Rebutting the Presumption: An Empirical Analysis of Parole Deferrals under Marsy's Law

Article excerpt

INTRODUCTION  I. THE LIFER PAROLE HEARING     A. To Grant or Deny: The Parole Suitability Decision     B. Recent Judicial Scrutiny     C. Marsy's Law and the Parole Deferral Decision  II. PAST EMPIRICAL WORKS     A. Evaluating Institutional Behavior     B. Evaluating the Severity of the Commitment Offense     C. Evaluating Parole Readiness     D. Parole Deferrals  III. METHODOLOGY     A. Data Collection and Sample Selection     B. Coding Methods     C. Control Indices     D. Methods of Analysis     E. Limitations  IV. FINDINGS     A. Analysis of the Coded Dataset        1. Extralegal factors           a. Race           b. Gender           c. Attorney type           d. Identity of commissioner           e. Presence at hearing        2. Public safety factors           a. Individual factors           b. Indices     B. Analysis of Control Dataset        1. Race        2. Gender        3. Attorney type        4. Identity of commissioner        5. Commitment offense        6. Age        7. Mental health status  V. DISCUSSION  RECOMMENDATIONS & CONCLUSION  APPENDIX A: DIAGRAM OF CALIFORNIA LIFER PAROLE HEARING PROCESS  APPENDIX B: THE FACTORS  APPENDIX C: THE INDICES 


On November 4, 2008, California voters took to the polls to adopt an initiative championing the rights of crime victims. Proposition 9 (more popularly known as Marsy's Law) captured over fifty-three percent of the California vote. (1) Of its many changes to the California Constitution and the California Penal Code, one standout was a shift to less frequent parole hearings for inmates serving life terms. Marsy's Law disrupted the status quo of annual or biennial parole hearings for most inmates and replaced it with a presumption that all inmates would wait fifteen years for their next hearing upon being denied parole.

To fully understand the significance and the impact of Marsy's Law on the parole suitability hearing process, we must take a step back to view the California criminal justice system holistically. California is a rather unique state: it was once heralded as having the nation's premier corrections system for its cutting-edge programs and research between the 1940s and 1960s. (2) But today, some researchers label the California Department of Corrections and Rehabilitation (CDCR) a "paradox of excess and deprivation," (3) or quite plainly a "mess." (4) The CDCR faces chronic overcrowding, a court-ordered mandate to downsize, and ballooning budgetary obligations that are growing faster than the resources allocated to cover them. (5) But perhaps no one statement more accurately describes the state of the system than Governor Arnold Schwarzenegger's 2006 proclamation "that a State of Emergency exists within the State of California's prison system." (6)

As of today, the CDCR oversees over 132,000 prisoners, (7) a marked decrease from the all-time high of 173,479 prisoners at the time of Schwarzenegger's State of Emergency Proclamation (8)--in part a result of a historical effort known as "Realignment." (9) The CDCR houses each state prisoner at an annual cost of $51,889, a sum that is over seventy percent higher than the national average. (10) Yet for each prisoner over the age of fifty--a population dominated by inmates serving life sentences--the state outlays between $98,000 and $138,000 each year. (11) Adding to the state's budgetary woes is the precipitous growth of its population of older inmates. The percentage of prisoners over forty swelled from about 16% of the total prison population in 1990 to around 40% in 2009. (12) Unsurprisingly, the rise in the average age of prisoners has closely mirrored the rise in the population of prisoners serving life terms, or "lifers." (13) What's more, the California lifer population almost tripled to an unprecedented 34,164 inmates between 1992 and 2009, thereby establishing the largest concentration of lifers of any state prison system in the country. (14)

California's tough-on-crime determinate sentencing laws and three-strikes laws have contributed to its ballooning prison population while the parole release valves that traditionally kept the system's population in check have diminished in relevance. …