Legislative Analyst's Office

Analysis of the 2000-01 Budget Bill
Board of Prison Terms (5440)

The Board of Prison Terms (BPT) is composed of nine members appointed by the Governor and confirmed by the Senate for terms of four years. The BPT considers parole release for all persons sentenced to state prison under the indeterminate sentencing laws. The BPT may also suspend or revoke the parole of any prisoner under its jurisdiction who has violated parole. In addition, the BPT advises the Governor on applications for clemency and helps screen prison inmates who are scheduled for parole to determine if they are sexually violent predators subject to potential civil commitment.

The 2000-01 Governor's Budget proposes $19 million from the General Fund for the support of the BPT. This is an increase of $1.4 million, or 7.7 percent, above estimated expenditures for the current year. The proposed current- and budget-year increases are primarily the result of an increase in compensation for BPT employees.

Process Without Possibility of Parole: Hearings for Life-Term Inmates

An unwritten administration policy that effectively ensures that no inmate with a life sentence is released on parole has significant legal, policy, and fiscal ramifications for the state criminal justice system. The Board of Prison Terms (BPT) continues to receive full funding for its parole review process despite the current release policy. We recommend that the Youth and Adult Correctional Agency and BPT clarify the scope, intent, and reasons for the administration's policy at budget hearings.

Background. Under the state's determinate sentencing law, many offenders, such as those convicted of robbery or burglary, are sentenced by the courts to serve a specific period of time in state prison as punishment for their offenses and then are automatically released to the community under the supervision of parole agents. However, certain offenders, particularly those punished for murder, are serving so-called indeterminate sentences in which the period of time to be served in prison before release to parole is not fixed in advance by the court.

For example, a first-degree murderer can be sentenced to an indeterminate prison term of 25 years to life. These indeterminately sentenced offenders are often called "lifers" even though most are eventually legally eligible for release. In the example of the person convicted of murder above, an offender sentenced now for such a crime is eligible for release on parole after being incarcerated for 25 years for the offense.

About 24,100 offenders with life sentences were being held in the adult state prison system as of December 1998. Of that group, 2,100 were inmates serving prison terms of life without the possibility of parole and 5,500 inmates were offenders sentenced under the "Three Strikes and You're Out" law who will not be eligible for parole until 2014 at the earliest.

The remaining 16,500 inmates who have received life terms, the great majority of whom have been convicted of first- or second-degree murder, become eligible under state law for parole consideration once they have served the minimum number of years in prison specified in state law for their particular crime.

The Role of BPT and the Governor. The BPT is the state agency primarily responsible under state law for deciding when those lifers who have served the minimum required prison time, and thus are now eligible for parole, will actually be released to the community. The formal process for making parole decisions and the criteria that are supposed to be applied in making such decisions are outlined in the State Constitution and the Penal Code and in past judicial decisions. The process outlined includes the following steps:

The parole process constitutes a significant workload for the BPT. The BPT's latest budget request is based on the assumption that panels of commissioners and deputy commissioners will conduct 2,700 documentation hearings, 500 initial hearings, 1,700 subsequent hearings, 2,300 decision review hearings, and process 400 lifer-inmate appeals during the course of the 2000-01 fiscal year. These activities are estimated to consume about 9,000 hours of time of deputy commissioners and 15,400 hours of time of commissioners, as well as generate a considerable workload for clerical, legal, and other administrative staff.

Lifer Releases Essentially Discontinued. As shown in Figure 1, the number of lifers released to the community diminished during the 1990s according to California Department of Corrections (CDC) data. During the 1989 calendar year, 51 first-degree and three second-degree murderers were released on parole by the BPT. By 1998, the number had decreased to 14--two first-degree and 12 second-degree murderers. Notably, this dramatic slowdown in the rate of parole for lifers occurred even as the pool of lifer inmates eligible for release grew by 300 to 700 inmates per year.

No inmates were released on parole in 1999. On at least 18 occasions in 1999 (BPT declined to provide the Legislature with the exact figure), BPT recommended that parole be granted, but in each case the Governor requested to review the case and reversed the parole decision. The administration has issued no formal written policy declaring or explaining this change in parole decision-making and has not yet provided reports required by the State Constitution explaining its actions on the parole cases. However, the Governor has indicated publicly that he objects to the release of anyone who has committed murder.

Ramifications of the New Policy. The unwritten administration policy of no longer releasing from prison any life-term inmate who is eligible for parole has significant legal, policy, and fiscal ramifications for the state criminal justice system.

The no-parole policy for lifers is likely to result in further litigation between the state and inmates seeking parole. The courts could determine that the administration's policy is contrary to state law and restrict the administration's authority over parole releases. Alternatively, the courts might conclude that the Governor's actions are not contrary to current law.

Recent Office of Administrative Law Determination. A recent ruling by a state agency has cast a legal cloud over the administration's actions. In November 1999, the Office of Administrative Law (OAL) released an official regulatory determination finding that, if the state was denying parole to life inmates as a group, such actions were illegal because such a policy would have to be adopted as a formal state regulation.

The OAL stopped short of determining whether such a policy was actually in practice, saying that such a determination is beyond its legal jurisdiction. Its written ruling raises the question, however, whether any such regulation establishing a no-parole policy for lifers, if it were to be formally submitted to OAL, would be in conflict with existing statutes and judicial case law governing the parole process. The OAL determination refers to a 1972 California Supreme Court ruling and a 1983 state appellate court ruling which held that state officials could not legally prohibit the release on parole of offenders as a class but were instead required to examine the case of each inmate individually based upon all relevant aggravating and mitigating factors.

Effects on Future Decisions. The practice of denying parole to all lifers potentially could also affect sentencing practices by the courts and future legislative decision-making on sentencing laws. Under such a circumstance, both the courts and the Legislature might take into account the likelihood that any prison term of life with the possibility of parole may actually amount to life without the possibility of parole. This could result in judges being more or less willing to sentence a particular offender to a life term, and could make the Legislature more or less willing in the future to establish a life term as the penalty for a particular offense in the drafting of new sentencing laws.

Fiscal Impact of Policy Change. The slowdown in parole releases during the 1990s has already had a significant fiscal impact on the state. We estimate that more than 4,000 offenders now held in the state prison system at an annual cost of at least $100 million annually have served the minimum period of prison time to be eligible for parole release. Based on our review of BPT caseload data, the number of additional prison inmates who exceed their minimum eligible release date without being released to the community is about 500 per year. Thus, with each passing year, state incarceration costs for this group of offenders is building by about $12 million.

In addition, because offenders with life terms ordinarily are held in high-security facilities, the policy has added to the pressure on the state to build additional maximum-security bed space, such as the $335 million prison now under construction near Delano. The policy is also driving up CDC medical costs, because aging lifers are more likely to need medical assistance.

Even before the 1990s decline in parole releases, only a fraction of the offenders eligible for parole were actually being released. In 1989-90, for example, about 3.2 percent of the inmates participating in parole hearings were granted a parole date. If parole releases of lifers were occurring today at the same 3.2 percent rate, the number paroling each year would be about 70 and state incarceration costs would be offset by about $1.6 million more each year.

Impact on BPT Expenditures. One effect of the policy of denying release of life-term inmates has been to increase costs for BPT operations. After initially being denied release, the offenders periodically come back to the board for subsequent hearings, increasing that caseload by 140 percent during the 1990s.

So far, however, the decision to halt the release of lifers has not otherwise affected BPT expenditures. The BPT has continued to receive full funding for hearings, decision reviews, and other parole procedures in its budget even though current practice indicates that no life-term inmates will be released on parole.

Analyst's Recommendation. At the time this Analysis was prepared, we were unable to clarify the scope, intent, and reasons for the administration's unwritten policy of halting all releases of lifers to parole. A response by BPT to our request for this information, which was reviewed and released to us by the Youth and Adult Correctional Agency, stated only that BPT has not changed its own parole policies and provided no information regarding the administration position on several important issues. Among the issues for which we were unable to obtain clarification:

Accordingly, we recommend that the Youth and Adult Correctional Agency and the BPT clarify the scope, intent, and reasons for the administration policy at budget hearings. We also recommend that they provide the following additional information to the Legislature:

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