On Aug. 30, 2021, UnCommon Law filed a petition in California’s First District Court of Appeal in the case In re Darryl Poole. The petition demonstrates that California’s parole process is broken. Roughly 40,000 people in California need approval from the parole board to get out of prison, but the lawyers the State appoints to represent them are poorly paid, inadequately supervised, and have less than half the parole grant rate of privately retained counsel. UnCommon Law argues that replacing this process could prevent thousands of people from languishing in prison unnecessarily.
The Poole litigation was stalled in July 2020, when a lower court accepted the Board of Parole Hearings’ (BPH) promises to address any alleged deficiencies in the attorney appointment process. This week’s petition in the case argues that the lower court was wrong to accept those promises without seeing any of the changes in practice.
Data now shows that the changes have failed to improve the quality of attorney representation. Roughly $12 million in new funding for the BPH since 2020 to implement changes has yielded no results: the vast majority of parole applicants in the state are still receiving inadequate legal representation that directly impacts their shot at freedom. The Court of Appeal now has 60 days to decide whether to direct the parole board to respond to the petition.
Each year, California conducts thousands of parole hearings to determine whether to release from prison those who received long sentences for serious crimes. Nearly 90% of those hearings are for people who cannot afford to hire their own attorneys and are represented by attorneys appointed by BPH(1).
This appointment process is managed by BPH itself, rather than an independent body. Years ago, BPH’s own task force determined that this arrangement created a conflict of interest(2).
More recently, the Board’s Executive Officer testified that “it would be inappropriate for the Board to give training to inmate counsel on how to best represent their client when they come before us.”
Yet BPH continues to oversee a process that consistently yields dismal results for people seeking their freedom: the parole grant rate for state-appointed attorneys is less than half the rate for private attorneys, and people who are denied parole with state-appointed attorneys were ordered to wait longer for another hearing than those with private attorneys.
These differences showed up at both higher security prisons and lower security prisons. Furthermore, these outcomes did not improve when the parole board increased the fee paid to attorneys (a flat rate per hearing) from $400 to $750 and made additional training available. In fact, the overall parole grant rate is lower now than it was before those changes.
UnCommon Law is a nonprofit organization that provides trauma-informed counseling and legal assistance to people serving long prison sentences for serious crimes. This data comes to light following their extensive investigation to determine whether the attorney appointment process is partly responsible for the state’s failure — for the past 40 years — to comply with the law requiring that parole hearings “normally” result in parole grants.
On average, only 16% of scheduled hearings result in parole grants, and the grant rate has exceeded 20% only once in that 40-year span.
UnCommon Law’s findings (both from a large Public Records Act request and a survey of hundreds of people who had hearings between January 2020 and April 2021) include:
Parole applicants represented by private attorneys have much higher parole grant rates than those represented by appointed attorneys, both before and after the 2020 policies were put in place.
● Between January 2018 and January 2021, the average parole grant rate for applicants represented by private attorneys was 36.3%, while those represented by appointed attorneys averaged a grant rate of just 17.8%.
● Parole applicants with appointed attorneys were denied for longer periods of time than those with privately retained attorneys, both before and after the Board implemented changes in 2020
Appointed attorneys are failing to meet the minimal expectations outlined in the Board’s new 2020 policies (including meeting with clients at least twice, and at least once for one to two hours within 30 days of the appointment, as well as reviewing a client’s Central File prior to the first meeting).
● Only 24% of respondents said they met with their appointed attorney for at least one hour and
more than once.
● Just 8% of respondents confirmed their appointed attorney had met all the expectations outlined in the 2020 policies.
Appointed attorneys are failing to meet their statutory duty to help clients prepare for their parole hearings.
● Only 30% of respondents who wrote to their appointed attorney received a response; and just 36% of respondents who sent case documents to their attorney received a response.
Under the 2020 policies, appointed attorneys are failing to advise parole applicants of their basic legal rights relating to the parole hearing process.
● Only 38% of respondents stated that their appointed attorney informed them of their rights at a virtual parole hearing.
● Of the respondents who reported a disability, only 21% reported that their appointed attorney provided reasonable accommodations during parole preparation meetings.
Across the state, parole applicants do not believe they are receiving adequate representation under the Board’s 2020 policies; in fact, just 33% of respondents felt their attorney adequately represented them or provided better than adequate representation. More than half characterized their appointed representation as below or completely inadequate.
“I have had two appointed attorneys, and each time, I felt like I was alone. I felt like it was me against everyone else, including my attorney.”
Says Keith Wattley, executive director of UnCommon Law, “Many state-appointed attorneys go above and beyond in order to better serve their clients. Unfortunately, we have a fundamentally flawed process — rife with inequity, particularly along lines of race and wealth — that prevents parole candidates and their attorneys from being successful.
“This is a problem because the law says most parole hearings should result in people being released, but this system simply isn’t built for that. We need a new one.”
1. The right to counsel in these hearings is established in California Penal Code Section 3041.7. Per table 1(a), from Jan. 1, 2028 to January 2021, there were 18,139 parole hearings scheduled; 16,076 involved state-appointed attorneys and only 2,063 involved private attorneys.
2. In re Jerry Rutherford, Case No. SC135399A, Deposition of Michael Brady, Jan. 5, 2006 at pp. 26-27
