PAROLE GRANT TRENDS for LONG‑TERM OFFENDERS
California is one of only a few states in which persons have a liberty interest in parole, which means parole decisions are subject to judicial review. Changes in statutes and published case law along with improved training, expanded rehabilitative programming, and increased hope among inmates has significantly increased the number of long-term inmates granted parole and safely released annually by the Board.
For example, in 2008, the California Supreme Court published decisions in the cases of In re Lawrence and In re Shaputis (Shaputis I).35 The Lawrence and Shaputis decisions clarified the judicial standard for reviewing the Board’s decisions. The court held that a denial of parole must be supported by evidence that the person poses a current, unreasonable risk of dangerousness. Prior to these decisions, the Board could routinely deny a person’s parole based solely on the severity of the commitment offense. As a result of the Lawrence and Shaputis decisions, only persons who are found to pose a current, unreasonable risk of dangerousness are denied parole today.
Also in 2008, the voters approved Proposition 9, known as Marsy’s Law. Marsy’s Law is a victims’ rights initiative that expanded the rights of crime victims throughout the criminal justice system, including the parole hearing process. The following are examples of a few of the changes in the law governing parole hearings enacted by Marsy’s Law:
- the definition of victim was expanded for purposes of determining who may attend a parole hearing and victims may have support persons and a representative at parole hearings; victims are entitled to notice of a parole hearings at least 90 days in advance of the hearing36;
- victims have the right to express their views at a parole hearing concerning the inmate, the case, the inmate’s suitability for parole, and to provide a recommendation concerning the granting of parole; the Board is required to consider the entire and uninterrupted statements of the victim when deciding whether to grant parole;37
- when denying parole, the Board must set the inmate’s next hearing in15 years absent clear and convincing evidence that consideration of the public and victim’s safety does not require that the inmate be incarcerated for more than 10 years; the Board must defer the inmate’s next hearing for 10 years absent clear and convincing evidence that consideration of the public and victim’s safety does not require the inmate be incarcerated for an additional seven years; the Board must set the inmate’s next hearing in three years, five years, or seven years if the Board finds that consideration of the public and victim’s safety does not require that the inmate serve more than seven years of additional incarceration;38
- the Board may advance an inmate’s next parole hearing to an earlier date if there is new information or a change in circumstances that establishes a reasonable likelihood that consideration of the public and victim’s safety does not require the inmate to serve the period of incarceration imposed by the hearing panel at the inmate’s last hearing;39 and,
- an inmate may request that the Board advance the inmate’s next parole hearing to an earlier date based on new information or a change in circumstances that establishes a reasonable likelihood that consideration of the public safety does not require the additional period of incarceration.40
The Board’s consideration of the victim’s views when determining an inmate’s suitability for parole was addressed by the California Supreme Court in 2013. (In re Vicks (2013) 56 Cal.4th 274.) The court’s decision in In re Vicks states “to the extent victims provide information or argument relevant to the express issue of safety and thus suitability for parole, their participation simply provides another source of information for the Board to consider.”
The court went on to state that to the extent the Board may be required to consider statements that are not relevant to the express issue of the inmate’s suitability for parole, the receipt of such statements serves an important purpose.
The court explained that one principle purpose of Marsy’s Law is to provide victims “due process” by affording them an opportunity to be heard. The court likened a victim’s “due process” to an individual’s due process liberty interest in being free from arbitrary adjudicative procedures. Specifically, the court recognized:
the important due process interest in recognizing the dignity and worth of the individual by treating him as an equal, fully participating and responsible member of society. For government to dispose of a person’s significant interests without offering him a chance to be heard is to risk treating him as a nonperson, an object, rather than a respected, participating citizen. Thus, even in cases in which the decision-making procedure will not alter the outcome of governmental action, due process may nevertheless require that certain procedural protections be granted the individual in order to protect important dignitary values, or, in other words, to ensure that the method of interaction itself is fair in terms of what are perceived as minimum standards of political accountability — of modes of interaction which express a collective judgment that human beings are important in their own right, and that they must be treated with understanding, respect, and even compassion.‟ (internal citations omitted).
(In re Vicks, supra, 56 Cal.4th at p. 310.) The court found the same sentiments evident in the provisions of Marsy’s Law that seek to ensure that crime victims are treated with dignity. The court went on to state, “as in the context of adjudication of liberty interests, it is not critical that a victim’s participation be relevant to the ultimate decision; rather, what is important is that the victim be acknowledged and respected. In doing so, the scheme does not authorize the Board to base its decisions on victims’ opinions or public outcry.” (In re Vicks, supra, 56 Cal.4th at p. 310.)
With respect to parole denial lengths, prior to Marsy’s Law a non-murderer could be denied parole for one or two years and a murderer could be denied parole for one to five years. After Marsy’s Law, all denials of parole are for a period of 15, 10, 7, 5, or 3 years; the minimum denial period was lengthened from one year to three years and the maximum denial period was lengthened to 15 years.
However, as noted above, Marsy’s Law also created a process by which the Board can advance an inmate’s next parole hearing date on its own or in response to an inmate’s request. The Board’s authority to advance an inmate’s next parole hearing date was also addressed by the court in Vicks. (In re Vicks, supra, 56 Cal.4th at pp. 302-303.) Soon after the Vicks decision was published, the Board implemented a robust process for inmates to submit a petition to the Board requesting that their next parole hearing be advanced to an earlier date. The Board also implemented a meaningful process to independently identify inmates whose next parole hearing date should be advanced based on new evidence or a change in circumstances.41
Today the Board advances parole hearing dates for over 1,000 inmates annually and hearings held after a hearing date has been advanced are more likely to result in a grant of parole. In 2019, the Board reviewed 479 petitions from inmates asking that their next parole hearing be advanced to an earlier date and 323 (67%) were approved. Thirty-seven percent of the hearings held after a petition was approved resulted in a grant of parole.
The Board’s process for independently identifying inmates whose next parole hearing date should be advanced is based on the premise that the Board should focus its resources on those who are most likely to be found suitable for parole.42 As a result, the Board reviews all persons who receive a three-year denial, have a low or moderate risk rating, and who have not incurred a serious rules violation or new conviction since their last hearing. The Board reviews persons 11 months after their hearing and if approved, the person’s next parole hearing occurs approximately 18 months after the person’s prior hearing.43 This process is commonly referred to as the Board’s Administrative Review Process for advancing parole hearing dates.44
In 2019, the Board reviewed 925 inmates to determine if their next parole hearing date should be advanced. The Board approved 694 (75%). Fifty-one percent of hearings held after the Board advanced the inmate’s hearing date under Administrative Review Process resulted in a grant of parole.
As show in Figure 3 below, the Board’s processes for advancing parole hearing dates appear to have contributed to the overall increase in the number of grants issued annually by the Board since 2013. The total annual number of grants has nearly doubled from 592 in 2013 to 1,184 in 2019.