California state prisons are currently at 195 percent capacity, annually imposing a $10 billion drain on the state’s overburdened budget. Proposition 9’s limitation on early release could obstruct California’s future attempts to address prison overcrowding. California currently does not release state prisoners early. However, early release for non-violent offenders has been seriously considered by state legislators as a means to ease the strain on the bulging system. This proposition eliminates that option. The measure further obligates legislators to provide funding for prisoners to serve out their full prison or jail terms.
Overcrowding results in unconstitutional prison conditions. This could plausibly be used by legislators as justification for expanding prison construction, rather than pursuing exceedingly less costly alternatives to incarceration for non-violent prisoners. Additionally, some California counties release jail prisoners early, primarily in response to federally imposed inmate population caps. It is unclear how jail operations would be altered to accommodate this clause while maintaining compliance with federal orders. (For more details, see the Legislative Analyst’s Office online analysis of Proposition 9 at: http:/www.lao.ca.gov/bllot/2008/9_11_2008.aspx.)
Frequency of Hearings
For the past 20 years, the annual parole rate for “lifer” prisoners has been less than 1 percent. Proposition 9 extends the default time lapse between parole consideration hearings from one to 15 years, further reducing prisoners’ narrow chances at parole. This law applies to all term-to-life prisoners.
Moreover, under current circumstances, it is implausible that the board would opt to decrease the lapse between hearings well below the15-year default instituted by the measure. Currently, the board may only lengthen a standard one-year parole denial if it finds that it is unreasonable to expect that parole will be granted the following year. Proposition 9 sets a much tougher standard to shorten the standard 15-year denial time; the denial length may only be curtailed if “clear and convincing evidence” demonstrates that the prisoner does not require the total length of additional incarceration to maintain the safety of the public and victims.
With a current backlog of overdue parole consideration hearings already at nearly 1,500 cases, as well as growing pressure from prosecutors and victims’ rights groups to increase the period between hearings, there is little likelihood that commissioners will significantly cut back denials below 15 years. For many lifer prisoners, a 15-year parole denial could mean they will die of old age in prison.
The further severing of prisoners’ ties to the community makes both prisons and communities less safe – not more. Further, most lifer prisoners are over the age of 40 at the time of their first parole board hearing. By significantly extending prisoners’ time in prison, this amendment will dramatically increase the housing and medical costs necessary to support this aging population.
Victims’ Role in Hearings
Proposition 9 significantly expands victims’ role in parole hearings. These amendments are the opposite of parole consideration hearings’ stated purpose: to determine whether a prisoner poses a risk to society. Victims and their families are deeply impacted by these crimes – an impact that remains decades later – but rarely do they possess evidence relating to the prisoner’s current threat (which the California Supreme Court recently made clear is the only relevant issue in a parole hearing). This measure is intended to play on the board’s sympathy for victims and their families, which may distract from the board’s obligation to make an objective and sound judgment regarding the prisoner’s suitability for release. Proposition 9’s expanded definition for the victim “representative” could dramatically alter parole proceedings.
Prior to Proposition 9’s enactment, a representative had to be a member of the victim’s family or household and he or she was only permitted to attend or testify at hearings if the victim and next of kin were unable to attend. Proposition 9’s elimination of these requirements opens the door for any individual to attend and testify against the prisoner in parole consideration hearing. For example, prosecutors could be hired to speak against the prisoner, and victims’ rights groups could even send “professional victims” to testify at all parole consideration hearings. The initiative further states that prisoners and prisoners’ attorneys are prohibited from asking questions of victims or victims’ affiliates at parole hearings, and no one may interrupt a victim’s (or victim affiliate’s) testimony.
Under current procedure, victim testimony occurs at the end of each hearing, and no further comment is permitted by the prisoner or prisoner’s attorney following that testimony. As a result, the only opportunity to question the validity of the victim’s testimony is to interrupt and draw the board’s attention to unsupported claims or deviation from the permitted scope. Under Proposition 9, unproven allegations by victims will be accepted by the board without providing prisoners with an opportunity to address those allegations. Proposition 9 additionally requires the board to consider the “views and interests” of the victim before scheduling a subsequent parole consideration hearing. This could be interpreted to delay a hearing beyond the statutory due date if it is inconvenient for the victim to attend.
The initiative includes a vague provision limiting prisoners’ rights to those designated in the U.S. constitution and California statutes. The provision could potentially negate various rights now afforded to prisoners, such as visitation, higher education and recreational programming. Additionally, the change could interfere with some court-ordered consent decrees requiring the Department of Corrections and Rehabilitation to provide prisoners with rights beyond those mandated by state and federal law. Under the strain of severe overcrowding, legislators could use this provision to cut “extraneous” costs in order to redirect funding towards prison expansion. The likelihood of this prospect is heightened by Proposition 9’s requirement that legislators fund prisoners’ full terms.
Parole Revocation Hearings
A court injunction has placed this portion on hold. Proposition 9 includes several provisions to curtail parolees’ due process rights in parole revocation proceedings. These changes directly challenge the stipulated permanent injunction in Valdivia v. Davis, a 2004 federal court order establishing those rights.