RE: Implementation of Senate Bill 260/ Newly enacted California Penal Code 3051

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1 11500 West Olympic Boulevard Suite 540 Los Angeles, CA Tel: Fax: November 13, C H I L D R E N ' S R I G H T S D I V I S I O N Zama Coursen-Neff, Executive Director Bede Sheppard, Deputy Director Jo Becker, Advocacy Director Elizabeth Calvin, Senior Advocate Juliane Kippenberg, Senior Researcher Alice Farmer, Researcher Priyanka Motaparthy, Researcher Beneva Davies, Associate Mana Rostami-Mouripour, Associate Laura Schulke, Associate Lois Whitman, Senior Advisor Founder, Director ( ) A D V I S O R Y C O M M I T T E E Robert G. Schwartz, Chair Bernardine Dohrn, Vice-Chair Mie Lewis, Vice-Chair Goldie Alfasi-Siffert Ishmael Beah Mark Allen Belsey Michael Bochenek Rachel Brett Rosa Brooks Pam Bruns Joanne Csete Gilles Concordel Marie Concordel Richard Fields Judy Gaynor Anne Geraghty Helms Michael Gibbons Alice Henkin Kathleen Hunt Janet Kagan Sheila B. Kamerman Rhoda Karpatkin Laurence Lorenzini Miriam Lyons Sarah Martin Wendy Smith Meyer Joy Moser Elena Nightingale Valerie Pels Bruce Rabb Dalia Said Dina Said Elizabeth Scott Javier Stauring Anne Studzinski Ramona Sunderwirth Tony Tate Lisa Woll Roland Algrant, Vice-Chair ( ) H u m a n R i g h t s W a t c h Kenneth Roth, Executive Director Michele Alexander, Deputy Executive Director, Development and Global Initiatives Carroll Bogert, Deputy Executive Director, External Relations Iain Levine, Deputy Executive Director, Program Chuck Lustig, Deputy Executive Director, Operations Dinah PoKempner, General Counsel James Ross, Legal & Policy Director Hassan Elmasry, Co-Chair Joel Motley, Co-Chair Mr. Howard Moseley Chief Counsel Board of Parole Hearings California Department of Corrections and Rehabilitation PO Box 4036 Sacramento, CA Sent via USPS and by to howard.mosely@cdcr.ca.gov RE: Implementation of Senate Bill 260/ Newly enacted California Penal Code 3051 Dear Mr. Moseley: I am writing on behalf of the Fair Sentencing for Youth Coalition, and Human Rights Watch, a sponsor of SB 260. As I think you know, we are concerned about effective implementation of this important new law. We very much appreciate the time you have taken to communicate with us and other stakeholders about the Board of Parole Hearings work on SB 260. We have a good sense of the complexity of job the Board has ahead of it, and we are grateful for your strong commitment to successful implementation. As you and I have discussed, we have formed a committee of lawyers, law professors, and community members focused on this issue, and we are eager to assist and coordinate with the Board in any way that would be helpful. We are planning what we hope will be an expenses-paid training for attorneys who want to do these hearings. We have tentative dates for the trainings in late January. We have drafted a comprehensive layperson s summary of the new law aimed at prisoners, their families, and community members, and hope to begin distribution of this soon. We are conducting weekly call-in meetings for family members and advocates with questions. And, we are eager to assist in other ways. This letter is to pass on initial ideas on several key tasks ahead. It is not intended to be all-inclusive; just a start on what we think might be some of the more immediate implementation issues. From my conversations

2 Letter to Howard Moseley,Chief Counsel, BPH Page 2 with you I know you are thinking through all the details, and I know you will have thought through many of the issues we raise here. We look forward to collaborating with you and your staff for the successful implementation of SB Suitability/Unsuitability Factors in the Administrative Directives Newly enacted California Penal Code 3051 requires the Board to review and revise existing regulations and adopt new ones to ensure that Youth Offender Parole Hearings (YOPH) provide a meaningful opportunity for release. The Legislature intended the YOPH process to create an increased likelihood of parole for youth offenders as compared to parole rates under the existing process. This will be accomplished in part by requiring special consideration of the mitigating hallmark features of youth and eliminating what could be called bias against youthfulness in existing suitability/ unsuitability factors. The relevant case law defines these hallmark features, and describes both the lessened culpability of youth at the time of a crime and the greater potential of youth to rehabilitate as compared to adults. Additionally, this new law requires these factors to be given great weight, indicating their primacy. Review and change suitability/unsuitability factors Attached are initial suggestions for revisions and additions to the suitability and unsuitability factors. A clear statement in regulations that youthfulness is a mitigating or suitability factor. New, comprehensive Title 15 sections for the YOPH process Both for the sake of clarity and to convey the legislative intent for YOPH to be a new type of parole hearing, the YOPH regulations, even those retained from the regular parole process, should be published in a new section of the regulations. 2. Prioritization of Hearings It seems to us that one of the more daunting aspects of your task ahead is scheduling hearings for the backlog cases of individuals who will be eligible for an initial parole hearing as of January 1, We estimate that number to be about 1,000. Prioritize cases by lowest security level Scheduling hearings first for those with the lowest security level will increase the number of people paroled early on in the process.

3 Letter to Howard Moseley,Chief Counsel, BPH Page 3 Schedule hearings in groups by prison Scheduling hearings grouped together by prison will permit easier training for and specialization by attorneys and facilitate the training process for all involved. 3. Consultations by the Board for the Backlog Cases and Addressing an Immediate Need for Legal Consultation The role of the Board in providing the Cal Penal Code 3041(a) consultation in the sixth year prior to a first parole hearing will be crucial going forward. In essence, the new law calls for an enhanced documentation hearing, with the Board providing valuable information and recommendations to assist the prisoner in a meaningful timeframe. We believe this new process will help people understand what they need to do to become suitable. A consultation is also essential for people who are immediately eligible in 2014 and those whose first hearing will occur in the next six years. Although these individuals will not benefit from the advantages of a consultation six years prior to their first hearing, the consultation will provide an important opportunity to help people understand what is expected in the new process. In addition, those who are immediately eligible in 2014 should carefully consider whether to waive their initial hearing. Legal advice on whether to proceed is essential. Set first hearings later in the year Postpone initial hearings in the backlog group until a consultation can occur for each individual eligible for first parole hearing as of January 1, Conduct consultations Provide a Board consultation for each person in the backlog group. Provide one-time legal consultation The Board should contract with a nonprofit law firm or law school to provide brief legal counsel on the new parole process and advice on whether to proceed or delay the initial hearing. Assist in provision of general legal information to inmates Work with CDCR to permit a nonprofit law firm or law school to provide in-prison workshops for inmates eligible for YOPH.

4 Letter to Howard Moseley,Chief Counsel, BPH Page 4 4. Youthfulness Cannot be Used as Evidence of Lack of Insight Case law and the intent of the new law require commissioners to examine culpability and the actions of a prisoner at the time of the crime in light of youthfulness. Relevant are both general factors and factors specific to the individual. We are concerned that without clarifying directives, evidence or testimony about how youthfulness played a role in an individual s criminal behavior could be construed as trying to minimize responsibility for the commitment offense, or considered lack of insight. Evidence of youthfulness A new regulation clarifying that evidence or testimony about the status of being a youth at the time of the crime cannot be the basis for finding lack of insight into the crime. 5. Persons Already Found Suitable, But Serving Time Prescribed by the Matrix As you know, the new law provides for parole upon a finding of suitability. Those prisoners who would otherwise eligible for the YOPH process but have been found suitable for parole prior to January 1, 2014 and are serving time prescribed by the matrix should be immediately released. Immediate release The Board should review cases of those individuals who would otherwise be eligible for a YOPH but have already been granted parole. The Board should issue decisions ordering their immediate release regardless of the time prescribed in the matrix. 6. Parole Hearings Already Set for 2014 Although the numbers may be few, those who already have a parole hearing date set in 2014 are, of course, entitled to a YOPH. However, these individuals may be at a disadvantage without the benefit of consultation, psychological evaluations that do not comply with the new law s requirements, or adequate time to consult with counsel. Good cause to postpone or waive a hearing The existence of the new law should uniformly constitute good cause to either postpone a hearing for six months or to waive a hearing for the periods set forth in Section 2240 without regard to the regular 45-day timeframe.

5 Letter to Howard Moseley,Chief Counsel, BPH Page 5 7. Persons Denied Parole Prior to 2014 Those people who are eligible for a YOPH but were denied parole prior to 2014 and had their hearing set off should have an opportunity for a YOPH. Although it could, in many cases, be difficult to determine whether an individual was denied parole based on what would now be impermissible criteria, there is a strong argument that the enactment of the new law creates changed circumstances warranting a new hearing or advancing the next scheduled hearing. Automatic Advancement Those eligible for the YOPH process but denied parole prior to 2104 should automatically be granted advancement if they petition by 7/1/2015. Uniform Consideration of petitions In the alternative, the Board should draft clear factors for uniform consideration of petitions to advance made by persons eligible for YOPH. I look forward to talking with you. Sincerely, Elizabeth M. Calvin Senior Advocate