Criminal Defense Lawyers explain the California Parole Laws & System

  1. What is Parole?

Parole is the temporary or permanent release of a prisoner, before the completion of a sentence, on the promise that they will abide by certain terms and conditions.  It is important not to confuse parole with probation.  On one hand, probation is a form of criminal punishment that is handed out when a defendant is convicted.  Probation may result in a reduction or the total elimination of time that a defendant is required to spend in custody.

On the other hand, parole only applies after a person is released from prison.  And it only applies to those serving time for a felony in a California state prison.  Before receiving parole, a prisoner must agree to follow certain terms and conditions.

Prisoners serving a determinate sentence, one that involves a specific amount of time, are automatically given parole upon the conclusion of their sentence.  Those serving possible life sentences, such as a sentence of 15 years to life, may apply for parole after the completion of the determinate part of their sentence.  Before granting parole, a suitability hearing will be conducted to determine whether or not a prisoner is suitable to reenter society. Note, that prisoners serving LWOP (Life Without the Possibility of Parole) are not eligible for parole.

If granted parole, a prisoner (now considered a parolee) will be given a parole agent.  The parole agent will monitor the parolee to make sure the terms and conditions of the parole are being complied with.  If the parole agent finds that the terms of conditions of the parole are not being met, a parolee may receive a parole violation or even be sent back to prison (after a revocation hearing).

  1. Overview of California Parole Law

California mainly follows the attributes of a mandatory parole system.  Under this system, California will grant parole to eligible prisoners who have completed their sentences.  However, parole will not be granted if the parole board finds that a prisoner presents a safety concern to the public. 

Determining When a Prisoner is Eligible for Parole

Eligibility for parole depends on the type of sentence and whether any good time credit was earned.

Determinate vs. Indeterminate Sentences

A determinate sentence is comprised of a finite number of years.  For example, a sentence of 10 years is a determinate sentence.  However, an indeterminate sentence does not have a finite ending date.  For example, a sentence of 15 years to life is an indeterminate sentence.  If a prisoner is serving an indeterminate sentence, a prisoner is typically not eligible for parole until at least 7 years or until the determinate part of the sentence has been completed.

Good Time Credit

While in prisoner, prisoners can earn credit for good behavior and reduce a portion of their overall sentence.  Under current California law, some California prisoners could potentially reduce up to half of their overall sentence with good time credit. Prisoners serving time for violent felonies may be able to reduce their overall sentence up to 85% of their original sentence.  Examples of violent felonies under California law include rape or first-degree burglary.  Not all prisoners are allowed to use good time credit.  For example, prisoners convicted of murder or who had two more or felonies in the past are not eligible for this form of relief.

An overall sentence may be reduced due to good time credit; however, this does not mean the parole board will release a prisoner.  It only means that a prisoner is eligible for parole at an earlier date.  Ultimately, a parole board will determine whether to release a prisoner and they will not do so if they believe the prisoner presents a safety risk to the public.

Parole Board Suitability Hearings

Eligibility for parole does not guarantee that parole will be granted.  First, a prisoner must attend a hearing before the California Board of Parole (BPH).  BPH is comprised of 17 members who are all appointed by the Governor of California.  As a result, BPH decisions are often dictated by state political agendas.  Thus, it is not unusual for a prisoner to attend many parole hearings before they are finally granted parole.  If denied parole, a prisoner may not become eligible for another parole hearing for a minimum of 3 years.  Sometimes, prisoners have to wait up to 15 years before they are granted another hearing.  Even if granted parole, the Governor of California has the power to veto BPH decisions.

It is important to understand the various factors reviewed by BPH when determining if parole will be granted.  Some of the factors considered include:

  • Nature of the crimes committed
  • Whether the prisoner feels remorseful for their actions
  • Prior history of violence
  • Whether the prisoner took advantage of counseling, educational, and social programs
  • Prison Behavior
  • Plans to reintegrate into society such as employment opportunities and housing options
  • The victim or the victim’s family’s opposition, if any, to the prisoner’s release on parole. The victim or victim’s family may even make a statement opposing parole

Parole Rescission

Even if parole is granted, BPH has the power to rescind, or reverse, a previous parole decision.  BPH is only required to show some evidentiary basis for reversing its prior parole decision.  Such evidence may include the parolee’s disciplinary record while in prison or their mental health history.  BPH cannot consider the fact that the public may be upset with their decision to release a prisoner.

Parole Supervision

Once granted parole, a parolee will become subject to one of six levels of parole supervision.  The level of supervision is not fixed and may be modified depending on the particular circumstances of the parolee and the community. The types of parole supervision are:

  1. Intensive Re-Entry: whereby the parolee is subject to heightened supervision immediately after release
  2. Regular Re-Entry: the parolee will receive services, such as employment assistance, upon release but for a shortened span of time.
  3. Specialized Cases: high risk parolees will receive specialized services
  4. Case Management Supervision: if a parolee successfully re-integrates into society, then they will be subjected to reduced supervision.
  5. Electronic Supervision: some parolees may be subject to 24 hour electric monitoring
  6. Subsistence and Personal Care: some parolees may receive assistance in a wide variety of areas including transportation, parental education, etc.

Parole officers, or parole agents, are charged with carrying out every form of parole supervision.  Employed by the Department of Corrections, their job involves balancing the needs of public safety with the goal of successfully reintegrating parolees into the community.  This usually involves helping a prisoner develop a plan for reintegration before they are released.  Additionally, they can connect a parolee to services for employment, housing, medical care, mental health counseling, etc.  If there is a potential parole violation, the parole officer will look into the accusation.  After concluding their investigation, the parole may recommend that parole be revoked, resulting in re-incarceration, or suggest that that the parolee continue on parole.

Length of Parole

The length of parole depends on the nature of the crimes of which the parolee was convicted.  On average, parole is 3 years.  However, parole terms of 5 or 10 years are not uncommon.  Parolees who were convicted of murder are placed on parole for life.

  1. California Parole Conditions and Requirements

In order to receive parole, a parole must agree to comply with certain requirements or risk a parole violation.  Not doing so may result in the revocation of a parole offer and further prison time.  Examples of some requirements are:

  • Consenting to be searched by police even without a search warrant or cause
  • Living in specified county limits
  • Not possessing or being in the presence of deadly weapons
  • Not using the internet
  • Not associating with gang members.
  1. Parole Violations and Revocation

If a parole violation was deemed to occur and parole is revoked, a parolee can be sent back to prison for up to 1 year.  Furthermore, the district attorney could choose to file new charges, based on the parole violation, which could result in another independent sentence for incarceration.  Because the impact of parole violations can be far-reaching, it is important for parolees to know their rights during a California parole violation hearing. 

During a parole violation hearing, the parolee has the following rights:

  • The right to a criminal defense attorney
  • The right to written notice of accusations
  • The right to speak and present evidence in favor of the parolee
  • The right to confront and question witnesses
  • The right to review any evidence that may be used against a parolee
  • The right to a neutral and fair hearing
  • The right to a written decision describing the reason for the verdict

Parole Revocation Hearing Process

Parole revocation hearings are split into a preliminary hearing and a final hearing.  The preliminary hearing is conducted to determine whether the government has probable cause to move to a final hearing.  It must be conducted within 10 days after a parolee is notified of any allegations.  The final revocation hearing must occur within 35 days of a parole hold.  A parole hold occurs when a parolee is arrested for an alleged parole violation and taken into custody.  The parole hold will continue until the parolee is released after a preliminary hearing. 

Regardless of the type of hearing, the parolee has a right to a criminal defense attorney who can present a case in favor of the parolee.  This may mean utilizing a legal defense to the allegations or presenting mitigating evidence to reduce the punishment.  Meanwhile, the government will present its own evidence in favor of revoking parole.

Fighting a Parole Violation or Revocation Hearing

The Board will review evidence presented by police officers, witnesses, and victims.  Furthermore, parole officers will also speak at the hearing regarding the parolee’s performance during parole.  However, a parolee can utilize a criminal defense attorney to effectively present witnesses, evidence, and defenses in their favor. 

It is important to note that the parole revocation process operates differently than a criminal trial.  The evidence rules are much more lenient than in a criminal trial court.  For example, hearsay evidence is more likely to be allowed, which may include letters or notes that would normally not be allowed in a criminal trial.

Furthermore, the burden of proof at a parole revocation hearing is different than that in a criminal trial.  In a parole revocation hearing, the burden of proof standard is called “preponderance of the evidence,” which means that a parolee can be convicted of charges if the evidence shows it is more likely than not that the violations were committed. Criminal trials utilize a “beyond reasonable doubt standard” which sets a much higher burden on prosecutors.  In essence, it is easier to find a defendant guilty at a parole revocation hearing than at a criminal trial.  This lesser level of protection for parolees is justified on the basis that the parole violation process is considered a part of the original punishment process.

Defenses

An experienced criminal defense attorney can utilize a variety of defenses to convince a parole board to not revoke parole. Common defenses include:

  • False Allegations – It is possible that an ex-girlfriend or an angry police officer might not like the fact that a parolee is out on parole. In such cases, a parole board may drop charges if it can be shown that the evidence is fabricated or inconsistent.

  • Mistaken Identity – It is not uncommon for a parolee to be falsely accused of a parole violation because the real culprit committed the crime nearby or fits a similar, generic description.

  • Innocence – Parolees often find themselves in hot water because they were hanging out with others who committed a crime even though they were not involved in any illegal behavior. Also, it is possible that someone else is trying to frame the parolee for his or her own illegal acts.

  • Due Process Violation – It is possible to get charges dropped if the parolee’s constitutional rights were violated. For example, if the parolee did not receive written notice of any allegations or receive a hearing within the legal deadline, a due process violation might have occurred and a parolee may be entitled to a dismissal of charges.

  • Mitigating Evidence – A parole board will not revoke parole if they are convinced by properly presented evidence of mitigating circumstances. For example, if a parolee suffers from a drug addiction, a defense attorney could argue that a parolee should be required to enter into a rehabilitation program rather than going back to prison.  Additionally, if the violation is minor, it can be argued that parole should not be revoked because the parolee does not present a danger to the community.
  1. Why hire an attorney?

Because of the unique nature of the parole hearing or revocation process, it is important to consult with a criminal defense attorney who is experienced and trustworthy.  As explained above, a skilled defense attorney can prepare you for a hearing before a parole board, cultivate mitigating evidence, and develop defenses on your behalf.  Moving forward without an attorney can result in drastic consequences.  A parole board may not grant another hearing for years or a parolee could be sent back to prison for a parole violation.

HOW THE LOS ANGELES CRIMINAL ATTORNEYS CAN HELP YOU

Our approach:  If you are preparing for a parole hearing, hiring a criminal defense attorney to prepare you for the hearing and to best represent you at the hearing is crucial.  Negin Yamini will conscientiously prepare you on how to best answer the parole board’s questions and how to best convince the board that a) you pose no threat to society upon release and b) you have a solid reintegration plan upon release to society.  If you are charged with a parole violation, Negin Yamini will thoroughly investigate the specific facts of the violation and present any and all defenses and mitigating factors on your behalf to avoid your return to prison.

Actual Case:  In People v. A.S. (Case No. E05532), A was convicted of second degree murder allegedly committed when he was seventeen years old.   After serving 39 years of this sentence and denied parole three times in the course of that sentence, A’s last parole hearing was set in September 2017.   A’s family hired Negin Yamini to represent him at this parole hearing.  Negin met with A several times to prepare him for the questions that the parole board would ask at the parole hearing.  Negin worked very closely with A to help him understand the concept of remorse and how to articulate it to the parole board.  In addition, Negin hired a reputable psychiatrist to write a psychiatric evaluation on behalf of A that served to counteract the negative evaluations performed by the prison’s own psychologists.  A was not granted parole.  However, he was found eligible for parole in another 5 years.  Taking into account A’s progress, responses during the interview, and the defense psychiatric report, the parole board gave A the absolute minimum number of years for another parole hearing.  Had A’s family not hired Negin Yamini to represent A and had A not prepared for the hearing, the parole board could have and probably would have found A eligible for parole in 7,10, or even 15 years.

Note that under the "non-revocable parole program," certain parolees will not attend California parole revocation hearings. Individuals who are placed on non-revocable parole will only be returned to prison if they are arrested for a new offense…and only if they are convicted of that offense in the same manner as any other criminal defendant.

In addition, parolees on the non-revocable parole program don't report to a parole officer. They do, however, remain subject to warrantless searches by the police.

More Information On Parole

Division of Adult Parole Operations
Board of Parole Hearings

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