In California, provisions relating to pardon and parole laws are provided under Cal Pen Code § 3000 through § 3089, Cal Pen Code § 4801 through § 7520, and Cal Const, Art. V § 8. Pursuant to Cal Pen Code § 3044, the Board of Parole Hearings (“Board”) is the state’s parole authority. The Board is responsible for protecting a victim’s rights in the parole process. The Board combines the Board of Prison Terms (BPT), the Youth Authority Board, and the Narcotic Addict Evaluation Authority. The Board consists of 17 members or commissioners. They are appointed by the Governor and require confirmation by the Senate. Of the 17 commissioners, 12 hear only adult matters and five hear only juvenile matters.
Duties of the Board
The Board is responsible for the parole releases in California. It establishes the terms and conditions of parole for all persons sentenced in the state[i]. The Board can suspend or revoke the parole of any person under its jurisdiction who has violated parole. It can also determine the necessity for rescission or postponement of parole dates for such persons. The Board also has the right to waive parole. It can discharge any such person prior to the expiration of the statutory maximum parole period and report to the Governor on applications for clemency.
The Board should investigate and make recommendations on all applications for reprieves, pardons and commutations of sentence, including death penalty commutations on the request of the Governor[ii]. The Board should report to the Governor the names of any prisoners who ought to be considered for reprieve, pardon, or commutation. The Board also has the discretion to recommend to the court that a prisoner’s sentence and commitment be recalled and that the prisoner be re-sentenced, such as in situations calling for compassionate release.
Pursuant to Cal Pen Code § 3000, the Legislature finds and declares that the period immediately following incarceration is critical to successful reintegration of the offender into society and to positive citizenship. However, in the interest of public safety, the state should provide for the effective supervision of and surveillance of parolees. The Board can judiciously revoke actions, and provide educational, vocational, family, and personal counseling necessary to assist parolees in the transition between imprisonment and discharge. Cal Pen Code § 3000 also provides that the Board should make diligent effort to ensure that parolees are held accountable for their criminal behavior. The sole authority to issue warrants for the return to actual custody of any state prisoner released on parole rests with the Board.
Grounds for release of Parole
- At the expiration of a term of imprisonment of one year and one day, the offender can be released on parole for a period not exceeding three years. For an offender sentenced for a violent felony the parole period will not exceed five years. This is possible only if the Board has no good cause for waiving parole and discharging the inmate from the custody of the Department of Corrections and Rehabilitation (Department)[iii].
- The period of parole should not exceed five years if an inmate imprisoned for any offense other than first or second degree murder for which the inmate has received a life sentence, and shall not exceed three years in the case of any other inmate, unless in either case the parole authority for good cause waives parole and discharges the inmate from custody of the department.
- In the case of any sex offenses for which the inmate has received a life sentence pursuant, the period of parole can be 10 years.
- The Department should meet with each inmate at least 30 days prior to the offender’s good time release date and under guidelines specified by the Board provide the conditions of parole and the length of parole up to the maximum period of time provided by law. The inmate has the right to reconsideration of the length of parole and conditions thereof by the parole authority[iv].
- For any offense of first or second degree murder with a maximum term of life imprisonment, the period of parole can be the remainder of the inmate’s life.
Conditions for Parole
Cal Pen Code § 3052 provides that the BPT will have the power to establish and enforce rules and regulations under which prisoners who are committed to state prisons are be allowed to go upon parole outside the prison buildings and enclosures when eligible for parole. Pursuant to Cal Pen Code § 3053, the BPT can also impose on the parole any conditions that it considers proper. The BPT can impose as a condition of parole that any prisoner granted parole should undergo an examination or test for tuberculosis when the Board reasonably suspects that the parolee has, has had, or has been exposed to, tuberculosis in an infectious stage.
Cal Pen Code § 3053.2 states that if the victim, or the victim’s parent or legal guardian if the victim is a minor requests, the Board should impose the following condition on the parole of a person released from prison for an offense involving threatening, stalking, sexually abusing, harassing a victim. The offender should comply with the protective order preventing the offender from threatening, stalking, sexually abusing, harassing, or taking further violent acts against the victim and, if appropriate, compliance with any or all of the following:
- An order prohibiting the parolee from having personal, telephonic, electronic, media, or written contact with the victim.
- An order prohibiting the parolee from coming within at least 100 yards of the victim or the victim’s residence or workplace.
- An order excluding the parolee from the victim’s residence.
Cal Pen Code § 3053.2 also provides that such an offender has to complete a batterer’s program. It will be a condition of release from parole. If no batterer’s program is available, another appropriate counseling program designated by the parole agent or officer, for a period of not less than one year, with weekly sessions of a minimum of two hours of classroom time is appropriate. The program director should give periodic progress reports to the parole agent or officer at least every three months. The parolee should file proof of enrollment in a batterer’s program with the parole agent or officer within 30 days after the first meeting with his or her parole agent or officer. The parole agent or officer should conduct an initial assessment of the parolee, which information will be provided to the batterer’s program. The assessment should include matters such as[v]:
- Social, economic, and family background of the parolee.
- Vocational achievements.
- Criminal history, prior incidents of violence, and arrest reports.
- Medical history.
- Substance abuse history.
- Consultation with the probation officer.
- Verbal consultation with the victim, only if the victim desires to participate.
- Upon request of the victim, the victim should be notified of the release of the parolee and the parolee’s location and parole agent or officer. If the victim requests notification, the person should also be informed that attendance in any program does not guarantee that an abuser will not be violent.
- The director of the batterer’s program should immediately report any violation of the terms of the protective order, including any new acts of violence or failure to comply with the program requirements, to the parolee’s parole agent or officer.
Authority of the Board
Pursuant to Cal Pen Code § 3041.1, up to 90 days prior to a scheduled release date, the Governor can request review of any decision by the Board concerning the grant or denial of parole to any inmate in a state prison. The Governor should state the reason or reasons for the request. The Governor should also state whether the request is based on a public safety concern. When a request has been made, a randomly selected committee comprised of nine commissioners specifically appointed to hear adult parole matters and who are holding office at the time, can review the parole decision. In case of a review, a vote in favor of parole by a majority of the commissioners on the committee will be required to grant parole to any inmate.
When a parole is retained, the parolee should be entitled to a review by the Board each year[vi].
Cal Pen Code § 3041.2 provides that during the 30 days after the Board has granted, denied, revoked, or suspended the parole of a person sentenced to an indeterminate prison term based upon a conviction of murder, the Governor, when reviewing the authority’s decision, should review materials provided by the Board. If the Governor decides to reverse or modify a parole decision of the Board, the Governor should send a written statement to the inmate specifying the reasons for the decision.
Cal Pen Code § 3044 provides that to protect a victim from harassment and abuse during the parole process, a person paroled from a California correctional facility following incarceration for an offense committed will be entitled to procedural rights after parole revocation such as:
- A parolee will be entitled to a probable cause hearing no later than 15 days following his/her arrest for violation of parole.
- A parolee will be entitled to an evidentiary revocation hearing no later than 45 days following his/her arrest for violation of parole.
- If requested a parolee will be entitled to counsel at state expense only if the Board or its hearing officers determine that the parolee is indigent, and considering the complexity of the charges, the defense, or because the parolee’s mental or educational capacity, the person appears incapable of speaking effectively in his/her own defense.
- Parole revocation determinations should be based upon a preponderance of evidence admitted at hearings including documentary evidence, direct testimony, or hearsay evidence offered by parole agents, peace officers, or a victim.
- Admission of the recorded or hearsay statement of a victim or percipient witness will not be construed to create a right to confront the witness at the hearing.
- The Board is entrusted with the safety of victims and the public. It should make its determination fairly, independently, and without bias and shall not be influenced by or weigh the state cost or burden associated with just decisions. The Board enjoys sufficient autonomy to conduct unbiased hearings, and maintain an independent legal and administrative staff. The Board should however, report to the Governor.
Pursuant to Cal Pen Code § 3057, confinement after revocation of parole in the absence of a new conviction and commitment to prison should not exceed 12 months. Upon completion of confinement pursuant to parole revocation without a new commitment to prison, the inmate should be released on parole for a period which should not extend beyond that portion of the maximum statutory period of parole which was unexpired at the time of each revocation.
Cal Pen Code § 3060 provides that the Board will have full power to suspend or revoke any parole and to order returned to prison any prisoner upon parole. The written order of the Board will be a sufficient warrant for any peace or prison officer to return to actual custody any conditionally released or paroled prisoner.
Pursuant to Cal Pen Code § 3062, the Governor of California will have similar power to revoke the parole of any prisoner. The written authority of the Governor will be sufficient to authorize any peace officer to retake and return any prisoner to the state prison. The Governor’s written order revoking the parole will have the same force and effect and be executed in like manner as the order of the Board.
Parole revocation proceedings and parole revocation extension proceedings can be conducted by a panel of one person[vii].
Powers and duties of a Governor in granting a Pardon
Pursuant to Cal Pen Code § 4801, the BPT should report to the Governor the names of the persons imprisoned in any state prison who ought to have a commutation of sentence or be pardoned and set at liberty on account of good conduct, or unusual term of sentence, or any other cause, including evidence of intimate partner battering and its effects. The BPT should consider any information or evidence that, at the time of the commission of the crime, the prisoner had experienced. The BPT should state on the record the information or evidence that it considered, and the reasons for the parole decision. BPT should annually report to the Legislature and the Governor on the cases it considered during the previous year, including BPT’s decision and the findings of its investigations of these cases.
Cal Pen Code § 4807.2 provides that every application for pardon or commutation of sentence should be accompanied by a full statement of any compensation being paid to any person for procuring or assisting in procuring the pardon or commutation or the pardon or commutation will be denied.
Pursuant to Cal Const, Art. V § 8, the Governor can on conditions the Governor deems proper, grant a reprieve, pardon, and commutation, after sentence, except in case of impeachment. The Governor should report to the Legislature each reprieve, pardon, and commutation granted, stating the pertinent facts and the reasons for granting it. The Governor need not grant a pardon or commutation to a person twice convicted of a felony except on recommendation of the Supreme Court, 4 judges concurring. No decision of the Board of California with respect to the granting, denial, revocation, or suspension of parole of a person sentenced to an indeterminate term upon conviction of murder will become effective for a period of 30 days, during which the Governor can review the decision subject to procedures provided by statute. The Governor can only affirm, modify, or reverse the decision of the parole authority on the basis of the same factors which Board is required to consider. The Governor should report to the Legislature each parole decision affirmed, modified, or reversed, stating the pertinent facts and reasons for the action.
[i] Cal Pen Code § 3000.
[ii] Cal Pen Code § 3041.1.
[iii] Cal Pen Code § 3000.
[iv] Cal Pen Code § 3001.
[v] Cal Pen Code § 3053.2.
[vi] Cal Pen Code § 3000.1
[vii] Cal Pen Code § 3063.6.