The California Office of the Inspector General (OIG), the state's official watchdog" agency, conducted an audit of the Board of Prison Terms (BPT) in July 2005 to determine compliance with the OIG's prior recommendations to correct deficiencies and inefficiencies it identified in its 2002 and 2003 audits of the BPT. It found that the BPT over reported by 4,000 the number of lifer" parole consideration hearings it conducted over the past three years, had a growing backlog (1,607) of overdue parole consideration hearings, had inadequate supervision and time management of its 74 Deputy Commissioners, held 700 meaningless Mentally Disordered Offender hearings per year and failed to review all BPT decisions as required by law. On the plus side, the OIG found that the BPT had mooted its previous backlog of 2,200 overdue responses to prisoners' administrative appeals of its decisions by abolishing the entire appeals process, and had vastly improved timeliness of parole revocation hearings (because the situation had become so dire that the federal courts had to step in and order the BPT to change its ways). (See: Valdivia v. Schwarzenegger, 206 F.Supp.2d 1068 (E.D. Cal. 2002); PLN, Jan. 2003, p.16 and Apr. 2004, p.24, and Jan. 2006.)

Lifer Parole Hearings

As early as March 2000, the OIG noted that the BPT had a large number of lifer hearings overdue by six or more months. By December, 2001, that figure was 1,400. Since then, the backlog has increased 15% to 1,607. At the same time, the BPT reported that it conducted an average of over 4,600 parole consideration hearings per year. The OIG determined that, upon closer inspection, both figures were misleading.

First, the backlog" figure counted only BPT-induced late hearings; prisoner requested" postponements were disregarded. However, the latter category includes the all-too-common event where at the hearing, the panel announces it wants a new psychological report, and if the prisoner doesn't agree" to postpone, it will give him a multi-year denial. In other words, the BPT forces the lifer's hand to score" a postponement, thereby at once relieving its immediate workload while excusing its resultant tardiness. Of the 1,623 postponements granted between August 2004 and April 2005, 1,001 (62%) were requested" by the prisoners, thus significantly reducing the BPT's future backlog" report by this sleight of hand. As a result, the lifers are forced to do the extra time, the taxpayers must fund this largesse at $50,000/head/yr., and the BPT gets itself off the hook.
While the normal pattern is that 20-22 hearings are scheduled for a Monday-Friday BPT lifer calendar, enough postponements are secured to compress the schedule into Monday -Thursday, yielding a three day weekend for the panel. Parenthetically, the OIG recommended that the BPT reschedule its 1:30 PM monthly meeting from Tuesdays to Mondays, to allow Board members to conduct one extra Tuesday of lifer hearings per month. The present dead" Monday would appear to extend three day weekends to four days, once per month.

Second, the claimed 4,600 annual hearings conducted" is a false figure. The audit revealed that that figure was the number of hearings scheduled, but after subtracting postponed and canceled hearings, the true conducted" figure was 4,000 fewer over the past three years. And the numbers continue to worsen each year. The BPT scheduled 4,826 hearings in 2002, 4,498 in 2003 and 4,450 in 2004, but only conducted 3,926, 3,138 and 2,844 hearings, respectively. Hearing postponement rates grew from 18% in 2002, to 30% in 2003 to 37% in 2004. For the period August 2004 through April 2005, the postponement rate leaped to 44%. Meanwhile, between 1990 and 2004, the number of lifers more than tripled from 8,153 to 27,375 while the number of BPT Commissioners authorized remained flat at nine. (There have often been three vacancies out of these nine over the past three years, as gubernatorial appointments have flagged.)

Worse yet, the true number of overdue hearings from any cause" --- is unknown because the OIG found that the BPT still has no management tracking system, relying instead upon Department of Corrections (CDC) employees at each of the 31 prisons housing lifers to tell the BPT on a monthly basis what to do next. In the month of March 2005, 313 (86%) of the 362 lifer hearings scheduled were late by an average of over three months.
Recently, the BPT was superseded in name by the Board of Parole Hearings, whose staffing complement for adult matters is statutorily set at 12 Commissioners. But, true to past form, the Governor saw fit recently to only appoint seven, thereby ensuring the continuing hobbling of timely lifer parole hearings. With the number of lifers growing and with the less than 1% release rate resulting from hearings actually conducted, the next OIG audit of the BPH's timeliness will probably not be much more inspiring, unless the Marin County Superior Court forces relief in the pending statewide class-action suit Rutherford v. Margarita Perez, Case No. SC135399A. The BPT's response to the OIG's 2002 criticism that 2,200 administrative appeal replies were overdue was to abolish their appeals system. The BPT noted that 97% of prisoner appeals were denied, with the other 3% ascribed to correcting clerical or ministerial errors. The new procedure permits only writing a letter to the BPH's Quality Control Unit, explaining the alleged clerical error.

Parole Revocation Hearings

In the OIG's 2003 review, over 7,000 incarcerated parolees were awaiting revocation hearings. 81% had already been locked up more than 45 days and 7% for more than 100 days. Many wound up doing more time waiting for their hearing than they were sentenced to at the eventual hearing. The OIG's recommendations to fix the problem were subsumed by the federal court's intervening Valdivia Remedial Plan, which requires revocation (Morrissey) hearings within 35 days of arrest, among the other due process protections. Delays, as a result, have been vastly reduced, but 231 violators had to be administratively released when timely hearings did not occur. The BPT forecasts it will get 85,000 parole violation referrals from CDC in fiscal 2005 2006, and will have to conduct 28,900 revocation hearings. (Sixty-six percent of violation cases are resolved before a hearing.)

Deputy Commissioner Supervision

In January 2003, the OIG determined that the 74 Deputy Commissioners' time was so poorly managed that their task could be completed by just 39. Deputy Commissioners conduct revocation hearings and attend lifer hearings. In this 2005 compliance audit, the OIG found an improvement in the supervisor-to-commissioner ratio, but not in the results. There is still no time-management recording system in place, and the OIG re-recommends one be implemented. With the advent of the Valdivia plan, the BPT has scheduled its revocation hearings to be held in 13 regional units, which should improve efficiency. The BPT did comply by installing a computerized revocation scheduling and tracking system as part of its Valdivia upgrade.

Mentally Disordered Offenders

The BPT is required to hold automatic 60 day placement hearings for mentally disordered offenders. The flaw pointed out by the OIG in 2003 is that 99% of such Department of Mental Health (DMH) patients remain incarcerated rather than gain out patient placement, because the time for DMH to conduct such a study exceeds those 60 days. The OIG recommended changing the hearings to a 90 day interval. It further recommended that one Deputy Commissioner, not two, is all the task requires. To the extent that such changes would require amendments to Penal Code § 2964(b), the OIG recommended that the BPT so request of the state Legislature.
Decision Reviews

While the law presently requires the BPT to internally review all of its decisions, few are reviewed. For example, in lifer hearings, all grants of parole (a couple percent) are fully reviewed for accuracy and public safety," while none of the 98% denials of parole are ever looked at. Moreover, the OIG found that the BPT reviewed none of its 38,000 parole revocation decisions each year.

The OIG felt a better system would be one that samples each category for accuracy. This would be more realistic, given the numbers involved, while providing the oversight intended by the Legislature. The OIG recommended amending the BPT's regulation 15 CCR § 2041 accordingly.
Summary

The 2005 compliance review showed that the BPT was still mired in its tasks, not gaining ground on many long-standing problems. Its major successes" seemed to be only in response to court orders. The BPT's budget for 2005-2006 is $72,852,000.

But if 44% of lifer hearings are admittedly delayed by three months, the cost of procedurally incarcerating these 2,000 souls, at $50,000 each per year, wastes $25 million of the budget. And if the BPT were to end its political no-parole policy (2% grant rate) in concert with the Governor (rejects 80% of that 2%) for an estimated 7,000 long overdue-for-parole lifers, the $350 million resultant savings per year could instead be used to retire the cost of the new $5 billion San Francisco Bay Bridge in 14 years, with no bridge toll at all (vs. the $4 toll recently approved for this cost.) Did the OIG look far enough?

See: Accountability Audit, A Review Of Board Of Prison Terms 2002-2003 To Determine Compliance With Previous Recommendations Of The OIG, July 2005, Office of the California Inspector General. Available at www.prisonlegalnews.org.

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