Board of Prison Terms, Review

OFFICE OF THE INSPECTOR GENERAL STEVE WHITE, INSPECTOR GENERAL ••••• PROMOTING INTEGRITY ••••• REVIEW OF THE BOARD OF PRISON TERMS JANUARY 2003 GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL REVIEW OF THE BOARD OF PRISON TERMS REPORT JANUARY 2003 ● PROMOTING INTEGRITY ● STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 1 C ONTENTS EXECUTIVE SUMMARY------------------------------------------------------------------------------------------------- 3 INTRODUCTION-------------------------------------------------------------------------------------------------------------- 8 BACKGROUND --------------------------------------------------------------------------------------------------------------- 8 SCOPE AND METHODOLOGY---------------------------------------------------------------------------------------- 9 FINDINGS AND RECOMMENDATIONS------------------------------------------------------------------------- 11 FINDING 1 Number of deputy commissioner positions needed-------------------------------------------------- 11 FINDING 2 Deputy commissioners are inadequately supervised------------------------------------------------ 19 FINDING 3 Parolees do not receive timely hearings ----------------------------------------------------------------- 21 FINDING 4 Board decisions not systematically reviewed ---------------------------------------------------------- 23 FINDING 5 Mentally disordered offender hearing process inefficient ---------------------------------------- 26 FINDING 6 Parole revocation process inefficient --------------------------------------------------------------------- 28 APPENDIX A-------------------------------------------------------------------------------------------------------------------- 36 APPENDIX B-------------------------------------------------------------------------------------------------------------------- 37 RESPONSE OF THE BOARD OF PRISON TERMS----------------------------------------------- ATTACHMENT A COMMENTS OF THE OFFICE OF THE INSPECTOR GENERAL-----------------------------ATTACHMENT B RESPONSE OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS--------------------ATTACHMENT C STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 2 EXECUTIVE SUMMARY This report presents the results of a review conducted by the Office of the Inspector General of the operations of the Board of Prison Terms. The review centered on the workload of the deputy commissioners, whose principal responsibility is to conduct parole revocation hearings. The hearings determine whether parolees have violated parole conditions and should be returned to prison; and, if so, for what period of time. The review was initiated in response to a plan by the board to fill 24 of its vacant deputy commissioner positions and was conducted to determine whether the board has a legitimate need to fill the positions in light of the current state budget crisis. The Office of the Inspector General found that the Board of Prison Terms does not need an increase in its staff of deputy commissioners and that, in fact, with better use of its resources, could fulfill all of its current responsibilities with 39 deputy commissioner positions—slightly more than half its present deputy commissioner staff. The Office of the Inspector General found that the board has overestimated the number of deputy commissioners it needs because it has both underestimated the amount of time deputy commissioners are available to work each year and overestimated the amount of time they need to carry out their functions. Even though the deputy commissioners account for nearly 40 percent of the board’s personnel costs, the review revealed that the Board of Prison Terms does not adequately supervise the deputy commissioners and is largely unaware of how they spend their time. The review also revealed that deputy commissioners routinely work less than seven hours a day while earning annual salaries of $75,732 to $91,512. The Office of the Inspector General found in addition that even though the deputy commissioners conduct more than 130,000 parole revocation screenings and hearings each year, the board is not complying with state regulations requiring that the decisions issued by the deputy commissioners undergo systematic review. The review also revealed that even though more than 7,000 California parolees are presently incarcerated awaiting parole revocation hearings to determine whether they should be returned to prison, the State has no means of tracking how long most of them have been held; and therefore, cannot ensure that they receive a hearing within a reasonable time period. The present parole revocation process is also not in compliance with due process requirements for disabled parolees or with legal requirements for parole violators who may be eligible under Proposition 36 for drug treatment instead of incarceration. The Office of the Inspector General also found that the overlapping responsibilities between the Board of Prison Terms and the Department of Corrections make the State’s present parole revocation process cumbersome and inefficient. The Office of the Inspector General recommends that the State consider consolidating the parole revocation process into one agency—either the Board of Prison Terms or the Department of Corrections—with the Department of Corrections the most logical choice. If the Board of Prison Terms retains responsibility for conducting parole revocation hearings, the Office of the Inspector General recommends that it take steps to provide adequate supervision of the deputy commissioners. To streamline the parole revocation process and address the due process rights of parolees to timely hearings, the Office of the Inspector General also recommends that the State discontinue parole revocation screenings. Doing away with the screenings and proceeding STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 3 directly to parole revocation hearings for all parolees will shorten the process and enable the State to conduct hearings within a reasonable time period. Because parole revocation hearings require more time than revocation screenings, that change will increase the number of deputy commissioners needed to meet the board’s responsibilities from 39 to 58— but that total is still 31 percent less than the 84 deputy commissioners presently budgeted. Moreover, if the revocation screening process is eliminated, the board can also eliminate 29 board coordinating parole agent positions, for an annual savings of more than $2.5 million. The workload of the Department of Corrections district hearing agents will decline by an undeterminable amount. Following is a summary of the findings: FINDING 1 The Office of the Inspector General found that the Board of Prison Terms has significantly overstated the number of deputy commissioner positions it requires to fulfill its responsibilities and that the actual number of deputy commissioner positions it needs is only about 39—slightly more than half of the present deputy commissioner staff. The Office of the Inspector General found that the Board of Prison Terms has both underestimated the available work time of its existing deputy commissioners and overstated the time needed for deputy commissioners to complete the activities that make up the bulk of the board’s responsibilities. As a result, the board has significantly overestimated the number of deputy commissioners it needs. The board has requested an increase of 24 to its present staff of approximately 65 deputy commissioners and 20 retired annuitants, maintaining that it needs the additional deputy commissioners to adequately fulfill its responsibilities. The board uses a budget worksheet called the “workload analysis” to justify the number of deputy commissioners it needs in order to complete the hearings and other functions the board performs. The workload analysis is based on a formula that takes into account the number of hearings and other functions conducted by the board each year, the time required to complete each function, and the number of hours each deputy commissioner is available to work. But the management of the Board of Prison Terms acknowledged to the Office of the Inspector General that it has not established the validity of the workload analysis by conducting a workload study or any other performance measure of the deputy commissioners for at least 15 years. The board’s chief deputy commissioner, who is supposed to administer and oversee all duties and functions related to the deputy commissioners, told the Office of the Inspector General that he has never seen the workload analysis and does not know how it was compiled. The Office of the Inspector General found from this review that in fact the assumptions used to develop the workload analysis are flawed. Not only are the lengths of time given as necessary to complete specific tasks not reflective of the actual practices of the deputy commissioners, the assumptions also underestimate the amount of time available for the deputy commissioners to work each year. The review also revealed that when deputy commissioners fill out the forms reporting the time they spent conducting each hearing, they regularly misstate how long the hearing process took, sometimes by as much as 150 percent. The Office of the Inspector General found from the review that deputy commissioners actually are assigned workloads that typically require less than five hours a day to complete, while earning annual salaries of between $75,732 and $91,512. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 4 Using more valid estimates of the time needed for deputy commissioners to conduct hearings and perform other functions, and the amount of work time available each year, the Office of the Inspector General found that the Board of Prison Terms could actually fulfill its responsibilities with slightly more than half the number of deputy commissioners presently on its staff. According to the analysis by the Office of the Inspector General (Appendix A), the maximum number of deputy commissioner positions needed to fulfill all of the board’s responsibilities comes to about 39. FINDING 2 The Office of the Inspector General found that the deputy commissioners of the Board of Prison Terms, who carry out most of the board’s functions, receive little supervision and the board has no means of accounting for how they spend their time. The deputy commissioners conduct more than 130,000 Board of Prison Terms parole revocation screenings and hearings each year and account for nearly 40 percent of the board’s total personnel costs. The decisions made by the deputy commissioners vitally affect the lives of inmates and parolees and public safety. Yet the board lacks critical information about the deputy commissioners’ performance and provides them with almost no direct supervision. Most of the deputy commissioners work from home, but the board has no timekeeping system to monitor how they spend their time and cannot determine whether they work the 40 hours a week required by the Bargaining Unit 2 agreement. As noted in Finding 1, the Office of the Inspector General in fact found wide variation among the deputy commissioners in the amount of time spent on various functions. The lack of information prevents the board from knowing how much time is actually required for the deputy commissioners to conduct hearings and carry out other responsibilities or how many deputy commissioners the board needs to handle its workload. Nor is the board able to monitor the overall productivity of the organization, make improvements to the system, or measure the performance of individual deputy commissioners. And although the Department of Corrections has been working to implement a new computerized tracking system to help ensure that parolees on hold receive a hearing within specified time limits, the deputy commissioners have refused to cooperate by entering information directly into the computerized system because they regard the work as “clerical.” Instead, the deputy commissioners continue to fill out forms by hand and mail them to Sacramento headquarters to be entered into the system by the board staff—an unnecessarily duplicative process that has resulted in a backlog of unprocessed data. FINDING 3 The Office of the Inspector General found that until recently the State has had no means of tracking to ensure that parolees detained for violating parole receive a hearing within the 45-day time-frame specified in state regulations or within a “reasonable time period,” as specified under federal law. More than 7,000 California parolees are presently in jail awaiting Board of Prison Terms parole revocation hearings and screenings, which will determine whether they have violated parole conditions and should be returned to prison, and, if so for what period of time. Although California Code of Regulations, Title 15, Section 2640 specifies that parole revocation hearings STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 5 should be held within 45 days of the date the parole hold was placed, and federal law requires that a hearing be held within a “reasonable time period,” neither the Board of Prison Terms nor the Department of Corrections has a means of tracking how long parolees incarcerated before October 1, 2002 have been held to ensure that time limits are met. In reviewing a sample of 171 parole revocation hearing cases, the Office of the Inspector General found that 81 percent had exceeded the 45-day timeframe and that 12 of the parolees had been held without hearings for more than 100 days. In many cases, by the time parolees are given a hearing to determine whether parole should be revoked, they have already served as much or more time than the parole revocation sentence they would have received. FINDING 4 The Office of the Inspector General found that the Board of Prison Terms is not complying with state regulations requiring that board decisions undergo systematic review to ensure that they are valid and consistent and that they further public safety. California Code of Regulations, Title 15, Sections 2041 and 2042 require that decisions rendered by the Board of Prison Terms in parole revocation, indeterminate sentencing, and mentally disordered offender hearings undergo review before they take effect. The purpose of the review is to ensure that results are consistent, that the findings are supported by the evidence, and that the law has been correctly applied. The review is also meant to ensure that the decisions further public safety. The Office of the Inspector General found that the Board of Prison Terms is not complying with these requirements. Decisions in indeterminate sentencing cases undergo review by the board’s legal department only if parole is granted. If parole is denied in an indeterminate sentencing case, the decision undergoes only a superficial review intended just to verify the clerical accuracy of the hearing documents. Of the mentally disordered offender hearings, only a small fraction—those in which the inmate is proposed to be released from inpatient treatment or from the mentally disordered offender classification — undergo a meaningful review. The others are reviewed by a second deputy commissioner who may lack training in the medical complexities of the case. And the board provides no review at all of the 38,000 parole revocation hearing decisions issued each year by its deputy commissioners, which constitute the bulk of the deputy commissioners’ workload. FINDING 5 The Office of the Inspector General found that the board’s practice of automatically scheduling mentally disordered offender placement hearings 60 days after the inmate’s arrival in custody is unnecessary and inefficient. The requirement that two deputy commissioners conduct the mentally disordered offender hearings is similarly unnecessary. The workload analysis of the Board of Prison Terms budgets five deputy commissioner positions to conduct mentally disordered offender hearings. The Office of the Inspector General found, however, that the board could achieve significant savings by streamlining the mentally disordered offender hearing process and reducing the personnel resources needed for the hearings. Making those changes would enable the board to fulfill this function with only one deputy commissioner position instead of the five currently budgeted. Scheduling placement STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 6 hearings only as needed would save resources, as would allowing mentally disordered offender hearings to be conducted by only one deputy commissioner. FINDING 6 The Office of the Inspector General found that the State’s parole revocation process is unnecessarily burdensome and prevents it from affording inmates and parolees their due process rights to a timely hearing. The purpose of parole revocation process is to determine whether a parolee has violated parole conditions and should be sent back to prison. But the process by which the State presently carries out that responsibility is burdensome and inefficient and in need of thorough revamping. The current process is fragmented, with the board sharing overlapping responsibilities with the Department of Corrections—an arrangement that leads to delays, errors, and communication problems. In recent years the parole revocation hearing process also has been complicated by the impact of court decisions specifying due process rights of parolees to a hearing within a reasonable time period and of inmates and parolees suffering from disabilities to necessary accommodation. Under its present parole revocation screening and hearing process, the State has not been able to adequately provide for those due process rights. Nor has the State been able to successfully implement the provisions of Proposition 36 allowing nonviolent drug offenders the option of treatment instead of incarceration. The Board of Prison Terms deputy commissioners, whose primary responsibility is conducting parole revocation hearings, are under-utilized, and adding more deputy commissioners will not remedy the problems. Eliminating screening offers and proceeding directly to parole revocation hearings, however, would streamline the process and improve the timeliness of the hearings. The Office of the Inspector General calculated that the number of deputy commissioners needed would increase from 39 to 58 under this approach because the time required to conduct a parole revocation hearing is significantly longer than the time required to do a parole revocation screening. But despite that increase, the total number of deputy commissioner positions needed would still be considerably less than the 84.3 positions currently budgeted. The change would also eliminate the need for the board’s 29 board coordinating parole agent positions, for an estimated state savings of more than $2.5 million annually. In addition, it would reduce the workload of the Department of Corrections district hearing agents. Consolidating the parole revocation process in one agency would also improve efficiency. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 7 INTRODUCTION This report presents the results of a review conducted by the Office of the Inspector General of the operations of the Board of Prison Terms, with particular emphasis on the workload of the deputy commissioners. The review was conducted pursuant to the Inspector General’s authority under Section 6126 of the California Penal Code. The review was initiated in response to a plan by the Board of Prison Terms to fill 24 of its vacant deputy commissioner positions. The review was performed to determine whether there is a legitimate need for the board to fill the deputy commissioner positions in light of the current state budget crisis. The review follows a March 2000 report by the Office of the Inspector General concerning the board’s backlog of indeterminate sentence hearings. In April 2002, the Office of the Inspector General also conducted a follow-up review of the remedial actions undertaken by the Board of Prison Terms following the March 2000 review. The April 2002 review found that the board had not made progress in eliminating the large backlog of indeterminate sentence parole hearings and also had a significant backlog of inmate and parolee appeals pending review. BACKGROUND The principal responsibility of the Board of Prison Terms is to conduct hearings to grant, deny, revoke, or suspend the parole of state inmates and parolees. Accordingly, the board conducts parole revocation hearings for parolees who have violated their parole conditions and parole hearings for inmates sentenced to indeterminate sentences. In carrying out responsibilities associated with the parole revocation process, the board shares overlapping functions with the Department of Corrections. The Board of Prison Terms also advises the Governor on applications for clemency and helps screen prison inmates who are scheduled for parole to determine whether they should be classified as mentally disordered offenders and be confined to inpatient treatment at state hospitals or as sexually violent predators subject to civil confinement. Because any decision by the board can be appealed, the Board of Prison Terms also reviews and resolves inmate and parolee appeals. In addition to nine commissioners appointed by the Governor, the Board of Prison Terms employs approximately 65 deputy commissioners and 20 retired annuitants to fulfill deputy commissioner responsibilities. The most significant responsibility of deputy commissioners— and the bulk of deputy commissioner workload—is conducting parole revocation hearings for the purpose of determining whether a parolee has violated his or her parole, whether the parolee should be returned to prison, and how long the prison term should be. Deputy commissioners are also responsible for conducting hearings for mentally disordered offenders and sexually violent predators and for participating in indeterminate sentencing hearings. In addition, deputy commissioners are responsible for non-hearing tasks that relate to the revocation process, such as entering parole suspension or wanted person information into statewide databases. They also perform a revocation screening function in which they review documentation prepared by parole agents for each parole violator and decide on a revocation prison term. This “screening offer” is presented to the parolee, and the parolee can accept the revocation term or reject it and request a revocation hearing. The deputy commissioners also review appeals and conduct other hearings and functions within the board’s jurisdiction. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 8 The deputy commissioners are hired under state civil service rules and procedures and are represented by Bargaining Unit 2. The annual salary of a deputy commissioner ranges from $75,732 to $91,512. Deputy commissioners are considered exempt employees, which means they are exempted from federal law requiring overtime to be paid if they work more than 40 hours in one week. Pursuant to the collective bargaining agreement between the State and the deputy commissioners, the deputy commissioners are supposed to work an average of 40 hours per week to complete their assignments — including occasionally working more than 40 hours in a week. Most of the deputy commissioners work from home and commute to various correctional facilities to conduct hearings and perform other duties. SCOPE AND METHODOLOGY The Board of Prison Terms prepares a workload analysis in the spring and fall of each year. For the purpose of this review, the Office of the Inspector General examined the fall 2001 workload analysis. More recent workload analyses are available for the spring and fall of 2002, but recent operational problems in the revocation scheduling and tracking system implemented by the California Department of Corrections in March 2001 and used jointly by the department and the Board of Prison Terms rendered the more recent reports unusable. Appendix A of this report includes a summary of the Board of Prison Terms’ fall 2001 workload analysis. The Office of the Inspector General evaluated the board’s workload by reviewing its systems and procedures for capturing and reporting deputy commissioner activity. To that end, the Office of the Inspector General performed the following: • Reviewed and evaluated the board’s regulations and procedures used to schedule revocation, revocation extension, and mentally disordered offender hearings; • Interviewed Board of Prison Term staff to obtain background information and understanding of the procedures used to summarize deputy commissioner daily activity and record the activity in the board’s data processing systems; • Examined the fall 2001 workload analysis for reasonableness and to determine whether the premises were adequately supported; • Traced the reported deputy commissioner activity to the supporting management information system reports for the areas in which significant amounts of deputy commissioner time is spent; • Observed the deputy commissioner revocation screening offer function; • Observed mentally disordered offender hearings conducted by the deputy commissioners; • Selected a sample of audio-tapes of revocation, revocation extension, and mentally disordered offender hearings that had been conducted throughout the state and calculated the average length of those hearings. • Reviewed the Summary of Revocation Hearing and Decision (Form 1103) documents that the deputy commissioners complete for each hearing and compared the reported hearing length to the audio tapes; STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 9 • Reviewed the Summary of Mentally Disordered Offender Hearing and Decision (Form 1415) documents that the deputy commissioners complete for each hearing, and compared the reported hearing length to the audio tapes; • Reviewed and evaluated the hearing decision review process established by the board to ensure complete, accurate, consistent, and uniform hearing decisions; • Reviewed the conclusions documented on the Miscellaneous Decision (Form 1135) documents prepared as a result of the decision review process for mentally disordered offender hearings. The Office of the Inspector General also examined the budget assumptions employed by the board in determining its staffing needs. This included: • Reviewing the board’s methodology for determining the deputy commissioner personnel years available. • Reviewing documentation supporting the assumptions made concerning the average deputy commissioner travel and training days. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 10 FINDINGS AND RECOMMENDATIONS FINDING 1 The Office of the Inspector General found that the Board of Prison Terms has significantly overstated the number of deputy commissioner positions it requires to fulfill its responsibilities and that the actual number of deputy commissioner positions it needs is only about 39—slightly more than half of the present deputy commissioner staff. The Office of the Inspector General found that the Board of Prison Terms has both underestimated the available work time of its existing deputy commissioners and overstated the time needed for deputy commissioners to complete the activities that make up the bulk of the board’s responsibilities. As a result, the board has significantly overestimated the number of deputy commissioners it needs. The board has requested an increase of 24 to its present staff of approximately 65 deputy commissioners and 20 retired annuitants, maintaining that it needs the additional deputy commissioners to adequately fulfill its responsibilities. The board uses a budget worksheet called the “workload analysis” to justify the number of deputy commissioners it needs in order to complete the hearings and other functions the board performs. The workload analysis is based on a formula that takes into account the number of hearings and other functions conducted by the board each year, the time required to complete each function, and the number of hours each deputy commissioner is available to work. But the management of the Board of Prison Terms acknowledged to the Office of the Inspector General that it has not established the validity of the workload analysis by conducting a workload study or any other performance measure of the deputy commissioners for at least 15 years. The board’s chief deputy commissioner, who is supposed to administer and oversee all duties and functions related to the deputy commissioners, told the Office of the Inspector General that he has never seen the workload analysis and does not know how it was compiled. The Office of the Inspector General found from this review that in fact the assumptions used to develop the workload analysis are flawed. Not only are the lengths of time given as necessary to complete specific tasks not reflective of the actual practices of the deputy commissioners, the assumptions also underestimate the amount of time available for the deputy commissioners to work each year. The review also revealed that when deputy commissioners fill out the forms reporting the time they spent conducting each hearing, they regularly exaggerate how long the hearing process took, sometimes by as much as 150 percent. The Office of the Inspector General found from the review that deputy commissioners are assigned workloads that typically require no more than five hours a day to complete, while earning annual salaries of between $75,732 and $91,512. Using more valid estimates of the time needed for deputy commissioners to conduct hearings and perform other functions, and the amount of work time available each year, the Office of the Inspector General found that the Board of Prison Terms could actually fulfill its responsibilities with slightly more than half the number of deputy commissioners presently on its staff. According to the analysis by the Office of the Inspector General, the maximum number of deputy commissioner positions needed to fulfill all of the board’s responsibilities comes to about 39. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 11 Appendix A to this report presents the workload analysis prepared by the Board of Prison Terms to justify its request for additional deputy commissioner positions, along with the Office of the Inspector General’s analysis showing that the board needs only a total of 38.8 deputy commissioner positions to fulfill its present responsibilities. The board’s analysis overstates the time required to perform various functions. The workload analysis used by the Board of Prison Term to determine the number of deputy commissioners needed to fulfill the board’s responsibilities is based on the following formula: BOARD OF PRISON TERMS FORMULA USED IN WORKLOAD ANALYSIS TO DETERMINE NUMBER OF DEPUTY COMMISSIONERS NEEDED TO COMPLETE YEARLY WORKLOAD The Number of Hearings, Screenings, and Other Actions per The total hours needed to year multiplied by the Number of Minutes Needed to complete all hearings, Complete Each Type of Action equals: screenings, and other actions in one year The Total Hours Needed to Complete All Hearings, The total number of Screenings and Other Actions in One Year divided by Deputy Commissioners the Number of Hours each Deputy Commissioner can work needed to complete yearly in One year equals: workload The workload analysis overstates the time needed for the deputy commissioners to perform various board functions. Specifically: • The analysis overstates the time needed for parole revocation screening offers. The workload analysis uses 12.5 minutes as the time required to complete a parole revocation screening offer, whereas the Office of the Inspector General observed that the process takes closer to half that time. In handling a revocation screening offer, deputy commissioners review parole violation and police reports and consider the factors surrounding the revocation to determine whether the evidence supports revoking parole. If the deputy commissioner determines that there is enough evidence to conclude that the parolee did violate parole, the deputy commissioner, using guidelines in California Code of Regulations, Title 15, proposes a “screening offer” to the parolee specifying a recommended prison term. The parolee can accept the screening offer and serve the prison time or reject the offer and request a parole revocation hearing. If the parolee rejects the screening offer, he must accept the decision of the deputy commissioner at the revocation hearing unless he files an appeal. The Office of the Inspector General found from observing the revocation screening process that a deputy commissioner was able to complete each screening offer in approximately 6.5 minutes while simultaneously answering questions and explaining the screening offer process to the staff of the Office of the Inspector General. In fact, the Office of the Inspector General found that the board’s own data shows the assumption of 12.5 minutes for each parole revocation screening to be inflated. Using data provided by the board, the Office of the Inspector General computed the number of screenings performed by each deputy commissioner for fiscal year 2000-01 and found that if the screenings had in fact taken an STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 12 average of 12.5 minutes each, 17 of the deputy commissioners would have worked more than 24 hours a day. In one extreme example, a deputy commissioner reportedly completed 223 screening offers in one day, meaning that at 12.5 minutes per screening offer, that task would have taken 2,787 minutes, or 46.5 hours. While the time required to complete a screening offer varies depending on the complexity of the case and the experience of the deputy commissioner, the data demonstrate that the 12.5-minute assumption lacks validity. • The analysis overstates the time needed for central office calendar duties. The workload analysis provides 13,797 hours (approximately 10.4 deputy commissioner positions) to provide staffing for central office calendar duties, which consist of an array of tasks related to the revocation proceedings at the board’s central headquarters or regional headquarters. Examples of the duties include reviewing and processing documents to suspend, continue, or reinstate parole. From the weekly itineraries of the deputy commissioners, the Office of the Inspector General calculates that for the last quarter of the 2001-02 fiscal year, the average number of deputy commissioners assigned to perform central office calendar duties was 3.9 instead of the 10.4 positions budgeted. • The analysis overstates the time needed to conduct parole revocation hearings. The workload analysis assumes that 78 minutes is needed for each parole revocation hearing. Yet the deputy commissioners report spending an average of only 65 minutes, and the board’s own documents show that the deputy commissioners actually spend even less time than that. The Office of the Inspector General calculates that a more accurate estimate of the average time required for each hearing is 45 minutes. To assess the validity of the 78 minutes allotted for each parole revocation hearing, the Office of the Inspector General reviewed a sample of 171 parole revocation hearing reports completed by a cross-section of deputy commissioners from each region of the state. In the reports, which are called the “Summary of Revocation Hearing and Decision” (Form 1103), the deputy commissioners present a summary of findings, report the hearing decision, and record the number of minutes spent preparing for the hearing, conducting the hearing, completing the hearing report, and performing any other hearing-related tasks. The review showed the following: • Deputy commissioners reported spending 65 minutes per hearing. Rather than the 78 minutes allotted by the workload analysis, the Office of the Inspector General found that the deputy commissioners reported spending an average of only 65 minutes on each hearing, including preparing for the hearing, conducting the hearing, and writing the hearing report. • A review of the hearing audio-tapes showed that reported times were inflated. Even more revealing, although the deputy commissioners reported spending an average of 37 minutes conducting the actual hearings, a review of the audio-tapes of the same hearings showed that the deputy commissioners actually spent an average of only 22.5 minutes— 14.5 minutes less than they reported. Although hearing recesses conceivably could account for the differences between the reported and actual hearing lengths, the Office of the Inspector General found that not to be the case, as 62 percent of the tapes reviewed did not include a recess. Moreover, as reported by the deputy commissioners, the STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 13 difference in length between hearings that did include a recess and those that did not, was only three minutes. Some of the differences between the reported times and actual times as revealed by the audio-tapes were particularly dramatic. For example, one deputy commissioner who had conducted nine hearings reported that seven of the hearings had each taken 75 minutes and that the other two hearings had taken 45 and 55 minutes respectively—for an average of 69 minutes per hearing. Yet, the hearing tapes showed that the longest hearing actually lasted 54 minutes and the shortest lasted only six minutes, for an average of 19 minutes, not 69 minutes. In another case, a deputy commissioner recorded that a hearing took 80 minutes, while the audio-tape of the hearing revealed that the hearing actually lasted only 18 minutes. The same deputy commissioner reported that another hearing took 150 minutes, while the audio-tape revealed that in fact the hearing lasted just seven minutes. • Times reported for other hearing-related functions were also exaggerated. The times reported by the deputy commissioners in completing other functions related to the parole revocation process appear to have been similarly inflated. In the 171 parole revocation hearing cases reviewed, the deputy commissioners reported that they spent an average of 14 minutes in pre-hearing preparation time and 12 minutes writing the hearing report— that is, filling out the Form 1103. But the Office of the Inspector General found instances in which the hearing preparation time and the report writing time was disproportionately long compared to the actual hearing time, raising questions about the authenticity of the time reported. For example, one deputy commissioner reported that the pre-hearing preparation and report writing each took 20 minutes, for a total of 40 minutes; yet the audio-tape showed that the actual hearing took only six minutes and that the hearing issues were not complex. The same commissioner reported 20 minutes for report writing time even when a case was postponed and the report writing time required presumably was minimal. The review also showed that of the 14 deputy commissioners who had at least five hearings in the sample, seven routinely recorded the same number of minutes for completing the hearing report for every hearing. Because the documentation used in completing the hearing report is filed in the inmate’s central file, the Office of the Inspector General was unable to assess the reasonableness of the time reported for that purpose. But the Form 1103 consists mostly of check boxes that can be completed quickly during the hearing. In the sections of the form where the deputy commissioners must document the reasons for their conclusions and disposition of the case, the Office of the Inspector General found wide disparity among deputy commissioners in the quality and thoroughness of the comments provided. One deputy commissioner, who routinely reported 10 minutes for report writing time, carefully documented on a full page the basis for her conclusions and case disposition, while another, who routinely recorded 20 minutes for report completion time, wrote only brief comments. • A more accurate estimate of the time required for the hearings is 45 minutes. Using the average hearing length of 22.5 minutes as shown in the sample of audio-tapes reviewed, and allowing another 10 minutes for pre-hearing preparation and 10 minutes for report writing, the Office of the Inspector General calculates that the average total time needed STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 14 to complete a parole revocation hearing is 45 minutes rather than the 65 minutes reported by the deputy commissioners or the 78 minutes budgeted in the board’s workload analysis. The chart below illustrates these calculations. MINUTES NECESSARY TO CONDUCT A REVOCATION HEARING AS CALCULATED AS CALCULATED BY BY THE OFFICE OF TYPE OF ACTIVITY THE BOARD OF THE INSPECTOR PRISON TERMS GENERAL Prehearing Preparation 14 10 Conduct Hearing 37 25 Report Completion 12 10 Other 02 00 Total 65 45 • The board overstates the time needed for mentally disordered offender hearings. The workload analysis also overestimates the time required for deputy commissioners to conduct mentally disordered offender hearings. The analysis assumes 400 minutes for each mentally disordered offender hearing, with two deputy commissioners attending each hearing. Again, the Office of the Inspector General found that the board’s own documents contradict the 400 minutes the analysis allots to that purpose. A review by the Office of the Inspector General of a sample of 135 mentally disordered offender hearing reports, termed the “Summary of Mentally Disordered Offender Hearing and Decision,” Form 1415, showed that deputy commissioners documented spending an average of 200 minutes per hearing, with an average of 39.9 minutes spent conducting the actual hearing. Yet, again, the audio-tapes of the hearings showed that in fact the deputy commissioners spent much less time than that conducting the hearings —21.3 minutes, rather than 39.9 minutes. After adjusting for this difference, the Office of the Inspector General estimates that the time required for the mentally disordered offender hearing process totals 162.8 minutes, rather than the 400 minutes allotted by the board’s workload analysis or the 200 minutes reported by the deputy commissioners. In the mentally disordered offender reports, the deputy commissioners record the number of minutes spent on all tasks related to each hearing, including pre-hearing preparation, the actual hearing, and preparing the hearing report. The table below illustrates the time the deputy commissioners reported spending on each phase of the hearing process. As the table shows, the average length of the hearings, as reported by the deputy commissioners, varies slightly depending on the type of hearing —annual, certification, or placement hearings. The table accounts for the combined time of the two deputy commissioners attending each hearing. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 15 AVERAGE DURATION (IN MINUTES) OF MENTALLY DISORDERED HEARINGS AND RELATED TASKS CONDUCTED BY DEPUTY COMMISSIONERS – BY HEARING TYPE Certification Placement Annual Pre-hearing preparation: 144 140 145 Hearing 140 136 146 Report 119 118 119 Other/Miscellaneous 000 111 222 Total average time (in minutes) per hearing and related tasks: 103 95 112 Multiplied by number of Deputy Commissioners attending each hearing (2) Total Deputy Commissioner time (in minutes) per hearing and related tasks: 206 190 224 Overstating the time needed for functions inflates the staff needed by the board. The over- estimations of the time needed to carry out the revocation screening offers, parole revocation hearings, and mentally disordered offender hearings similarly inflates the board’s estimations of the number of deputy commissioners needed to perform those duties. Revising the estimations of time required for each function to more accurately reflect the time actually required, results in the following downward estimates of the number of deputy commissioners needed: • Revocation screening offers. The workload analysis assumes that the board needs 14.1 deputy commissioner positions to handle 90,000 revocation screening offers each year at 12.5 minutes each. If each screening offer actually takes only 6.5 minutes, as shown by this review, the number of deputy commissioner positions needed for that function drops to 7.3 — a savings of 6.8 positions. If, on the other hand, the screening offer function were discontinued, an option discussed in Finding 6 of this report, the number of deputy commissioners needed for that purpose would drop to zero. • Parole revocation hearings. The workload analysis assumes that the board needs 37.1 deputy commissioners to handle 38,000 parole revocation hearings each year at 78 minutes each. If each parole revocation hearing actually takes only 45 minutes, as shown by this review, the number of deputy commissioner positions needed for that function drops to 21.4—a savings of nearly 16 positions. • Mentally disordered offender hearings. The workload analysis assumes that the board needs five deputy commissioner positions to handle 1,000 mentally disordered offender hearings each year at 400 minutes each. If each mentally disordered offender hearing actually requires only 162.8 minutes, the number of deputy commissioner positions required for that function drops to 2.0—a savings of 3.0 positions. If, in addition, the mentally disordered offender hearings were each handled by only one deputy commissioner instead of two—an option discussed in more detail in Finding 5 of this report—the board would need slightly less than one deputy commissioner position for that function. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 16 The board’s calculation underestimates deputy commissioners’ available work hours. Just as it overestimates the time required for deputy commissioners to carry out board functions, the workload analysis understates the work time available to the deputy commissioners. The board’s workload analysis assumes that each deputy commissioner is available to work only 111 hours a month — 1,330 hours a year—compared to other state workers, who work 147 hours a month or 1,760 hours year. The calculation for deputy commissioners is less than that for other state workers because it assumes that deputy commissioners work only seven hours a day and it deducts 145 days per year for weekends, vacations, holidays, sick leave, and professional leave; 26 days for travel; and 10 days for training and board meetings. CALCULATIONS USED TO DETERMINE A DEPUTY COMMISSIONER’S AVAILABLE NET WORKING HOURS PER YEAR Board of Office of the Prison Inspector As Calculated by the: Terms General Total days per year (365) 365 Less Total of: Weekends (104); Holidays (13); Vacation days (20); (145) (145) Sick Leave days (6); and Professional Leave days (2) Subtotal 220) 220 Less: Travel (days) (26) (13) Training and Board Meetings (days) (10) (7) Net days available 184 200 Conversion to hours Multiply Times Hours per Day: x7 hours x8 hours Average hours a deputy commissioner can work in one year 1,330* 1,600 *Although the number of days available (184) multiplied by 7 hours per day actually results in 1,288 hours, the board used the 1,330 hours figure in its workload analysis calculations. The Office of the Inspector General found that the calculation significantly underestimates the work time available for the deputy commissioners. The Bargaining Unit 2 agreement, which covers deputy commissioners, requires a 40-hour work week, equating to 2,080 hours per year. The calculations used by the board reduce that total by 750 hours—more than one-third. Even allowing for vacation, sick leave, travel, meetings, and training, the 750-hour reduction is excessive for the following reasons: • Deputy commissioners can work more than seven hours a day. Requiring deputy commissioners to work only seven hours a day drops available productive time by 184 hours—23 full work days per deputy commissioners per year. The board budgets the deputy commissioners to work seven hours a day on the premise that only seven hours of hearing time are available during the course of a day because security staff and hearing facilities are not available after 4:30 p.m. But the premise is flawed and the assumption that deputy commissioners can work only seven hours a day is not valid. Specifically: STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 17 • More than a third of the deputy commissioners do not conduct hearings. The Office of the Inspector General found from a review of the current workload analysis that the board has budgeted 31 (37 percent) of the 84 deputy commissioner positions to perform duties other than conducting hearings, including conducting screenings, and handling the central office calendar, which consists of processing documents, answering telephone inquiries, and other tasks related to revocation proceedings. • Other tasks can be performed to make up an eight-hour day. Even under the assumption that hearings can be held only seven hours a day, deputy commissioners can perform other tasks, such as writing reports, reviewing files, handling appeals, and other administrative tasks, to work an eight hour day. Also, deputy commissioners often work close enough to a California Department of Corrections parole office that when a day of hearings ends early, they could go to the parole office to perform screening reviews for the balance of the day. • Security is available at the institutions. Some of the hearings that the deputy commissioners conduct are held at institutions where parolees are incarcerated that are open 24 hours a day. Security measures could be arranged to extend available hearing hours beyond seven hours. • The board has not justified allowing for 26 travel days a year. Because deputy commissioners work from home and travel to hearing locations, the board’s workload analysis for deputy commissioners allows for travel time at the rate of 26 days a year. But the board was unable to provide a study or other documentation to justify reducing available work time by 26 travel days a year for each deputy commissioner. In response to a request for such documentation, the board provided a schedule prepared in 1977 documenting that one-half day a week –—24 days a year — was deducted from the days available to the deputy commissioners to hold hearings. The board provided similar calculations dated 1991 and 1998 each of which reported 26 days allocated for travel. But the board was unable to provide evidence or data showing the estimates to be realistic, and no study has been performed to determine how much time the deputy commissioners spend in travel. The board provided schedules of vehicle mileage purportedly showing the total miles driven by deputy commissioners during 1996, 1997, and 2001, but the logs cannot validly be used as a basis for measuring the deputy commissioners’ travel time. Although deputy commissioners work from home, the logs do not take into account that some deputy commissioners commute long distances to hearing locations while others do not, and that some deputy commissioners do not perform hearings and therefore may not travel at all. In fact, the board has no basis for allowing for 26 days a year of travel time for the deputy commissioners. In the absence of any documentation to the contrary, the Office of the Inspector General found that allocating 13 days for travel should be more than sufficient. • The board has not justified the assumption of 10 training days a year. Similarly, although newly hired deputy commissioners receive approximately four weeks of training, the board could not provide supporting documentation for the ten days of training the board assumes annually for each deputy commissioner. When the Office of the Inspector General requested documentation of training attended by deputy commissioners for the 2000-01 and 2001-02 STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 18 fiscal years, the board staff replied that the board does not have a training coordinator to maintain that documentation. The board did provide the Office of the Inspector General with sign-in sheets for classes attended by the deputy commissioners, which showed that the deputy commissioners attended an average of 3.4 days of training during fiscal year 2000-01 and 2.6 days during fiscal year 2001-02. Recognizing the need for and value of training, the Office of the Inspector General allocated seven days of training for each deputy commissioner. • The deputy commissioners do not work even a full seven-hour day. Even though the workload analysis assumes the deputy commissioners work only a seven, rather than an eight-hour day despite the Bargaining Unit 2 agreement requiring a 40-hour work week, they actually work even less than seven hours. To compute the average workday of a deputy commissioner, the Office of the Inspector General arbitrarily selected two deputy commissioners — one from the northern region and one from the southern region — and calculated the time each spent during the 2000-01 fiscal year conducting parole revocation hearings and handling revocation screening offers — the two activities that represent the bulk of the deputy commissioners’ workload. Using the times reported by the deputy commissioners on the BPT Form 1103 for parole revocation hearings and 12.5 minutes for revocations screening offers — the Office of the Inspector General calculated that the southern region deputy commissioner would have averaged 5.8 hours a day and the northern regional deputy commissioner would have averaged 4.8 hours a day. But assuming the more accurate time required for each function — 45 minutes for a parole revocation hearing and 6.5 minutes for a revocation screening offer — shows that the southern region deputy commissioner would have worked an average of 3.9 hours a day and the northern region deputy commissioner 3.4 hours a day. FINDING 2 The Office of the Inspector General found that the deputy commissioners of the Board of Prison Terms, who carry out most of the board’s functions, receive little supervision and the board has no means of accounting for how they spend their time. The deputy commissioners conduct more than 130,000 Board of Prison Terms parole revocation screenings and hearings each year and account for nearly 40 percent of the board’s total personnel costs. The decisions made by the deputy commissioners vitally affect the lives of inmates and parolees and public safety. Yet the board lacks critical information about the deputy commissioners’ performance and provides them with almost no direct supervision. Most of the deputy commissioners work from home, but the board has no timekeeping system to monitor how they spend their time and cannot determine whether they work the 40 hours a week required by the Bargaining Unit 2 agreement. As noted in Finding 1, the Office of the Inspector General in fact found wide variation among the deputy commissioners in the amount of time spent on various functions. The lack of information prevents the board from knowing how much time is actually required for the deputy commissioners to conduct hearings and carry out other responsibilities or how many deputy commissioners the board needs to handle its workload. Nor is the board able to monitor the overall productivity of the organization, make improvements to the system, or measure the performance of individual deputy commissioners. And although the STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 19 Department of Corrections has been working to implement a new computerized tracking system to help ensure that parolees on hold receive a hearing within specified time limits, the deputy commissioners have refused to cooperate by entering information directly into the computerized system because they regard the work as “clerical.” Instead, the deputy commissioners continue to fill out forms by hand and mail them to Sacramento headquarters to be entered into the system by the board staff—a duplicative process that has resulted in a backlog of unprocessed data. The board has no timekeeping system for the deputy commissioners. Even though most of the deputy commissioners are based at home and work independently at state prison facilities and local jails without close supervision, the board management has no means of tracking how they use their time. An effective timekeeping system would provide management with the information needed to monitor the activities of the deputy commissioners, help management compare the amount of time needed to complete hearings in various regions of the state, and help in identifying problems and improving the hearing process. The absence of a timekeeping system has resulted in the following problems: • The number of parole revocation hearings scheduled each day is too low. Because the board’s management has lacked accurate information about the time needed to conduct parole revocation hearings, deputy commissioners are routinely scheduled to conduct only six hearings a day on non-travel days, allowing for 78 minutes per hearing. As Finding 1 suggests, a more accurate calculation of the time needed to complete each hearing is 45 minutes, which potentially would allow for as many as ten hearings to be held a day over the same period of time—a 67 percent increase in productivity. • Wide variation in the number of screening offers handled. The number of revocation screening offers handled in a day varies widely among deputy commissioners. The Office of the Inspector General found from reviewing a six-month sample of revocation screening offers that some deputy commissioners completed an average of 60 screening offers a day, while others averaged only 19. The difference is significant in that deputy commissioners spend an average of 30 days a year on screening offers. If deputy commissioners who complete fewer than 45 screenings a day increased the total completed to 45 a day, the board could save 774 personnel days a year, or the equivalent of about 3.5 personnel years. • The board presently cannot determine how deputy commissioners spend their time. Although deputy commissioners record time spent on parole revocation and mentally disordered offender hearings on the BPT Forms 1103 and 1415, as Finding 1 notes, the time recorded is not always accurate. Moreover, the forms do not fully account for the deputy commissioner’s time. Deputy commissioners also spend time working at home preparing for upcoming hearings and traveling to various hearing sites, but do not keep timesheets or daily logs to report the time they spend each day on board activities. Consequently, management has no means of knowing whether deputy commissioners have worked 40 hours each week, even though the Bargaining Unit 2 agreement between the deputy commissioners and the State requires them to do so. Deputy commissioners are considered “workgroup E” employees, which according to the bargaining unit agreement means they are “expected to work all hours necessary to accomplish their assignments and fulfill their responsibilities.” STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 20 But the agreement also notes that “Employees may be required to record time for purposes such as client billing, budgeting, case or project tracking.” Deputy commissioners receive little supervision. According to the organization charts, deputy commissioners report to three of the board’s four associate chief deputy commissioners. In actuality, according to the board’s chief deputy commissioner, the associate chief deputy commissioners spend little time directly supervising deputy commissioners and instead perform administrative tasks and special projects for the board. Associate chief deputy commissioners are promoted from the ranks of the deputy commissioners, but few desire the position because those who promote receive only a 5 percent salary increase, lose their public safety retirement benefits, and are required to report every day to an office instead of working from home. As a result, the board has resorted to sometimes placing deputy commissioners as “acting” associate chief deputy commissioners on a temporary 12-month basis only, and must keep the vacant deputy commissioner position open in the meantime for the deputy commissioner to return to. The knowledge that they will soon return to rejoin the other deputy commissioners may act as a disincentive for acting associate chief deputy commissioners to diligently pursue supervisory responsibility. Deputy commissioners refuse to use a needed computerized tracking system. In 1997 the Department of Corrections and the Board of Prison Terms began implementing a new computerized system to facilitate the parole revocation process. The system, termed the “revocation scheduling and tracking system,” was designed to serve as a single repository for parole revocation data and was intended to increase the number of cases in compliance with the requirement that hearings be held within 45 days of a parole hold. The system was supposed to replace the antiquated present system in which deputy commissioners manually complete a Form 1103 for each hearing and mail the forms to board headquarters where the board staff keys the data into a computer system. That inefficient process is affected by mail delays, illegible handwriting, and information missing from forms. The Office of the Inspector General found that the board has no filing system for the 1103 forms that have been processed and instead keeps them in a room full of unused furniture. The revocation scheduling and tracking system was intended to remedy the problems by allowing deputy commissioners to enter the hearing results directly into the system, but the deputy commissioners have refused to do so, claiming that the task is burdensome and is clerical in nature, and the board management has not required them to perform that duty. FINDING 3 The Office of the Inspector General found that until recently the State has had no means of tracking to ensure that parolees detained for violating parole receive a hearing within the 45-day time-frame specified in state regulations or within a “reasonable time period,” as specified under federal law. More than 7,000 California parolees are presently incarcerated awaiting Board of Prison Terms parole revocation hearings and screenings, which will determine whether they have violated parole conditions and should be returned to prison, and, if so for what period of time. Although California Code of Regulations, Title 15, Section 2640 specifies that parole revocation hearings should be held within 45 days of the date the parole hold was placed, and federal law requires STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 21 that a hearing be held within a “reasonable time period,” neither the Board of Prison Terms nor the Department of Corrections has a means of tracking how long parolees incarcerated before October 1, 2002 have been held to ensure that time limits are met. In reviewing a sample of 171 parole revocation hearing cases, the Office of the Inspector General found that 137 (81 percent) had been held longer than the 45-day guideline and that 12 (7 percent) of the parolees had been held without hearings for more than 100 days. In many cases, by the time parolees are given a hearing to determine whether parole should be revoked, they have already served as much or more time than the parole revocation sentence they would have received. An attempt to implement a computerized tracking system failed. In March 2001 the Department of Corrections attempted to implement a system—the revocation scheduling and tracing system—for tracking how long parolees had been waiting for hearings. But the attempt failed, in part because it did not accommodate the requirements of the Armstrong remedial plan, which grew out of a federal court decision requiring the board to modify its procedures to accommodate disabled prisoners and parolees. The system also did not accommodate Proposition 36, an initiative passed by the voters of California allowing drug offenders to receive treatment rather than jail time. As discussed in Finding 2, the system was further hampered by the unwillingness of Board of Prison Terms deputy commissioners to enter information directly into the computerized system instead of filling out forms manually and sending them by mail. Although a new version of the revocation scheduling and tracking system was implemented on October 1, 2002, the system is not retroactive and captures only current information. As a result, the board and the Department of Corrections have instituted a weekly “hold-to-hearing meeting,” referring to the 45-day timeframe from the date the parole hold was placed to the hearing date, in which the status of the thousands of parolees in the revocation process is reviewed. The meeting centers on the “Weekly Hold-to-Hearing Report,” which gives the status of parolees waiting for parole revocation hearings. A summary of a recent such report is shown below. NUMBER OF PAROLEES (BY PAROLE REGION) WAITING FOR: Parole ADA or C- File Second Region Review Screening Serves Hearing Totals Region I 0,362 0,776 0,296 0,425 1,859 Region II 0,542 0,405 0,352 0,413 1,712 Region III 0,395 0,345 0,285 0,398 1,423 Region IV 0,965 0,155 0,659 0,644 2,323 Totals 2,264 1,581 1,592 1,880 7,317 The usefulness of the weekly hold-to-hearing report, however, is limited. The reasons are the following: The accuracy of the information is questionable. The report is generated from information reported by each parole region, and each region uses its own procedures to compile the data. For STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 22 example, in Region III, the staff manually categorizes and counts the case files each week and consolidates the totals into the weekly report, but there is no means of validating the accuracy of the counts at any given point. The numbers continually change, and case files in transit from one staff member to another may not be included in the count. The report does not include the length of time parolees have waited for hearings. Both the Board of Prison Terms and the Department of Corrections acknowledged to the Office of the Inspector General that they have no means of monitoring the status of individual parolees in the parole revocation process or how long they have been waiting for parole revocation hearings. The report reveals only patterns and trends in the number of cases reported to be in each phase of the process. Without information on the status of the individuals, the State cannot ensure that parolees’ legal rights to a timely hearing are fulfilled. The status of the 2,264 parolees shown in the report as “Waiting for ADA or C-File Reviews,” is of particular concern. In these cases, the revocation unit is waiting for Americans with Disabilities Act documentation from the field or from the parolee’s central file in compliance with the Armstrong remedial plan. This process can be time-consuming, as the parolees’ Americans with Disabilities Act documentation must be located, sent to the appropriate revocation unit, matched with the parole violation documents, and forwarded to the Board of Prison Terms. An additional concern is that some of the parolees are Proposition 36-eligible and according to the law should not be incarcerated, but rather should be referred to a drug treatment program. But the parolees do not receive a drug treatment screening offer until this lengthy process is completed. Neither the board nor the Department of Corrections knows how many parolees are Proposition 36-eligible or how long they have been incarcerated. Each parole region is using its own tracking process to track parolee status. Since neither the board nor the Department of Corrections has a means of tracking the status of the parolees waiting for hearing, the parole regions have devised their own systems for doing so. Some of the regions have resorted to manually tracking arrested parolees through the use of jail logs. Parole Region III has returned to a previous system, which can produce a report giving statistics on parolees held longer than 45 days. That report, although incomplete, reports an average hold-to- hearing time as of October 9, 2002 of 70 days for hearings falling beyond the 45-day threshold. The fragmented manner in which information about the status of parolees awaiting hearings is gathered raises questions about the accuracy of the information and impairs the ability of the board to ensure that the revocation hearings are conducted within specified time limits. FINDING 4 The Office of the Inspector General found that the Board of Prison Terms is not complying with state regulations requiring that board decisions undergo systematic review to ensure that they are valid and consistent and that they further public safety. California Code of Regulations, Title 15, Sections 2041 and 2042 require that decisions rendered by the Board of Prison Terms in parole revocation, indeterminate sentencing, and mentally disordered offender hearings undergo review before they take effect. The purpose of the review is to ensure that results are consistent, that the findings are supported by the evidence, and that the law has been correctly applied. The review is also meant to ensure that the decisions further STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 23 public safety. The Office of the Inspector General found that Board of Prison Terms is not complying with these requirements. Decisions in indeterminate sentencing cases undergo review by the board’s legal department only if parole is granted. If parole is denied in an indeterminate sentencing case, the decision undergoes only a superficial review intended just to verify the clerical accuracy of the hearing documents. Of the mentally disordered offender hearings, only a small fraction—those in which the inmate is proposed to be released from inpatient treatment or from the mentally disordered offender classification — undergo a meaningful review. The others are reviewed by a second deputy commissioner who may lack training in the medical complexities of the case. And the board provides no review at all of the 38,000 parole revocation hearing decisions issued each year by its deputy commissioners, which constitutes the bulk of the deputy commissioners’ workload. State regulatory requirements for Board of Prison Terms decision review. California Code of Regulations Title 15, Sections 2041 and 2042 provide in pertinent part: [B]oard decisions, except decisions made at recommendation hearings and decisions which do not require a hearing, are proposed decisions and shall be reviewed prior to their effective date… [T]he purpose of the decision review process is to assure complete, accurate, consistent and uniform decisions and the furtherance of public safety. Criteria for disapproval of a decision by the decision review unit, reconsideration panel, or board review committee include clerical errors, apparent inconsistency of result from results generally obtained for the same or similar cases, incorrect application of the law (statutes or regulations), a decision not supported by the findings, findings not supported by the evidence on the record, or a unique or unusual policy issue posed by the proposed decision. Review of indeterminate sentencing decisions does not meet regulatory intent. The board’s workload analysis provided for the equivalent of almost one full deputy commissioner position (2,296 cases at a half-hour each) to review hearing decisions involving inmates with indeterminate sentences. In fact, though, only indeterminate sentencing decisions in which parole is granted are reviewed by the board’s legal department. When parole is denied, deputy commissioners perform only a clerical review that involves comparing the hearing transcripts to the hearing file documents to verify that information such as the inmate’s CDC number, the hearing date, the institution where the hearing occurred, and the commitment offense are accurate. The Office of the Inspector General observed that the process takes five or ten minutes. Although the review also includes confirming that the reason for the parole denial has been documented, the task could easily be performed by other members of the staff working at a much lower pay scale. No meaningful review of the decisions consistent with regulatory intent is conducted. The board’s parole revocation hearing decisions are not reviewed. The Board of Prison Terms received funding for 3.4 deputy commissioner positions to conduct decision reviews for 20 percent of the parole revocation hearings and 100 percent of the mentally disordered offender hearings. But the board stopped reviewing parole revocation decisions in December 2001, claiming that it did not have enough deputy commissioners for that purpose. As a result, unless a problem with a hearing is brought to the attention of the chief deputy, parole revocation decisions are not reviewed. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 24 Parole revocation decisions appear to lack consistency. Even though parole revocation decisions issued by the board’s deputy commissioners have profound implications for parolees and for the public, the Office of the Inspector General found that the deputy commissioners do not appear to follow consistent standards in rendering the decisions. In the 171 parole revocation hearing cases examined, the Office of the Inspector General found for example that one deputy commissioner dismissed charges that included fraud, possession of stolen property, attempted burglary 2nd degree, burglary 2nd degree, false identification to a police officer, and use of cocaine against a parolee because the parolee had been in jail for 69 days before the revocation hearing was held. In another case, the same deputy commissioner dismissed all charges because the parolee had been jailed for 67 days. Yet, a different deputy commissioner gave a parolee who had been held for 163 days for failure to follow parole instructions, evading arrest, absconding parole supervision, and possession of cocaine a prison term of nine months. As noted in Findings 1 and 2, the deputy commissioners also vary widely in the apparent diligence with which they conduct and document the hearings, as seen in the wide variation in hearing length and in the detail or lack thereof in the hearing reports. Without a meaningful and effective review process, the management of the board has no means of identifying and rectifying the inconsistencies, which not only undermine the fairness of the hearing process, but also render the board vulnerable to legal action. Mentally disordered offender reviews reflect deputy commissioners’ lack of expertise. Only a fraction of the board’s mentally disordered offender decisions — those in which the deputy commissioner’s proposed decision was to release the inmate from inpatient treatment or from the mentally disordered offender classification — undergo a meaningful review. Those decisions are reviewed by the board’s offender screening section analysts. But all of the other mentally disordered offender reviews, which make up by far the greatest proportion of the decisions, are performed by other deputy commissioners. In those cases, the deputy commissioner who conducted the hearing decided that inpatient placement was necessary or that the mentally disordered offender classification was “reaffirmed,” and the decision is reviewed by another deputy commissioner who may lack adequate training in the medical complexities of the cases. From a sample of 60 mentally disordered offender hearings, the Office of the Inspector General found that deputy commissioners had performed decision reviews for 58 and that in 25 of the 58 cases (43 percent), the deputy commissioner who performed the review had not been trained in conducting mentally disordered offender hearings. The Office of the Inspector General found that in fact the offender screening section analysts overturn a high percentage of the mentally disordered offender decisions they review, raising the possibility that decisions not reviewed by the analysts may contain an equal proportion of flawed or erroneous decisions that escape detection. Of the 625 mentally disordered offender hearings held from January to September 2002, 13 resulted in a decision by the deputy commissioner to release the inmate from inpatient treatment or from the mentally disordered offender classification and therefore underwent review by offender screening analysts. The offender screening section analysts overturned eight of the 13 decisions. In six of the eight cases, the deputy commissioners had decided that the parolee no longer met the criteria for a mentally disordered offender, but the analysts concluded that the parolee did meet the criteria, and found that the facts presented by the deputy commissioner failed to support the decision to remove the STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 25 designation. In two of the cases, the analysts found that the deputy commissioners’ decisions were so deficient as to warrant rescinding the decision and ordering a new hearing. The mentally disordered offender decision review process is not monitored. Although the board prepares a decision review tracking report covering mentally disordered offender decisions, the process is not monitored to ensure that the reviews are conducted. The Office of the Inspector General found that a decision review tracking report provided by the board listed 22 mentally disordered offender hearings held between November 2000 and December 2000 that never were reviewed during the decision review process. The board staff said that the cases were apparently sent to the deputy commissioners for review but were returned and re-filed without the decision review taking place. The staff responsible for logging the files back from the deputy commissioners failed to notice that the deputy commissioners had not signed off on the cases. The cases also were not logged as returned on the tracking report, but no supervisors review the tracking report and the absence of the reviews went unnoticed. The Office of the Inspector General noted that seven other mentally disordered offender decisions in 2001 and 2002 also were not documented as having received a review. The Office of the Inspector General found other evidence that the decision review tracking report is not accurate. From a sample of 20 hearings listed in the tracking report, the Office of the Inspector General reviewed the corresponding BPT 1415 forms to determine whether the decision review had occurred. In three of the 20 documents, the decision review section of the form was blank, indicating that the review had not been performed, yet the tracking report indicated that the review had been performed. FINDING 5 The Office of the Inspector General found that the board’s practice of automatically scheduling mentally disordered offender placement hearings 60 days after the inmate’s arrival in custody is unnecessary and inefficient. The requirement that two deputy commissioners conduct the mentally disordered offender hearings is similarly unnecessary. The workload analysis of the Board of Prison Terms budgets five deputy commissioner positions to conduct mentally disordered offender hearings. The Office of the Inspector General found, however, that the board could achieve significant savings by streamlining the mentally disordered offender hearing process and reducing the personnel resources needed for the hearings. Making those changes would enable the board to fulfill this function with only one deputy commissioner position instead of five. Scheduling placement hearings only as needed would save resources. State regulations allow a parolee to request a placement hearing to determine whether he or she will be treated as an inpatient or outpatient within 60 days of the parolee’s arrival in custody as a mentally disordered offender. In practice, however, the board does not wait for the patient to request the hearing, but instead automatically schedules the placement hearing after 60 days. But that process does not allow the medical treatment team enough time to stabilize the patient’s treatment and accurately assess suitability for outpatient treatment. As a result, 99 percent of the placement hearings result in an order that the patient remain in a Department of Mental Health hospital for continued inpatient treatment. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 26 California Code of Regulations, Title 15, Section 2578 states: If the State Department of Mental Health has not placed a parolee on outpatient treatment within 60 days after receiving custody of the parolee or after parole is continued pursuant to Penal Code Section 3001, the parolee may request a hearing before the board to determine whether he or she shall be treated as an inpatient or an outpatient. The Office of the Inspector General found that in the six months ending June 30, 2002, only one of 102 mentally disordered offender placement hearings resulted in an order that the parolee be treated as an outpatient. When the patient remains in medical custody after the placement hearing, annual hearings are held to reassess the patient’s status as a mentally disordered offender and suitability for outpatient care. Instead of the current process, the placement hearings could be conducted after the medical staff at the Department of Mental Health determines that the patient is suitable for outpatient treatment. At that point the staff could request that the board conduct a placement hearing and weigh the evidence presented in the hearing to determine the patient’s suitability for outpatient treatment. Adopting this alternative would save in two ways: first, because some mentally disordered offenders never reach the level at which treatment can be done on an outpatient basis, many hearings now automatically scheduled could be put off indefinitely. Second, scheduling the placement hearing at the time it is actually needed would allow the Department of Mental Health to save because patients whose release to outpatient care would otherwise be delayed until an annual hearing could be released earlier. Under current procedures, when there is disagreement between the Department of Mental Health and the providers of outpatient treatment about a patient’s suitability for outpatient treatment, the Department of Mental Health waits for the board to make the final decision at the annual hearing. Since annual hearings obviously occur only once each year, some patients may remain unnecessarily in Department of Mental Health treatment for several months—at an annual cost of $100,000, compared to the cost of treatment in the Department of Corrections outpatient program of between $12,000 and $24,000 per year. The hearings could be handled by one deputy commissioner instead of two. California Code of Regulations, Title 15, Sections 2576, 2578, and 2580 require the board’s mentally disordered offender hearings to be conducted by two deputy commissioners, even though its other hearings, except for parole hearings for inmates with indeterminate sentences, are handled by one commissioner. The purpose of mentally disordered offender hearings is to determine whether a parolee meets the criteria of a mentally disordered offender or whether he or she needs inpatient or outpatient medical treatment. The deputy commissioner’s decision is largely guided by expert testimony from treating doctors or clinicians and the patient. The supervising agent who manages the board’s offender screening section maintains that the complexity of mentally disordered offender hearings justifies the presence of two deputy commissioners. But although the medical context of the hearings may require a set of skills different from those required for other hearings, the basic skills of weighing evidence and assessing the credibility of witnesses are no different. A more prudent approach would be to ensure that the deputy commissioner who conducts the hearings is sufficiently trained and experienced to handle the medical complexities of the hearings. The mandated review of each STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 27 hearing decision further mitigates the need for two deputy commissioners to conduct the hearing, provided that a qualified individual performs the review. Streamlining the mentally disordered offender hearing process to eliminate unnecessary hearings and using only one deputy commissioner at each hearing instead of two, would enable the Board of Prison Terms to fulfill its responsibility for conducting the hearings with the equivalent of only one deputy commissioner position instead of the five positions presently budgeted. FINDING 6 The Office of the Inspector General found that the State’s parole revocation process is unnecessarily burdensome and prevents it from affording inmates and parolees their due process rights to a timely hearing. The purpose of the parole revocation process is to determine whether a parolee has violated parole conditions and should be sent back to prison. But the process by which the State presently carries out that responsibility is burdensome and inefficient and in need of thorough revamping. The current process is fragmented, with the board sharing overlapping responsibilities for the process with the Department of Corrections—an arrangement that leads to delays, errors, and communication problems. In recent years the parole revocation hearing process also has been complicated by the impact of court decisions specifying due process rights of parolees to a hearing within a reasonable time period and the rights of inmates and parolees suffering from disabilities to necessary accommodation. Under its present parole revocation screening and hearing process, the State has not been able to adequately provide for those due process rights. Nor has the State been able to successfully implement the provisions of Proposition 36 allowing nonviolent drug offenders the option of treatment instead of incarceration. The Board of Prison Terms deputy commissioners, whose primary responsibility is conducting parole revocation hearings, are under-utilized, and adding more deputy commissioners will not remedy the problems. Eliminating the screening offer process and proceeding directly to parole revocation hearings, however, would streamline the process and improve the timeliness of the hearings. The Office of the Inspector General calculated that the number of deputy commissioners needed would increase from 39 to 58 under this approach because the time required to conduct a parole revocation hearing is significantly longer than the time required to do a parole revocation screening. But despite that increase, the total number of deputy commissioner positions needed would still be 31 percent lower than the 84.3 positions currently budgeted. The change would also eliminate the need for the board’s 29 board coordinating parole agent positions, for an estimated state savings of more than $2.5 million annually. It would also reduce the workload of the Department of Corrections district hearing agents. Consolidating the parole revocation process in one agency would also improve efficiency. Morrisey v. Brewer decision established due process rights to a timely hearing. Since 1972 the parole revocation process nationwide has been governed by the landmark U. S. Supreme Court decision Morrissey v. Brewer, which afforded parolees undergoing parole revocation proceedings certain due process rights, including the fundamental right to a hearing within a reasonable time period. Although the court did not specify the length of time within which the STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 28 hearing should be held, it cited 60 days as a reasonable standard and implied that pre-revocation hearings should be held soon after the alleged violation in order to determine whether probable cause exists to continue the proceedings. In adopting regulations to comply with the Morrissey decision, California elected to dispense with the pre-revocation hearing and to hold a single or unitary hearing instead. California Code of Regulations, Title 15 recommends that a parole revocation hearing be held within 45 days of the placement of the no-bail parole hold. Pittman decision provided a 30-day standard for a hearing to be held. In August 1987 another court decision resulted in a more stringent time frame for the revocation hearing process. The Pittman decision by the San Bernardino Superior Court mandated that the revocation process in San Bernardino County be completed within 30 days of the placement of the parole hold. Therefore, two standards were set: a 45-day guideline for hold-to-hearing for most of the state and a 30-day requirement for hold-to-hearing in San Bernardino County. Armstrong v. Davis court decision established rights for disabled parolees. The parole revocation process again changed dramatically in 1999 with the impact of the Armstrong v. Davis decision. In Armstrong, the U. S. Court of Appeals ruled that the State of California regularly discriminated against disabled prisoners and parolees in its parole and parole revocation process. The court found that the Board of Prison Terms failed to provide proper accommodation for disabled prisoners and parolees. The court issued a system-wide injunction requiring the board to modify its policies and procedures to comply with federal statutory and constitutional standards. In response, the Department of Corrections developed the Armstrong v. Davis Board of Prison Terms parole proceedings remedial plan, the goal of which is to ensure that all inmates and parolees who have a disability under the Americans with Disabilities Act are afforded reasonable accommodation at board parole proceedings. Under the plan, the board and the Department of Corrections are jointly responsible for ensuring that the inmate or parolee is made aware of his or her rights, is informed as to how to request reasonable accommodation, and has equal access to all parole proceedings. The Board of Prison Terms has not complied with the 45-day standard. As discussed in Finding 3, the board has not been able to provide parole revocation hearings within the 45-day timeframe recommended under Title 15 of the California Code of Regulations, in part because it lacks a means of tracking how long parolees have been held to ensure that time limits are met. The board’s ability to meet the 45-day guideline is further hampered by the burdensome and convoluted process by which the parole revocation screening offers and hearings are carried out and by the procedures used by the Board of Prison Terms and the Department of Corrections to comply with the Armstrong decision requirements. Following are some of the factors complicating the parole revocation hearing process. • Identifying parolees requiring accommodation delays the hearing process. Under the Armstrong v. Davis Board of Prison Terms parole proceedings remedial plan, the Department of Corrections and the Board of Prison Terms divide responsibilities for providing accommodation to inmates and parolees with disabilities. As a first step, the Department of Corrections must identify those who need accommodation at a parole hearing. That seemingly simple process can delay the hearing for months because the department has no means of readily retrieving the information and gives the task low STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 29 priority. To gather the needed information, the inmate or parolee’s central file must be requested and located and then manually reviewed to determine whether it contains documents that might identify a disability or need for accommodation. Once the disability information is obtained, it must be matched with the parole violation report, processed, and sent to the board so that the deputy commissioner can screen the case and prepare a screening offer. With hundreds of parole violation reports awaiting review for compliance with the Americans with Disabilities Act, the procedures have caused a backlog in the hearing process. • Coordination between the board and the department causes further delays. The fragmented responsibility for the parole revocation hearing process between the board and the Department of Corrections causes additional delays. Because there is no automated system to manage the cases, the two agencies coordinate the hearing process through telephone calls and fax messages, a process both labor-intensive and susceptible to error, which in turn causes still more delays. The process is further complicated by the fact that two different employee classifications at the two separate agencies — board coordinating parole agents at the Board of Prison Terms and district hearing agents at the Department of Corrections— perform almost the same function. After the board’s deputy commissioner prepares a screening offer, if no Americans with Disabilities Act requirements have been identified, a Department of Corrections district hearing agent “serves” the offer to the parolee, who then has 72 hours to review the screening offer and decide whether to accept it. On the other hand, if an Americans with Disabilities Act requirement is identified, a Board of Prison Terms board coordinating parole agent —a classification established in response to the Armstrong case —serves the offer to the parolee. • Proposition 36 requirements are not being met. Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, enacted by the voters of California in November 2000, provides for treatment rather than incarceration for non-violent drug offenders. Under the new law, a parole violator found to have committed a nonviolent drug offense or to have violated drug-related conditions of parole is supposed to be allowed to participate in a community drug treatment program with up to six additional months of follow-up care instead of being returned to prison. According to the law, within seven days of a finding that the parolee has either committed a nonviolent drug possession offense or violated certain drug-related conditions of parole, the board is to notify the treatment provider designated to provide drug treatment under the Act. Within 30 days thereafter, the treatment provider is to prepare a drug treatment plan and forward it to the board and to the parole agent of record responsible for supervising the parolee. But under the current parole revocation hearing process, the requirements of the law are not being met because the State has no means by which to readily distinguish parolees who are eligible for Proposition 36 from other parolees. As a result, parolees eligible for drug treatment under Proposition 36 may be held in jail for months before they receive a screening offer to participate in a drug treatment program. • A pending court case could further complicate the parole revocation process. A major class action lawsuit pending in U.S. District Court could also affect the parole revocation process. That lawsuit, Valdivia v. Davis, alleges that inmates and parolees are being denied the right to counsel and due process in the revocation of their parole. The lawsuit alleges that STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 30 parolees are placed on hold without the proper and timely notice of the reasons for the detention or sufficient mechanism to appeal the detention and that prompt and preliminary hearings on the cause of the parolee’s detention are not being conducted in California. The lawsuit further alleges that in almost all cases, no hearing is held, whether on the basis for the detention or on the charges themselves, until 45 days or even months after the arrest. Other issues raised in the lawsuit are that parolees are not provided with attorney representation at the time the screening offer is made; are often denied a request for an attorney; and that even when an attorney is appointed, the pay scale and criteria for attorney representation renders the right meaningless. Although the outcome of the Valdivia lawsuit is uncertain, if successful it will almost certainly require extensive changes to the existing parole revocation process. • The use of screening offers unnecessarily contributes to hearing delays. The screening offer process was designed to lessen the number of cases requiring full parole revocation hearings, and thereby save resources. In reality, the screening process causes delays and impairs the ability of the board to provide hearings within the 45-day time guideline. In the screening process, a deputy commissioner screens the parolee’s case file and decides on an offer that involves an incarceration period of up to twelve months. As noted above, the screening offer is served to the parolee by either a Department of Corrections district hearing agent or a Board of Prison Terms board coordinating parole agent, depending on whether or not the parolee is eligible for reasonable accommodation under the Americans with Disabilities Act. After that, the parolee accepts or rejects the screening offer. Each stage of the process carries with it the potential for delay. The board could complete hearings more promptly if it eliminated screening offers. The Board of Prison Terms could complete parole revocation hearings more efficiently with its present resources and address the due process rights of parolees to a timely hearing if it eliminated the screening offer process. According to its workload analysis, the board estimated that in the 2001- 02 fiscal year it would receive 91,249 cases requiring a screening review, 35,067 of which would result in formal parole revocation hearings. The board further estimated that 2,937 of the parole revocation hearings would be postponed and therefore would require a rehearing. To perform the revocation screenings, parole revocation hearings, and postponed hearings, the board budgeted a total of 68,415 hours. Using the board’s assumption of 1,330 in annual productive hours per deputy commissioner, the board received funding for 51.4 deputy commissioner positions to carry out the revocation screening and hearing functions. As noted in Finding 1, however, the board’s workload analysis over-estimated the time required for each parole revocation hearing. The Office of the Inspector General found that instead of 78 minutes, the hearings require an average of only 45 minutes. If the board were to eliminate the revocation screening function and proceed directly to the revocation hearing, it would require a total of 70,640 hours to conduct the 91,249 revocation hearings and 2,937 postponed hearings under the current estimated hearing workload —slightly more than the 68,415 hours presently budgeted for the screenings and hearings together. The Office of the Inspector General further notes that the board’s entire parole revocation hearing workload (parole revocation screenings and hearings) could be handled by fewer deputy STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 31 commissioners than the 51.4 currently budgeted. The reason is that, as explained in Finding 1, the board’s budget assumption of 1,330 in annual productive hours per deputy commissioner is unrealistically low. Using a more reasonable assumption of 1,600 hours annually, or 133 productive hours per deputy commissioner per month—which provides for a normal eight-hour workday and still allows for a generous 13 travel days a year — reveals that the entire hearing workload could be handled by 43.46 deputy commissioner positions, compared to the 51.4 positions currently budgeted specifically for parole revocation screenings and hearings. If the screening offer function is eliminated, the Office of the Inspector General calculates that the total number of deputy commissioner positions needed for all functions will increase by 19, from 39 to 58.2 (see Appendix B). The increase is necessary because the time required to conduct a parole revocation hearing (45 minutes) is longer than the time required for a parole revocation screening (6.5 minutes). But the total number of deputy commissioner positions needed would still be 31 percent less than the 84.3 positions currently budgeted. Elimination of the screening function offers several advantages to the State. First, it would expedite the hearing scheduling process by eliminating the time required to review and process the screening offers. Second, the 29 board coordinating parole agent positions, funded in the board’s 2001-02 fiscal year, whose primary function is to serve screening offers to parolees eligible for accommodation under the Americans with Disabilities Act could be eliminated, for an estimated savings to the State of more than $2.5 million annually. Third, parallel savings in the workload of the Department of Corrections also would be realized, since the department’s district hearing agents would no longer be needed to serve screening offers to parolees not eligible for Americans with Disabilities Act accommodation. The effect of the savings from the reduction in the workload of district hearing agents cannot be quantified at this time. Consolidating parole revocations at the department would improve the process. The existing parole revocation process, with the Board of Prison Terms sharing responsibilities with the Department of Corrections, results in overlap and inefficiency and undermines the State’s ability to afford inmates and parolees their constitutional right to a timely hearing. Consolidating the parole revocation process in one agency would eliminate the overlaps and shorten the time required to process cases. The Department of Corrections, as the agency with overall responsibility for inmates and parolees and with its Parole and Community Services Division and regional parole offices, would be the logical agency to handle the parole revocation process. Adding pre-revocation hearings will not remedy the due process problems. Because of the Valdivia case, the State is contemplating conducting pre-revocation hearings for all parolees soon after the alleged violation to determine whether probable cause exists to continue the proceeding. But given the State’s inability to readily identify parolees eligible for Americans with Disabilities Act accommodation, it is doubtful that the pre-revocation hearings can be conducted within mandatory time limits either. On the contrary, adding another time-consuming procedure into an already cumbersome and convoluted process could cause significant additional delays. A Proposition 36 memorandum of understanding could have additional impact. A memorandum of understanding between the Board of Prison Terms and the Department of Corrections concerning implementation of Proposition 36 could significantly reduce the number STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 32 of parole revocation hearings and should be considered in any revision of the hearing process. Implementation of Proposition 36 was initially the responsibility of the Board of Prison Terms, but the board has not been able to carry it out. A recent memorandum of understanding between the board and the Department of Corrections has now transferred the responsibility to the department. In the memorandum of understanding, the board agreed to immediately delegate and seek regulatory change to waive mandatory reporting requirements for certain parolees. The provision affords the parole agents of record and unit supervisors greater discretion in retaining parolees on parole, rather than automatically referring them for revocation hearings. While the provision could significantly reduce the number of revocation hearings, its impact cannot be determined at this time, especially given uncertainty about whether the board will be successful in effecting the necessary regulatory changes. RECOMMENDATIONS The Office of the Inspector General recommends the following: The State should explore the feasibility of consolidating responsibility for the parole revocation process in one department, with the Department of Corrections the most logical choice for that function. Regardless of whether the parole revocation process is consolidated or remains with the Board of Prison Terms and the Department of Corrections, the responsible entity should take the following actions: • Develop and implement a time-management system for deputy commissioners. The system should require that deputy commissioners accurately record the amount of time spent on daily board activities, including hearings and other tasks, and should ensure that the deputy commissioners account for their time on a daily, weekly, and monthly basis. The system should contain enough detail to allow management to analyze the typical daily activities of a deputy commissioner. • Use information from the time management system to support the workload analysis report. The two critical factors in the workload analysis report—total hours to complete hearings and the total number of hours each deputy commissioner can work in one year—should be updated to accurately reflect current capabilities. • Establish more associate chief deputy commissioner positions based on a ratio of eight deputy commissioners to one associate chief deputy commissioner, with compensation commensurate with the responsibility of the position to supervise deputy commissioners. Associate chief deputy commissioners who are responsible for supervising deputy commissioners should: STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 33 • Ensure that the deputy commissioners work an average of 40 hours per week as specified in the collective bargaining agreement. • Systematically conduct reviews of the hearing proceedings and decisions reached to ensure that deputy commissioners conduct hearings properly and consistently. Such reviews should be coordinated with similar reviews completed by other staff members. • Require deputy commissioners to use the revocation scheduling and tracking system. • Refine the revocation scheduling and tracking system to ensure that it provides the information needed to efficiently administer the parole revocation process. At a minimum, the system should be able to: • Track the status of parolees from the day of arrest to the day the parole revocation hearing is held. • Provide current information regarding the length of time parolees have been awaiting hearings. • Provide complete information about the revocation hearing proceedings, including the number of elapsed days between each phase of the hearing process, decision reached during the hearing, and the basis for the decision. • Ensure that hearing decisions are proper, consistent, and fully documented and supported by: • Establishing formalized training for deputy commissioners and associate chief deputy commissioners. • Reinstating a systematic review process that fulfills the existing requirements in California Code of Regulations, Sections 2041 and 2042, related to a decision review process. Ideally, such a process would use sampling techniques to minimize the resources needed to complete the review process. • Revise procedures to conduct mentally disordered offender placement hearings at the request of the Department of Mental Health, rather than within 60 days of the date the patient is placed into the custody of the Department of Mental Health. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 34 • Seek modification of state regulations to allow the Board of Prison Terms mentally disordered offender hearings to be conducted by one deputy commissioner with the expertise needed for the hearings. • Eliminate the parole revocation screening process and instead proceed directly to the parole revocation hearing. The State should conduct all such hearings within 30 days unless the parolee requests an extension. • Identify Proposition 36-eligible parolees who were placed into custody prior to October 1, 2002 and who remain in custody; and release them to a drug- treatment program. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL PAGE 35 APPENDIX A OFFICE OF THE INSPECTOR GENERAL’S ANALYSIS OF THE BOARD OF PRISON TERMS’ WORKLOAD ANALYSIS USING CURRENT PAROLE REVOCATION PROCESSES BOARD OF PRISON TERMS OFFICE OF THE INSPECTOR GENERAL FY 2001-02 BUDGETED DEPUTY FY 2001-02 AUDITED DEPUTY ACTIONS MINUTES COMMISSIONER ACTIONS MINUTES COMMISSIONER TYPE OF HEARING OR REVIEW: FUNDED PER ACTION TIME(HOURS) FUNDED PER ACTION TIME(HOURS) Parole Consideration Hearings 185,103 Various 7,744.5 185,103 17,744 Mentally Disordered Offender Hearings Cases Reviewed 1 180,516 160.5 112,518.5 185,516 0 11,100.5 Certification Hearings2 180,377 400.5 112,513.5 185,377 162.8 11,023.5 Placement Hearings2 180,326 400.5 112,173.5 185,326 162.8 11,1885.5 Annual Hearings2 180,288 400.5 111,920.5 185,288 162.8 11,781.5 Sexually Violent Predator Hearings 180,034 90 112,150.5 185,134 11,150.5 Revocation Hearings Central Office Calendar (non-hearings)3 180,163 Various 113,797.5 180,163 N/A 16,400.5 Revocation Screening Calendar4 091,249 012.5 119,010.5 191,249 166.5 19,885.5 Community Hearings5 035,067 1.578.55 145,587.5 135,067 145.5 26,300.5 Extension Hearings5 002,307 065.5 112,499.5 112,307 145.5 11,730.5 Postponed Hearings5 002,937 078.0 113,818.5 112,937 145.5 12,203.5 Proposition 36 Hearings6 007,181 030.5 113,591.5 117,181 110.5 0.5 Decision Review Indeterminate Sentencing Hearings7 002,296 130.5 111,148.5 112,296 110.5 11,383.5 MDO and Revocation Hearings7 009,077 130.5 114,539.5 119,077 110.5 11,513.5 Appeals 008,104 124.5 113,242.5 118,104 13,242.5 Total 112,147.5 62,139.5 Net Hours Worked per Deputy Commissioner per fiscal year8 111,330.5 11,600.5 Personnel Year Equivalent Worked/Needed 112,184.3 11,138.8 1 The Office of the Inspector General found that deputy commissioners no longer perform these case reviews. As a result, this activity was eliminated from the Office of the Inspector General’s analysis. 2 The Office of the Inspector General found that the mentally disordered offender hearings last an average of 162.8 minutes. 3 The Office of the Inspector General found that the Board of Prison Terms actually only assigns four deputy commissioners to the central office calendar function. 4 The Office of the Inspector General found that the deputy commissioners spend an average of 6.5 minutes on each screening offer. As a result, this figure was reduced from 12.5 minutes to 6.5 minutes. 5 The Office of the Inspector General found that the parole revocation hearings last an average of 45 minutes, not the 78 minutes recorded by the deputy commissioners. 6 The Board of Prison Terms and the California Department of Corrections recently entered into a memorandum of understanding to transfer the implementation of Proposition 36 from the board to the department, effective October 1, 2002. 7 The Office of the Inspector General found that decision review items last about 10 minutes each, not 30 minutes. In addition, the number of hearing decision reviews completed in FY 2000-01 was overstated by 334 cases. 8 The Office of the Inspector General found that the 1,300 annual hours allotted underestimates the hours deputy commissioners can work. A more reasonable figure is 1,600 hours, which includes working an 8-hour day and allows fewer hours for travel and training. 36 APPENDIX B REVISED WORKLOAD NEEDS BASED ON THE OFFICE OF THE INSPECTOR GENERAL’S RECOMMENDED PROCESS CHANGES OFFICE OF THE INSPECTOR GENERAL RECOMMENDED FY 2001-02 DEPUTY TYPE OF HEARING OR REVIEW: ACTIONS MINUTES COMMISSIONER FUNDED PER ACTION TIME(HOURS) Parole Consideration Hearings 185,103 17,744.5.5 Mentally Disordered Offender Hearings Cases Reviewed 180,516 0 1,100.5 Certification Hearings1 180,377 81.4 11,511.5 Placement Hearings1 180,326 81.4 11,442.5 Annual Hearings1 180,288 81.4 11,391.5 Sexually Violent Predator Hearings 180,034 11,150.5 Revocation Hearings Central Office Calendar (non-hearings) 180,163 06,400.5 Community Hearings2 91,249 45.5 68,437.5 Extension Hearings 002,307 45.5 11,730.5 Postponed Hearings 002,937 45.5 12,203.5 Proposition 36 Hearings 007,181 0 0 Decision Review Indeterminate Sentencing Hearings 002,296 010.5.5 11,383.5 MDO and Revocation Hearings 009,077 010.5.5 11,513.5 Appeals 008,104 .5 13,242.5 Total 93,046.5 Net Hours Worked per Deputy Commissioner per fiscal year3 11,600.5 Personnel Year Equivalent Worked/Needed 11158.2 1 The Office of the Inspector General found that mentally disordered offender hearings last an average of 162.8 minutes. The Office of the Inspector General also recommends that mentally disordered offender hearings be conducted by one deputy commissioner instead of two, reducing the number of minutes per hearing by 50 percent, from 162.8 minutes to 81.4 minutes. 2 The Office of the Inspector General recommends that the screening process be eliminated and that 45 minutes be budgeted for each of the 91,249 revocation hearings. 3 The Office of the Inspector General found that the 1,330 annual hours alotted underestimates the hours deputy commissioners can work. A more reasonable figure is 1,600 hours, which includes working an eight-hour day and allows fewer hours for travel and training. 37 ATTACHMENT A RESPONSE OF THE BOARD OF PRISON TERMS 38 ATTACHMENT B COMMENTS OF THE OFFICE OF THE INSPECTOR GENERAL IN RESPONSE TO THE BOARD OF PRISON TERMS STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL ATTACHMENT B COMMENTS OF THE OFFICE OF THE INSPECTOR GENERAL IN RESPONSE TO THE BOARD OF PRISON TERMS FINDING 1 The board’s response to this finding misses the mark. The substance of the finding is that the Board of Prison Terms is under-utilizing its staff of deputy commissioners. It does so because it does not provide them with effective supervision. In 15 years it has not tried to determine how much time deputy commissioners need to carry out their functions and, as a result, vastly overestimates how much time they need and allows them much more time than they require. The deputy commissioners themselves have contributed to the problem by regularly misrepresenting in official documents how much time they spend completing tasks. To compound the situation, the board assumes that the deputy commissioners can work only a seven-hour day, instead of the 40 hour-week standard for state employees and required by the deputy commissioners’ bargaining contract. On top of that, it assumes that deputy commissioners spend 10 days a year in training and 26 days a year in travel, without ever documenting that they need or use the time for those purposes. Operating under these and other similarly misguided assumptions, the board schedules deputy commissioners to conduct only six parole revocation hearings a day, when a closer examination reveals that they could conduct as many as ten. The upshot is that the six hearings take less than five hours to complete, with the result that a typical workday for a deputy commissioner, who earns an annual salary of between $75,732 and $91,512, is even shorter than the seven hours allotted by the board. And the board, apparently with an eye to its extensive backlog of hearings to be conducted, is left with the conclusion that it must need more deputy commissioners because the work is not getting done. In its response to the draft report, the board acknowledges that it may have overestimated how much time deputy commissioners need to do their work and that the times reported by the deputy commissioners may not be reliable. But at the same time it appears to excuse these lapses with the argument that the faulty numbers have “been the accepted standard for many years” and have been “agreed to by DOF” ignoring that during these “many years” the numbers have been accepted because the board has been providing the Department of Finance with wrong information. The board takes issue with the Office of the Inspector General for drawing conclusions from 171 parole revocation hearing reports about the differences between the hearing times reported by the deputy commissioners and the actual times shown by the hearing tapes, arguing that the sample represented less than 1 percent of parole revocation hearings. But the sample size sufficiently demonstrates a consistent pattern of overstatement by the deputy commissioners of time spent conducting hearings. Inexplicably, the board goes on to present its own conclusions drawn from a sample of 204 hearing reportsalso less than 1 percent. And the table the board presents showing its conclusions is contradictory. For example, the table presents a purported difference of 8.13 minutes between the actual and reported length of the average hearing, but a calculation based on the hearing length shown in the table reflects a difference instead of 11.84 minutes. The information in the table also conflicts with the surrounding text. For example, the table shows an average hearing recess length of 13.43 minutes, even though the text says that “the length of the STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL ATTACHMENT B recess in these cases could not be ascertained from the written or audio record”  begging the question: where did the 13.43 figure come from? Other discrepancies in the board’s response: • The board declares that the “evolution” of Proposition 36 and the Armstrong process will affect the time needed for deputy commissioners to complete tasks, ignoring that the Office of the Inspector General’s review began with the April 2002 parole revocation hearingsafter the implementation of both Armstrong and Proposition 36. • The board asserts on page 4 that “according to DPA, because DCs go to different work sites and reporting locations every day, their work time begins when they leave home and that must be factored into their day (FLSA rules),” but on page 25 declares, “Deputy commissioners are “Workgroup E” employees and, therefore, exempted from the FLSA (Fair Labor Standards Act).” • In response to the suggestion that deputy commissioners be required to work more than seven hours a day, the board provides an irrelevant two-page discussion about the work hours of the Department of Corrections case records staffapparently under the misconception that the Office of the Inspector General meant that hearings should be held 24 hours a day. In fact, the Office of the Inspector General was suggesting only that the deputy commissioners’ schedules be lengthened to cover a normal eight-hour workday. • The board argues that if parole revocation screening offers were discontinued, the number of revocation hearings would increase  ignoring that the Office of the Inspector General fully acknowledged and accounted for that inevitable increase in its analysis, as explained on page 34 of the report. • Most glaring of all, the board makes the flat assertion that deputy commissioners work more than seven hours a day, even while admitting that it has neither tracked nor documented the deputy commissioners’ schedules  and even though that assertion directly contradicts the fact that the workload analysis the board has been using to justify its personnel needs assumes that deputy commissioners work only a seven-hour day. By way of remedy, the board announces its belated intention to provide training and oversight to deputy commissioners and to conduct a workload analysis to determine how they spend their time. Given the board’s longstanding failure to provide these most basic administrative functions and the intractability demonstrated by the board’s inadequate and contradictory response to this report, the suggestion rings hollow. FINDING 2 This finding makes a simple point: that the board does not adequately supervise deputy commissioners or account for how they spend their time. In response, the board presents a long recitation of the tasks deputy commissioners are supposed to accomplish; notes the possibility of travel delays from traffic and inclement weather; and lists all the various forms deputy commissioners complete, none of which effectively account for the deputy commissioners’ workday. The board then concedes the point: “The board agrees that there is not a STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL ATTACHMENT B comprehensive and reliable timekeeping system for DCs,” and adds: “The Board acknowledges that there is no current mechanism for confirming that DCs are working 40 hours per week.” The board also acknowledges its agreement with the statement in the report that deputy commissioners receive little supervision. The board denies the Office of the Inspector General’s assertion that the deputy commissioners refuse to use the computerized tracking system. But in the next breath, the board lists the union’s objections to the system  including the “training and learning curve by Deputy Commissioners who are challenged by computer technology, exacerbated by their limited data entry and typing skills” and the dubious argument that a laptop computer in a hearing room might be “used by a parolee in a violent attack.” The board’s arguments do nothing more than prove the point: the board is not providing appropriate supervision of its deputy commissioner workforce. FINDING 3 The message of this finding is that the state has no means of determining how long most of the 7,000 parolees currently incarcerated in California awaiting a parole revocation hearing have been held and therefore cannot ensure that they receive a hearing within the 45-day guideline specified in state regulations or within a “reasonable time period,” as specified under federal law. A sample of cases reviewed by the Office of the Inspector General found that 81 percent had been held more than 45 days and that 7 percent had been held for more than 100 days. One reason is that the revocation scheduling and tracking system implemented in October 2002 does not include retroactive information covering parolees incarcerated before that date because the information does not exist. The board says it “partially agrees” with the finding. But the board also claims it is “not entirely true” that the new revocation scheduling and tracking system does not include retroactive records, asserting that the system screen includes a button that allows users to view records from before October 1, 2002. But the board also acknowledges, paradoxically, that it was decided that the new system would include only new records beginning October 1, 2002 because the staff did not have time to convert earlier archived records. Presumably then, pressing the button on the screen for the thousands of parolees incarcerated before October 1, 2002 would be an exercise in futility. The validity of the finding remainsthe state cannot determine how long these parolees have been waiting to be afforded their due process right to a hearing. FINDING 4 The Office of the Inspector General found that the Board of Prison Terms is not complying with Title 15 regulations requiring that board decisions undergo systematic review to ensure that they are valid and consistent and that they further public safety. The board disputes the finding, arguing that the Title 15 provisions cited by the Office of the Inspector General have been superceded with the passage of amendments to California Penal Code Section 3041 and that the STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL ATTACHMENT B board’s proposed amendments to Title 15 have not yet been adopted. The board also contends that the board’s decision review process does comply with Title 15 requirements. The board’s contentions are not valid. Although California Penal Code Section 3041(b) has, in fact, been amended, the amendment changes only the timeframe and processes the board must follow in indeterminate sentence hearings in which parole is granted  which, according to the board, accounted for only 84 of the indeterminate sentence hearings conducted in 2001, compared to 3,092 in which parole was denied. The change does not affect indeterminate sentence hearings in which parole was denied, nor does it affect parole revocation hearing decisions, mentally disordered offender hearing decisions, or sexually violent predator hearing decisions, which constitute the majority of the board’s hearing decisions. More important, the board’s response ignores the point that the board’s superficial review of indeterminate sentence hearing decisionswhich verifies only the clerical accuracy of the hearing documentsdoes not comply with the intent of Title 15 for a substantive review of every hearing decision. The board contends that if the deputy commissioner determines from that review that a substantive modification is needed, the case is referred to the Legal Division. But the board also acknowledges that “Due to the sheer number of denials to be reviewed, it is not possible to conduct an in-depth review of each case.” That leaves the question: how does the deputy commissioner determine from the cursory review whether a substantive modification is needed? And the statement admits the truth of the finding: that in fact the board is not complying with Title 15 requirements for a meaningful review of these decisions. Similarly, only the fraction of mentally disordered offender decisions in which the inmate is released from inpatient treatment or from the mentally disordered offender classification undergo substantive review by the board’s offender screening section analysts. Decisions in which the mentally disordered offender is retained in treatment or in the mentally disordered offender classification undergo review only by a second deputy commissioner who may lack training in the medical complexities of the hearing decision. Likewise, the 38,000 parole revocation hearing decisions issued by the board each year which make up the bulk of the board’s workload  as a rule are not reviewed at all. In fact, the board acknowledges this reality, declaring that whereas until a year ago 20 percent of revocation decisions were reviewed, now the decisions are reviewed only if another agency requests review of a specific case. FINDING 5 The Office of the Inspector General noted in this finding that automatically scheduling mentally disordered offender hearings 60 days after the inmate’s arrival in custody is unnecessary and inefficient. The reason is that 60 days does not allow enough time for the mental health staff to stabilize the patient and assess suitability for outpatient treatment. As a result of the automatic 60-day scheduling, 99 percent of mentally disordered offender hearingsthe purpose of which is to determine the suitability of the inmate for outpatient treatment or release from the mentally disordered classification  result in an order that the patient remain in inpatient treatment. The board disputes the finding with the argument that holding the hearings at 60 days is required by California Penal Code Section 9267(b). But the Penal Code contains no such section and no such provision. The applicable section of the Penal Code, Section 2964(b), and of the California STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL ATTACHMENT B Code of Regulations, Title 15, Section 2578, provide only that a 60-day placement hearing may be requested by the inmate. The Office of the Inspector General also found that using two deputy commissioners to conduct each mentally disordered offender hearing is unnecessary and that the hearings could be handled by one deputy commissioner. The board says it “partially agrees,” but at the same time argues that the complexity of the hearings require the “multi-disciplinary expertise gained through a two-person hearing panel.” Yet, the recommendations submitted with the board’s response report that the board has drafted modifications to state regulations to allow mentally disordered offender hearings to be conducted by one deputy commissioner. Holding mentally disordered offender hearings only upon request and allowing the hearings to be conducted by one deputy commissioner instead of two would allow the board to fulfill this function with only one deputy commissioner instead of the five presently budgeted. FINDING 6 The main point of this finding is that the state is denying inmates and parolees their due process rights to a timely parole revocation hearing and should eliminate parole revocation screening offers, which delay the hearings. The board says it “wholly disagrees” with this suggestion, arguing that Armstrong v. Davis requirements to determine whether a parolee needs reasonable accommodation under the American with Disabilities Act, are the principal cause of delays in the hearing process. But as the board notes, Armstrong v. Davis requirements will continue to exist regardless of whether screening offers are eliminated. Under the current process, delays from Armstrong v. Davis occur on top of the delays resulting from the screening offers. The board also contends that the screening offer process provides an opportunity to resolve jurisdictional and other issues. But the board’s response does not address the fact that the screening offers add an extra step that extends time the parolee is incarcerated without a hearing. As the other findings in the report demonstrate, the Board of Prison Terms has twice as many deputy commissioners as it needs to handle its hearing workload. It should do away with the screening offers and provide timely parole revocation hearings to all suspected parole violators. STATE OF CALIFORNIA GRAY DAVIS, GOVERNOR OFFICE OF THE INSPECTOR GENERAL CONFIDENTIAL ATTACHMENT C RESPONSE OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS