of 173,479 prisoners at the time of Schwarzenegger's State of Emergency Proclamation (8)--in part a result of a historical effort known as "Realignment." (9) The CDCR houses each state prisoner at an annual cost of $51,889, a sum that is over seventy percent higher than the national average. (10) Yet for each prisoner over the age of fifty--a population dominated by inmates serving life sentences--the state outlays between $98,000 and $138,000 each year. (11) Adding to the state's budgetary woes is the precipitous growth of its population of older inmates. The percentage of prisoners over forty swelled from about 16% of the total prison population in 1990 to around 40% in 2009. (12) Unsurprisingly, the rise in the average age of prisoners has closely mirrored the rise in the population of prisoners serving life terms, or "lifers." (13) What's more, the California lifer population almost tripled to an unprecedented 34,164 inmates between 1992 and 2009, thereby establishing the largest concentration of lifers of any state prison system in the country. (14)

California's tough-on-crime determinate sentencing laws and three-strikes laws have contributed to its ballooning prison population while the parole release valves that traditionally kept the system's population in check have diminished in relevance. (15) The sole remnant of an eroded discretionary release system is California's parole system for lifers--a potential vehicle for helping alleviate the strains of overcrowding on the state's prison system and budget. (16) However, the implementation of Marsy's Law may further limit the system's ability to act as a release valve: the law decreases the number of opportunities that a low-risk inmate may have to present her case for parole by raising the number of years that she must wait for a subsequent hearing.

These dramatic changes seem to represent a sea change in the way parole is administered in California. Under the changes implemented by Marsy's Law, the Board of Parole Hearings (Board) is directed to defer the reconsideration of parole for lifers for fifteen years "unless the [B]oard finds by clear and convincing evidence that the criteria relevant to the setting of parole release dates ... are such that consideration of the public and victim's safety" does not require such a lengthy deferral period. (17) Before this change, the former statute presumed that commissioners would deny parole for only one year, reserving the option for the Board to deny parole for up to five years if it determined that "it [was] not reasonable to expect that parole would be granted at a hearing during the following years." (18) That statute further compelled the Board to specifically "adopt procedures that relate to the criteria for setting the hearing between two and five years," (19) thereby signaling that the legislature intended for the decision to set a denial period (deferral decision) to be "a separate and additional choice" from the decision to deny or grant parole (suitability decision). (20) However, Marsy's Law has effectively collapsed these two decisions and directed that, just as in the suitability decision context, the "public and victim's safety" should be the overriding consideration, not simply when the inmate will be rehabilitated. We contemplate the potential consequences of this reorientation at length in this study and also compare this new system to those in place in other jurisdictions.21 We do not, however, attempt in this study to offer comparisons of how parole decisionmaking has changed since the enactment of Marsy's Law.

Though many researchers have analyzed the California parole system and the discretion of parole commissioners, (22) few studies have assessed the decisionmaking of commissioners since the recent changes in the law. (23) In this Note, we seek to redress this absence of research by attempting to (1) identify what factors parole commissioners, at least ostensibly, are relying on when deciding the appropriate parole deferral period and (2) assess whether parole commissioners are consistently applying the statutory standard outlined in Marsy's Law.

We pursue the first inquiry because Marsy's Law drastically changed the touchstone of the deferral decision, and we hypothesize that at least some commissioners may not actually be making these decisions with regard to public safety. We pursue the second inquiry because, as a normative matter, one would expect similarly situated inmates to receive deferral periods of similar lengths. Moreover, the California Penal Code generally directs that suitability decisions be made "uniform[ly] ... with respect to [the] threat to the public," and we see no reason why this principle should not govern deferral decisions as well. (24) In the context of this inquiry, given the discretion afforded commissioners and the huge changes wrought by Marsy's Law, we hypothesize that commissioners may not be applying the new rules consistently.

We address these inquiries in five Parts. In Part I, we provide an overview of the California parole hearing process and the relevant changes initiated by Marsy's Law. In Part II, we cover past empirical works that influence our study. In Part III, we present the methodology for our study. In Part IV, we review our empirical findings. In Part V, we offer a discussion of the changes initiated by Marsy's Law. We conclude with several policy recommendations. Our main findings are: (1) commissioners sometimes allow extralegal factors to influence the length of deferral periods, thus resulting in some inconsistency; and (2) beyond these extralegal factors, an inmate's institutional behavior, social history, and insight into his crime are typically the principal determinants of the length of his deferral period.

1. THE LIFER PAROLE HEARING

   1. To Grant or Deny: The Parole Suitability Decision

      We begin our discussion with an overview of the California parole system. (25) California inmates serving life terms are released only upon the recommendation of the Board and the subsequent approval of the governor. One year prior to a lifer's minimum eligible parole release date, (26) members of the Board must meet with the inmate to determine her suitability for parole. (27) The inmate has the right to be present at this hearing, to speak on her own behalf, to ask and answer questions, and to have representation by counsel. (28) If she is not granted release at this initial hearing, reconsideration is deferred for some period of time, which, as mentioned earlier, has varied greatly over the years.

      The Board oversees all of the parole suitability hearings for California prisoners sentenced to life terms with the possibility of parole, (29) in addition to its many other duties. (30) The governor appoints its seventeen commissioners, subject to confirmation by the state senate, for three-year terms. (31) Notably, commissioners are typically appointed after having completed lengthy careers in law enforcement and criminal justice. (32) They are joined by a larger pool of deputy commissioners that assists during hearings. (33) In each hearing, at least two commissioners will preside over a panel--of which at most one member can be a deputy commissioner. (34)

      The statute governing the suitability decision...