How does the Board make parole decisions?
Learn the purpose of parole hearings, what the Board considers, and how the Board makes the decision to grant or deny parole.
The Board’s Decision to Grant or Deny Parole
What is the Board deciding?
Under California law, the question at a parole hearing is whether the incarcerated person “poses an unreasonable risk of danger to public safety.” This is referred to as deciding whether the person is “suitable” for parole.
The purpose of a parole hearing is to determine if the incarcerated person can safely be released. The California Board of Parole Hearings (Board) must follow the laws that set parole eligibility. The focus of the hearing is NOT on whether the person has been sufficiently punished. The purpose of the hearing is to determine whether the person can safely be released.
Once an incarcerated person has served their minimum term, and is eligible for a parole hearing, the law requires the Board to grant parole UNLESS there is evidence that the incarcerated person is currently dangerous. This means that the Board must grant parole at parole hearings unless they find the person cannot safely be released.
Why is “current danger” the focus?
If a person is eligible for a parole hearing, their sentence has two components – punishment and rehabilitation. They are required to serve a minimum term (punishment), after which they are eligible for release on parole if they can demonstrate they have changed and can safely be released to the community (rehabilitation). After the person has served the minimum term, the person will be released through the parole process if, and only if, they have shown meaningful change and can safely be released. This process is designed to encourage and incentivize people to rehabilitate during incarceration such that they will not create more victims or cause more harm.
If a person is eligible for a parole hearing, it is because the law and the sentencing judge determined that, based on their crime, they did NOT need to be incarcerated for the rest of their life to be sufficiently punished for the crime. Instead, after serving the minimum term, the person is legally entitled to be released if they are no longer dangerous.
What about the harm to the victims/survivors?
Victims/survivors deserve accurate information about the purpose of the parole hearing process as they prepare to participate in a parole hearing. Each victim/survivor has different reasons for choosing to participate. It is important to understand the legal rules about how victim/survivor participation may or may not impact the Board’s decision.
Victims/survivors have a constitutional due process right to participate in a parole hearing and to discuss the impact of the crime on their lives. Impact statements may be important to victims/survivors for many reasons. The statements are also important to the other participants in the parole process – especially the person responsible for the harm.
However, the Board’s legal decision to grant or deny parole is based on whether the incarcerated person is currently dangerous. The Board is required to consider the safety of victims/survivors and the public. The Board will also consider the crime and its impact. But the Board cannot rely on the seriousness of the crime or the harm to the victims/survivors to deny parole. The Board must evaluate whether the incarcerated person has demonstrated meaningful change and can safely be released.
It can be confusing and painful that victim statements about the crime and the harm might not impact the legal decision the Board must make about the incarcerated person’s current risk to public safety. But victim/survivor statements about the impact of the crime are very important, even when they do not change the outcome of the hearing.
How the Board Makes Its Decision
What does the Board consider?
The Board must consider all “reliable” evidence that is “relevant” to its parole decision – that is, information that helps the Board determine whether the incarcerated person poses a risk of danger at the time of the hearing (not at the time they committed the crime). The Board cannot consider information that is not relevant to its parole decision or is not reliable.
The Panels that conduct parole hearings consider a tremendous amount of information:
First, the Panel considers many hundreds of pages of written materials, including:
- The incarcerated person’s entire prison file, which includes documents about the crime and underlying criminal proceedings and all documentation of the person’s time in prison
- The Comprehensive Risk Assessment (CRA) which is a detailed evaluation by a licensed psychologist
- Letters in support of parole and letters in opposition to parole
- Documents submitted by the district attorney’s office
- Documents submitted by the incarcerated person
Second, the Panel considers the testimony of the incarcerated person at the parole hearing. The Panel will spend most of the hearing asking questions of the incarcerated person. The Panel’s questions at the hearing cover many different topics. Information about the topics frequently discussed at the hearing, and why they are discussed, is available here.
It’s important to note that the Panel at the hearing may not discuss everything that is important to the case. During the hearing, the Panel usually focuses their attention on issues they find concerning, or have questions about, or that they did not receive much information about prior to the hearing. They may not discuss in detail some aspects that are important, but that are clearly documented in the written record. In an effort to save time at the hearing and be efficient, the Panel might skim over issues that are well documented. The fact that the Panel does not discuss these topics does not mean they are unimportant or that the Panel will not consider them in making the parole decision.
How the Board Considers Victim Impact Statements
“[T]he provisions of Marsy’s Law…seek to ensure that crime victims are treated with dignity… [I]t is not critical that a victim’s participation be relevant to the ultimate decision; rather, what is important is that the victim be acknowledged and respected. In doing so, the scheme does not authorize the Board to base its decisions on victims’ opinions or public outcry.”
– In re Vicks, 56 Cal. 4th 274, 309 (2013)
The Victims’ Bill of Rights in the California Constitution guarantees a victim/survivor’s right to be heard at a parole hearing. The California Supreme Court has recognized that victims/survivors have a constitutional right to participate in the parole process. California law guarantees victims “an opportunity to be heard” in proceedings concerning the prosecution, punishment, and release of those who harmed them. This means that victims/survivors have an absolute right to share about their experience and the impact of the crime in the parole process. California law requires that victims/survivors be treated with dignity and respect.
A victim/survivor’s statement at a parole hearing plays an important, but legally limited, role. The legal standard for granting parole is whether the incarcerated person is currently dangerous. However, very few victims/survivors have current information about whether the incarcerated person is dangerous. Thus, in most cases, a victim impact statement, on its own, may not alter the outcome of the hearing.
Panels must consider the safety of the victim, the victim’s family, and the general public – they are not permitted to grant parole in cases where they find evidence the incarcerated person is currently dangerous. They are also required to consider the victims/survivors’ statements. But if the statements do not contain relevant and reliable evidence about the incarcerated person’s current risk, the Board is legally prohibited from relying solely on those statements to deny parole.
Many victims/survivors report feeling pressure to attend every parole hearing because they believe the person who caused harm will be released if they do not. In reality, this is almost never the case. Whether or not victims/survivors attend, the Panels that conduct parole hearings will only grant a person parole if they determine, based on the totality of information they review, that the individual no longer poses a risk to public safety.
According to the Board’s published reports, parole is granted at the same rate (approximately 30%) at hearings where a victim/survivor attends as at hearings where no victim/survivor attends.
Ultimately, the Board is legally required to release people who no longer pose “an unreasonable risk of danger to public safety.” The impact of the crime and the victim/survivor’s position on the parole decision is an important aspect of the hearing, but it is not the ultimate legal question the Board must answer. Put another way, the Board’s decision to grant parole is not a judgment about the seriousness of the crime, the level of harm caused by the crime, or the value of the lives lost or damaged in the crime. It is simply a legal determination of whether the incarcerated person remains dangerous or not.
Victim impact statements still play a vital role in the parole hearing process.
The California Supreme Court has recognized that the participation of victims/survivors is critical to the integrity of the legal system.
Under California law, victims/survivors’ right to share their experience is a crucial “procedural protection” to ensure that the parole process demonstrates procedural fairness and accountability. A victim/survivor’s right to participate is also fundamental because it “recogniz[es] the dignity and worth of the individual,” and because victims/survivors deserve to be “equal, fully participating” members of the parole process. This right is intended to reflect that victims/survivors, as human beings, “are important in their own right, and that they must be treated with understanding, respect, and even compassion.” Regardless of what victims/survivors share, and its impact on the Board’s decision, the law requires that victims/survivors be acknowledged, respected, and treated with dignity. In re Vicks, 56 Cal. 4th 274 (2013).
Victim/survivor statements also have a secondary and impactful (even life-changing) effect for everyone involved in the hearing.
Panel members often express their gratitude to victims/survivors for sharing their experience. Panel members understand that being present at the hearing and/or sharing a victim impact statement can be difficult and traumatizing and requires great courage.
Victim impact statements also can be uniquely impactful to the incarcerated person. The opportunity to hear from victims/survivors (sometimes for the first time in decades) helps incarcerated people better understand the full impact of their actions. Many incarcerated people share that, although painful, hearing the statements of victims/survivors at the hearing was a critical turning point in their lives, that it guided their efforts, and that it deepened their commitment to accountability, empathy, and amends. Some share that hearing the victim impact statement was the single most impactful experience that motivated them to do the hard work of change and rehabilitation.
Also, regardless of whether or not an impact statement will change the outcome of the hearing, the lives and experiences of the people who were harmed by the crime deserve to be honored and recognized, formally and officially, by ensuring space is provided for victims/survivors who choose to make statements.
Understandably, it can be very difficult for victims/survivors to share the lifelong impact the crime has had on them, and then have the incarcerated person be granted parole. This result can leave a victim/survivor feeling like their experience does not matter.
Victims/survivors deserve full, accurate information, and to understand the legal requirements in a parole hearing, so they can make a decision for themselves about if and how they want to participate. More information on resources and support that are available to victims/survivors is available here.
More information on preparing a victim impact statement is available here.
Kathleen: “It was very important for me that people hear my side, even if it didn't…make a difference on the outcome…”
Commissioner Sharrieff: “We want the individual who is incarcerated to also hear how their crimes impacted you…”
Rules the Board Must Follow
There are many laws and policies that the Board follows in making parole decisions.
California statutes lay out the standard that the Board must grant parole unless there is evidence that the incarcerated person is currently dangerous.
California regulations lay out many of the procedures the Board uses in conducting hearings. Confusingly, regulations from many years ago list “suitability” and “unsuitability” factors – that is, factors that tend to show whether or not the incarcerated person is dangerous. Given changes in law, these old suitability/unsuitability factors are not totally consistent with current policies, although the Panels that conduct parole hearings may still refer to them.
- Case Law
While there are several court cases that impact the parole hearing process, the primary and most important case is In re Lawrence. Under that case, the underlying crime, no matter how severe, cannot be the sole basis for keeping someone incarcerated.
The Board issues administrative directives that include rules about processes and procedures in parole hearings.
Structured Decision-Making Framework
In 2019, the Board began using a “structured decision-making framework” (SDMF). The SDMF is based on extensive research about what factors actually relate to risk. The purpose of the SDMF is to assist Panels in making evidence-based decisions, to increase the consistency and transparency of the Board’s decisions, and to shorten the average length of hearings by helping Panels use time more efficiently.
The Board’s adoption of the SDMF did not change the standard for granting parole – that is, whether the incarcerated person is a current risk of danger. And it did not significantly change what an incarcerated person is expected to show in order to demonstrate they are no longer dangerous.
The SDMF lists the categories of information that are most relevant to assessing risk. Panels use these categories to organize their approach in making parole decisions. The SDMF provides guidance – it does not dictate Panels’ decisions. While Panels use the SDMF, they still have full discretion to reach their own conclusions about an incarcerated person’s level of risk. More information about the SDMF is available here.
Some of the factors Panels consider under the SDMF are:
Panels consider the incarcerated person’s criminal activity prior to their crime (sometimes referred to as the “commitment offense” or “life crime”). Particularly, Panels will consider the person’s age when the criminal activity started, if the activity was frequent, and if its severity increased over time.
Having a pattern of criminal activity is relevant to whether a person is a risk of danger. However, California law is clear that, with the passage of time, past criminal activity becomes less relevant to determining whether a person is dangerous today.
Panels look at whether the incarcerated person demonstrated an inability to use self-control at the time of the crime. If they did, the Panel looks at whether the record indicates that the incarcerated still struggles with self-control, or whether this issue has been addressed (for example, due to increased maturity, programming and developing coping skills, managing substance abuse, etc.).
Panels look to see if the incarcerated person has identifiable “risk factors” that increase their likelihood of returning to violence. For any of these risk factors, Panels look at whether and how the person has addressed these factors through programming. Specifically, Panels look at the amount and quality of programming, the level of the person’s involvement in the programming, and how much the programming specifically targeted the person’s criminogenic needs.
Panels look at the incarcerated person’s behavior in prison: both positive and negative. Good conduct may include self-help programming, work history, educational/vocational accomplishments, and positive reports from prison staff. Negative conduct may include disciplinary violations (both minor and serious), violence, substance abuse, or participating in gang activity.
It is very common for people who come to prison with long sentences to engage in violence and rule violations early in their incarceration. This behavior is relevant to whether a person is a risk of danger. However, California law is clear that, with the passage of time, past violent or criminal activity becomes less relevant to determining whether a person is dangerous today.
This is the primary factor Panels use to make their decisions. Panels look at whether the incarcerated person demonstrates a clear understanding that they needed to change, and then Panels assess the person’s change. Panels look not only at what the person says about how they have changed, but at how the person’s actions demonstrate that change. Panels look for evidence that the person now has a different mindset and a new sense of identity that is not rooted in their past actions and associations.
Panels look for concrete, realistic release plans, which help ensure the Panel that the person will be stable and supported on release. Panels also assess whether the incarcerated person demonstrates a clear understanding of their “risk factors,” and has specific plans to address those risks.