Suggestion on Youth Offender Parole Regulations
All feedback discussed and/or received as of 2/17/15
Contents
YO Defined – Reached consensus but one issue remains 2
1. Proposed regulation §2440(c)(4) -- STILL CONSIDERING 2
2. Proposed regulation §2440(c)(5) -- CONSENSUS 2
YO Qualification Process – Reached full consensus 2
1. Notification - Proposed regulation §2441(a) and (b) -- CONSENSUS 3
2. Non-determinations by CDC - Proposed regulation §2441(c) -- CONSENSUS 3
3. Appeal Process §2441(d) -- CONSENSUS 3
4. Review of CDCR Determinations by the Board §2441(e) -- CONSENSUS 3
5. NOT IN REGULATIONS: Adjusting the DOM 3
Consultation Meetings – Reached provisional agreement 3
1. Discussion of commitment offense – SOME AGREEMENT, STILL CONSIDER 3
2. Written recommendations – AGREED, BUT REVIEW TEXT 3
3. Missed consultations – AGREED, BUT REVIEW TEXT 4
Appointed Counsel – Reached provisional agreement 4
1. Money on the books – AGREED, BUT REVIEW TEXT 4
2. Failure to contact 45 days prior to hearing – AGREED, BUT REVIEW TEXT 4
PsychEvals 4
1. Risk Assessment tools 4
2. Process to challenge 4
3. Miller factors 5
4. Evals prior to 2014 5
5. Notice: 5
Documents in parole packet: 6
For those with hearings prior to 2014 6
Suitability and Unsuitability Factors 7
1. Institutional behavior 7
2. Growth and Maturity: 7
3. Unstable social history and previous record of violence 7
4. Age 7
5. Commitment Offense 8
6. Separate list 8
Consideration of Youth Factors 8
1. Define “growth and maturity” --EC 9
2. Spell out what it is to “consider” the hallmark features of youth -- KB 9
3. Define great weight. –KB, FG 9
4. Support letters 9
Youth Parole Eligibility Dates 9
Post-hearing procedures 10
MISCELLANEOUS 10
Appendix 1: Suggested Suitability/Unsuitability Factors for Youth Offender Parole Hearings HRW/ FSFY, 11/13/13 12
Appendix 2: Letter to BPH Mosely 11/13/13 15
Appendix 3: Proposed Regulatory Text 2
§ 2440. Youth Offender Defined. 2
§ 2441. Youth Offender Qualification Process. 3
§ 2442. Youth Parole Eligibility Dates. 3
§ 2443. Consultations. 5
§ 2444. Scheduling of Hearings. 5
§ 2445. Comprehensive Risk Assessments 6
§ 2446. Parole Consideration Hearings. 7
§ 2447. Post-Hearing Procedures. 7
Appendix 4: Text of SB 260 9
YO Defined – Reached consensus but one issue remains
We have reached consensus on one change, and are still considering another change. See Appendix 3, proposed regulatory text §2440(c).
1. Proposed regulation §2440(c)(4) -- STILL CONSIDERING
We are still considering whether to remove the clause concerning disqualification on the basis of convictions in prison that become the controlling offense. If we leave the clause in, it will read: “The inmate was convicted of a crime or enhancement which the inmate committed after reaching age 18, and for which a court sentenced the inmate to his or her longest term of imprisonment.”
2. Proposed regulation §2440(c)(5) -- CONSENSUS
We reached consensus that crimes with “malice aftorethought” as a necessary element should be specified as including the following crimes: Murder (PC 187); attempted murder (PC 664/187); conspiracy to commit murder (PC 182/187); solicitation to commit murder (PC 653f(b)); assault by a person serving a life sentence that is with a deadly weapon or that is likely to produce great bodily injury (PC 4500).
YO Qualification Process – Reached full consensus
We reached consensus on four changes which are described below and are included in proposed regulatory text §2441. See Appendix 3
1. Notification - Proposed regulation §2441(a) and (b) -- CONSENSUS
Prisoners shall be notified of their eligibility upon entry to prison and upon conviction for a crime that disqualifies them. (We are skeptical that this will happen, but Elizabeth will discuss with CDCR.) Notification of the appeal process should be on the YO qualification notice.
2. Non-determinations by CDC - Proposed regulation §2441(c) -- CONSENSUS
There shall be an appeal process not only for denials of eligibility, but also for failures to be notified.
3. Appeal Process §2441(d) -- CONSENSUS
After the 602 appeal is complete, the appeal shall go directly to BPH.
4. Review of CDCR Determinations by the Board §2441(e) -- CONSENSUS
On a quarterly basis, BPH shall obtain a list of every person entering prison who was under the age of 18 at the time of the crime – and of every person who was found unqualified for SB 260 on the basis of conduct upon entering prison. On a quarterly basis, BPH is to review qualification determinations for all persons on that list. BPH shall publish the list of people they conclude are unqualified, and the basis for this conclusion.
(Changes made on proposed regs doc.)
5. NOT IN REGULATIONS: Adjusting the DOM
Case Record Specialists follow the DOM and the DOM is updated with changes to Title 15. We should propose language for the DOM on SB 260 eligibility.
Consultation Meetings – Reached provisional agreement
We reached provisional agreement on the following three issues. See proposed regulatory text §2443 in Appendix 3
1. Discussion of commitment offense – SOME AGREEMENT, STILL CONSIDER
a. We agreed that there shall be no recording of an inmate’s description of the commitment offense.
b. We disagreed as to whether the inmate must be warned that incriminating statements can be used against him at subsequent hearings.
2. Written recommendations – AGREED, BUT REVIEW TEXT
a. We agreed that written recommendations shall be included in the C-File and in the parole packet.
b. We agreed that the Board shall make a finding as to whether recommended programs are available at the institution where the prisoner is currently incarcerated. If such programs are not available, the Board shall recommend to CDCR that the inmate be transferred to an institution where recommended programs are available.
c. FOR CDCR, NOT BPH REGULATIONS: CDCR shall give great weight to these recommendations in making transfer decisions. (We are skeptical that this will happen, but Elizabeth will discuss with CDCR.)
3. Missed consultations – AGREED, BUT REVIEW TEXT
a. We agreed that failure to have a consultation hearing shall constitute good cause for a waiver.
b. Question: There’s no reason why this should apply only to youth offenders. Can we recommend inserting into Title 15 § 2253(b)(3) so that it applies to all prisoner’s?
Appointed Counsel – Reached provisional agreement
These are changes that do not apply specifically to youth offenders and would appear elsewhere in the regulations (at §§ 2251, 2253). As such, the changes are not reflected in the proposed regulatory text for §§ 2240-22447 below.
1. Money on the books – AGREED, BUT REVIEW TEXT
a. We agreed that $1500 on the books should not preclude appointed counsel, and that a better marker would be $5000. Further, we agree that the Institution should not be able to take money on the books when counsel is appointed.
b. NOTE: The current regulation is: “A prisoner may receive reasonable assistance in preparing for the hearing.” Tit. 15, § 2251. We would add “An inmate who has less than $5000 on the books shall not be precluded from having counsel appointed. Further, the institution shall not collect funds from an inmate who has less than $5000 on the books as payment for services rendered by appointed counsel.”
2. Failure to contact 45 days prior to hearing – AGREED, BUT REVIEW TEXT
a. We agreed that at the outset of each hearing, the Commissioner shall advise the prisoner of his right to consult with an attorney prior to 45 days before the hearing. If the first meeting took place within 45 days of the hearing, the prisoner shall be given the opportunity to waive the hearing. (Alternatively, the hearing shall be postponed for 45 days.) Title 15 § 2253(b)(3).
PsychEvals
We have not yet discussed this part of the regulations.
1. Risk Assessment tools
a. KW: Regarding the psych evaluations (2240), the regulations should require the YOPH psych evaluations to utilize risk assessment tools that are valid for predicting risk among juveniles. (This is actually a tricky proposition that I want to consider further because it's not clear there are any tools that take into account the 15 or 20 years of behavior, attitudes, etc., since the individual turned 18.)
b. FG: All psychological evaluations must be validated using some sort of validated risk assessment tool or process. See KW’s comments in email dated 10/15/2014
2. Process to challenge
a. HR: Formal process to challenge“substantial error” or“three factual errors” in a psych evaluation other than a denial or continuation ofscheduled hearing(Title 15 § 2240(d)(e)(f)).
b. KB: Also include process to challenge psych report that explicitly use youth factors as evidence of current risk.
3. Miller factors
a. LW - need regs around Miller factors being used to support unsuitability (remorse, insight, etc). Also, What does “take into consideration” entail? We need this to be clear so we can challenge it down the road if we need to.
b. KB proposal – one way to do this might be to require that psychologists breakdown the hallmark features of youth (see below on “Consideration of Youth Factors”). Each report should have a heading for each factor so that there is evidence of whether the factor was considered. I’ve seen multiple reports where the only heading under which youth is addressed is “Other Risk Considerations.”
c. FG: The availability or lack of institutional programming and rehabilitative services, including long waitlists, should be taken into consideration when determining a prisoner’s progress toward rehabilitation. Also, repeated transfers beyond the prisoners control should also be taken into account if they contributed to prisoner’s inability to complete vocational and rehabilitative programs. (See also “Suitability Factors” and “Consultation Meetings”)
4. Evals prior to 2014
a. FG: All psychological evaluations conducted prior to 2014 or those not conforming with Senate Bill 260 must be updated to comply with the law.
b. KB: Comment – The draft regs have something on this, but it needs some work. See draft of § 2246(c)(1): “In assessing the application of the youth factors to a youth offender, the hearing panel shall not consider the final risk ratings of a risk assessment, as described in section 2240 of these regulations, unless the evaluator considered information relating to the inmate’s youth factors in reaching clinical conclusions regarding the inmate’s risk. All other relevant and reliable information from any risk assessments may be considered.” (emphasis applied)
c. KB: In the above, change “final risk ratings” to “any information.” Also, delete the last sentence.
d. EC: Object to 2246(1) as ridiculous?
5. Notice:
a. Beth Caldwell/KB: Prisoners shall receive notice that a comprehensive risk assessment will be performed sixty days prior to the date the assessment. The notice shall a) inform the prisoner that the psychologist will consider re-entry plans and support letters during the evaluation, b) inform the prisoner that if he/she wants the psychologist to consider these plans and letters, he/she should submit them for inclusion in his/her C-File prior to the examination. At the examination, psychologists shall ask prisoners whether they received the notice, and whether they have received any supportive letters that are not yet in the C-File. Rationale: Prisoners often receive supportive letters and develop re-entry plans after the psychological examination, so these materials are not considered in the comprehensive risk assessment. Some psychologists assess prisoners at an elevated risk level due to undeveloped re-entry plans and minimal support. Informing prisoners of the date of the evaluation gives them an opportunity to have these supportive materials considered during the assessment – and this will hopefully lead to improved assessments.
Documents in parole packet:
We have not yet discussed this part of the regulations.
1. HR: Meaningful determination of relevancy before documents submitted by DA can be added to C-file for BPH consideration(it is not sufficient for CDCR staff who are not lawyers and are not familiar with the Board processes to make the determination) (Title 15 § 2030(c)).
2. Beth Caldwell/KB: Inclusion of juvenile fitness report (the report prepared on whether to transfer an individual from juvenile to adult court):
a. Where a juvenile fitness report is included in a prisoner’s C-File, the report shall be considered by the psychologist who performs the risk assessment, and it shall be included in the parole packet for consideration by the Board. Rationale: A fitness report is prepared when an individual is a youth, so in general, it tends to be written from a more rehabilitative perspective rather than a punitive perspective. It may often explain the diminished culpability of youth and how the hallmark features of youth apply in the given case. Fitness reports are often in the C-file – but because they generally don’t make it into the parole packet – it is likely that they will get lost in the mix by psychologists, panel attorneys, and the Board. Inclusion of the report will hopefully focus the psychologist and the Board on the youth factors. Further, inclusion of the report in the packet will help attorneys (especially those with limited resources) make an argument about how the youth factors apply specifically in any given case.
b. BPH (or CDCR?) will take steps to include the juvenile fitness report in the C-File for all youthful offenders. This includes a) including fitness reports in the C-File from this date forward, and b) assisting prisoners in requesting fitness reports if those reports are not currently in their C-File. Rationale: In many cases, the fitness report is not in the C-File. We have heard from prisoners and attorneys that it is difficult to obtain the fitness report. I am hoping that the inclusion of a regulation like this will add some institutional clout to record requests and make these requests more successful.
c. Panel attorneys shall be compensated for reviewing juvenile records, and for requesting juvenile records that are not already contained in the C-file. Rationale: panel attorneys currently receive itemized funding as follows: $25.00 attorney appointment; $50.00 review of board packet, decs, and legal research; $75.00 C-File review; $75.00 client interview; $175.00 personal appearance at the hearing. There is no funding for them to request additional records.