Ardent Representation in Cases Involving Parole Law
Parole Violation Revocation / Lifer Parole Consideration
In 2011, Governor Edmund G. Brown Jr. signed Assembly Bill (AB) 109 and AB 117, the Public Safety Realignment. This changed how parole and parole violations are handled in California. Most California Parole violations can result in a return to custody for up to 180 days.
As of July 1, 2013, Courts assumed responsibility for the adjudication of all parole violations, regardless of when the parolees committed the alleged violation, the date of the underlying crime, the nature of the underlying crime, or when they were sentenced to state prison. (Pen. Code, § 3000.08(a).) Parolees have no right to bail on a pending violation. (In re Law (1973) 10 Cal.3d 21, 26.) However, once a court has jurisdiction over a petition to revoke parole, the court may set bail or release the parolee on his or her own recognizance, if deemed appropriate. (See Parole Violation Flow Chart Here)
Violations can result in a return to custody, in a county facility, for up to 180 days, eligible for 1/2 time credit per Penal Code 4019(f). Violation time does not always run concurrently with other criminal cases, other grants of probation, or parole in other states so it is extremely important you fully understand your rights when facing a parole violation.
Lifer Parole Violations
If the life crime occurred prior to January 1, 1983, then the violation is treated like a non-lifer parole violation, in that the maximum punishment for any violation is 180 days, eligible for 1/2 time credit per Penal Code 4019(f).
If the life crime occurred after January 1, 1983 and was for 1st or 2nd-degree murder (and certain sex crimes after 9/9/2010), then any violations can result in a return to prison for an indeterminate time period, with a new review by the Board of Parole Hearings held at least every year. (Penal Code 3000.1). These Hearings are conducted as regular lifer suitability hearings except any denial length is one year.
Lifer Parole Consideration
Prior to Initial "Lifer" Consideration Hearing:
The Board of Parole Hearings shall meet with each inmate during the third year of incarceration for the life term to review the inmate’s file, make recommendations, and document activities and conduct pertinent to granting or withholding post-conviction credit…(Penal Code 3041(a), Title 15 CCR 2269.1). The Board also meets with each inmate five years before their initial parole suitability hearing to conduct an initial consultation. (PC 3041(a)). During this consultation, the Board shall provide the inmate information about the parole hearing process, legal factors relevant to his or her suitability or unsuitability for parole, and individualized recommendations for the inmate regarding his or her work assignments, rehabilitative programs, and institutional behavior. (PC 3041(a)).
Initial Consideration Hearing:
The initial lifer parole suitability hearing occurs one year before the inmate reaches his minimum parole eligibility date (MPED) (Penal Code 3041(a)). The Board of parole hearings can determine the person is currently suitable for release, or deny release for a period of 3, 5, 7, 10, or 15 years.
Subsequent Consideration Hearing:
If a person is denied parole at their initial parole consideration hearing, they will have a subsequent parole consideration hearing either when scheduled at the previous consideration hearing, or sooner if advanced. A subsequent parole consideration hearing can be advanced either by the inmate (or his attorney) by using the BPT 1045 form, or by the Board of Parole Hearings.
The Board follows the procedures depicted in this flow-chart to determine whether to advance a denial.
At a subsequent hearing, the Board shall conduct a parole hearing as a de novo (new) hearing. Findings made and conclusions reached in a prior parole hearing shall be considered but are not binding upon subsequent parole hearings. (Penal Code 3041.5 (c)).
Standards Used to Determine Suitability:
In making a parole eligibility decision, the hearing panel must not act arbitrary or capricious and must consider “all relevant, reliable information available.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 670.) The fundamental consideration in making a parole eligibility decision is the potential threat to public safety upon an inmate’s release. Accordingly, a denial of parole must be based upon evidence in the record of the inmate’s current dangerousness. (In re Lawrence (2008) 44 Cal.4th 1181, 1205-1206.) Worded another way, does the inmate pose a current risk to public safety such that further incarceration is needed? (In re Lawrence (2008) 44 Cal. 4th 1181). This is an individualized inquiry. (In re Shaputis (2008) 44 Cal.4th 1241, 1254).
There are factors that tend to show suitability, including:
Post Parole Grant Decision Review Procedures:
The Governor may request a review of any decision by a parole authority concerning the grant or denial of parole to any inmate in a state prison up to 90 days prior to a scheduled release date. (Penal Code 3041.1). The Governor shall state the reasons for the request, and whether the request is based on a public safety concern, a concern that the gravity of current or past convicted offenses may have been given inadequate consideration, or on other factors. When a request has been made, the request shall be reviewed by a majority of Board of Parole Hearings Commissioners specifically appointed to hear adult parole matters and who are holding office at the time. In case of a review, a vote in favor of parole by a majority of the Commissioners reviewing the request shall be required to grant parole to any inmate. (Penal Code Section 3041.2).
If the Governor decides to reverse or modify a parole decision of a parole authority pursuant to subdivision (b) of Section 8 of Article V of the Constitution, he or she shall send a written statement to the inmate specifying the reasons for his or her decision. (Penal Code 3041.2(b))
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