Judiciary and Criminal Justice
Unlike probation, which is an alternative to a period of incarceration, supervision on state parole is an additional sanction beyond a period of confinement in a state prison. While probation programs are operated by county authorities, the parole system is staffed and operated by state government personnel. In California, unlike some other states, a prison sentence is not reduced by any amount of time that an offender is placed on state parole.
Under the current determinate sentencing law, many offenders are now sentenced by law to setprison terms (they can receive credits to shorten their time in prison if they participate in work or education programs). Once an offender has served his sentence, he must be released from prison to a set period of time on parole and no review is conducted to determine in advance if the inmate is suitable for release. Most of these offenders are subject to a three-year term of parole, but can be discharged from parole status after one year if they have committed no parole violations or no new crimes while in the community. However, the average time served on parole is 19.5 months, because so many offenders fail on parole and are subsequently required to be under supervision for two or three years.
Certain very serious crimes, such as murder or rape, as well as some offenders incarcerated under the "Three Strikes and You're Out" and the "10-20-Life" sentencing laws, continue to receive indeterminate sentences and thus remain subject to a review of parole suitability before release. These offenders are few in number in the parole system. Murderers who receive and serve a life sentence, and are subsequently released on parole, are subject to being in parole status for the rest of their lives. Felons receiving a life sentence for an offense other than murder are subject to supervision in the community for five years.
State law permits the BPT to discharge an eligible offender from state prison and avoid parole altogether for "good cause," but this occurred in only 42 cases in 1996-97. By law, a parolee must generally be released to the county that was the offender's last legal residence before commitment to prison. Some limited exceptions to the rule are permitted.
Who Is on Parole? According to CDC, 105,449 offenders were supervised on parole in California as of the end of 1997. Of this total, 102,201 were felons and 3,248 were participants in the Civil Addict Program.
According to the most recently available demographic data, about 90 percent of the parole population is male. About 57 percent of the parole population is age 20 through 34. About 40 percent of parolees are Hispanic, 29 percent are white, and 27 percent are black. As shown below in Figure 4, almost three-fourths of the parole population was originally committed to prison for a nonviolent offense.
Parole Conditions. Both CDC and BPT have adopted written regulations and policies that guide the operation of the parole system. State law is generally silent on the issue of how the parole system is to be administered, leaving many decisions to the discretion of the two agencies. For example, state law provides that CDC shall establish "conditions of parole" and that the BPT shall establish "guidelines" regarding those conditions. The law states that the conditions imposed on an offender may include restitution to a crime victim, psychological counseling, compliance with orders to protect battered spouses, abstinence from alcoholic beverages, and, for offenders paroled by BPT, tuberculosis tests. But state law otherwise leaves it to the CDC and BPT to specify what the conditions and the guidelines shall actually be.
The basic conditions of parole imposed on all parolees are to report immediately to their assigned parole agent upon release from prison and as directed by the agent; to immediately report any address or employment change; to obey all parole agent instructions; to carry no weapons, including guns and knives with long blades; and to not commit crimes.
Parolees convicted of specified sex offenses, drug sales, or arson must register with a local police or county sheriff's office. In addition, special conditions of parole (and sometimes more than one) have been imposed on many parolees. For example, nearly 81,000 parolees, or 71 percent, of the total parole population (including parolees taken into state custody for parole violations and those who have fled from parole) have been required to submit to regular drug-testing. Almost 25,000 have been directed to abstain from drinking alcoholic beverages, and more than 12,000 have been required to participate in psychiatric treatment.
Most parole violations involve criminal conduct. Some parolees who commit new crimes are prosecuted for the criminal offense in the courts and sentenced to a new prison term. However, prosecutors often decide not to prosecute parolees for new offenses either because a lack of evidence would make a court prosecution difficult or because the prison sentence resulting from court prosecution would not be much longer than the penalty that could be imposed by the BPT for a parole violation. Thus, many parole violations involve the commitment of crimes.
Sanctions for Violation of Parole Conditions. Parolees who violate their conditions of parole may, at the discretion of BPT, be suspended from parole and returned to prison for up to one year. (Murderers are the exception, and may be returned for an unspecified period of time longer than one year.) The time spent in prison is not credited toward the period of parole service.
State law requires parole agents to report to BPT within two days any parolee in its highest risk classification level who fails to promptly report for supervision after release from prison, and requires BPT to suspend the parole status of that parolee. Otherwise, state law does not specify when and if parole violators must be reported to BPT, and the law does not specify what actions BPT shall take against a parole violator.
The BPT has adopted regulations requiring that the CDC parole division report to it, among other matters, any parolee who is involved in violent or serious crimes, who had a gun or long-bladed knife, or who has fled from parole for more than 30 days. The BPT regulations also state that any parolee who served prison time for a violent or serious offense must be reported to BPT for "any criminal conduct," language that BPT is now interpreting to include failure of a drug test by these parolees.
Most parole violators returned to prison by BPT are eligible to participate in work and education programs that can reduce the time they must serve in prison.
Supervision of Parolees. State law does not specify exactly how CDC's parole division is to supervise and provide services to parolees. The parole division has a total staff of about 2,200, including about 1,264 parole agents, deployed in 118 parole offices and four clinics. The work of supervising more than 100,000 parolees is assigned and divided among agents within four established geographic regions in accordance with a longstanding agreement with the labor organization representing parole agents.
The parole division has classified parolees into four major groups--High Control, High Services, Control Services, and Minimum Services, which are described in more detail in Figure 5 (see next page). Each parolee classification has been assigned points based upon the purported degree of difficulty and risk of supervising the parolees in that group. High Control and High Services cases are assigned three points, Control Services cases are two points, and Minimum Services cases are one point. Each parole agent is to carry a caseload of 168 points. Thus, a single agent's caseload might include 40 High Control cases (120 points), 20 Control Services cases (40 points), and eight Minimum Services cases (eight points) totaling 168 points.
Parole agents regularly conduct on-site visits to the homes and workplaces of the parolees on their caseload and carry out other follow-up contacts by telephone. The agents also assist parolees in obtaining welfare and other benefits to which they are entitled, refer them to job training and educational programs, and meet with the families of parolees.
|Present Classification of Parolees by CDC|
|Parolees engaged in or suspected of criminal activities, or who have a high risk of reinvolvement with criminal gangs, violent or sexual offenses, or large-scale drug trafficking.|
|Parolees requiring significant support to meet their psychological, physical, or medical needs.|
|Parolees who pose a medium risk of reinvolvement in criminal activities, and who require moderate amounts of control and services to continue on parole successfully.|
|Parolees who pose little or no risk to the community and have infrequent or low needs for services.|
As Figure 6 indicates, only about 13 percent of parolees under active supervision by the parole division are High Control or High Services cases. About 57 percent are Control Services cases and 30 percent are Minimum Services cases.
Although certain information about a prospective parolee is prepared by a correctional counselor, the final classification of parolees rests with parole supervisors in the field. The process is not as elaborate or sophisticated as it once was. For example, the needs of a prospective parolee for substance abuse treatment or other support services are no longer weighed heavily in the classification process. As a result, parolees who might be appropriate for a High Services assignment often end up in lower classifications. Later in this analysis, we will discuss ongoing efforts to improve the parolee classification system.
Parolee Assistance. Just as the classification of parolees occurs in the field, the assignment of those parolees to support services and programs is a decision made by parole agents. According to CDC estimates, 10 percent of parolees are homeless, half are illiterate, 70 to 80 percent are unemployed, and as many as 85 percent have a substance abuse problem.
Several general types of assistance are provided to parolees:
The parole division operates other specialized programs targeting high-risk sex offenders, parolees with a history of domestic violence, and parolees suffering from AIDS or infected with the AIDS-related virus.
Parole Operations Budget. The 1998-99 budget proposes that the parole division be provided about $246 million for the direct cost of CDC parole supervision and parole services (not including administration), an increase of about $10 million, or 4.2 percent, above estimated current-year expenditures. The average annual cost of supervising each parolee is $2,159. The 1998-99 budget includes an augmentation of $4.9 million for additional staffing to supervise an increased parole caseload; a $1.3 million request for an additional 23 positions to process parole revocation cases; $457,000 for a new computer system to track revocation cases; and $486,000 to move forward with a computer project to share files on parolees with local law enforcement authorities.
The BPT budget request for 1998-99 is $13.4 million.
One-Fourth Increase in Caseload in Five Years. During 1996-97, almost 118,000 offenders were released from state prison on parole. This annual movement of felons and civil addicts onto the parole caseload represents a 25 percent increase during the last five years. The trend is expected to continue: CDC projects that parole releases will exceed 128,000 in the current year, reach almost 134,000 during 1998-99, and grow to 175,000 during 2006-07 (the latest year for which CDC has released projections).
Because more inmates are being released from prison to parole supervision than are being released from parole supervision, the caseload is building. This trend is shown in Figure 7. As of June 30, 1997, California was supervising 100,828 parolees. That number is anticipated to reach 106,503 by the end of the current year and 111,426 by the end of 1998-99. By the end of 2006-07, it is projected to reach 145,000, almost a 50 percent increase over the next ten years.
Actions of BPT a Contributing Factor. The primary reason for the growth in state parole
caseloads is the significantly larger number of offenders mandated to serve time in state prison
under California's determinate sentencing law. Under the determinate sentencing system, more
prison inmates inevitably and eventually lead to more offenders released from prison to parole.
One less significant, but contributing, factor is that BPT is only rarely exercising its discretion under state law to allow low-risk offenders to leave prison without going on parole, a practice known as "direct discharge." The BPT terminated the practice of reviewing the records of inmates who might be candidates for direct discharge in 1992 after state legislation made the practice discretionary rather than mandatory. The BPT advises that it ceased such reviews because it had legal discretion to do so and because few prison inmates had met its criteria for direct discharge in the past.
The BPT is also adding to the parole caseload by keeping parolees who have been punished for parole violations under state supervision for longer periods of time after they are released again into the community. During 1995-96, BPT went along with CDC parole division recommendations to discharge offenders from parole status about half the time. During 1996-97, BPT went along with a discharge recommendation only 39 percent of the time. Thus, a parolee who might have spent 18 months under state parole supervision now could remain on the parole caseload for the maximum three years.
Impact on Agents. The number of parole agents has not kept pace with this caseload growth. In the 1970s, one parole agent was ordinarily assigned to supervise 45 parolees. The ratio now is effectively one agent for every 80 parolees. A study conducted for BPT concluded that the workload changes have significantly diminished the quality of parole supervision, as evidenced by the reduced number of monthly contacts between agents and parolees. Although the parole division has the option available of placing low-risk parolees on a "banked caseload" (that is, unsupervised), thus allowing more intense supervision of the remaining caseload, it has chosen to do this only for undocumented aliens who have been deported from the United States upon their release on parole.
Return-to-Custody Rate Rising. After they are released on parole, many offenders are returned to prison custody by the BPT for violating the terms of their parole. In 1988, about 68 felon parolees were returned to prison for a parole violation for every 100 persons in the parole population--constituting a "return-to-custody" (RTC) rate of 68 percent. By 1993, the RTC rate had dropped to about 39 percent. That trend has been in reverse ever since, and in recent months the RTC rate has averaged nearly 60 percent.
As can be seen in Figure 8, the number of parolees entering the prison system through the "back door"--return to custody by the BPT for parole violations--is now larger than the number of new admissions to prison by the courts. The RTC admissions are projected to continue to outpace new admissions from court at least through the next decade.
Although parole violators stay in prison an average of just 5.3 months, the surge in RTC admissions to prison nonetheless means that a growing share of prison space must be used to house parole violators. From 1988 through 1993, the proportion of prison beds taken by parole violators had dropped from 15.8 percent to 10.9 percent. In the current fiscal year, however, returned-to-custody parolees constitute about 17 percent of the prison population. Over the last decade, the number of parole violators in state prison has more than tripled from about 8,000 to more than 26,000 today. The number of beds needed to house parole violators would be even higher except for the relatively short time they may be returned to custody.
Parolees Also Returning With New Terms. A significant number of parolees are being convicted in the courts for new crimes and sentenced to a new prison term. In the current year, about 19,000 additional felons and civil addicts on parole will be sent back to prison by the courts.
As of June 30, 1997, this group of parolees, known as Parole Violators With New Terms (WNTs) numbered almost 37,000. The number of WNTs held in state prison has increased by about 10,000 over the last five years. This increase, while significant, has been in line with the overall growth in the state prison population. As a result, the share of the prison population consisting of parolees with new court commitments has remained relatively stable since 1990 at about 24 percent.
Inmates released from CDC are failing on parole, either through parole violations or new court commitments that return them to prison, at a rate far higher than in any other state, according to a new study by the National Council on Crime and Delinquency.
Impact on Prison System. This growth in the RTC prison population, coming as it has at a time when prison facilities are severely overcrowded, has made it more difficult for CDC to operate the prison system. Many parole violators are housed in reception centers, among the most overcrowded correctional facilities in the state, while they await BPT hearings to revoke their parole and return them to prison. The CDC also is incurring significant costs to process and classify large numbers of parolees who, because they are held for parole violations, usually spend no more than four to five months in the prison system. These problems will intensify in the year 2000 when, according to CDC projections, the prison system will exhaust all available space to house inmates.
Changes in Revocation Policies. When RTC rates of parolees were declining, CDC partly attributed the trend to its standardization of the procedures used in the field by parole agents to determine which parole violators should be returned to custody. The CDC found, for example, that an offender failing a drug test in one parole unit might be continued on parole, but that a parolee with a similar criminal record committing the identical parole violation in another unit would be returned to custody. In response to this lack of standardization, the CDC made it a standard practice to put more emphasis on keeping in the community parole violators who had not committed new and serious crimes rather than returning them to prison.
Through a series of changes in its regulations and policies, BPT is now playing a significant role in increasing the RTC rate by sending parole violators to prison more frequently than before, and by sending them there for longer periods of time.
Over the last few years, BPT began implementing new policies and regulations significantly broadening the list of parole violations the CDC parole division is required to report, thereby exposing more parolees to BPT decisions to return them to prison. Previously, CDC parole agents often allowed a parole violator who had failed a drug test to continue on parole if he agreed to participate in a substance abuse program. The new BPT rules provide, instead, that such parole violations must be reported to BPT if the parolee had originally been sent to prison for a serious crime, such as a residential burglary. In most such cases, BPT is returning the parole violator to prison rather than allowing him to continue on parole under a treatment program.
As of fall 1993, about 65 percent of parolees apprehended for alleged parole violations were returned to custody by BPT and 35 percent were continued on parole. As of fall 1997, however, about 90 percent of the parolees were being returned to custody by BPT and 10 percent were being continued in parole.
Revocation Terms Have Grown. As can be seen in Figure 9, BPT has increased the length of time parole violators are sentenced to stay in prison by 23 percent since 1990. The increases were across the board, but the largest proportional increases in prison time were imposed on the least serious parole violation offenses--those involving violation of parole rules but not a crime, or those involving nonviolent property crimes such as petty theft or receiving stolen property. For example, the period of time assessed for being drunk in public increased from 5.3 months to seven months--a difference of more than 30 percent.
|Examples of How BPT Has
Increased Parole Revocation Terms
|Category of Parole Violation||Average (In Months)||Increase
|Returns to custody for
|Violations of parole reporting rules||4.0||5.3||32.5|
|Parolee had access to weapon||7.4||8.3||12.2|
|Returns to custody for criminal activities|
|Type 1 crimes (least serious)||4.8||6.6||37.5%|
|Type 2 crimes (more serious)||7.8||9.7||24.4%|
|Theft and forgery||7.8||9.9||26.9|
|Type 3 crimes (most serious)||10.2||11.2||9.8%|
|Rape and sexual assaults||11.1||11.6||4.5|
|Major driving violations||9.9||10.9||10.1|
|Average term for all parole violations||6.9||8.5||23.2%|
The disproportionate increases in terms for lesser crimes appear to be due in part to the one-year limit on the time parole violators can be returned to prison. The BPT has urged a change in state law so that parolees could be returned to custody for longer than one year.
Almost Half of RTCs Involve Drug Charges. The failure of so many parolees to complete their supervision period without a violation of parole is closely associated with an epidemic of substance abuse among this population of offenders. According to BPT records, drug violations played a role in the return to custody of 31,640, or 48 percent, of the 65,396 parolees returned to custody during 1996.
Partly as a result of BPT policies, the number of parole violators returned to prison each year for drug possession has doubled since 1990. The number returned to custody for use of illegal drugs has gone up about 46 percent, while those returned for drug sales or trafficking has also doubled. Drug-related parole violations also were frequently a factor in return-to-custody cases involving other types of charges. For example, about one-third of the 3,000 parolees returned to custody for first- or second-degree burglary also violated conditions of parole that they avoid illegal drug use.
Drug Testing but Little Drug Treatment. The prevalence of drug charges for parolees returned to custody is consistent with CDC estimates that 85 percent of the parole population has some form of substance abuse problem. The parole division conducts 130,000 drug tests per year of parolees to enforce its parole conditions requiring abstinence.
Funding for drug testing is automatically increased each time CDC receives additional funding for parole caseload increases. However, the staffing and money available to assist parolees with substance abuse and other problems has remained level in recent years. Last year, CDC reduced funding by 40 percent for contracts with various nonprofit organizations, many of which offered substance abuse counseling programs to parolees, in order to free up money to hire additional parole agents. As a result, only about 12 percent of the CDC budget for parole operations is for assistance and services for parolees, while 88 percent is spent on parole supervision.
We have been advised by CDC that virtually all of its programs to assist parolees reintegrate back into the community--from substance abuse treatment networks to the Parole Outpatient Clinics--are underfunded, understaffed, and have insufficient space for parolees. The situation often leaves parole agents and the BPT with no alternative but to return to custody a mentally ill or drug-addicted parole violator who might otherwise be considered appropriate for placement in a residential treatment or other assistance program.
Other CDC programs that could assist in the transition from prison to community also appear to have insufficient resources. An estimated 8 percent of inmates receive any formal pre-release program before their release, and few who do participate in such programs receive any cognitive-skills training aimed at changing criminal attitudes and lifestyles. The number of correctional reentry beds, where an offender may spend his last few months in custody preparing for release to the community, has not expanded significantly beyond the 1,300 available since the early 1980s.
Program Expansion Could Lower RTC Rate. The effectiveness of some of these programs has not been evaluated. But there is strong evidence that expansion of substance abuse and other services for parolees could reduce RTC rates.
The CDC partly attributes the decline in RTC rates in the early 1990s to the establishment of its Preventing Parolee Failure (PPF) programs. Parole units which have PPF programs continue to have RTC rates that are generally lower than units without the programs, according to CDC data. Providing parole agents an alternative to revocation of some parolees resulted in a net state savings of $74 million from 1991-92 through 1995-96, according to CDC.
The savings resulted primarily because the parole division was able to refer 31,000 fewer parole violators to BPT for return to custody. If PPF were discontinued and these referrals to BPT were resumed, the prison system would have needed about 11,000 more beds during that period--roughly the equivalent of two more prisons.
There is evidence that expanding other parolee programming could also lower RTC rates. The CDC examined why RTC rates in its Los Angeles County parole region were so much lower than for its other three parole regions. It concluded that the difference was mainly the result of the commitment by parole agents and management to developing and implementing alternative punishment programs when appropriate for parolees, instead of a return to custody, when parole violations occur.
Fiscal Impact of the Present System. By our estimate, the cost of supervising parolees and of incarcerating offenders who have failed on parole has almost doubled during the 1990s, going from about $925 million in 1990-91 to $1.8 billion for parole-related funding in the 1998-99 budget.
Relatively little of the overall cost increase is directly related to the cost of parole operations. The direct cost of CDC parole operations (not including administration) has gone from $158 million in 1990-91 to the $246 million proposed in the 1998-99 budget, an increase of about $88 million, or 55 percent. The BPT budget for parole hearings has also increased by about $1 million since 1990-91 to about $13.7 million.
The major additional costs of the present parole system are primarily for incarcerating offenders who have failed on parole. We estimate that the cost of housing parole violators returned to custody by BPT have doubled from $290 million per year in 1990-91 to $590 million in 1998-99. The cost in housing parolees returned by the courts with new terms has doubled from about $450 million in 1990-91 to almost $920 million in 1998-99.
Finally, costs for local assistance payments to county governments who temporarily hold parole violators are also increasing. These expenditures were $14.5 million in 1990-91. About $18 million has been requested in the 1998-99 budget for local assistance.
Based on CDC's inmate and parole population projections, we estimate that the cost of supervising parolees would increase by more than $60 million, and thus would exceed $300 million annually, by the year 2006-07. The cost of incarcerating parole violators returned to custody by BPT as well as those returned to prison by the courts would increase by $800 million, and would exceed $2.3 billion annually during 2006-07.
Because the state will exhaust all available prison space sometime during the year 2000, the state also would face the challenge of accommodating 34,700 more parolees in prison between now and June 2007. This is the equivalent of about seven prisons and would result in one-time capital outlay costs of about $1.8 billion for parolees returned to custody by BPT and the courts. The space required for the offenders who have failed while on parole would be in addition to the space needed to accommodate the projected growth in offenders classified as new admissions from the courts.
Differing Strategies for Differing Groups of Parolees. We assume the three groups would be similar in concept, but would not conform exactly, to the existing CDC classification of parolees into High Control, High Services, Control Services, and Minimum Services cases. With the assistance of the University of California, Los Angeles, and at the direction of the Legislature, CDC is now in the process of revising and testing a new classification system for parolees that would be more effective in determining which parolees present the greatest risk of committing new crimes or parole violations and better determine what services parolees need to reintegrate successfully into the community.
The CDC has studied a sample of 1,927 parolees released in 1994 to determine which factors best predict success or failure on parole. It found that the following factors were closely associated with being a high risk on parole: the parolee's number of prior arrests, the parolee's number of prior failures on parole, membership in a gang, being under age 25 at release, the parolee's first felony or first arrest was at a young age, and having a Level IV classification while in prison. On this basis, CDC has indicated in a preliminary report that 14 percent of the parole population poses a very low risk to public safety and that only 8 percent of parolees pose a high risk to public safety.
We recommend that these classification criteria be used to better focus its parole supervision resources to redirect staff and program funding now devoted to parolees who pose a low risk to the community to parolees who pose a greater risk to public safety.
Once the new classification criteria are finally developed, we recommend that the classification process be centralized, or at least highly automated, to minimize the significant variation from parole unit to parole unit in classification of parolees that has occurred in the past.
We propose the following approach for supervising and controlling California parolees:
Low-Risk Parolees. This group of parolees would be placed on a "banked caseload," meaning that they would not be on the regular caseloads of parole agents but would remain legally subject to parole conditions and subject to warrantless searches by authorities. (About 13,500 undocumented aliens who will be deported from the United States upon their parole from state prison are already on banked caseloads.) Six months before the end of their prison terms, Low-Risk Parolees would be placed in an expanded system of community reentry programs, where they would receive cognitive-skills training and other services designed to change their criminal aptitudes and lifestyles. After their release from reentry programs, they could voluntarily receive services and assistance from the parole division to the extent that it was available. Elimination of thousands of such cases from active supervision would free staff positions and funding to do a better job of supervising and controlling higher-risk parolees.
One alternative that we suggested in our May 1997 report on accommodating the growing prison inmate population would be to place Low-Risk Parolees under county supervision, with reimbursement by the state at a standard rate such as $1,000 per year. Under such an arrangement, a county-supervised parolee who violated his conditions of parole would be subject to county sanctions and would not return to state prison.
Medium-Risk Parolees. Under our approach, this group of parolees would remain on parole division caseloads for budgeting purposes. However, many of these parolees would not be subject to traditional supervision by a single parole agent. Instead, in parole units in urban areas where it would be practical, many such parolees would receive mandatory assignments to so-called day-reporting centers, where parolees would check in regularly with a team of parole agents and receive job placement assistance, cognitive-skills training, and other assistance from contract vendors and/or CDC staff. Others would receive mandatory assignment to drug treatment networks and other components of expanded and improved Preventing Parolee Failure programs.
Medium-risk parolees who completed six months of supervision without a parole violation
would be placed on a banked caseload to save on staffing and funding that could be used to
augment parolee services. The additional cost of program expansion would be at least partially
offset by savings achieved by ending traditional parole supervision for many parolees. In rural
parole units, where programs and services may not be available or cost-effective, parolees would
be supervised in the traditional way by parole agents.
High-Risk Parolees. All members of this group, particularly sex offenders with high recidivism rates, would be subject to much more intense supervision by parole agents. High-risk parolees would be subject to mandatory assignment to the Psychiatric Outpatient Clinics, substance abuse treatment, and other programs. The additional staffing needed to allow this higher level of supervision would be possible because fewer parole agents would be used to monitor parolees in the lower-risk groups. We anticipate that this more intense level of supervision would improve public safety by ensuring that the most dangerous offenders released to parole are watched more closely by parole agents.
We recognize that a transition to this new approach would be a major effort and would take several years to accomplish. Depending upon how it was implemented, the program expansions and realignment of parole staff we propose might result in an increase of state expenditures for the CDC parole division. However, the new parole system we recommend could make the state eligible for federal assistance. Under a proposed new federal program pending before Congress, California could receive an estimated $8 million to $14 million annually that could be used to establish alternative punishment programs for parolees who fail drug tests. Moreover, in the long run, we believe our approach is virtually certain to result in significant net savings overall in the CDC budget by slowing the now-rapid growth in costs for incarcerating parole violators.
More Punishment Options Needed. No matter how parolee services are improved, some parolees belonging to all three of the groups described above are certain to commit violations of their conditions of parole. Accordingly, we recommend the enactment of state legislation providing the CDC and BPT with a broader and more flexible array of sanctions with which to respond to parole violations. Parolees posing a significant risk to public safety should be returned to prison for their parole violations. However, both agencies need better choices than the "all or nothing" option of returning a parole violator to custody in the large number of cases where the violation did not involve a violent, serious, or dangerous act and the parole violator is not from the High-Risk Parolee group. Specifically, we propose the following changes to the parole system:
Alternative Punishment of Parole Violators. Chapter 41, Statutes of 1994 (AB 99x, Rainey) authorized various alternative punishment options for judges to consider in sentencing offenders convicted of new crimes. We propose the enactment of a parallel statute authorizing similar punishment options for both the CDC parole division and BPT for appropriate Medium-Risk or Low-Risk Parolees. These options would include home detention, electronic monitoring, community work crew assignments, work-furlough programs, and day-reporting centers. The BPT would be specifically authorized to commit parole violators to alternative punishment programs in lieu of revocation, and to return to custody parolees who did not fulfill the conditions of that alternative punishment commitment.
Supervision Fees. We propose that the list of alternative punishment options include the imposition of so-called "supervision fees" paid by parolees who have the financial resources to help defray some of the cost of parole services they receive at day-reporting centers.
Citations for Some Parole Violators. We recommend that, in cases where a return to custody is being sought in response to an alleged parole violation (as compared to a new crime), parolees who are a low flight risk be temporarily released with a citation until their case is heard by BPT or otherwise resolved. A parolee's failure to appear as ordered for a subsequent meeting with BPT to resolve the case would be a new crime subject to more than a one-year prison term allowed for revocation offenses. Only Low- or Medium-Risk Parolees whose parole violation was not violent or serious, or whose violation did not involve possession, control, use of, or access to any weapon, would be eligible for the "cite-and-release" option. This option could reduce state incarceration costs. Parole violators accused of relatively minor parole violations are sometimes held in prison reception centers for weeks or months before their cases are resolved by BPT.
Restore Parole Division Authority. We recommend the enactment of a new statutory framework, in place of existing regulations, establishing what parole violations must be reported to BPT and leaving the reporting of all remaining cases to the discretion of the parole division. This statutory framework would return to parole division professionals the discretion to determine whether to report a parole violation. Reporting violations to BPT would remain mandatory if a High-Risk Parolee was involved, if the parole violation was violent or serious, or if it involved possession, control, use of, or access to any weapon.
We are concerned that the BPT has gone beyond its appropriate role of passing judgment on allegations of parole violations, and has now impinged upon decision-making that more properly should rest with the CDC regarding the prosecution of parole violators.
Parole authorities have voiced concern, for example, that some parolees who had failed one drug test, but who had otherwise behaved well on parole, secured employment, and established stable family relationships, were being returned to prison by BPT. If the decision had been left to the parole division, it might have continued such an offender on parole and directed the offender to a substance abuse counseling program, keeping the employment and family relationships intact and improving the parolee's chances of resuming a successful parole.
But new BPT rules mandate that such parole violations always be reported by the parole division if the parolee had originally been sent to prison for a serious crime, such as residential burglary. Once these cases are reported to BPT, the board is frequently returning such offenders to prison and rejecting parole division recommendations that these offenders be kept on parole. In our view, public safety is generally best served by allowing the professional parole agent who best knows the parolee to weigh the benefit of returning a violator to prison against the possibility that the violator will conclude parole successfully.
We would additionally provide the CDC parole division the authority to determine when parolees should be discharged. The exception would be parolees returned to custody for parole violations involving violent or serious crimes or weapons as described above.
In our view, these proposals further public safety and allow parole agents to make professional judgments about the severity of parole violations.
Restore Authority to Parole Agents. We recommend the enactment of legislation prohibiting
parole agents from being disciplined in a personnel action solely on the basis that a parolee under
an agent's supervision had committed a new crime. We believe that a parolee, and not his parole
agent, should be held responsible and accountable for the commission of new crimes. This
change would help ensure that supervision and revocation decisions are based upon the
professional judgments of parole agents rather than fear of retaliation if the parolee later
commits a new crime. Agents would remain subject to discipline for negligence or failure to
carry out their assigned duties.
Interim Budget Actions Proposed. We recommend the following actions in regard to the 1998-99 CDC parole division budget:
These actions, in our view, constitute interim steps the Legislature may wish to consider to implement our proposed reform of the state parole system.
First, the federal government has provided billions of dollars of new assistance to law enforcement agencies, especially local government agencies, in some cases with strings attached to the funding. This has occurred at a time when the federal government has reduced funding for many other programs. Prior to 1994, with the exception of some anti-drug initiatives, the federal government provided little funding for state and local law enforcement. This was because law enforcement was generally viewed as a state and local responsibility. Because of the conditions placed on the receipt of federal funds, the federal government has greatly increased its ability to influence state and local law enforcement policies.
Second, the crime bill provided new missions to federal law enforcement agencies. Specifically, the bill moved federal law enforcement agencies into enforcing drug and other violent crime laws. Traditionally, local law enforcement agencies were responsible for this type of law enforcement.
California law enforcement agencies--especially local agencies--have received significant new resources as a consequence of the federal crime bill. These funds directly benefit local law enforcement agencies, but have allowed the federal government to influence local policing strategies and policies. Between FFY 95 and FFY 97, California's local law enforcement agencies had received almost $500 million in funding that was not available before passage of the 1994 federal crime bill. Virtually every county and major local law enforcement agency has received funding. The most significant programs funded under the crime bill are the "Cops on the Beat" program, the local law enforcement block grants, and the Byrne Memorial Grants.
"Cops on the Beat" COPS Program. The federal government changed its involvement with local law enforcement when it enacted the Community Oriented Policing Services (COPS) program. This program has provided almost $4 billion to local law enforcement agencies. The program provides funding to local governments to hire police officers if they adopt "community-oriented policing tactics." According to the National Institute of Justice, there are many definitions of community-oriented policing, but they all have one element in common: a change from reactive policing to a proactive approach of police working with citizens and other community and governmental agencies based on the concept of shared responsibility for community security. In order to receive the funds, local law enforcement agencies had to meet specific criteria. Funds are awarded on a competitive basis.
Between FFY 95 and FFY 97, California law enforcement agencies have received almost $343 million through the COPS program. The recipient agencies report hiring more than 3,000 new officers using the grant funds. To qualify for these funds, local law enforcement agencies had to adopt new tactics for local policing, based on the federal model. The declines in California's crime and arrest rates are probably due, in part, to the addition of the new law enforcement personnel, and the introduction of new policing methods.
Local Law Enforcement Block Grants. This program provides grants to local governments to reduce crime and improve public safety. The funds are allocated based on a formula that takes into consideration the populations served by local law enforcement agencies. Funds are for law enforcement agencies and the majority of the grants have been used for officer salaries, overtime, and the purchase of equipment.
In FFY 97, 376 California law enforcement agencies in 53 counties received almost $72 million in block grant funds. The grant amounts ranged in size from $10,391 for the Lassen County Sheriff's Department to $17.7 million for the Los Angeles Police Department. There were 11 California law enforcement agencies that received grants of $1 million or more.
Byrne Memorial Grants to States. These anti-drug abuse grants to local law enforcement
agencies are one of the only local assistance programs funded prior to 1994. These funds are for
anti-drug enforcement and primarily fund multijurisdictional narcotics task forces. California has
traditionally received in excess of 10 percent of whatever funds are appropriated, and local law
enforcement agencies in each county receive some share of these funds. The 1998 appropriations
bill provides $551 million for the Byrne Grant program. Grant recipients in each of California's
58 counties currently receive Byrne Grant monies, through the Anti-Drug Abuse programs. For
FFY 98, California should receive almost $50 million.
California has already received more than $100 million through this program. The bulk of these funds have been allocated to counties to be used for local jails and juvenile detention facilities. California is potentially eligible to receive several hundred million dollars more before 2001.
States have also received assistance for housing undocumented aliens in state prisons. The Governor's budget assumes that the state will receive about $286 million in 1998-99 from this program. These funds will offset part of California's costs of incarcerating undocumented aliens in state prisons. In addition, California counties, especially those with large incarcerated populations of undocumented offenders, have received substantial amounts.
Of the $5.3 billion appropriation, $4.8 billion is for state and local law enforcement assistance. The funding will be provided for a wide variety of programs, including several programs that will benefit California. We show the major programs in Figure 10 (see next page).
New Juvenile Justice Initiatives. The 1998 appropriations bill was approved based on an understanding that there is bipartisan and presidential support for the new Juvenile Crime Control and Delinquency Prevention Act of 1997 (Juvenile Crime Act), which provides authorizations for juvenile crime prevention funding. This legislation has passed the House and is currently awaiting action in the Senate. The appropriations bill provides $226 million for block grants, juvenile delinquency programs, research, technical assistance, and training. These amounts will not be available until the authorizing legislation is enacted by the Senate and signed by the President.
|Selected Federal Crime Bill Programs
FFY 98 Appropriation and California Share
|Community Oriented Policing Services||$1,400.0||
|Community Oriented Policing
|Local Law Enforcement Block Grants||523.0||72.0|
|Federal Prison Construction Grants||517.0||50.0|
|Violence Against Women Act||305.5||11.0|
|Juvenile Programs (various grants)||226.3||
|Grants to Encourage Arrest Policies||56.7||8.0|
|National Criminal Background Check System||45.0||5.5|
|Substance Abuse Treatment for State Prisoners||63.0||4.6|
|DNA Identification State Grants||10.0||1.5|
|Weed and Seed program||40.0||
|Victims of Child Abuse Act||7.0||2.5|
The final version of the Juvenile Crime Act could place new requirements on the state and local governments in order to receive the funding. Currently, the bill requires the states to change their laws regarding how juveniles are treated in court in order to receive funding. Essentially, the bill would require that more juvenile offenders be prosecuted in adult court. Consequently, the measure would require different prosecution policies than those currently in effect in California.
The federal government has also expanded its jurisdictions into areas such as enforcement of narcotic laws that have traditionally been the sole responsibility of local law enforcement agencies. Additionally, the federal government has designated the Federal Bureau of Investigation (FBI) as the lead federal law enforcement agency, in essence, creating a national agency with expanded responsibilities that may overlap local responsibilities.
The 1998 federal appropriations bill includes various augmentations for the FBI, the Drug Enforcement Agency (DEA), and the U.S. Justice Department. These augmentations are for new personnel, mainly to enforce drug laws. The Congress identified California and the Southwest region as a recipient of many of the funding augmentations. Expansion of the federal law enforcement presence has the potential for benefiting California law enforcement by adding resources. But it also could allow federal agencies to set law enforcement priorities, priorities that had been set in the past by the state and local governments.
FBI and DEA. Prior to 1995, the FBI had limited jurisdiction and resources committed to drug-related crime, and fewer resources committed to violent crimes, which have historically been the responsibility of the states and local governments. Since 1995, the role of the FBI has changed significantly, having established a "de facto" merger with the DEA, to attack drug and violent crime. The FBI budget has increased 47 percent since 1995, an increase of almost $1 billion. Much of this increase is in the area of new personnel for increased federal law enforcement.
|FFY 98 New Federal Law Enforcement
Agents for California
|(Dollars in Millions)|
|Program||Funds||New Agents in California|
|Adjustments to FBI base||$60.0||300|
|FBI Southwest Border Initiative||36.0||146|
|DEA Southwest Border Initiativea||93.6||304|
|DEA Methamphetamine Initiativea||13.4||84|
|aIncludes FFY 97 increases.|
On the other hand, changing state and local policy in order to qualify for additional federal funds may not always be in the state's best interest. In addition, increasing the role of federal agencies could lead to those agencies setting priorities for how law enforcement resources are used and what types of criminals are pursued.
As a consequence of increased federal funds and changes in federal law enforcement priorities, we recommend the Legislature take the following actions.
Evaluate Proposed State-Funded Law Enforcement Increases in Context of Expanded Federal Funds. California law enforcement agencies have received significant amounts of federal funding since 1994. The Legislature needs to take these new funds into account when considering whether to fund or expand existing state assistance programs to local law enforcement or to add new programs.
For example, local law enforcement agencies in California have received (1) $72 million in the current year through federal law enforcement block grants, (2) $372 million to date in federal COPS funding, and (3) over $50 million in Bryne Memorial Grants. All of the agencies that have received federal funds also have received funding from the state's COPS program, which has provided $75 million from the General Fund annually for the past two years. The budget proposes to continue the state's COPS program in 1998-99. The Legislature needs to evaluate any new proposals that would increase resources for these agencies and whether state funds for law enforcement can be reduced or redirected to other parts of the criminal justice system that have not received new federal monies.
Consider Linkages With Federal Priorities. The Legislature should review the state COPS program and other state law enforcement assistance programs to determine how these funds fit with federal program revenues. The Legislature may wish to direct how state monies should be used, for example towards meeting local matches or share of costs for federal funds. In this way, the Legislature can maximize both federal and state funding.
Impacts on Law Enforcement Missions. The state will also need to evaluate the impact of changing federal law enforcement missions. For example, as the federal government increases its resources committed to fighting drugs on the southwest border, the Legislature might wish to direct the state Department of Justice to identify how its efforts in the same area will take advantage of these new resources and how it will ensure that state efforts do not overlap federal initiatives. The Legislature should consider a statewide strategy that integrates federal efforts with state and local efforts. In that way, overlap can be minimized and those areas where federal funds are expended, can be left to federal agencies.
Monitor Future Changes. The Legislature also needs to monitor proposed federal reforms, especially those related to the federal juvenile justice legislation that is being considered in the Senate, and evaluate whether new federal funds justify changes, if any, in the state's juvenile justice system. Many recent state juvenile justice efforts have resulted in an increasing emphasis on the prevention of juvenile crime and reducing juvenile recidivism. Adoption of major new federal policies such as those currently being considered in Washington, could be inconsistent with recent state and local efforts. We believe the Legislature should make decisions on juvenile justice policies on their merits, not in hopes of increasing federal funds.
Legislature Should Hold Hearings. Finally, we believe that the Legislature should hold hearings and request that federal law enforcement officials present information, on how new federal law enforcement initiatives will affect California. Special emphasis needs to be placed on understanding the relationships between the federal law enforcement, especially the FBI, to local law enforcement, so that the state can be sure that law enforcement priorities are set by state and local officials, not federal officials. In addition, understanding federal plans can help the Legislature evaluate how the state will change its own programs to ensure that monies are not wasted, but that the state maintains appropriate control of state and local law enforcement policy.
To ensure that these changes effectively implement the legislation's intent, the Legislature should ensure that adequate training programs and management infrastructure are implemented by the appropriate agencies. We recommend that the Office of the State Public Defender report at budget hearings on its development of attorney training programs and implementation of automated case management systems and attorney workload standards. In addition, we recommend that the Legislature adopt supplemental report language directing the newly created California Habeas Resource Center to provide the same information.
If the death penalty sentence is affirmed by the Supreme Court, the inmate can continue his or her appeal with habeas corpus claims in state and federal court. Habeas corpus claims concern issues of whether the defendant received a fair trial. These claims often include matters which are not necessarily reflected in any of the trial court records, and require independent investigation. These claims can include ineffective assistance of counsel or failure of the district attorney to disclose certain evidence.
The Backlog of Death Penalty Cases Continues to Grow. As we reported last year, there has been considerable delay--generally three to four years--in appointing appellate counsel for indigent criminal defendants sentenced to the death penalty. Figure 12 shows that as of December 1997, there were 493 inmates under a death sentence awaiting appeal of their cases in state and federal courts. There are 315 direct appeal cases pending before the California Supreme Court. Appellate attorneys have been appointed to 150 of these cases. The remaining 165 cases are awaiting appointment of an attorney, an increase of 18 cases from a year ago. The backlog of inmates who are without defense counsel has increased substantially since 1989, when there were only 27 awaiting counsel. In recent years there has been an average of three new death penalty judgments per month, while defense counsel has been appointed for approximately two capital cases per month. Figure 13 shows how the backlog has increased over the last ten years.
|Status of Cases of Inmates
Under Death Sentences
|As of December 31, 1997|
|Total inmates under death sentencesa||493|
|Sentences affirmed by California Supreme Court,
now appealed in federal courts
|Direct appeals pending before California Supreme Court||315|
|aIncludes seven inmates who have death sentence cases from two different cases.|
Budget Includes Funding Increases for Capital Appeal Process.Figure 14 (see next page) shows the proposed budgets for various state agencies that have roles in the capital appellate process. As indicated in the figure, the budget proposes a total of $34.7 million for these programs, which is a 56 percent increase since 1996-97. The amounts shown in the figure underestimate the total state costs for the capital appeals process because they do not include attorney staffing for the Supreme Court and certain prosecution expenditures for the Department of Justice (DOJ). We discuss the proposed funding levels below.
|Proposed Funding for Death Penalty Appeal Process|
|(Dollars in Millions)|
Change From 1996-97
|State Public Defender||$8.6||$10.1||$11.2||30.9%|
|Supreme Court (Court-
Appointed Counsel Program)
|Department of Justicea||7.1||8.2||9.3||30.8|
|aIncludes only costs for attorneys.|
Role of the Office of State Public Defender Increased. Currently, there are about 42 attorneys at OSPD who are handling about 25 cases on direct appeal and about 25 state habeas proceedings. By the end of 1997-98, the number of attorneys handling cases at the OSPD will increase by 18, or 42 percent. The OSPD will continue working on all of its current cases. In the future, however, it will only take direct appeal cases from the current backlog of unrepresented cases; it will not handle new habeas corpus proceedings in either state or federal courts.
In the current year, OSPD received $1.5 million in one-time funding to recruit personnel for its new attorney positions and to develop and implement a new training program. The budget proposes full-year funding of $2.7 million for these additional positions, which will provide funding for a total of 60 attorneys handling death penalty appeals. As can be seen in Figure 14, this represents an increase of 31 percent in the budget for the OSPD since 1996-97. Previously, the budget for OSPD had actually decreased 15 percent from 1990-91 through 1996-97.
Creation of the California Habeas Resource Center. Chapter 869 also created the CHRC within the Judicial Council. The new agency will be responsible for representing death penalty cases in habeas corpus proceedings in both the state and federal courts and providing assistance to private counsel representing such cases. Chapter 869 provides that a five-member board of directors for the CHRC be appointed by February 1, 1998. The board members will be attorneys selected by each of the five regional appellate projects, which are nonprofit corporations that recruit, supervise, and train attorneys who handle appellate cases. The board members, who must be confirmed by the Senate, will be responsible for selecting the executive director of the organization, whose minimum qualifications are the same as those of the State Public Defender.
Figure 14 shows the current- and budget-year proposals for CHRC. Similar to OSPD, a one-time $2 million appropriation was made in the current year for initial start up costs of the CHRC. It is expected that many of the 60 proposed positions (30 attorneys) in the CHRC will be phased in throughout the current- and budget-years. Consequently, the proposed budget includes $2.8 million for partial-year staffing and administrative costs for the CHRC. The full-year costs are expected to be $3.8 million.
Court-Appointed Counsel Program Growth. In recent years, the Supreme Court has come to rely on the CAC, in lieu of the OSPD, to represent most of the inmates on death row. About 100 private attorneys are currently serving as court-appointed counsel in about 125 of the 150 direct appeals cases for which counsel have been appointed. Currently, these private counsel also generally handle the state habeas corpus proceedings for those cases in which they handle the automatic direct appeal. Under the new dual track system, private attorneys will handle either the direct appeal or the habeas proceeding, but not both, for any new cases assigned to them.
Figure 14 shows that total expenditures for the CAC program are projected at $11.3 million in the budget year, which is a 72 percent increase from expenditures in 1996-97. This increase is primarily attributable to an increase in the hourly rate paid to private attorneys representing capital appellants, from $98 per hour to $125 per hour, as well as projected caseload increases in the current and budget years. For further discussion of this issue, see Judicial (Item 0250) later in this chapter.
Increases for the Department of Justice. As with regular criminal appeals, the DOJ represents the People of California in capital appeals in state and federal court. As indicated in Figure 14, the attorney costs for handling such cases at the DOJ have increased by 31 percent since 1996-97. This amount includes only the costs for attorneys at the DOJ and does not include funds expended for consultants and experts, costs for investigating habeas claims, and transcript costs and filing fees in the federal courts, because these other costs are not categorized separately from other criminal appeals workload. The proposed increase for the budget year includes $1 million for additional attorneys and support staff to handle anticipated workload impacts from the reforms in the appointment of counsel, including the expansion of the OSPD and the creation of CHRC.
The Legislature has been concerned about the backlog of inmates on death row without legal representation. Without an attorney, which is guaranteed by the Constitution, an inmate's appeal to the Supreme Court--which is required under the state's death penalty law--cannot go forward. The current delays in appointing attorneys to these cases place serious burdens on many parties--the inmates, the families of victims, and law enforcement and criminal justice officials who prosecuted the original case.
Recent legislation such as Chapter 1086, Statutes of 1996 (AB 195, Morrow), which set new time lines for certification of the trial court record, and the reforms in Chapter 869 discussed above, together with recent federal reforms, should in the long run shorten the time required for the appellate process. However, despite these changes, the current backlog of inmates without defense counsel will probably not be reduced significantly in the short term, primarily because it is likely to take time to fill positions and train new attorneys at the OSPD and the newly created CHRC.
Adequate Training Programs Needed. Historically, there have not been many attorneys who
performed this type of specialized practice. The cases are frequently very long, complex, and
generally unattractive. In addition, many attorneys do not meet the Judicial Council's current
minimum qualifications for appointment to such cases, and most qualified attorneys can only
handle one case at a time. The current qualifications include the following: (1) active practice of
law for four years in California state courts or equivalent experience; (2) attendance at three
approved appellate training programs, including one program concerning the death penalty; (3)
completion of seven appellate cases, one of which involves a homicide; and (4) submission of
two appellant's opening briefs written by the applicant, one of which involves a homicide case,
for review by the court. The Judicial Council is revising the standards and new standards are
expected to be approved by this spring. It is not known how many attorneys in California meet
the current minimum qualifications or whether the number will substantially change with the
Given that there are currently only about 150 attorneys statewide handling capital appeal cases, both the OSPD and CHRC will need to spend time recruiting and training new attorneys for this workload. The OSPD reports that while there have been a large number of attorneys who have applied for the new attorney positions, virtually all of the candidates fail to meet the current eligibility requirements for lead counsel on death penalty cases. For example, OSPD indicates that it has received few applications from private attorneys currently handling cases in California. It is likely that most new attorneys hired by OSPD and CHRC will require several years of training to meet the minimum qualifications for appointment as lead counsel. Because the new minimum qualifications will probably contain similar provisions requiring appellate court experience, it is likely that any training program developed at OSPD and CHRC will require attorneys to accept noncapital criminal appeal cases for up to two or three years in order to qualify as lead counsel in capital cases.
Adequate Management Infrastructure Needed. In order to ensure that the expansion of the OSPD and the creation of the CHRC are successful, it will be important that an adequate management infrastructure is established. For example, neither agency currently has an automated case tracking system in place. For the OSPD, the increasing number of attorneys will make it difficult to track the department's caseload without an automated case tracking system. In addition, since the OSPD will only be assigned to new direct appeal cases, it will need to develop and refine attorney workload standards. The implementation of an automated case tracking system will provide OSPD with new data on attorney workload hours which will assist it in developing and refining benchmarks and standards for attorney workload. The OSPD expects that a new system will be implemented this spring.
The executive director of the CHRC will not likely be selected until this spring, so it is currently unknown when plans for management infrastructure at CHRC will be established.
Analyst's Recommendation. Due to the recent changes to the capital appellate process and the related problems of recruitment and training of attorneys, we recommend that OSPD report at budget hearings on its ability to recruit attorneys and implement training programs, as well as report on the implementation of automated case tracking systems and attorney workload standards. Additionally, we recommend that the Legislature direct the CHRC to report on their ability to recruit attorneys and implement an adequate management infrastructure as part of its annual report to the Legislature, as required by Chapter 869. Specifically, we recommend adoption of the following supplemental report language:
The California Habeas Resource Center should provide information to the Legislature as part of its annual report as to its ability to fill authorized attorney positions. It should also provide information on the implementation of new training programs, including the number of participating attorneys, the types of training provided for both new and experienced attorneys, and proposed measures for evaluating the program. In addition, it should report on the implementation of automated case management systems and the development of attorney workload standards.
Prior to June, California law provided immunity to a manufacturer or seller in a product liability action if (1) the product is inherently unsafe and is known to be unsafe by the ordinary consumer and (2) the product is a common consumer product intended for personal consumption such as sugar, castor oil, alcohol, tobacco, and butter. Chapter 25 clarified the product liability immunity statute, declaring that immunity of manufacturers and sellers from product liability actions does not apply to actions brought by public entities to recover state-paid tobacco-related costs.
In August and September, the Legislature and Governor enacted complementary legislation which essentially made it possible for individualsto sue tobacco companies for product liability. Specifically, Chapter 570, Statutes of 1997 (SB 67, Kopp), removed tobacco from the list of products immune from product liability actions. The measure provided that it is the intent of the Legislature that there is no impediment to individuals suing for tobacco-related personal injury, wrongful death, or other tort claims, or others who have suffered or been injured by tobacco products.
Recovery of Tobacco-Related Medi-Cal Expenditures. The state is seeking to recover the cost of health care services provided to Medi-Cal beneficiaries who suffer from illnesses caused by using tobacco products. The suit seeks to recoup the costs of such care over the past three years, in accordance with statutes of limitation in state law.
Violations of California's Anti-Trust Laws. The state's complaint alleges that the tobacco firms (1) conspired to not develop or market safer cigarettes and tobacco products and (2) conspired to not compete on the basis of relative product safety.
Violations of California's Consumer Protection Laws. These laws prohibit unfair competition, which is defined as deceptive, unlawful, and unfair business practices. The complaint alleges that tobacco companies violated these laws by: (1) making misrepresentations and deceptive statements to sell their products, (2) targeting minors to buy cigarettes, (3) manipulating levels of nicotine in their cigarettes without adequate disclosure, and (4) improperly suppressing evidence about the health consequences of the product.
Violations of California's False Claims Act. The state alleges that the tobacco companies improperly concealed certain documents and records which would otherwise have been available to inform California authorities of the companies' wrongdoings.
In August, the state filed an amended complaint in which punitive damages were added as another remedy being sought.
As regards Medi-Cal costs, the total recovery is estimated to be between $1 billion and $2 billion over three years. This amount is based in part on Department of Health Services' (DHS) estimates that, during 1995-96, the Medi-Cal program paid out more than $433 million to health care providers for the treatment of tobacco-related illnesses. The amount that the state would ultimately receive would depend on whether the federal government shares in the recovery in the same proportion that it shares in the costs of this program.
The suit also seeks civil penalties in excess of $500 million for anti-trust and consumer protection violations. Other penalties such as punitive damages and forcing payment from profits have the potential to be much greater than the Medi-Cal recoveries and the civil penalties, and would be determined by the court.
In addition to financial penalties, the suit seeks other relief, as determined appropriate by the court. This relief could be to end anti-competitive behavior or unfair business practices. Examples could include banning certain types of advertising that were deemed deceitful or targeted at minors.
The monetary provisions of the settlement agreements for the three states that have settled with the tobacco companies have been very large: $3.6 billion for Mississippi, $11.3 billion for Florida, and $15.3 billion for Texas, each paid over 25 years. Other nonmonetary provisions from the three settlement agreements include elimination of billboards and transit advertising, including the elimination of advertisements in stadiums and arenas and near schools, and the prohibition of the sale of cigarettes from vending machines except in adult-only locations.
Up to now, the strategy of the tobacco companies appears to be to settle cases just prior to the commencement of the trial. This may be because the tobacco companies are favoring a "global settlement" that the 40 states reached and is being debated in Congress. We discuss the global settlement in more detail below.
Current Year. In the current year, the DOJ received a deficiency allocation of $11.4 million ($6.6 million from the General Fund, $4 million in reimbursements from DHS, and $736,000 from the False Claims Account) to pursue the case. This amount includes funds for 93 positions (including 26 attorneys), expert consultation and testimony, independent studies, and deposition-related costs. The DOJ anticipated significant workload related to discovery, based on the experience in other states where the tobacco companies have pursued a strategy that requires a case-by-case review of Medicaid records when determining their responsibility for medical costs.
The DHS received a current-year deficiency allocation of $10 million ($5 million from the General Fund and $5 million from federal funds) and 21 positions, which will be used principally to respond to anticipated discovery requests from the tobacco industry. The amount supports personnel and other expenses for DHS's Office of Legal Services and Payment Systems Division, and the reimbursements to the DOJ. It also provides for several external contracts with Electronic Data Systems and managed care contractors to identify and produce reports, claims, and supporting documents from Medi-Cal files needed to comply with the anticipated tobacco industry requests.
Budget Year. The Governor's budget proposes continuing these expenditures to support the litigation effort. Specifically, the DOJ budget proposes a total of $13.9 million ($8.1 million from the General Fund, $4.9 million in reimbursements from DHS, and $912,000 from the False Claims Account), and a total of 121 positions. The DHS budget proposes $10.9 million (50 percent General Fund and 50 percent federal funds) and a total of 21 positions.
Starting January 1, 1998, discovery in the action may be commenced by either side. During discovery, the state (particularly DHS) expects to be asked to locate and produce millions of state documents relating to any damage which the state claims it has incurred as a result of tobacco use. Additionally, the state will seek to obtain documents from the tobacco companies that have already been made available to other states, as well as evidence specifically relating to California.
What Is the Global Settlement? On June 20, 1997, the tobacco industry, 17 class action plaintiffs, and most of the 40 state attorneys general suing the industry (including California's) announced a tentative agreement on how to settle the various tobacco suits pending across the country. The terms of the global settlement agreement include the following:
In exchange, the settlement calls for Congress and the President to enact laws that would essentially halt much of the current litigation against the tobacco industry, including the states' cases, and enact certain restrictions on future litigation against the industry, including no punitive damages, no class actions, and an annual cap on damage payments.
The global settlement has not yet been enacted by Congress. President Clinton has announced general support for the settlement and legislation which would build on the global settlement as it now exists, as well as provisions which would stress the reduction in youth smoking.
The global settlement and possible federal legislation will be considered by Congress later this year. At this time, it is difficult to predict either when or if the global settlement will be enacted. Absent an agreement on the global settlement, the DOJ is continuing to pursue the lawsuit in state court and is preparing for trial.
What Will Happen if the Global Settlement Is Approved? If the global settlement is approved, it would supercede the individual state settlements. California's lawsuit against the tobacco companies would be deemed "legislatively settled."
California could expect its share of the $368 billion settlement. No agreement has been reached as to the distribution of the $368 billion among the states. However, it is possible that California's portion of the global settlement would be at least $20 billion over 25 years. The nonmonetary provisions of the settlement would apply in California.
What Will Happen if the Global Settlement Is Rejected? If the global settlement is rejected, the DOJ will continue to litigate the matter in state court and seek judgments on the four causes of action detailed above. It is not likely that there would be any potential for settlement in the case prior to the trial date in the summer of 2000. Further, the tobacco companies might change their strategy, preferring to go to trial rather than settle the case, in an attempt to limit future tobacco industry liabilities.
The most immediate question is whether Congress and the President will approve the global settlement. To the extent that it is approved, follow-up questions include the following:
If the global settlement is not approved, California will presumably continue with its current lawsuits, which are not likely to be resolved for several years.