BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair A
2007-2008 Regular Session B
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AB 996 (Spitzer)
As Amended March 28, 2007
Hearing date: June 26, 2007
Penal Code
JM:mc
PAROLE HEARINGS - VICTIM TESTIMONY
HISTORY
Source: Doris Tate Crime Victims Bureau
Prior Legislation: SB 1516 (Machado) - Ch. 289, Stats. 2004
Support: California Coalition Against Sexual Assault;
California District Attorneys Association; California
Peace Officers' Association; California Police Chiefs
Association; Crime Victims United of California; Napa
County District Attorney; Riverside County District
Attorney; more than 75 private citizens
Opposition:Taxpayers for Improving Public Safety
Assembly Floor Vote: Ayes 74 - Noes 0
KEY ISSUE
WHERE A PAROLE HEARING IS POSTPONED AT THE REQUEST OF THE INMATE,
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SHOULD A VICTIM, VICTIM REPRESENTATIVE OR NEXT OF KIN BE ALLOWED TO
GIVE TESTIMONY THAT COULD BE PRESERVED AND PRESENTED AT THE TIME THE
HEARING IS ACTUALLY HELD?
PURPOSE
The purpose of this bill is to provide that where a scheduled
parole hearing is postponed at the request of the inmate, a
victim, victim's representative, or victim's next of kin who
attends the (postponed) hearing can testify at that time and
have the preserved testimony presented at the later hearing.
Existing law requires the Board of Parole Hearing (BPH) to meet
with each inmate who was sentenced to an indeterminate term
during the third year of incarceration to review the inmate's
file, make recommendations, and document activities and conduct
pertinent to granting or withholding post-conviction credit.
(Pen. Code 3041, subd. (a).)
Existing law requires at least two BPH commissioners to meet
with an inmate one year before the inmate's minimum eligible
parole date and "normally" set a parole release date. (Pen.
Code 3041, subd. (a).)
Existing law requires the BPH to set a release date unless it
determines that the gravity of the current convicted offense(s),
or the timing and gravity of current or past convicted
offense(s), is such that consideration of public safety requires
a lengthier period of incarceration and that a parole date
cannot be fixed at this meeting. (Pen. Code 3041, subd. (b).)
Existing law provides for the following at all hearings convened
for the purpose of reviewing a prisoner's parole suitability, or
setting, postponing, or rescinding a parole date:
At least 10 days before the hearing, the inmate may
review his or her file and may enter a written response to
any material contained in the file;
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The inmate shall be permitted to be present, to ask and
answer questions, and to speak on his or her own behalf;
Unless legal counsel is required by some provision of
law, a California Department of Corrections and
Rehabilitation designee must be present to ensure that all
facts relevant to the decision be presented;
The inmate shall be permitted to request and receive a
stenographic recording of all proceedings;
Within 10 days following a meeting where a parole date
has been set, the BPH must send the prisoner a written
statement setting forth the parole date, the conditions
that must be met in order to be released on that date, and
the consequences of failing to meet those conditions;
Within 20 days following a meeting where a parole date
has not been set, the BPH must send the inmate a written
statement setting forth the reasons for refusing to set a
date, and suggest activities that will benefit him or her
during incarceration;
Within 10 days of any BPH action resulting in the
postponement of a previously set parole date, the BPH must
send the inmate a written statement setting forth a new
date, and the reason(s) for that action, and offer the
inmate an opportunity to review that action; and,
Within 10 days of any BPH action rescinding a previously
set parole date, the BPH must send the inmate a written
statement setting forth the reason(s) for that action and
shall schedule the next hearing within 12 months. (Pen.
Code 3041.5, subds. (a)-(b).)
Existing law guarantees representation by counsel at any hearing
for the purpose of setting, postponing, or rescinding a parole
date of a prisoner under a life sentence. (Penal Code
3041.7.)
Existing law requires that an inmate serving a life sentence
must serve at least seven years before being paroled. (Pen.
Code 3046.) Numerous other provisions require much longer
minimum terms before an inmate is eligible for parole
consideration.
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Existing law authorizes a victim or the victim's next of kin to
appear at the hearing and adequately and reasonably express his
or her views concerning the crime and the person responsible,
except that any statement provided by a representative
designated by the victim or next of kin shall be limited to
comments concerning the effect of the crime on the victim.
(Pen. Code 3043.)
Existing law provides that at any hearing to determine parole
eligibility, the board shall permit the victim, victim's next of
kin, immediate family member, or two designated representatives
to file a written, audiotaped or videotaped statement expressing
his or her views concerning the crime and the person
responsible. As with an oral statement at a hearing, the
recorded comments of a representative of a victim or next of kin
shall be limited to the effect of the crime on the victim.
(Pen. Code 3043.2.)
Existing law provides that a victim, next of kin, or members of
the victim's immediate family, or two designated representatives
who have the right to appear at a hearing to review parole
suitability or the setting of a parole date, has the right to
appear by means of videoconferencing, if videoconferencing is
available at the hearing site. (Penal Code 3043.25.)
This bill requires that where a parole hearing is postponed at
the request of the prisoner, a victim, victim representative, or
next of kin who appears at the regularly scheduled parole
hearing shall be allowed to place his or her testimony on the
record, to be preserved for introduction when the parole hearing
is subsequently held.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA")
IMPLICATIONS
California currently faces an extraordinary and severe prison
and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
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significant level of overcrowding.<1> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form . . ."<2> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
In February of 2006, the federal court appointed a receiver to
---------------------------
<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
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take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
coordination between health care staff and custody staff."<5>
This bill does not appear to aggravate the prison and jail
overcrowding crisis outlined above.
COMMENTS
1. Need for This Bill
According to the author:
This bill is sponsored by the Doris Tate Crime Victims
Bureau and addresses the issue of a victim's or next
of kin's testimony at a parole hearing.
Under current law, the BPH is required to send a
notice of a scheduled parole hearing to the victim or
next of kin at least 30 days before the hearing. At
the hearing, the victim or next of kin has the right
to appear at the hearing and make a statement. The
law also requires that if a postponement of a parole
hearing is going to take place, that the victim or
next of kin have at least 10-days' notice.
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<5> Primer, supra, fn. 4.
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Despite the 10-day postponement requirement, many
victims or their next of kin travel to a parole
hearing only to find out that the hearing has been
postponed at the last minute. This results in the
victims traveling at their own expense, taking time
off from work, finding child care, and making various
personal arrangements only to be frustrated by a
system that already does not sufficiently respect
victims.
This bill will allow a victim or next of kin to have
his or her testimony preserved for introduction when
the parole hearing is held.
2. Background on Existing Law - Substantial Changes Made
through SB 1516 (Machado) - Chapter 289, Statutes of 2004
SB 1516 (Machado) - Ch. 289, Statutes of 2004, made
numerous changes to provisions concerning victim statements
made for consideration at parole hearings. This bill can
perhaps be described as expanding on the changes made in
2004. The major provisions in the bill include:
Provides that two representatives who have been designated for
a particular hearing in writing prior to the hearing, by the
victim or victim's next of kin have the right to appear,
personally or by counsel, at any Board of Prison Terms hearing
to review or consider the parole suitability or the setting of
a parole date for any prisoner in the state prison.
Requires that (1) a representative designated by the victim or
the victim's next of kin must be either that person's legal
counsel or a family or household member of the victim, and (2)
the board may not permit a representative designated by the
victim or the victim's next of kin to attend a hearing, or to
submit a statement to be included in the hearing, as
specified, if the victim, next of kin, or a member of the
victim's immediate family is present at the hearing, or if the
victim, next of kin, or a member of the victim's immediate
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family has submitted a statement.
Specifies that any statement provided by a representative
designated by the victim or next of kin shall be limited to
comments concerning the effect of the crime on the victim.
Adds statements of "the designated representative of the
victim or next of kin, if applicable" to those statements that
the Board of Prison Terms shall consider in deciding whether
to release the person on parole.
Changes the current authority for the Board of Prison Terms -
"may" permit - regarding submission of written, audiotaped,
videotaped, CD-Rom/DVD statements by the victim, next of kin,
or immediate family members to "shall" permit such submissions
and adds "two representatives designated for a particular
hearing by the victim or next of kin in writing prior to the
hearing" to those able to make such submissions, as specified.
Provides that representatives designated by the victim or next
of kin for a particular hearing in writing prior to the
hearing shall also have the right to appear by means of
videoconferencing, if videoconferencing is available at the
hearing site.
WHERE A PAROLE HEARING IS CONTINUED AT THE MOTION OF THE INMATE,
SHOULD A VICTIM, VICTIM'S REPRESENTATIVE, OR NEXT OF KIN BE
ALLOWED TO MAKE A STATEMENT FOR THE RECORD AT THAT TIME SO THAT
THE STATEMENT CAN BE PRESENTED AT THE TIME THE HEARING IS HELD?
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IN WHAT MANNER WOULD A VICTIM STATEMENT BE PRESERVED FOR A
HEARING THAT WAS CONTINUED ON THE MOTION OF THE INMATE?
3. Review of Victim Statement, Presentation of the Statement,
Opportunity to Correct the Record
This bill would allow a victim, victim's representative or next
of kin, as specified, to place his or her statement in the
record at the time that a parole hearing is postponed at the
request of the inmate. This would obviate the need for the
victim, or other authorized person, to return to the prison on
the date the hearing will be conducted. This raises the issue
of how the statement would be presented to the Board and whether
or not the inmate would have the ability to review the
statement.
Penal Code section 3043.6 provides that the victim, or a
specified authorized person, has the right to speak last at a
parole hearing. The law also provides that the person presiding
over the hearing can take any steps to "ensure that only
accurate and relevant statements are considered in determining
parole eligibility." The section does not state how the
presiding party would determine if only accurate statements have
been made. The section does not state whether or not an inmate
can point out any inaccuracies in a statement.
Perhaps the bill should provide that an inmate may review the
recorded statement at the time the inmate reviews his or her
file in preparation for the hearing. The bill could provide
that the inmate could identify any asserted inaccuracies or
improper matters in the statement for the consideration of the
panel.
The bill does not specifically provide that a recorded statement
may be made in lieu of a statement made at time of the actual
hearing. It appears that the intent of the bill is to allow the
victim (or other authorized party) to make his or her statement
on the record without having to return to the prison for a
hearing. Existing law appears to contemplate that the victim or
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authorized party may present a single statement to the panel
that is hearing the parole matter. Arguably, it would violate
due process and the spirit of the law to allow a victim or
authorized party to make two statements simply because the
inmate moved to continue the hearing. Often, an inmate may
request a continuance because of matters beyond his or her
control. Penal Code section 3043.2 provides that a victim or
authorized party can make a statement on any medium and provide
this to the panel in lieu of personal appearance at the hearing.
It is suggested that
this bill provide that a recorded statement can be made at the
time a continuance of a hearing is granted, in lieu of a later
personal appearance. If the victim or authorized party appears
at the hearing, the victim could choose whether to submit the
recorded statement or to make a statement at the hearing.
SHOULD THIS BILL PROVIDE THAT THE INMATE MAY REVIEW THE
STATEMENT OF THE VICTIM, VICTIM'S REPRESENTATIVE OR NEXT OF KIN
AND THEN IDENTIFY INACCURACIES OR IMPROPER MATTERS IN THE
RECORDED STATEMENT OF THE VICTIM, VICTIM'S REPRESENTATIVE OR
NEXT OF KIN?
SHOULD THE BILL STATE THAT A RECORDED STATEMENT CAN BE MADE AT A
CONTINUED PAROLE HEARING IN LIEU OF A STATEMENT AT THE ACTUAL
HEARING AT A LATER DATE?
4. The Bill uses the Term Testimony in Reference to Victim's
Statement
Existing law concerning victim participation in a parole hearing
uses the term "statement" and also provides that the victim can
"express [his or her] view" concerning the effect of the crime
on the victim. This bill describes a victim's statement as
"testimony." That term would typically refer to statements made
under oath and subject to direct and cross-examination. That
does not appear to be the intent of the author in this bill. It
is suggested that the term "testimony" in the bill be replaced
with a reference to the "statement" of the victim or authorized
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person.
SHOULD THE BILL REFER TO A VICTIM'S STATEMENT, RATHER THAN THE
VICTIM'S "TESTIMONY," AS TESTIMONY IMPLIES A STATEMENT MADE
UNDER OATH AND SUBJECT TO CROSS-EXAMINATION?
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