California Parole Hearings Weighted Against People of Color, Those Without Private Attorneys

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parole: Serious unsmiling balding man sits behind empty desk

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California is often viewed as having taken some of the most progressive steps toward reforming parole for people sentenced to life in prison as juveniles. But do those steps go far enough?

My answer — “not yet” — is grounded in a statistical study of parole hearings that I published this summer in the Harvard Civil Rights-Civil Liberties Law Review. 

parole: Kristen Bell (headshot), assistant professor at University of Oregon School of Law, smiling woman with long red hair wearing brown blazer, white top

Kristen Bell

The study analyzes transcripts from 426 parole hearings held in 2014-15, following the enactment of Senate Bill 260. The California legislature passed SB 260 to create specialized parole hearings for people who were convicted of crimes as juveniles. The law requires the parole board to give “great weight” to the mitigating facts of youth and to subsequent growth and maturity. 

The law was designed to make parole decisions depend not on the crime, but on whether a person has demonstrated rehabilitation since the time of the crime. I sought to investigate whether the law was living up to its promise in practice: Did people who demonstrated similar amounts of rehabilitation in prison have the same likelihood of being granted parole? 

On one end of the spectrum, the answer is yes — people who do no rehabilitation programs and have recent episodes of misconduct are denied parole. But once a person has done at least an average amount of programming and has served several years without any misconduct, the odds of parole vary widely on the basis of factors that have almost nothing to do with rehabilitation — factors like race, whether a person is represented by a private attorney or a state-appointed attorney and whether a victim’s family member opposes parole. Essentially, a parole candidate has to pay to play and then faces a roll of the dice — dice that is weighted against black candidates and those who lack private attorneys.

This five-minute video shows a visualization of the statistical analysis in the study. Viewers can see how much the likelihood of parole changes based on variables like how much rehabilitation programming a person did, as well as race or whether one has an appointed or paid attorney. 

The study does not investigate what is causing these disparities, and further research is needed to do so. Experienced parole attorney Keith Wattley suggests that having a private attorney may not result in better outcomes because of anything the attorney does at the hearing itself, but rather is the result of the time and support that attorneys give clients prior to the hearing. 

The study also finds that people who are convicted of the same crimes serve markedly different amounts of time in prison based on the parole board’s power to determine when to grant parole. For example, one man who was convicted of first-degree murder while an adolescent served 19 years in prison before being granted parole: more time in adult prison than he spent alive in the world before the crime. Another person convicted of the same crime while an adolescent served more than double that amount of time: 43 years. And in contrast, a person who was convicted of a non-homicide offense as a teenager served 35 years. 

Another disturbing finding concerns the reasons the parole board gave for denying parole in various cases. In 59% of the board’s decisions to deny parole, a history of abuse, trauma or other instability in childhood were cited as reasons supporting the denial of parole. For example, in justifying one decision to deny parole, a commissioner stated: “You … possessed an unstable and tumultuous social history. This is evidenced by your relationship with family members, your mother subjecting you to physical and emotional abuse, [and] her drug and alcohol addictions. You being subjected to group homes at an early age, foster homes, you dropping out of school at the tenth grade, living a transient lifestyle [sic].”

This reasoning is backwards because the U.S. Constitution and state statute require that a history of abuse, trauma or other instability in childhood must be considered as mitigating factors if a court is sentencing a juvenile to life in prison. SB 260 also requires these factors to be mitigating in determining whether to grant parole to juvenile lifers. Gaps like this between the law’s promise on paper and the outcomes in practice suggest that much more work needs to be done before all juveniles serving life sentences in California have what the law has promised to them: a truly meaningful opportunity to obtain release based on rehabilitation. 

The study’s findings about California are particularly troubling because, according to an ACLU report on juvenile lifer parole around the country, California is among the states that have done the most to make parole hearings a meaningful opportunity for release. California has more robust legal protections for fair procedures at parole hearings. 

Unlike states like Georgia, where parole decisions are classified as “state secrets,” juvenile lifers have an in-person hearing with a member of the parole board, they have a lawyer present at the hearing, and the public is entitled to a transcript of the hearing and the reasoning behind the decision. Unlike states like Maryland where no juvenile lifer has been granted parole for two decades, approximately 38% of juvenile lifers in California who had contested parole hearings in 2014-15 were granted parole. Of the 150-plus people who were released through parole hearings under SB 260 from 2014-15, zero returned to state prison as of July 2017. 

Kristen Bell is an assistant professor at the University of Oregon School of Law, a graduate of Stanford Law School and earned her Ph.D. in legal and moral philosophy at the University of North Carolina-Chapel Hill. Prior to coming to the University of Oregon, Bell was a Senior Liman Fellow at Yale Law School and a Soros Justice Fellow.

The study was made possible through a Soros Justice Fellowship, hosted by the Post-Conviction Justice Project at the Gould School of Law (2014–16) and by a Senior Liman Fellowship at Yale Law School (2016–18).

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