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Raise bar for parole denials, California legislative analyst says

The California parole board's discretion in how and when to grant parole could lead to implicit bias — subconscious prejudice against certain groups of inmates.

(CN) — The California parole board has "overly broad discretion" that "could result in biased decisions," according to a report issued Thursday by the nonpartisan Legislative Analyst's Office.

"We recommend that the Legislature consider changing statute to reduce this discretion somewhat, such as by increasing the standard that commissioners must meet to deny parole," the analyst wrote, a change that would result in more prisoners released on parole.

There are roughly 96,000 inmates in California's prison system, a number that doesn't including county jails or federal prisons. According to the report, of the 4,188 hearings held in 2021, one-third resulted in parole while two-thirds resulted in a denial. It's a ratio that's held fairly steady in recent years, although it's far more lenient than it was in the 1990s, when less than 5% of applications for parole were granted. The reason for this shift? As a Los Angeles Times headline from 2017 explained: "More California inmates are getting a second chance as parole board enters new era of discretion."

The new era began in 2008 when, in a 4-3 ruling, the California Supreme Court ruled that inmates couldn't be denied parole based solely on the viciousness of their past crime or crimes. The court ruled the parole board had to base their decision solely on whether the candidate would pose "an unreasonable risk of danger to the public" if released from prison. The court also said that decision had to be based on "some evidence."

Since then, the parole board has developed a criteria from which to base its decisions — signs of remorse, in-prison conduct and the prisoner's age. The heinousness of the crime can only be considered if there is a "clear nexus" between it and the candidate's current risk to society.

Of course, these factors are rather subjective, and weighing the different factors is even more so.

"Commissioners retain full discretion in how to weight the various factors that they choose to consider to produce
a decision on whether to grant release," the analyst wrote. "In other words, even if most information suggests that a candidate is not dangerous, as long as one piece of information provides some evidence of possible of dangerousness, commissioners have the discretion to deny release."

The report goes on to suggest the squishiness of these factors could lead to implicit bias — that is, subconscious prejudice against certain groups of inmates for, say, the color of their skin or sexual preference.

Nearly three-quarters of candidates for parole in California are Black or Hispanic. And while two studies have suggested there are racial disparities in parole outcomes, the exact numbers of prisoners who have had parole hearings, categorized by race, has yet to be made public. A lawsuit filed in 2020 forced the prison system to release records regarding the race and ethnicity of parole candidates, but the data has not yet been published.

The report recommends Legislature temper the discretion to deny parole by setting standards of evidence. For example, a new law could read that the parole board find “a preponderance of evidence” or “clear and convincing evidence” that a candidate currently poses a risk to society. It also recommends that the parole board release to the public data on the race of parole candidates and outcomes.

Most prisoners are represented by state-appointed lawyers. Studies have shown that parole candidates who have their own attorneys are more likely to be granted parole. The legislative analyst recommends the Legislature explore ways to improve access to better attorneys for parole candidates.

Follow @hillelaron
Categories / Criminal, Government

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