Promoting Equity in the Parole Hearing Process

2023-24 BUDGET Promoting Equity in the Parole Hearing Process GABRIEL PETEK | LEGISLATIVE ANALYST JANUARY 2023 www.lao.ca.gov i AN LAO REPORT ii LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT Executive Summary Parole Hearings Determine if People Can Be Released From Prison Based on Risk The purpose of the state’s parole hearing process is to decide if eligible people (referred to as parole candidates) can be released from state prison based on a determination of whether they pose an unreasonable risk to the public. Parole hearings are conducted by commissioners who work for the Board of Parole Hearings (BPH). Statute gives parole candidates the right to an attorney at parole hearings. BPH appoints and pays for an attorney for candidates who do not retain a private attorney. Aspects of Parole Hearing Process Could Lead to Inequitable Outcomes Potential Bias From Overly Broad Discretion. We find that the parole hearing process affords BPH commissioners and other key actors in the process overly broad discretion. This level of discretion could result in biased decisions in various ways. For example, a large body of research has found that people can exhibit implicit bias, meaning they tend to unconsciously associate certain groups of people with specific attributes. To the extent that implicit bias affects key actors’ thinking in the parole hearing process, candidates who are subject to negative implicit biases would be disproportionately disadvantaged in the process. Moreover, we find that the current process does not adequately provide safeguards on the use of discretion. Specifically, BPH does not publish data on hearing outcomes disaggregated by candidate subgroups, such as race or ethnicity. In addition, there is no regular external monitoring of the extent to which there are differences in release rates between groups that are likely the result of bias. Potentially Inequitable Access to Effective Legal and Hearing Preparation Services. Available data raise concerns that candidates who rely on state-appointed attorneys have worse hearing outcomes and may be receiving less effective legal and other hearing preparation services relative to candidates who are able to access a private attorney. This means that two candidates who are otherwise identical might have different hearing outcomes based on their ability to access a private attorney. While the state has recently taken steps to improve state-appointed attorney effectiveness and candidate access to hearing preparation services, it is currently unclear whether these steps are sufficient due to lack of data and evaluation. Recommendations to Promote Equity in the Parole Hearing Process Consider Reducing Commissioner Discretion and Add Key Safeguards. Currently, commissioners can deny parole if they can point to any evidence—even if based on subjective determination—that a candidate may pose a current risk of dangerousness. We recommend that the Legislature consider changing statute to reduce this discretion somewhat, such as by increasing the standard that commissioners must meet to deny parole. In addition, we recommend that the Legislature require BPH to release public data on outcomes by subgroups as well as support periodic quantitative and qualitative studies of the parole process by independent researchers. Ensure Consistent Access to Effective Legal and Hearing Preparation Services. We recommend that the Legislature first assess the impact of recent changes intended to improve access to and effectiveness of legal and hearing preparation services. We further recommend using the results of this assessment to inform whether future legislative action is needed. Finally, we provide various options that the Legislature could consider if the assessment does not reveal adequate improvements, such as shifting responsibility for providing attorneys to an external entity. www.lao.ca.gov 1 AN LAO REPORT INTRODUCTION While in state prison, certain people become and the safety of the general public. In addition, by eligible for possible release onto supervision in determining when people are released from prison, the community. The purpose of the state’s parole parole decisions impact the size of the prison hearing process is to decide if these people can population and, in turn, state correctional costs. be released—based on a determination of whether In this report, we (1) provide background on they pose an unreasonable risk to the public. California’s parole hearing process, (2) review For about 40 percent of people held in California’s the process and identify current aspects of the prison system, the amount of time they ultimately process that could disadvantage certain groups, serve in prison—in many cases including whether or and (3) recommend steps to promote equity in the not they will spend the rest of their lives in prison— parole hearing process. In preparing this report, is determined through the parole hearing process. we consulted with leaders who oversee the parole (The remaining portion are generally released hearing process, attorneys who represent people automatically from state prison onto supervision in who receive parole hearings, researchers, and other the community.) Accordingly, decisions made in the stakeholders. We also analyzed data on outcomes parole hearing process have major implications for of state parole hearings. Finally, we reviewed the lives of a significant portion of the state prison various research studies on parole in California and population and their loved ones, as well as victims other states and observed parole hearings. BACKGROUND ON PAROLE HEARINGS Overview of Board of Parole Hearings varied professional and educational experience in fields such as corrections, sociology, law, law The Board of Parole Hearings (BPH) within enforcement, health care, or education. While not the California Department of Corrections the focus of this report, we note that BPH has and Rehabilitation (CDCR) is composed of various other responsibilities, such as advising the 21 commissioners who are appointed by the Governor on applications for clemency. Governor and subject to confirmation by the Senate. Statute specifies that these appointed Eligibility for Parole Hearings commissioners should reflect, as nearly as possible, Depending on their crime and criminal a cross section of the racial, sexual orientation, history, people in prison have one of four types gender identity, economic, and geographic of sentences: (1) death, (2) life without the features of the population of the state. Appointed possibility of parole (LWOP), (3) indeterminate, and commissioners work with civil service deputy (4) determinate. As of November 2022, CDCR was commissioners (who are hired by BPH rather than incarcerating a total of roughly 96,000 people. This appointed by the Governor) to administer parole includes about 700 people (1 percent) sentenced hearings. (For the purposes of this report, we refer to death; 5,100 (5 percent) sentenced to LWOP; to both appointed commissioners and deputy 31,000 (32 percent) with indeterminate sentences; commissioners collectively as commissioners.) and 59,000 (62 percent) with determinate The purpose of parole hearings is to decide sentences. People with death sentences are not whether to release certain people (referred to eligible for parole hearings. People with the other in this report as “parole candidates”) from state three types of sentences may be eligible for parole prison. Statute specifies that commissioners should hearings for various reasons, as discussed below. have broad backgrounds in criminal justice with 2 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT People With Indeterminate Sentences. • Were Not Convicted of a Violent Crime. People with indeterminate sentences—typically These people can become eligible for parole given for severe crimes such as murder—have hearings before serving the minimum term in a prison term that includes a minimum number their sentence. The precise amount of time of years but no specific maximum, such as they must serve before this hearing depends “30-years-to-life.” They can only be released from on what crimes they were convicted of. This prison if found suitable for release through a parole primarily applies to people who received hearing. All people with indeterminate sentences indeterminate sentences for nonviolent are eligible for parole hearings once they serve the felonies under the state’s Three Strikes Law. minimum term in their sentences. However, three (For more on the Three Strikes Law, see the types of indeterminately sentenced people could box on the next page.) About 2,700 (9 percent) become eligible to begin receiving parole hearings of those with indeterminate sentences are earlier. Specifically, people who: receiving or are expected to receive parole hearings earlier than otherwise because they • Were Under Age 26 When Committing were not convicted of a violent crime. Their Crime. These people generally become eligible for parole hearings after serving If they are released from prison, people with 25 years in prison. These parole hearings are indeterminate sentences are supervised in the called youth offender hearings and can lessen community by state parole agents. the sentences of people who committed People Previously Sentenced as Minors to crimes while, according to research, their LWOP. People can be sentenced to LWOP for brains were still developing. As we discuss certain severe crimes, such as murder involving further below, youth offender parole hearings torture. People with LWOP sentences are not are slightly different from standard parole eligible for parole hearings, with the exception of hearings as they involve consideration of those who received an LWOP sentence for a crime certain factors related to candidates’ growth they committed while under 18 years of age. This is in maturity. As of November 2022, about due to U.S. Supreme Court rulings in 2012 and 5,800 (19 percent) of those with indeterminate 2016, which prohibited LWOP sentences for such sentences are receiving or are expected people and required that those who had previously to receive parole hearings earlier than received them be given a meaningful opportunity otherwise because they qualify for youth for release. Accordingly, such people are eligible offender hearings. for youth offender parole hearings after serving • Served More Than 20 Years in Prison 25 years in prison. About 200 (4 percent) of those and Are Age 50 or Over. These people sentenced to LWOP are receiving or expected to are generally eligible for hearings called receive youth offender parole hearings because elderly parole hearings, which can lessen the they committed their crime before the age of 18. sentences of people whose age, according If released from prison, these people are supervised to research, makes them less likely to commit in the community by state parole agents. additional crimes. As we discuss below, Certain People With Determinate Sentences. elderly parole hearings are also slightly Most people in prison have determinate sentences. different from standard parole hearings in People with determinate sentences are sentenced that they involve consideration of certain to a fixed number of years in prison and are factors related to candidates’ advanced released after serving that time. However, they can age. About 10,000 (33 percent) of those with become eligible for parole hearings to potentially indeterminate sentences are receiving or are be released earlier. This can occur in two ways. expected to receive parole hearings earlier First, people with determinate sentences who than otherwise because they qualify for elderly were under the age of 26 when they committed parole hearings. their crime are generally eligible to begin receiving youth offender parole hearings after www.lao.ca.gov 3 AN LAO REPORT serving 15 years in prison. About 4,400 (7 percent) the commissioners must then decide when the of those with determinate sentences are eligible candidate’s next parole hearing should occur. for possible release earlier than otherwise through Would the Candidate Pose an Unreasonable youth offender parole hearings. Second, people Risk of Danger if Released? In deciding whether with determinate sentences who are age 50 or over candidates are suitable for release, commissioners and have served at least 20 years in prison can are guided in large part by case law. In particular, generally become eligible to begin receiving elderly the California Supreme Court has ruled that the parole hearings. About 2,000 (3 percent) of those central question in determining suitability is whether with determinate sentences are eligible for possible a candidate would currently pose an unreasonable release earlier than otherwise through elderly parole risk of danger to the public if released. In addition, hearings. Regardless of whether they are released the court has ruled that a decision to find a after completing their entire sentence or earlier candidate unsuitable for release must be based on by BPH, people with determinate sentences are “some evidence” that the candidate represents an supervised in the community for a period of time unreasonable risk. As a result, BPH is not permitted by either state parole agents or county probation to base decisions solely on the heinousness of the officers, depending on the crime they committed. crime, the opinions of victims, or public outcry— unless there is a clear nexus between those factors Key Decisions Made in Parole Hearings and candidates’ current dangerousness. At each parole hearing, BPH commissioners To assist commissioners in this decision, BPH must decide whether the parole candidate would regulations outline factors that tend to show pose an unreasonable risk of danger if released suitability for release (such as signs of remorse) from prison. If the candidate is not released, and factors that tend to show unreasonable risk to the public (such as in-prison misconduct). Three Strikes Law In 1994, the California Legislature and voters (with the passage of Proposition 184) changed felony sentencing law to impose longer prison sentences on people who have certain prior felony convictions (commonly referred to as the Three Strikes Law). Specifically, a person who is convicted of a felony and who previously has been convicted of one or more specific felonies classified as “violent” or “serious” is currently sentenced as follows: • Second Strike Offense. If the person has one previous serious or violent felony conviction, the sentence for any new felony conviction (not just a serious or violent felony) is twice the term otherwise required under law for the new conviction. People who receive this sentencing enhancement are referred to as “second strikers.” • Third Strike Offense. If the person has two or more previous serious or violent felony convictions, the sentence for any new serious or violent felony conviction is a minimum sentence of 25-years-to-life in prison. In addition, people with two or more previous serious or violent convictions who commit a new nonserious, nonviolent felony can be similarly sentenced to a life term if (1) the new felony is a certain offense (such as selling large quantities of illegal drugs) or (2) the person’s prior offenses included certain crimes (such as homicide or certain severe sex crimes). People who receive the above sentencing enhancements are referred to as “third strikers.” As of September 2022, there were about 21,900 second strikers and 5,700 third strikers in state prison. While state law requires the sentences described above, courts can, under certain circumstances, choose not to consider prior felonies during sentencing—resulting in shorter prison sentences than required under the Three Strikes Law. 4 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT However, in youth offender parole hearings, statute future based on evidence supporting the amount requires commissioners to give great weight to the of additional incarceration needed to protect the diminished culpability of juveniles as compared to safety of the public and the victim. The number of adults and any subsequent growth and increased years until a candidate’s next parole hearing is often maturity of candidates. Similarly, in elderly parole referred to as the “denial period.” hearings, statute requires commissioners to give Key Steps in Parole Hearing Process special consideration to candidates’ advanced age, long-term confinement, and potentially diminished As shown in Figure 1 and described below, there physical condition. are several key steps in the parole hearing process. If Not Released, When Should Candidate’s Consultation With Parole Commissioner. Next Hearing Occur? When commissioners find a Five years prior to a parole candidate’s first parole candidate unsuitable for release, state law requires hearing, a commissioner consults one-on-one them to set the date for the candidate’s next with the candidate to explain the process and legal hearing. Specifically, commissioners are required factors relevant to suitability. Commissioners also to set the next hearing 3, 5, 7, 10, or 15 years in the provide recommendations to candidates on how Figure 1 Key Steps in the Parole Hearing Process Consultation with a commissioner occurs five years prior to candidate’s first hearing Parole hearing scheduled about six months in advance State-appointed attorney is assigned about four to five months before the hearing if the candidate does not retain private counsel Comprehensive Risk Assessment (CRA) is conducted by a Board of Parole Hearings psychologist about four months prior to the hearing unless the candidate meets certain criteria, such as having had a CRA conducted less than three years earlier Hearing is held Hearing is not held, which can occur for various reasons, such as if the candidate stipulates to unsuitability. Release is denied Release is granteda a Some people who are granted release at a parole hearing will ultimately not be released from prison. The Governor has authority to refer any decision to grant parole to a review by a majority of the board’s 21 appointed commissioners for a possible reversal. In addition, the Governor can unilaterally reverse grants of parole for people convicted of murder. www.lao.ca.gov 5 AN LAO REPORT they can increase their chances of being found lives, and taking accountability for their actions. suitable for release, such as by following prison Finally, whereas the services of state-appointed rules and participating in certain rehabilitation attorneys end after hearings conclude, private programs and work assignments. In 2021, attorneys often continue working for their clients commissioners conducted 2,158 consultations. between hearings if they are denied release. For Scheduling of Hearing. About six months example, private attorneys may review the hearing prior to when a candidate is expected to receive transcript to ensure that any errors are corrected as a hearing, BPH staff schedule the hearing for a well as meet with their clients to debrief and discuss particular week. There were 8,722 parole hearings next steps to prepare for the subsequent hearing. scheduled to occur in 2021. Risk Assessment by BPH Psychologist. About Assignment of Legal Counsel. Statue gives four months before their hearing, candidates are parole candidates the right to an attorney at parole generally interviewed by a BPH psychologist to hearings. About four to five months before their assess their long-term potential for future violence hearing, BPH appoints an attorney for candidates as well as factors that could minimize their risk of who do not hire a private attorney or receive violence if released. Through this assessment— free services from a private attorney. Private called the Comprehensive Risk Assessment attorneys that provide free services are often (CRA)—psychologists classify a candidate as having affiliated with nonprofit organizations specializing low, moderate, or high risk of violence. (The CRA in parole hearings. We note that 7,697 (about is not administered in certain cases, such as if the 90 percent) candidates who had parole hearings candidate has had a CRA conducted less than three scheduled to take place in 2021 relied on a years prior.) Currently, in implementing the CRA, state-appointed attorney. BPH psychologists primarily rely on a tool called the Historical Clinical Risk Management-20, Version 3 State-appointed attorneys are required to provide (HCR-20V3). This tool guides psychologists in basic legal services to their clients. These tend to evaluating various factors—such as substance use include ensuring that candidates’ procedural rights or violent attitudes—that research has found are are protected, objecting to factual errors or legal associated with risk of violence. Psychologists then issues, and making a closing statement during the combine the result of the HCR-20V3 with any other hearing to argue why candidates are suitable for information they find to be relevant and reliable to parole. In doing so, they are required to complete produce a single CRA risk level for each candidate. certain activities, such as reviewing records about All completed CRAs are reviewed by senior their clients and meeting with their clients prior to BPH psychologists. In 2021, BPH psychologists the hearing. completed 4,428 CRAs. In addition to the basic legal services that Voluntary Waiver of Hearing or Stipulation to state-appointed attorneys are required to provide, Unsuitability. No later than 45 days before their private attorneys typically provide additional legal parole hearing, candidates may choose to waive services. For example, in some cases, private their right to a hearing for one to five years. In attorneys hire external consultants to provide other words, they can choose to essentially delay expert opinions, such as on their clients’ risk level. their parole hearing. Alternatively, candidates may Private attorneys also tend to provide hearing stipulate to unsuitability—effectively requesting preparation services focused on helping their clients to be denied parole without a hearing. They may demonstrate suitability to the board. For example, stipulate to being unsuitable for a period of 3, 5, they may advise clients on writing letters of remorse 7, 10, or 15 years. Candidates might strategically to their victims, preparing relapse prevention plans, choose to waive their hearing or stipulate to and gathering letters of support (such as from unsuitability to achieve a potentially shorter amount family members or prospective employers). These of time until their next hearing, relative to the hearing preparation services can involve guiding denial period that they could get if they choose to clients through a process of introspection with receive a hearing. Of the 8,722 hearings that were the goal of building insight into the causes of their scheduled to occur in 2021, candidates waived their behavior, understanding the role of trauma in their 6 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT hearing in 1,758 (20 percent) cases and stipulated most associated with risk of violence, such as to unsuitability in 301 (3 percent) cases. We note candidates’ risk level as determined by the BPH that hearings may not occur or be completed as psychologists and their participation in rehabilitation originally scheduled for other reasons, such as a programs. Victims or their representatives, as well candidate being sick on the day of the hearing. as prosecutors from the county that committed Specifically, 2,146 (25 percent) hearings originally the candidate to prison, may choose to attend and scheduled to occur in 2021 were postponed to later speak at the parole hearing. The hearing concludes in 2021 or 2022. In addition, 328 (4 percent) were when the commissioners issue their decision continued (meaning that the hearing was started regarding the candidate’s suitability for release. but could not be completed for some reason) (We provide information in the box below on how or cancelled. parole processes vary across other states and the Parole Hearing. As previously mentioned, federal government.) parole hearings are typically conducted by two In 2021, of the 4,188 hearings held, commissioners (one appointed commissioner 1,424 (34 percent) resulted in a decision to grant and one deputy commissioner). During hearings, release and 2,764 (66 percent) resulted in a denial. commissioners ask candidates questions about (The percentage of hearings held that resulted in their social history, past and present mental a decision to grant release has remained relatively state, past and present attitude toward their consistent in recent years.) Decisions are later crime, and plans for work and housing if they are reviewed by BPH’s chief counsel for errors of law released. Since 2019, commissioners have used or fact. If the commissioners do not agree on a a Structured Decision-Making Framework (SDMF) decision, cases are referred to a review by a majority that is intended to help focus their questions to of the board’s 21 appointed commissioners. candidates on factors found in research to be How Does California’s Parole Hearing Process Compare to Other Jurisdictions? Processes in Other Jurisdictions Can Differ. There is substantial variability in how discretionary release processes—like California’s parole hearing process—are structured and operate. For example, a 2015 survey of state parole boards and the U.S. Parole Commission (which makes release decisions about federal prisoners) found that while a majority of parole boards reported incorporating some form of risk assessment into their decision-making process, there was substantial variation between jurisdictions in the specific assessments used. In addition, about half of the boards in other jurisdictions reported using some kind of decision-making tool like the Board of Parole Hearings’ Structured Decision-Making Framework. While nearly two-thirds of respondents reported allowing candidates’ attorneys to attend hearings, only about one-quarter reported that indigent candidates are provided with attorneys at state expense. Differences in Processes Can Stem From Variation in Sentencing Frameworks. While differences in parole hearing processes can be caused by various factors, one significant factor is the variation in sentencing frameworks across jurisdictions. As discussed earlier in this report, sentencing frameworks are often characterized as either determinate or indeterminate. Accordingly, the number and types of crimes subject to indeterminate sentencing in each jurisdiction are primary factors in determining the number of people who need a parole hearing to be released. In the 2015 survey, 26 percent of jurisdictions reported that they had a determinate system, 29 percent reported that they had an indeterminate system, and 45 percent—including California—reported having elements of both. www.lao.ca.gov 7 AN LAO REPORT Governor’s Review. The Governor has statutory the Governor’s decision to reverse a grant of parole authority to refer any decision to grant parole to a be based on some evidence that the candidate review by a majority of the board’s 21 appointed would pose an unreasonable risk to the public. commissioners for a possible reversal. In addition, (The State Constitution also gives the Governor since 1988, the Governor has had constitutional power to grant reprieves, commutations, and authority to unilaterally reverse grants of parole for pardons for people convicted of crimes, though people convicted of murder. Case law requires that these are not the subject of this report.) ASPECTS OF PAROLE HEARING PROCESS COULD LEAD TO INEQUITABLE OUTCOMES In our review of California’s parole hearing during parole hearings. This may have improved process, we identified two aspects of the process consistency of decision-making and narrowed that could lead to inequitable outcomes. First, we commissioner discretion somewhat, though the find that there is overly broad discretion exercised SDMF has not been formally evaluated. However, by BPH commissioners and other key actors in the even with the implementation of the SDMF, we process, which could result in biased decisions. find that commissioners still retain significant This is particularly concerning given the lack of discretion for three key reasons. First, some of the certain key safeguards in the process on the use factors included in the SDMF—such as the amount of this discretion. Second, we find that there is by which candidates have changed since they potentially inequitable access to effective legal and committed their crimes—are inherently subjective. hearing preparation services for parole candidates. Second, commissioners can consider factors While some steps have recently been taken to that are not explicitly included in the SDMF, such address this problem, it is unclear whether these as whether and how the candidate expresses steps are sufficient. remorse about the crime. Third, commissioners While the primary focus of this report is retain full discretion in how to weight the various equity, the concerns we discuss below could factors that they choose to consider to produce have implications beyond inequitable outcomes. a decision on whether to grant release. In other For example, to the extent that the parole hearing words, even if most information suggests that a process could inequitably disadvantage certain candidate is not dangerous, as long as one piece of candidates, it would mean that the state is paying information provides some evidence of possible of to continue to incarcerate them without a public dangerousness, commissioners have the discretion safety need to do so. Conversely, to the extent to deny release. that some inequities could work in favor of certain Discretion Afforded to Other Key Actors. candidates, it would mean that BPH is releasing In addition to parole commissioners, various other them despite the potentially high risk they represent actors in the parole hearing process maintain to public safety. substantial discretion. This includes the BPH psychologists who assign a single CRA risk level to POTENTIAL BIAS FROM each candidate—low, moderate, or high violence OVERLY BROAD DISCRETION risk. As noted above, this classification is largely based on the results of the HCR-20V3 and any Process Affords Significant Discretion other information that they find to be relevant and reliable. This allows BPH psychologists to to Key Actors exercise substantial discretion in three primary Discretion Afforded to Parole ways. First, some of the individual risk factors in Commissioners. As noted above, since 2019, the HCR-20V3—such as the degree of candidates’ BPH has instructed commissioners to use the insight into the causes of their behavior—are SDMF to guide their decision-making process 8 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT inherently subjective. Second, psychologists have potential for cognitive biases to affect their decisions. flexibility in how to weigh the various factors in the Below, we discuss two examples of such cognitive HCR-20V3 to produce a single risk level. Third, biases—implicit bias and the fundamental attribution they have discretion in terms of whether and how to error—and how they could impact the parole incorporate information outside of the HCR-20V3 to hearing process. produce a risk level. A large body of research has found that people We also find that the Governor has significant tend to unconsciously associate certain groups of discretion in being able to unilaterally overturn people with specific attributes. These associations commissioners’ decisions for candidates convicted of tend to be based on stereotypes—generalized murder. While the Governor is limited to considering beliefs about a particular group of people, which the same factors that the commissioners considered can be acquired through social influences, media, or in determining suitability, the Governor has virtually personal experiences. This is referred to as implicit no restrictions with respect to how factors are bias. For example, research done on a diverse, weighted or the process by which decisions are national sample of jury-eligible adults, found that they made. We note that different Governors often take significantly associated Latino and Black men with dramatically different approaches to reviewing BPH danger and white men with safety. This is notable decisions. For example, in 2003, Governor Davis given that CDCR data indicate almost three-fourths reversed about 95 percent of parole decisions in of people who receive parole hearings are Hispanic murder cases, while Governor Brown reversed about or Black, as shown in Figure 2. To the extent that 14 percent in 2015. implicit bias affects key actors’ thinking in the parole hearing process, candidates who are subject to Current Level of Discretion Could Allow negative implicit biases (such as Black and Latino Biases to Affect Parole Decisions men) would be disproportionately disadvantaged On the one hand, discretion allows decision in the parole hearing process. Similarly, it could makers to interpret information in a more nuanced mean that parole candidates who are unconsciously way than a formulaic approach. For example, a BPH commissioner could assess the details of a Figure 2 disciplinary infraction and conclude that the issue Nearly Three-Fourths of should be disregarded as it was due to unique circumstances in prison unrelated to how the Candidates Are Hispanic or Black candidate would behave if released. On the other hand, discretion allows decisions to be influenced American Indian or Asian or Pacific Islander by the idiosyncrasies, values, or conscious or Alaskan Native unconscious biases of decision makers. This creates the potential for decisions to be arbitrary or biased. Other Below, we discuss certain types of bias that could be affecting decisions made in the parole hearing process given the overly broad discretion White Hispanic currently provided. Potential Cognitive Biases of Key Actors. Psychologists have identified various common, systematic errors in thinking that tend to arise when people are processing and interpreting information in the world around them. These errors—referred Black to generally as cognitive biases—often operate without people’s awareness or conscious control and can reduce the accuracy of decisions and judgements. The wide discretion afforded to key Total scheduled hearings in 2021 = 8,722 actors in the parole hearing process creates the www.lao.ca.gov 9 AN LAO REPORT associated with positive attributes are being released eventually need to be reappointed by the Governor from prison at a higher rate than justified by their in order to continue to serve on the board. To the assessed level of risk. extent commissioners are affected by this bias, this Psychologists have also found that in assessing could lead them to deny or grant parole to candidates the reasons behind others’ behavior, people tend to based on factors they believe are important to the over-emphasize dispositional, or personality-based, Governor even if they are not based on candidates’ explanations while under-emphasizing situational actual risk of violence. In addition, to the extent BPH explanations. This is known as the fundamental psychologists view the board as being inclined or attribution error. Consistent with this psychological disinclined to release candidates, this could affect finding, researchers who interviewed a sample how they administer the CRA. We note research of BPH commissioners between 2011 and 2013, on other criminal justice risk assessments that, like found that commissioners tended to attribute the CRA, involve substantial subjectivity has found candidates’ crime or subsequent behavior to internal that administering psychologists tend to assign character flaws. When candidates indicated that higher risk scores if they believe they are working situational factors contributed to their behavior, for the prosecution as opposed to the defense in a commissioners tended to interpret this as a sign that given case. candidates were making excuses for their behavior Process Lacks Key Safeguards on the and lacking in true remorse, which can lead to a Use of Discretion denial of parole. To the extent it is caused by the fundamental attribution error, this commissioner Given the current level of discretion in the parole tendency could disadvantage candidates who truly hearing process, it is important to have safeguards have been impacted by situational factors, such as in place that can mitigate the impacts of possible trauma. For example, transgender people tend to biases in release decisions. BPH currently maintains face a high risk of victimization in prison. This can some safeguards on the use of discretion. For lead them into fighting to defend themselves from example, as previously mentioned, all CRAs must those victimizing them, which can be interpreted be reviewed by a senior psychologist, which, in turn, and recorded by prison staff as misconduct. likely promotes consistency in the assessment of a Accordingly, candidates may see their behavior as candidate’s risk of violence. In addition, BPH provides a situational response to the failure of the prison commissioners with training on various topics, such system to protect them from violence. In contrast, as implicit bias. While these practices likely promote to the extent that the fundamental attribution error quality and consistency in parole decision-making, causes commissioners to under-weight situational as well as seek to limit the potential for bias, we find explanations, commissioners may see the behavior that the current process does not adequately provide as misconduct and interpret candidates’ attitudes safeguards on the use of discretion. Specifically, BPH toward it as an indicator that they lack remorse and does not publish data on the outcomes of scheduled deny them release, even if this is not warranted hearings (including grants, denials, waivers, and based on their risk. Likewise, candidates who do stipulations) disaggregated by candidate subgroups, not point to situational factors (such as a history of such as race or ethnicity. Having such data would trauma, victimization, or mistreatment as a partial help the Legislature and stakeholders monitor cause of their behavior) could be more likely to be the parole process and ensure that the discretion found genuinely remorseful by decision makers and provided does not result in different subgroups being released even if they have similar risk levels to people treated differently. In addition, while there have been who are not released. a few limited studies done at the discretion of external Potential Institutional Biases of Key Actors. researchers, there is no regular external monitoring It is possible that key actors may be influenced by of the extent to which there are differences in release their institutional context. For example, it is possible rates between groups that are likely the result of bias that appointed commissioners either consciously or in the parole hearing process. subconsciously are influenced by what they believe are the values of the Governor, knowing that they will 10 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT POTENTIALLY INEQUITABLE the minimum expectations outlined in BPH policies, such as meeting with the candidate at least once ACCESS TO EFFECTIVE LEGAL AND for 1 to 2 hours within 30 days of being appointed. HEARING PREPARATION SERVICES In addition, the survey data suggest that many state-appointed attorneys might not be providing Data Raise Concerns About Attorney basic forms of assistance to their clients. For Effectiveness and Lack of Hearing example, while candidates have an opportunity Preparation Services to give a closing statement in hearings, only Candidates With State Appointed Attorneys 27 percent of survey respondents reported that Have Worse Outcomes. Available data indicate their state-appointed attorney had discussed this that candidates who rely on state-appointed closing statement with them prior to the hearing. attorneys are (1) less likely to be granted parole (While a comparable statistic on private attorneys and (2) when not granted parole, wait a longer time was not available, we understand it to be a common until their next parole hearing, as compared to practice for private attorneys to talk with their candidates who have private attorneys. Specifically, clients about the closing statement.) of the parole hearings that were scheduled to As discussed above, in addition to providing occur in 2021, candidates who were represented basic legal services, private attorneys sometimes by state-appointed attorneys were granted parole provide more extensive services. For example, at around half the rate of those represented by private attorneys sometimes hire an external private attorneys. Of those who were denied consultant, such as a psychologist, to provide parole, candidates with state-appointed attorneys an expert opinion on a factor relevant to their received denial periods that were six months clients’ risk. In addition, private attorneys tend (15 percent) longer on average than candidates to provide hearing preparation services, such as with private attorneys. In addition, candidates with helping clients prepare relapse prevention plans. state-appointed attorneys were more than twice as Private attorneys also tend to work with their likely to waive their right to a parole hearing and four clients over longer periods of time—including times as likely to stipulate to unsuitability, compared between parole hearings—rather than just the four to candidates with private attorneys. Of those who months leading up to a hearing. Accordingly, it is chose to waive their parole hearing, candidates with possible that some of the difference in outcomes state-appointed attorneys waived their hearings between state-appointed and private attorneys for an average of three months longer (30 percent) could be driven by the fact that private attorneys than those with private attorneys. (For those simply provide more extensive legal and hearing who stipulated to unsuitability, denial periods preparation services. were comparable between candidates with state Inequitable Access to Private Attorneys. appointed and those with private attorneys.) To the extent that state-appointed attorneys provide Potentially Due to Lower Level of Legal less effective legal and/or fewer hearing preparation and Hearing Preparation Services Received services to candidates, it raises an equity concern. From State-Appointed Attorneys. It is possible This is because it would mean that two candidates that some of the above disparities are driven by who are otherwise identical might have different actual differences in risk of violence between hearing outcomes based on their (or their families’) the two groups. For example, candidates with a ability to either afford a private attorney or access better chance of release may be more willing to a private attorney free of charge, such as through a pay for an attorney. However, a 2020-21 survey of nonprofit organization. This could create inequities parole candidates suggests that state-appointed for a variety of different groups, including parole attorneys may not be meeting the minimum candidates who are impoverished and those expectations for legal services. Specifically, only who lack the mental capacity or language skills about 8 percent of survey respondents confirmed necessary to secure an attorney free of charge. that their state-appointed attorney had met all of www.lao.ca.gov 11 AN LAO REPORT Reinforcement of Other Biases in the the full $750 payment regardless of whether Process. Without competent and zealous the case proceeds to a hearing. advocacy and/or hearing preparation services, • Increase Training and Mentorship for candidates may be more vulnerable to the potential Attorneys. In 2020, BPH contracted with disadvantages discussed above. For example, a nonprofit organization—Parole Justice a competent and zealous attorney serving a Works (PJW)—to provide ongoing training transgender candidate could counsel them about and mentorship to state-appointed attorneys. how to best address commissioners’ questions In addition, PJW staff periodically observe about their disciplinary history. Without access parole hearings to monitor attorney to these services, such a candidate could be effectiveness and provide feedback inequitably denied release due to their history of to attorneys. victimization in prison. Efforts to Increase Access to Hearing Unclear Whether Recent Steps to Preparation Services. The 2019-20 budget provided $4 million from the General Fund on a Improve Attorney Effectiveness and one-time basis for UnCommon Law—a nonprofit Access to Hearing Preparation Services organization that provides free legal representation Are Sufficient to parole candidates—to implement a pilot Efforts to Improve State-Appointed Attorney program to deliver hearing preparation services Services. In 2019, BPH reported difficulty to candidates separate from the traditional attracting and retaining competent attorneys attorney-client relationship. The program, which and indicated that it had to reprimand or even is currently being implemented, delivers services discontinue appointing some attorneys for providing through group workshops and individual counseling inadequate representation. According to BPH, with the goal of helping participants (1) understand this was primarily because attorney pay had not and express how their traumatic experiences kept up with the increasing amount of work that contributed to their actions in harming others attorneys must do on each case—largely due and (2) develop new thinking patterns and coping to more requirements related to documenting a skills. Though the program experienced significant candidate’s disability accommodation needs. The implementation delays due to the COVID-19 board also indicated that the attorney pay structure pandemic, it is currently serving a cohort of about was problematic as it discouraged stipulations 30 people at California State Prison Los Angeles and waivers of parole hearings even if they were County in Lancaster. UnCommon Law is hoping in a candidate’s best interest. This is because to expand the program to a prison in Northern attorneys received a relatively significant increase California sometime in 2023. In addition, it is in compensation if a case proceeded to the considering offering a less intensive version of the hearing stage. program—in the form of shorter workshops—at In response to the above concerns, the several other prisons. If this program is shown to 2019-20 budget provided BPH with a $2.5 million be successful and can be scaled to serve the entire General Fund augmentation to implement the prison system, it could improve equity in access following changes: to hearing preparation services by increasing their availability to people without private attorneys. • Increase Attorney Pay From $400 to $750 Over the past several years, the state has also Per Case and Modify Pay Structure. To help expanded the availability of programs that generally attract and retain better performing attorneys, focus on helping people in prison understand BPH increased the total compensation per the impact of crime, build empathy, and develop case for state appointed attorneys from insight into the causes and consequences of $400 to $750 in 2020. To avoid discouraging their behavior. For example, the 2019-20 budget stipulations and waivers, BPH shifted to a new provided $5 million ongoing General Fund for the pay structure under which attorneys receive California Reentry and Enrichment grant, through 12 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT which CDCR funds programs that focus on insight sufficiently improve attorney effectiveness, it is and accountability. These programs engage people unclear if sufficient time had elapsed to allow in prison through a wide range of modes and topics, the impact of the changes to be observed in the including peer-led discussion groups and the arts. survey data. Moreover, no comprehensive data In some cases, programs are explicitly designed to is currently available to fully examine the extent incorporate hearing preparation services. In many to which the various changes have improved other cases, programs do not explicitly focus on attorney effectiveness. parole candidates, yet nevertheless incorporate Unclear if Hearing Preparation Services elements that may help candidates prepare for Are Effective or Accessible. As discussed their parole hearings. For example, programs above, UnCommon Law’s pilot project is currently often attempt to help participants gain insight into underway. In 2023, UnCommon Law expects to the effects of past traumas on their lives, take complete a report on the program’s effectiveness accountability for their actions, and build healthy in improving participants’ emotional and physical coping skills. Accordingly, it is possible that some wellbeing so they are able to engage in the of these programs are effectively providing hearing process of preparing for parole and ultimately preparation services to candidates who would require less support from their state-appointed otherwise not have access to them. attorneys. However, until the project is completed Insufficient Data to Determine Whether and evaluated, it is not clear whether the model Attorney Effectiveness Is Improving. While it is is effective. Similarly, hearing preparation possible that some of the above steps may have services that are potentially being provided by improved the services provided by state-appointed other community-based organizations that have attorneys, it is unclear at this time whether they are partnered with CDCR have not been evaluated. sufficient. The 2020-21 survey that raised concerns Finally, even if some of these programs are effective about state-appointed attorney effectiveness in delivering hearing preparation services, it is concluded after BPH began implementing the unclear whether they have enough capacity to changes intended to improve service. While this serve all of the parole candidates that need them. could indicate that the above changes did not RECOMMENDATIONS TO PROMOTE EQUITY IN THE PAROLE HEARING PROCESS In view of the above concerns we identified with Consider Reducing Commissioner California’s parole hearing process, we recommend Discretion and Add Key Safeguards that the Legislature take key steps to promote As discussed above, some amount of discretion greater equity in the process. First, to help reduce in the parole hearing process is valuable as it potential biases, we recommend that the Legislature allows decision makers flexibility to accommodate consider reducing commissioner discretion and individual circumstances and to interpret nuanced add key safeguards on the use of discretion by information in ways that pre-set rules or formula key actors. Second, to ensure equitable access to cannot. However, despite its advantages, discretion effective legal and hearing preparation services for creates an entry point for bias in decision-making. candidates, we recommend that the Legislature On balance, we found that the current process assess the impact of recent changes intended to provides overly broad discretion to decision improve their quality and availability. The results of makers. To address this concern, we recommend this assessment can then be used to inform potential that the Legislature take a two-pronged approach future legislative action. To the extent the Legislature by (1) considering limiting the discretion of finds further improvements are needed, we provide parole commissioners and (2) creating greater various options. www.lao.ca.gov 13 AN LAO REPORT transparency and oversight of how commissioners the parole decision-making process for any and other key actors use their discretion. potential disparities. Making such data publicly Consider Limiting Discretion of Parole available would likely create some new costs for Commissioners. Currently, commissioners can BPH, which we estimate to be minor and likely deny parole if they can point to any evidence— absorbable for the board. even if based on subjective determination— In addition, we recommend that the Legislature that a candidate may pose a current risk of support periodic quantitative and qualitative dangerousness. We recommend that the studies by independent researchers of both the Legislature consider changing statute to somewhat CRA and parole hearings. Quantitative analysis reduce commissioners’ discretion to deny parole, should assess whether (1) the CRA and SDMF particularly based on subjective factors. The are being implemented consistently with best Legislature could take various approaches to do practices and between individual psychologists so. For example, the Legislature could increase and commissioners and (2) whether certain the standard that must be met—which is currently groups are more or less likely to receive favorable established through case law as some evidence— outcomes, even after controlling for relevant factors to “a preponderance of evidence” or “clear and that legitimately impact outcomes. Qualitative convincing evidence” that a candidate poses analysis would help reveal the nature of key a current risk. For example, if the Legislature actors’ interactions with candidates and how key were to require decisions to be supported by a actors are assessing subjective factors, such as preponderance of evidence, decisions to deny remorse. This could give insight into why certain release would need to be backed by evidence groups might have higher or lower grant rates after showing that candidates are more likely than not to controlling for relevant factors as well as how to be an unreasonable risk to public safety. If clear and address such issues. convincing evidence is required, then decisions to Ensure Consistent Access to Effective deny release would need to be backed by evidence showing that candidates are substantially more Legal and Hearing Preparation Services likely to be an unreasonable risk to public safety As discussed above, parole process and than not. outcome data raise concerns that candidates Discretion could be limited in all cases or just who rely on state-appointed attorneys may be for those who meet certain criteria, such as having receiving fewer and/or less effective legal and been assessed by BPH psychologists to be low hearing preparation services than those who are risk or remaining discipline free for five years. If the able to retain private attorneys. While the state Legislature chooses to make this change only for has implemented recent changes in an effort low-risk candidates, we also recommend requiring to address these concerns, the lack of ongoing BPH to report on the numbers of parole candidates data on the effectiveness and accessibility of assessed as low, moderate, and high risk before legal and hearing preparation services makes and after the change. This would ensure that BPH it difficult to assess whether the changes have does not respond to this change by altering how been effective. Accordingly, we recommend the psychologists assesses risk (such as by assessing Legislature (1) assess the impact of recent changes fewer candidates to be low risk). and (2) use the results of this assessment to guide Provide Greater Transparency and Oversight its future actions. We provide various options it of How Commissioners and Other Key Actors could consider depending on what is found in Use Their Discretion. We recommend that the the assessment. Legislature adopt legislation requiring BPH to Assess Impact of Recent Steps to Improve release public data on CRA, parole hearing, and Effectiveness of Legal and Hearing Preparation Governor review outcomes by subgroups, such Services. We recommend that the Legislature as race and ethnicity. This data would help the require an assessment by an external researcher Legislature, BPH, and stakeholders better monitor to (1) evaluate the effectiveness of legal services 14 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT provided by state-appointed attorneys and • Shift Responsibility for Providing Attorneys (2) identify any remaining barriers to ensuring to Indigent Candidates to an External equitable access to effective legal services. Entity. If the external researcher finds that This assessment could include evaluating the extent inadequate oversight and accountability of to which BPH’s expectations for state-appointed state-appointed attorneys is undermining the attorneys are consistent with best practices. In effectiveness of legal services, the Legislature addition, the assessment could include surveying could consider shifting the responsibility to and/or interviewing parole candidates about their provide legal representation to a third party. experience with state-appointed attorneys, auditing For example, the Legislature could create a state-appointed attorneys to assess whether or new entity within the state or fund an external not they are meeting minimal requirements (such entity (such as a nonprofit or a law school) as attending meetings with their clients), as well as to provide representation for all indigent collecting measures of the effectiveness of legal candidates. This entity could be budgeted services (such as through observations of attorney based on caseload estimates—similar to how performance during parole hearings). BPH is currently budgeted—and would be As mentioned above, a report by UnCommon responsible for determining how to deploy Law on the implementation of its pilot program resources in the best interests of its clients. is forthcoming. However, CDCR does not collect Because attorneys would be its employees, information about the extent to which hearing this entity would be responsible for monitoring preparation services are currently being provided and disciplining them to ensure provision of through other existing programs. Accordingly, effective legal services. we recommend that the Legislature direct CDCR • Further Increase Attorney Pay. If the to report on the extent to which such programs external researcher identifies challenges with provide hearing preparation services. Specifically, attracting and retaining competent attorneys the report should include information about (1) how and/or concludes that attorney caseloads many people (and at what prisons) each program are too high for them to be able to provide serves, (2) how many parole candidates (as the desired legal services, the Legislature opposed to all incarcerated people) the program could consider further increasing attorney has served or intends to serve, (3) the program pay. Alternatively, rather than increasing pay cost per participant, (4) what types of hearing for all cases, the state could allow attorneys preparation services the program provides, to apply for additional pay for cases that are (5) whether the hearing preparation services unusually complex. address the needs of any specific sub-populations • Provide Funding for Attorneys to Seek such as transgender and nonbinary candidates, Expert Opinions in Some Cases. Payment and (6) any information available about the for state-appointed attorneys does not effectiveness of the program model or the program contemplate that an attorney may need itself in providing hearing preparation services. to seek out an expert opinion—such as Use Analyses to Determine Future Legislative from an external psychologist or medical Action. If an analysis of recent efforts to improve doctor—to provide important context around attorney effectiveness and access to parole hearing a candidate’s case factors. Moreover, any preparation services does not reveal adequate money that an attorney uses to pay an expert improvements, the Legislature could consider would come directly out of their pay, creating pursuing different options. In doing so, it would a strong disincentive to do so. It is possible want to consider any underlying problems and that the external researcher’s assessment recommended solutions identified through the will reveal that some of the outcome disparity external research we recommend commissioning. between state-appointed and private It would also be important to consider any attorneys stems from private attorneys’ trade-offs associated with each option, such occasional use of external experts. If so, as cost and effectiveness. Potential legislative the Legislature could designate funding that options include: attorneys could apply for in order to pay for www.lao.ca.gov 15 AN LAO REPORT expert opinions in cases where doing so could services are being provided by grant-funded make a significant impact on candidates’ programs. To the extent these programs use chance of release. similar approaches as the UnCommon Law • Expand Hearing Preparation Services pilot program, the Legislature could prioritize Outside of the Attorney-Client expanding the UnCommon Law program Relationship. If evaluation of the UnCommon at prisons that do not already have such Law pilot program shows that it is effective in programs. This would help the state reach providing hearing preparation services outside sufficient system-wide capacity faster and of the traditional attorney-client relationship, avoid duplication of services. Alternatively, the Legislature could consider expanding it to the extent these programs appear to be in the future. However, in doing so, it would more cost-effective than the UnCommon Law want to consider information reported by pilot program, the Legislature could consider CDCR on what other hearing preparation expanding those programs instead. CONCLUSION The parole hearing process has significant candidates who cannot access private attorneys implications for a substantial share of the state and reinforcing other potential biases in the prison population. In many cases, it determines process. To mitigate these issues, we recommend whether or not people will spend the rest of their that the Legislature consider limiting discretion and lives in prison. In addition, it has implications for improve transparency and oversight of the process. public safety and state spending on prisons. In To ensure equitable access to effective legal and our review, we identified two primary aspects of hearing preparation services, we recommend that the current process that could lead to inequitable the Legislature first assess the impact of recent outcomes. Specifically, overly broad discretion changes intended to improve service quality. afforded to key actors could allow biases to We further recommend using the results of this influence the outcomes of hearings. In addition, assessment to inform whether future legislative inequitable access to effective legal and hearing action is needed. preparation services may be disadvantaging 16 LEGISLATIVE ANALYST’S OFFICE AN LAO REPORT APPENDIX: SELECTED REFERENCES Levinson, Justin D., G. Ben Cohen, and Koichi Ruhland, Ebony, et al. “The continuing leverage Hioki. “Deadly “toxins”: A national empirical of releasing authorities: Findings from a national study of racial bias and future dangerousness survey.” (2016). determinations.” Georgia Law Review 56 Young, Kathryne M., and Hannah Chimowitz. (2021): 225. “How parole boards judge remorse: Relational legal Murrie, Daniel C., et al. “Are forensic experts consciousness and the reproduction of carceral biased by the side that retained them?” logic.” Law & Society Review 56.2 (2022): 237-260. Psychological Science 24.10 (2013): 1889-1897. Ratliff, K. A., & Smith, C. T. “Lessons from two decades of Project Implicit.” In Krosnick, J. A., Stark, T. H., & Scott, A. L. (Eds.) (in press). The Cambridge Handbook of Implicit Bias and Racism. Cambridge, England: Cambridge University Press. www.lao.ca.gov 17 AN LAO REPORT LAO PUBLICATIONS This report was prepared by Caitlin O’Neil, and reviewed by Drew Soderborg and Anthony Simbol. The Legislative Analyst’s Office (LAO) is a nonpartisan office that provides fiscal and policy information and advice to the Legislature. To request publications call (916) 445-4656. This report and others, as well as an e-mail subscription service, are available on the LAO’s website at www.lao.ca.gov. The LAO is located at 925 L Street, Suite 1000, Sacramento, California 95814. 18 LEGISLATIVE ANALYST’S OFFICE