VETO  

Bill No: SB 1064

Author: Skinner (D)

Amended: 8/25/20

Vote: 27

SENATE PUBLIC SAFETY COMMITTEE: 6-1, 5/20/20

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Wiener

NOES: Morrell

SENATE APPROPRIATIONS COMMITTEE: 5-2, 6/18/20

AYES: Portantino, Bradford, Hill, Leyva, Wieckowski

NOES: Bates, Jones

SENATE FLOOR: 29-9, 6/26/20

AYES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Jackson, Leyva, McGuire, Mitchell, Monning, Moorlach, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener

NOES: Bates, Chang, Dahle, Grove, Hurtado, Jones, Melendez, Morrell, Nielsen

NO VOTE RECORDED: Borgeas, Wilk

SENATE FLOOR: 26-9, 8/31/20

AYES: Allen, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Jackson, Leyva, McGuire, Mitchell, Monning, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener

NOES: Bates, Borgeas, Chang, Dahle, Grove, Melendez, Morrell, Nielsen, Wilk

NO VOTE RECORDED: Archuleta, Galgiani, Hurtado, Jones, Moorlach

ASSEMBLY FLOOR: 53-10, 8/31/20 - See last page for vote

SUBJECT: Prisons: confidential informants

SOURCE: American Friends Services Committee

DIGEST:

This bill prohibits the use of uncorroborated information from in-custody confidential informants by the California Department of Corrections and Rehabilitation (CDCR) when making decisions and findings related to rules violations; prohibits the Board of Parole Hearings (BPH) from making a decision or finding based on an allegation not found to be true following a disciplinary hearing subject to specified notice and due process requirements; and requires summary notice of specified information to be provided to an inmate if information from an in-custody confidential informant may be used by CDCR or BPH to make a decision or finding 10 days prior to the proceeding.

ANALYSIS:

Existing law:

1. Establishes a system of state prisons under the jurisdiction of the California Department of Corrections and Rehabilitation (CDCR). (Pen. Code, § 2000 et seq.)
2. Authorizes CDCR to develop and amend regulations and rules for the administration of the state’s prisons. (Pen. Code, § 5058.)
3. Establishes the Board of Parole Hearings (BPH) and delineates its duties, including conducting parole consideration hearings. (Pen. Code, §§ 5075, 5075.1.)
4. Delineates the process by which the department handles inmate misconduct, including the structure of the investigation and hearing of a serious rule violation. (Cal. Code Regs., tit. 15, §§ 3312, 3314, 3315.)
5. Requires certain types of information to be classified as confidential, including information, which if known to the inmate, would endanger any person and information which could jeopardize the safety of a prison. (Cal. Code Regs., tit. 15, § 3321, subd. (a).)
6. Prohibits a decision from being based upon information from a confidential source, unless other documentation corroborates information from the source, or unless other circumstantial evidence surrounding the event and the documented reliability of the source satisfies the decision maker that the information is true. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(1).)
7. Requires that any document containing information from a confidential source include an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of the reason why the information or source is not disclosed. Requires the documentation to include specified information. Delineates the criteria which may be used to establish a confidential source’s reliability. (Cal. Code Regs., tit. 15, §§ 3321, subds. (b)(2), (b)(3), (c).)
8. Prohibits a parole consideration decision from being based upon information that is not available to the inmate unless the information has been designated confidential under the rules of the department and is necessary to the decision. Requires that the reliability of confidential information to be used be established to the satisfaction of the hearing panel. Requires a finding of reliability to be documented by the hearing panel. Provides that a hearing may be continued to establish the reliability of the information or to request the department to designate the information as nonconfidential. Requires the inmate to be notified of reports on which the panel relied if confidential information affected a decision. (Cal. Code Regs., tit. 15, § 2235.)

This bill:

1. Prohibits an employee of, or private entity under contract with, CDCR from finding any state prison inmate to be guilty of a rules violation, if the finding or decision is based on, or relies on, in whole or in part, any uncorroborated information from an in-custody confidential informant.
2. Prohibits an employee of, or private entity under contract with, BPH from making a finding or decision about any state prison inmate that is based on, or relies on, in whole or in part, allegations that have not been found true following a disciplinary hearing at which the subject was provided notice, an opportunity to confront nonconfidential witnesses before an impartial hearing body, a written statement of the evidence relied upon, a written statement of the reasons for the decision, and an opportunity for appeal.
3. Requires that an inmate and the inmate’s attorney receive a summary notice of any information provided by an in-custody confidential informant at least 10 days prior to any proceeding regarding a rules violation. Applies the 10-day summary notice requirement to BPH findings and decisions described above, including any interview on which a risk rating is based.
4. Requires the summary notice to include all of the following:
5. A detailed description of the information provided by the confidential informant.
6. The date the information was provided to the department.
7. The date of the events or actions referred to in the informant’s report.
8. The location where the information was provided by the informant.
9. The name of the officer who obtained and recorded the informant’s report.
10. The source and nature of the informant’s personal knowledge of the events or actions.
11. The investigative steps taken by the receiving officer or other department official to confirm the facts reported and the informant’s personal knowledge.
12. The informant’s previous record of confidential information, including instances of information not meeting standards of reliability.
13. The evidence used to corroborate the information. Requires a summary notice, as described, to be provided if the information is corroborated by another in-custody confidential informant. Requires that if corroboration is provided by a nonconfidential informant, or by physical evidence, that information be fully disclosed in the notice.
14. A signed statement by the decisionmaker that the decisionmaker has made a determination regarding the corroboration of the confidential information, as defined.
15. Defines a “state prisoner” as any person under the jurisdiction of the department who is not on parole.
16. Provides that confidential information is “corroborated” if information about the same person, act, time, and place has been separately and independently provided by another confidential informant, nonconfidential informant, or physical evidence. Provides that information is provided independently if the decisionmaker determines there has been no contact or communication between the in-custody confidential informant and the corroborating source, and there has been no prior knowledge of any supporting physical evidence.
17. Defines an “in-custody confidential informant” as a person in custody in any local, state, or federal jail, penal institution, or correctional institution, whose name and full statement has not been disclosed to the prisoner who is the subject of the decision by the department or board.

Background

Disciplinary Actions. Regulations establish the protocols for the imposition of disciplinary actions by CDCR. CDCR regulations require misconduct that is not minor in nature to be reported as a Rules Violation Report (RVR). (Cal. Code of Regs, tit. 15, § 3312.) The RVR is required to include specified information, including the circumstances surrounding the misconduct and whether or not the charge will be referred for prosecution. (Id.) A summary of disciplinary procedures and the inmate’s rights is to be provided to the inmate explaining the administrative hearing time frames as well as the roles of both the staff assistant and the investigative employee. (Id.) Finally, the referral for prosecution and the inmate’s appeal rights are to be explained to the inmate. (Id.)

Department regulations further establish the structure of the investigation and hearing for a serious RVR. (Cal. Code Regs., tit. 15, § 3315.) Specifically, the regulations provide the circumstances under which a CDCR employee must be assigned to assist an inmate in investigating matters pertaining to a disciplinary action, the right of an inmate to request witnesses for the disciplinary hearing and the reasons for which the request for a specific witness may be denied, the various dispositions that may result upon completion of the fact-finding portion of the disciplinary hearing as well as the penalties that may be imposed if the inmate is found guilty, among other things. (Id.)

Confidential Informants. CDCR regulations require the following types of information to be classified as confidential:

• Information which, if known to the inmate, would endanger the safety of any person.
• Information which would jeopardize the security of the institution.
• Specific medical or psychological information which, if known to the inmate, would be medically or psychologically detrimental to the inmate.
• Information provided and classified confidential by another governmental agency.
• A Security Threat Group debrief report, reviewed and approved by the debriefing subject, for placement in the confidential section of the central file. (Cal. Code Regs., tit. 15, § 3321, subd. (a).)

A decision is prohibited from being based upon information from a confidential source, unless other documentation corroborates information from the source, or unless other circumstantial evidence surrounding the event and the documented reliability of the source satisfies the decision maker that the information is true. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(1).) Any document containing information from a confidential source is required to include an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd (b)(2).) The documentation given to the inmate must include the fact that the information came from a confidential source and as much of the information as can be disclosed without identifying its source, including an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(3).)

A confidential source’s reliability may be established by one or more of the following criteria:

• The confidential source has previously provided information which proved to be true.
• Other confidential source have independently provided the same information.
• The information provided by the confidential source is self-incriminating.
• Part of the information provided is corroborated through investigation or by information provided by non-confidential sources.
• The confidential source is the victim.
• This source successfully completed a polygraph examination.(Cal. Code Regs., tit. 15, § 3321, subd. (c).)

Board of Parole Hearings. Some state prison inmates must be approved for release by the Board of Parole Hearings (BPH). These inmates must appear before a panel of BPH Commissioners at a parole suitability hearing during which time a variety of topics are discussed, including the inmate’s commitment offense, rehabilitative efforts, disciplinary history and misconduct, psychological evaluations that include risk ratings correlated with likelihood of future violence, and parole plans, among other things. The BPH panel has access to an inmate’s entire central file, including the inmate’s confidential file. An inmate and the inmate’s attorney have the right to review the inmate’s central file, except for the confidential file, prior to the inmate’s parole suitability hearing. The ultimate determination that the panel must make is whether the person poses “an unreasonable risk of danger to society if released from prison.” (Cal. Code of Regs., tit. 15, §§ 2281, subd. (a), 2404, subd. (a).)

Regulations provide that the BPH panel may consider all relevant and reliable information when making a parole suitability determination. (Cal. Code of Regs., tit. 15, §§ 2281, subd. (b), 2404, subd. (b).) BPH is prohibited from basing a parole suitability decision upon information that is not available to the inmate unless the information has been designated confidential under the rules of the department and is necessary to the decision. (Cal. Code Regs., tit. 15, § 2235.) The reliability of confidential information to be used is required to be established to the satisfaction of the hearing panel, and a finding of reliability must be documented by the hearing panel. (Id.) Regulations provide that a hearing may be continued to establish the reliability of the information or to request the department to designate the information as nonconfidential. (Id.) The inmate is required to be notified of reports on which the panel relied if confidential information affected a decision. (Id.)

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee:

• Costs (General Fund (GF)) of approximately $5.6 million dollars annually to BPH for approximately 26 new staff positions and software infrastructure updates to provide notice to inmates regarding decisions based on confidential informants.
• Costs (GF) of approximately $1.2 million dollars annually to CDCR in increased workload to provide notice to inmates prior to any proceeding based on a rules violation. CDCR estimates it issued 1,600 rules violations in 2019 based, in part, on confidential information. CDCR anticipates six hours of staff time to gather additional information related to a confidential informant’s reliability. This equates to approximately $800,000 annually. CDCR also estimates printing and service of summary notices to cost $360,000 annually.

SUPPORT: (Verified 10/12/20)

American Friends Services Committee (source)

American Civil Liberties Union of California

California Attorneys for Criminal Justice

California Coalition for Women Prisoners

California Families Against Solitary Confinement

California Innocence Project

California Public Defenders Association

Center for Constitutional Rights

Ella Baker Center for Human Rights

Friends Committee on Legislation of California

Haiti Action Committee

Initiate Justice

Innocence Project

Insight Garden Program

International Longshore and Warehouse Union

Legal Services for Prisoners with Children

Loyola Law School Project for the Innocent

Northern California Innocence Project

Prison Activist Resource Center

Prison From-the Inside-Out

Prison Law Office

Prisoner Hunger Strike Solidarity Coalition

Re:Store Justice

San Francisco Bay Area News and Letters Committees

San Francisco Public Defender’s Office

Smart Justice California

Starting Over, Inc.

Tides Advocacy

UnCommon Law

OPPOSITION: (Verified 10/12/20)

California District Attorneys Association

GOVERNOR'S VETO MESSAGE:

I am returning Senate Bill 1064 without my signature.

This bill would prohibit the use of confidential information from confidential in-custody informants by the California Department of Corrections and Rehabilitation (CDCR) when making decisions and findings related to rules violations, as well as by the Board of Parole Hearings (BPH) when making parole decisions, unless certain requirements are met.

Ensuring adequate due process and fairness should be a top priority of our evaluative proceedings. While I support the goal of this legislation, I am concerned that the bill as written is ambiguous and overly burdensome.

Embodying the values of fairness and justice in these proceedings is critical. Therefore, I am returning SB 1064 without my signature and directing CDCR and BPH to examine and improve their current processes.

ASSEMBLY FLOOR: 53-10, 8/31/20

AYES: Aguiar-Curry, Arambula, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Chau, Chiu, Chu, Cooley, Daly, Diep, Friedman, Gabriel, Gallagher, Cristina Garcia, Gipson, Gloria, Gonzalez, Grayson, Holden, Irwin, Jones-Sawyer, Kalra, Kamlager, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Muratsuchi, Nazarian, Petrie-Norris, Quirk, Quirk-Silva, Reyes, Luz Rivas, Robert Rivas, Blanca Rubio, Santiago, Mark Stone, Ting, Waldron, Weber, Wicks, Wood, Rendon

NOES: Bigelow, Brough, Cunningham, Megan Dahle, Fong, Gray, Lackey, Mathis, Obernolte, Patterson

NO VOTE RECORDED: Cervantes, Chen, Choi, Cooper, Eggman, Flora, Frazier, Eduardo Garcia, Kiley, Mayes, O'Donnell, Ramos, Rodriguez, Salas, Smith, Voepel

Prepared by: Stephanie Jordan / PUB. S. /

10/14/20 11:24:14

**** END ****

 UNFINISHED BUSINESS  

Bill No: SB 1064

Author: Skinner (D)

Amended: 8/25/20

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 6-1, 5/20/20

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Wiener

NOES: Morrell

SENATE APPROPRIATIONS COMMITTEE: 5-2, 6/18/20

AYES: Portantino, Bradford, Hill, Leyva, Wieckowski

NOES: Bates, Jones

SENATE FLOOR: 29-9, 6/26/20

AYES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Jackson, Leyva, McGuire, Mitchell, Monning, Moorlach, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener

NOES: Bates, Chang, Dahle, Grove, Hurtado, Jones, Melendez, Morrell, Nielsen

NO VOTE RECORDED: Borgeas, Wilk

ASSEMBLY FLOOR: Not available

SUBJECT: Prisons: confidential informants

SOURCE: American Friends Services Committee

DIGEST:

This bill prohibits the use of uncorroborated information from in-custody confidential informants by the California Department of Corrections and Rehabilitation (CDCR) when making decisions and findings related to rules violations; prohibits the Board of Parole Hearings (BPH) from making a decision or finding based on an allegation not found to be true following a disciplinary hearing subject to specified notice and due process requirements; and requires summary notice of specified information to be provided to an inmate if information from an in-custody confidential informant may be used by CDCR or BPH to make a decision or finding 10 days prior to the proceeding.

Assembly Amendments

limit the bill’s applicability to disciplinary hearings and parole suitability hearings, make changes to information that must be included in the summary notice, and amend the definition of “corroborated,” including adding criteria related to reliability.

ANALYSIS:

Existing law:

1. Establishes a system of state prisons under the jurisdiction of the California Department of Corrections and Rehabilitation (CDCR). (Pen. Code, § 2000 et seq.)
2. Authorizes CDCR to develop and amend regulations and rules for the administration of the state’s prisons. (Pen. Code, § 5058.)
3. Establishes the Board of Parole Hearings (BPH) and delineates its duties, including conducting parole consideration hearings. (Pen. Code, §§ 5075, 5075.1.)
4. Delineates the process by which the department handles inmate misconduct, including the structure of the investigation and hearing of a serious rule violation. (Cal. Code Regs., tit. 15, §§ 3312, 3314, 3315.)
5. Requires certain types of information to be classified as confidential, including information, which if known to the inmate, would endanger any person and information which could jeopardize the safety of a prison. (Cal. Code Regs., tit. 15, § 3321, subd. (a).)
6. Prohibits a decision from being based upon information from a confidential source, unless other documentation corroborates information from the source, or unless other circumstantial evidence surrounding the event and the documented reliability of the source satisfies the decision maker that the information is true. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(1).)
7. Requires that any document containing information from a confidential source include an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of the reason why the information or source is not disclosed. Requires the documentation to include specified information. Delineates the criteria which may be used to establish a confidential source’s reliability. (Cal. Code Regs., tit. 15, §§ 3321, subds. (b)(2), (b)(3), (c).)
8. Prohibits a parole consideration decision from being based upon information that is not available to the inmate unless the information has been designated confidential under the rules of the department and is necessary to the decision. Requires that the reliability of confidential information to be used be established to the satisfaction of the hearing panel. Requires a finding of reliability to be documented by the hearing panel. Provides that a hearing may be continued to establish the reliability of the information or to request the department to designate the information as nonconfidential. Requires the inmate to be notified of reports on which the panel relied if confidential information affected a decision. (Cal. Code Regs., tit. 15, § 2235.)

This bill:

1. Prohibits an employee of, or private entity under contract with, CDCR from finding any state prison inmate to be guilty of a rules violation, if the finding or decision is based on, or relies on, in whole or in part, any uncorroborated information from an in-custody confidential informant.
2. Prohibits an employee of, or private entity under contract with, BPH from making a finding or decision about any state prison inmate that is based on, or relies on, in whole or in part, allegations that have not been found true following a disciplinary hearing at which the subject was provided notice, an opportunity to confront nonconfidential witnesses before an impartial hearing body, a written statement of the evidence relied upon, a written statement of the reasons for the decision, and an opportunity for appeal.
3. Requires that an inmate and the inmate’s attorney receive a summary notice of any information provided by an in-custody confidential informant at least 10 days prior to any proceeding regarding a rules violation. Applies the 10-day summary notice requirement to BPH findings and decisions described above, including any interview on which a risk rating is based.
4. Requires the summary notice to include all of the following:
5. A detailed description of the information provided by the confidential informant.
6. The date the information was provided to the department.
7. The date of the events or actions referred to in the informant’s report.
8. The location where the information was provided by the informant.
9. The name of the officer who obtained and recorded the informant’s report.
10. The source and nature of the informant’s personal knowledge of the events or actions.
11. The investigative steps taken by the receiving officer or other department official to confirm the facts reported and the informant’s personal knowledge.
12. The informant’s previous record of confidential information, including instances of information not meeting standards of reliability.
13. The evidence used to corroborate the information. Requires a summary notice, as described, to be provided if the information is corroborated by another in-custody confidential informant. Requires that if corroboration is provided by a nonconfidential informant, or by physical evidence, that information be fully disclosed in the notice.
14. A signed statement by the decisionmaker that the decisionmaker has made a determination regarding the corroboration of the confidential information, as defined.
15. Defines a “state prisoner” as any person under the jurisdiction of the department who is not on parole.
16. Provides that confidential information is “corroborated” if information about the same person, act, time, and place has been separately and independently provided by another confidential informant, nonconfidential informant, or physical evidence. Provides that information is provided independently if the decisionmaker determines there has been no contact or communication between the in-custody confidential informant and the corroborating source, and there has been no prior knowledge of any supporting physical evidence.
17. Defines an “in-custody confidential informant” as a person in custody in any local, state, or federal jail, penal institution, or correctional institution, whose name and full statement has not been disclosed to the prisoner who is the subject of the decision by the department or board.

Background

Disciplinary Actions. Regulations establish the protocols for the imposition of disciplinary actions by CDCR. CDCR regulations require misconduct that is not minor in nature to be reported as a Rules Violation Report (RVR). (Cal. Code of Regs, tit. 15, § 3312.) The RVR is required to include specified information, including the circumstances surrounding the misconduct and whether or not the charge will be referred for prosecution. (Id.) A summary of disciplinary procedures and the inmate’s rights is to be provided to the inmate explaining the administrative hearing time frames as well as the roles of both the staff assistant and the investigative employee. (Id.) Finally, the referral for prosecution and the inmate’s appeal rights are to be explained to the inmate. (Id.)

Department regulations further establish the structure of the investigation and hearing for a serious RVR. (Cal. Code Regs., tit. 15, § 3315.) Specifically, the regulations provide the circumstances under which a CDCR employee must be assigned to assist an inmate in investigating matters pertaining to a disciplinary action, the right of an inmate to request witnesses for the disciplinary hearing and the reasons for which the request for a specific witness may be denied, the various dispositions that may result upon completion of the fact-finding portion of the disciplinary hearing as well as the penalties that may be imposed if the inmate is found guilty, among other things. (Id.)

Confidential Informants. CDCR regulations require the following types of information to be classified as confidential:

• Information which, if known to the inmate, would endanger the safety of any person.
• Information which would jeopardize the security of the institution.
• Specific medical or psychological information which, if known to the inmate, would be medically or psychologically detrimental to the inmate.
• Information provided and classified confidential by another governmental agency.
• A Security Threat Group debrief report, reviewed and approved by the debriefing subject, for placement in the confidential section of the central file. (Cal. Code Regs., tit. 15, § 3321, subd. (a).)

A decision is prohibited from being based upon information from a confidential source, unless other documentation corroborates information from the source, or unless other circumstantial evidence surrounding the event and the documented reliability of the source satisfies the decision maker that the information is true. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(1).) Any document containing information from a confidential source is required to include an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd (b)(2).) The documentation given to the inmate must include the fact that the information came from a confidential source and as much of the information as can be disclosed without identifying its source, including an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(3).)

A confidential source’s reliability may be established by one or more of the following criteria:

• The confidential source has previously provided information which proved to be true.
• Other confidential source have independently provided the same information.
• The information provided by the confidential source is self-incriminating.
• Part of the information provided is corroborated through investigation or by information provided by non-confidential sources.
• The confidential source is the victim.
• This source successfully completed a polygraph examination.(Cal. Code Regs., tit. 15, § 3321, subd. (c).)

Board of Parole Hearings. Some state prison inmates must be approved for release by the Board of Parole Hearings (BPH). These inmates must appear before a panel of BPH Commissioners at a parole suitability hearing during which time a variety of topics are discussed, including the inmate’s commitment offense, rehabilitative efforts, disciplinary history and misconduct, psychological evaluations that include risk ratings correlated with likelihood of future violence, and parole plans, among other things. The BPH panel has access to an inmate’s entire central file, including the inmate’s confidential file. An inmate and the inmate’s attorney have the right to review the inmate’s central file, except for the confidential file, prior to the inmate’s parole suitability hearing. The ultimate determination that the panel must make is whether the person poses “an unreasonable risk of danger to society if released from prison.” (Cal. Code of Regs., tit. 15, §§ 2281, subd. (a), 2404, subd. (a).)

Regulations provide that the BPH panel may consider all relevant and reliable information when making a parole suitability determination. (Cal. Code of Regs., tit. 15, §§ 2281, subd. (b), 2404, subd. (b).) BPH is prohibited from basing a parole suitability decision upon information that is not available to the inmate unless the information has been designated confidential under the rules of the department and is necessary to the decision. (Cal. Code Regs., tit. 15, § 2235.) The reliability of confidential information to be used is required to be established to the satisfaction of the hearing panel, and a finding of reliability must be documented by the hearing panel. (Id.) Regulations provide that a hearing may be continued to establish the reliability of the information or to request the department to designate the information as nonconfidential. (Id.) The inmate is required to be notified of reports on which the panel relied if confidential information affected a decision. (Id.)

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Assembly Appropriations Committee:

• Costs (General Fund (GF)) of approximately $5.6 million dollars annually to BPH for approximately 26 new staff positions and software infrastructure updates to provide notice to inmates regarding decisions based on confidential informants.
• Costs (GF) of approximately $1.2 million dollars annually to CDCR in increased workload to provide notice to inmates prior to any proceeding based on a rules violation. CDCR estimates it issued 1,600 rules violations in 2019 based, in part, on confidential information. CDCR anticipates six hours of staff time to gather additional information related to a confidential informant’s reliability. This equates to approximately $800,000 annually. CDCR also estimates printing and service of summary notices to cost $360,000 annually.

SUPPORT: (Verified 8/29/20)

American Friends Services Committee (source)

American Civil Liberties Union of California

California Attorneys for Criminal Justice

California Coalition for Women Prisoners

California Families Against Solitary Confinement

California Innocence Project

California Public Defenders Association

Center for Constitutional Rights

Ella Baker Center for Human Rights

Friends Committee on Legislation of California

Haiti Action Committee

Initiate Justice

Innocence Project

Insight Garden Program

International Longshore and Warehouse Union

Legal Services for Prisoners with Children

Loyola Law School Project for the Innocent

Northern California Innocence Project

Prison Activist Resource Center

Prison From-the Inside-Out

Prison Law Office

Prisoner Hunger Strike Solidarity Coalition

Re:Store Justice

San Francisco Bay Area News and Letters Committees

San Francisco Public Defender’s Office

Smart Justice California

Starting Over, Inc.

Tides Advocacy

UnCommon Law

OPPOSITION: (Verified 8/29/20)

California District Attorneys Association

Prepared by: Stephanie Jordan / PUB. S. /

8/31/20 20:03:11

**** END ****

SENATE THIRD READING

STR Bill Id:SB 1064

Author:(Skinner)

As Amended Ver:August 25, 2020

Majority vote

SUMMARY:

Limits the use of confidential, uncorroborated information reported about a state prisoner.

Major Provisions

1. Provides that an employee of, or private entity under contract with, the Department of Corrections and Rehabilitation (CDCR) shall not find any state prisoner to be guilty of a rules violation, if the finding or decision is based on, or relies on, in whole or in part information from an in-custody confidential informant that is not corroborated or reliable.
2. States that an employee of, or private entity under contract with, the Board of Parole Hearings (BPH) shall not make a finding or decision about any state prisoner that is based on, or relies on, in whole or in part, allegations that have not been found true following a disciplinary hearing at which the subject was provided notice, an opportunity to confront nonconfidential witnesses before an impartial hearing body, a written statement of the evidence relied upon, a written statement of the reasons for the decision, and an opportunity for appeal.
3. Provides that at least 10 days prior to any proceeding in which a decision described above is made or considered, the subject prisoner, and the prisoner's attorney, if the prisoner is represented by an attorney, shall receive a summary notice of any information provided by an in-custody confidential informant that may be used in the decision. The summary notice shall include information as specified.
4. Defines "state prisoner" to mean "any person under the jurisdiction of the department who is not on parole."
5. Provides that confidential information is "corroborated" if "information about the same person, act, time, and place has been separately and independently provided by another the in-custody confidential informant, nonconfidential informant, or physical evidence. Confidential information is corroborated trough investigation or through physical evidence. Information from an in-custody confidential informant is reliable if two or more of the follow are met: 1) the information provided by the in-custody confidential informant is self-incriminating, 2) the information provided is from nonconfidential sources, 3) the in-custody confidential informant is the victim, 4) the in-custody confidential informant successfully completed a polygraph exam, or 5) the sources and nature of the in-custody confidential informant's personal knowledge of the events or actions.
6. Defines "in-custody confidential informant" to mean "a person in custody in any local, state, or federal jail, penal institution, or correctional institution, whose name and full statement has not been disclosed to the state prisoner who is the subject of the decision by the department or board."

COMMENTS:

Uncorroborated Information in a Person's Confidential File Poses a Substantial Barrier to the Grant of Parole: This bill sets forth due process procedures for a person who is detained in a state prison, granting them the right to know and contest uncorroborated allegations and statements made by an in-custody informant which are contained in the confidential portion of a person's file.

When a person confined in state prison receives an indeterminate sentence, e.g. 15 years to life, the person must appear before the BPH prior to eligibility for parole. The BPH considers the person's file, including the confidential portion which contains information potentially including allegations by in-custody informant. The BPH considers various other topics including the inmate's rehabilitative efforts, disciplinary history, and psychological evaluations that discuss likelihood of future violence.

California law provides that parole shall "normally" be granted, unless the BPH determines that a person poses "an unreasonable risk of danger to society if released from prison." In making that determination, the BPH may consider all relevant and reliable information to determine a person's suitability for parole. The BPH is limited in denying parole based on information that the person is unaware of, unless that information has been designated "confidential." Advocates for this bill assert that often the BPH often relies on information contained in the confidential portions of a person's file that is uncorroborated, not reliable, and which the person does not have full knowledge of, and thus is unable to properly address.

According to the Author:

"Incarcerated people are currently deprived of their due process rights when uncorroborated information about them is entered into their confidential prison files. Under the state's existing system, an in-custody confidential informant can make an unsubstantiated allegation against another inmate, and that allegation can then be entered into the accused's inmate's confidential prison file — without the accused person's knowledge. This information is often inaccurate or lacking physical evidence to prove the accusation, yet can negatively impact parole hearings & justify discipline by CDCR.

"In 2011, California barred the conviction of criminal defendants based on uncorroborated testimony from in-custody informants SB 687,( Leno),[Chapter 153, Statutes of 2011] because of the inherent unreliability of that information. However, such uncorroborated allegations are still used to deny parole to people in state prisons.

"SB 1064 protects the basic due process rights of incarcerated people in the collection and use of information from in-custody confidential informants by California's Department of Corrections and Rehabilitation (CDCR). Specifically, the bill prevents CDCR and the Board of Parole Hearings (BPH) from making findings or decisions that rely in whole or in part on allegations that are uncorroborated and come from an in-custody confidential informant. Information from a confidential informant can be used only if it is substantiated with evidence that supports the allegation. Additionally, if CDCR or BPH are going to meet and consider information regarding an incarcerated person, the person accused shall receive a summary notice of any information provided by an in-custody confidential informant that may be used in the decision making process. This allows the accused inmate an opportunity to offer evidence proving the claim is false or appeal, while the confidential informant's identity remains undisclosed."

Arguments in Support:

According to Uncommon Law, "During the course of most parole hearings (more than 6,000 were scheduled in 2019), parole commissioners discuss the possibility of relying on confidential information in making their parole decision. Until recently, the Board did not consider itself obligated to disclose any of the substance of the allegations contained in the confidential material. Even now, their disclosure is so limited as to leave parole applicants and counsel guessing about what the specific allegation is, where the conduct occurred, who might have been involved, and what the applicant's role was. Unfortunately, I have seen too many parole commissioners and their psychologists decide that a person is dangerous or not credible based on confidential information that has not been subjected to any standard of proof. They were mere allegations that might have been made by someone with their own motives for falsely implicating the parole applicant in misconduct. Fundamental due process requires much more, particularly when someone's future hangs in the balance after decades in prison and extensive positive programming. In just the last few weeks, we have reviewed nearly two dozen cases of individuals who were denied parole based at least in part on unproven allegations. In some of those cases, further investigation – after the Board had already denied parole – proved that the allegations were completely false."

Arguments in Opposition:

According to the California District Attorneys Association, "This bill would deprive the California Department of Corrections and Rehabilitation (CDCR) from using reliable evidence of inmate criminal activity to hold them accountable in disciplinary hearings, thwart criminal prosecutions, prohibit the Board of Parole Hearings (BPH) from considering relevant criminal misconduct at lifer parole hearings, deprive forensic psychologists from considering relevant information in determining an inmate's risk for future violence, and jeopardize the safety of inmates and correctional staff….

"Lastly, SB 1064 is unnecessary. Existing law already affords inmates facing disciplinary hearings a summary of the evidence substantiated the charges against them. At the hearing, inmates can call witnesses or introduce evidence on their behalf. Likewise, under current law, at a lifer suitability hearing, inmates are given notice, including a summary of any confidential information that may be considered by BPH at the hearing. If confidential information is used by the commissioners in reaching their decision, that information is preserved and available for review by the court on appeal."

FISCAL COMMENTS:

According to the Assembly Appropriations Committee:

1. Costs (General Fund (GF)) of approximately $5.6 million dollars annually to BPH for approximately 26 new staff positions and software infrastructure updates to provide notice to inmates regarding decisions based on confidential informants.
2. Costs (GF) of approximately $1.2 million dollars annually to CDCR in increased workload to provide notice to inmates 10 days prior to any proceeding based on a rules violation

VOTES:

SENATE FLOOR: 29-9-2

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Jackson, Leyva, McGuire, Mitchell, Monning, Moorlach, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener

NO: Bates, Chang, Dahle, Grove, Hurtado, Jones, Melendez, Morrell, Nielsen

ABS, ABST OR NV: Borgeas, Wilk

ASM PUBLIC SAFETY: 7-0-1

YES: Jones-Sawyer, Bauer-Kahan, Diep, Kamlager, Quirk, Santiago, Mark Stone

ABS, ABST OR NV: Lackey

ASM APPROPRIATIONS: 14-4-0

YES: Gonzalez, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Diep, Eggman, Gabriel, Eduardo Garcia, Petrie-Norris, Quirk, Robert Rivas

NO: Bigelow, Megan Dahle, Fong, Voepel

UPDATED:

VERSION: August 25, 2020

CONSULTANT: Nikki Moore / PUB. S. / (916) 319-3744 FN: 0003417

Date of Hearing: August 18, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

SBPCA Bill Id:SB 1064

Author:(Skinner) – As Amended Ver:June 18, 2020

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill limits the use of confidential, uncorroborated information reported about a state prisoner. Specifically, this bill:

1. Prohibits the California Department of Corrections and Rehabilitation (CDCR) from using uncorroborated information from in-custody confidential informants when CDCR makes decisions and findings related to rules violations.
2. Prohibits the Board of Parole Hearings (BPH) from making a decision or finding based on an allegation not found to be true following a disciplinary hearing subject to specified notice and due process requirements.
3. Requires CDCR and BPH, 10 days before any hearing, to provide a summary notice of specified information to an inmate if information from an in-custody confidential informant is be used by CDCR or BPH to make a decision or finding.

FISCAL EFFECT:

1. Costs (General Fund (GF)) of approximately $5.6 million dollars annually to BPH for approximately 26 new staff positions and software infrastructure updates to provide notice to inmates regarding decisions based on confidential informants.
2. Costs (GF) of approximately $1.2 million dollars annually to CDCR in increased workload to provide notice to inmates prior to any proceeding based on a rules violation. CDCR estimates it issued 1,600 rules violations in 2019 based, in part, on confidential information. CDCR anticipates six hours of staff time to gather additional information related to a confidential informant’s reliability. This equates to approximately $800,000 annually. CDCR also estimates printing and service of summary notices to cost $360,000 annually.

COMMENTS:

1. Purpose. According to the author:

Incarcerated people are currently deprived of their due process rights when uncorroborated information about them is entered into their confidential prison files. SB 1064 protects the basic due process rights of incarcerated people in the collection and use of information from in-custody confidential informants by CDCR.

1. Confidential Information in Prison Discipline Cases and Parole Hearings. This bill prohibits CDCR from making any decisions about rules violations or classifications if based on uncorroborated confidential informant information. Existing CDCR regulation requires certain types of information provided by an inmate to be classified as confidential, including information, which if known to another inmate, would endanger any person and information that could jeopardize the safety of a prison. Regulations also prohibit a disciplinary decision from being based upon information from a confidential source, unless other documentation corroborates information from the source, or unless other circumstantial evidence surrounding the event and the documented reliability of the source satisfies the decision maker that the information is true. When an inmate is charged with a disciplinary violation, whether a crime or not, the inmate is entitled to a hearing on the evidence in support of the allegations again that person. Opponents of this bill have expressed concern that informant inmates will face life-threatening consequences if other inmates learn they cooperated with CDCR officials. CDRC expressed concern that the notice requirements included in this bill will make it very easy for an inmate to determine the identity of any confidential informant, even when the informant provided reliable information.
   
   However, proponents argue CDCR regularly abuses confidential informant information to support unfair and unsupportable parole, classification and disciplinary decisions including use of confidential informants to justify prolonged solitary confinement in the Segregated Housing Unit (SHU) at Pelican Bay State Prison. The SHU at Pelican Bay has been the subject of constitutional litigation for 10 years. (See Ashker v. Newsom (9th Cir. Aug. 3, 2020, No. 19-15224 19-15359) 2020 U.S. App. LEXIS 24339.) CDCR is currently party to an ongoing settlement agreement regarding the use of the SHU at Pelican Bay.
   
2. Arguments in Support. According to the Northern California Innocence Project:
   

Given the grave reliability concerns inherent in informant testimony, and its close association with wrongful conviction, it is critical to strengthen the regulation of informant testimony while preserving the government’s ability to collect evidence and prosecute crime….SB 1064 captures critical standards and practices that improve the accuracy of informant evidence and strengthen the truth-seeking function of prison disciplinary proceeding.

1. Arguments in Opposition. According to the California District Attorneys’ Association:
   

Under this proposal, inmates facing disciplinary hearings will want their hearing to proceed so that they can obtain all information regarding a confidential informant, including their name, detailed description of the information provided, date the information was provided, source of the confidential informant’s personal knowledge, prior record of the informant giving confidential information, and all evidence used to corroborate the informant’s information, including other informants. This is as good as a death warrant for informants.

Analysis Prepared by: Kimberly Horiuchi / APPR. / (916) 319-2081

Date of Hearing: August 5, 2020

Counsel: Nikki Moore

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 1064

Author:(Skinner) – As Amended Ver:June 18, 2020

SUMMARY: Limits the use of confidential, uncorroborated information reported about a state prisoner. Specifically, this bill:

1. Provides that an employee of, or private entity under contract with, the Department of Corrections and Rehabilitation (CDCR) shall not find any state prisoner to be guilty of a rules violation, if the finding or decision is based on, or relies on, in whole or in part, any uncorroborated information from an in-custody confidential informant.
   
2. States that an employee of, or private entity under contract with, the Board of Parole Hearings (BPH) shall not make a finding or decision about any state prisoner that is based on, or relies on, in whole or in part, allegations that have not been found true following a disciplinary hearing at which the subject was provided notice, an opportunity to confront nonconfidential witnesses before an impartial hearing body, a written statement of the evidence relied upon, a written statement of the reasons for the decision, and an opportunity for appeal.
   
3. Provides that at least 10 days prior to any proceeding in which a decision described above is made or considered, including any interview on which a risk rating is based, the subject prisoner, and the prisoner’s attorney, if the prisoner is represented by an attorney, shall receive a summary notice of any information provided by an in-custody confidential informant that may be used in the decision. The summary notice shall include all of the following:
   
   1. A detailed description of the information provided by the confidential informant;
      
   2. The date the information was provided to the department;
      
   3. The date of the events or actions referred to in the informant’s report;
      
   4. The location where the information was provided by the informant;
      
   5. The name of the officer who obtained and recorded the informant’s report;
      
   6. The source and nature of the informant’s personal knowledge of the events or actions;
      
   7. The investigative steps taken by the receiving officer or other department official to confirm the facts reported and the informant’s personal knowledge;
      
   8. The informant’s previous record of confidential information, including instances of information not meeting standards of reliability;
      
   9. The evidence used to corroborate the information. If the information is corroborated by another in-custody confidential informant, a summary notice pursuant to this subdivision shall also be provided with respect to the corroborating informant. If corroboration is provided by a nonconfidential informant, or by physical evidence, that information shall be fully disclosed in the notice; and,
      
   10. A signed statement by the decisionmaker that the decisionmaker has made the determination required, described below.
       
4. Defines “state prisoner” to mean “any person under the jurisdiction of the department who is not on parole.”
   
5. Provides that confidential information is “corroborated” if “information about the same person, act, time, and place has been separately and independently provided by another confidential informant, nonconfidential informant, or physical evidence. Information is provided independently if the decisionmaker determines there has been no contact or communication between the in-custody confidential informant and the corroborating source, and there has been no prior knowledge of any supporting physical evidence.”
   
6. Defines “in-custody confidential informant” to mean “a person in custody in any local, state, or federal jail, penal institution, or correctional institution, whose name and full statement has not been disclosed to the prisoner who is the subject of the decision by the department or board.”

EXISTING LAW:

1. Establishes a system of state prisons under the jurisdiction of the California Department of Corrections and Rehabilitation (CDCR). (Pen. Code, § 2000 et seq.)
2. Authorizes CDCR to develop and amend regulations and rules for the administration of the state’s prisons. (Pen. Code, § 5058.)
3. Establishes the Board of Parole Hearings (BPH) and delineates its duties, including conducting parole consideration hearings. (Pen. Code, §§ 5075, 5075.1.)
4. Provides that inmate misconduct shall be handled by verbal counseling, counseling only rules violation reports, or rules violation reports. (Cal. Code. Regs, tit. 15, § 3312, subd. (a).)
5. Provides that when inmate misconduct is believed to be a violation of the law or is not minor in nature, it shall be reported on a Rules Violation Report (RVR). (Cal. Code. Regs, tit. 15, § 3312, subd. (a)(3).)
6. Requires the RVR to contain the following: the charged inmate’s name, number, release date, facility, housing assignment; violation date and time; whether or not the misconduct was related to Security Threat Group activity; circumstances surrounding the misconduct; the reporting employee’s name and title; RVR log number; the violated CCR Title 15 rule number, specific act, level, division; whether or not the charge will be referred for prosecution; reviewing supervisor’s name and title; and the classifying official’s name and title. (Cal. Code. Regs, tit. 15, § 3312, subd. (a)(3).)
7. Requires the RVR to include a section for the inmate to indicate whether or not they wish to postpone the RVR process if felony prosecution is likely and a section to indicate if they wish to request or waive an assignment of a Staff Assistant or Investigative Employee. Provides that a summary of disciplinary procedures and inmate rights is provided to the inmate explaining the administrative hearing time frames and the roles of both the staff assistant and the investigative employee. Provides that the referral for prosecution and the inmate’s appeal rights are explained. (Cal. Code. Regs, tit. 15, § 3312, subd. (a)(3).)
8. Provides the circumstances under which an RVR be classified as administrative. (Cal. Code Regs., tit. 15, § 3314.)
9. Provides the circumstances under which an RVR be classified as serious. Establishes the structure of the investigation and hearing for a serious RVR. (Cal. Code Regs., tit. 15, § 3315.)
10. Requires the following types of information to be classified as confidential:
    1. Information which, if known to the inmate, would endanger the safety of any person;
       
    2. Information which would jeopardize the security of the institution;
       
    3. Specific medical or psychological information which, if known to the inmate, would be medically or psychologically detrimental to the inmate;
       
    4. Information provided and classified confidential by another governmental agency; and,
       
    5. A Security Threat Group debrief report, reviewed and approved by the debriefing subject, for placement in the confidential section of the central file. (Cal. Code Regs., tit. 15, § 3321, subd. (a).)
11. Prohibits a decision from being based upon information from a confidential source, unless other documentation corroborates information from the source, or unless other circumstantial evidence surrounding the event and the documented reliability of the source satisfies the decision maker that the information is true. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(1).)
    
12. Requires that any document containing information from a confidential source include an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(2).)
    
13. Requires that the documentation given to the inmate include:
    
    1. The fact that the information came from a confidential source; and
       
    2. As much of the information as can be disclosed without identifying its source including an evaluation of the source’s reliability; a brief statement of the reason for the conclusion reached; and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(3).)
       
14. Provides that a confidential source’s reliability may be established by one or more of the following criteria:
    
    1. The confidential source has previously provided information which proved to be true;
       
    2. Other confidential source have independently provided the same information;
       
    3. The information provided by the confidential source is self-incriminating;
       
    4. Part of the information provided is corroborated through investigation or by information provided by non-confidential sources;
       
    5. The confidential source is the victim; and,
       
    6. This source successfully completed a polygraph examination. (Cal. Code Regs., tit. 15, § 3321, subd. (c).)
15. Prohibits a parole consideration decision from being based upon information that is not available to the inmate unless the information has been designated confidential under the rules of the department and is necessary to the decision. (Cal. Code Regs., tit. 15, § 2235.)
16. Requires that the reliability of confidential information to be used be established to the satisfaction of the hearing panel. Requires a finding of reliability to be documented by the hearing panel. Provides that a hearing may be continued to establish the reliability of the information or to request the department to designate the information as nonconfidential. (Cal. Code Regs., tit. 15, § 2235.)
17. Requires the inmate to be notified of reports on which the panel relied if confidential information affected a decision. (Cal. Code Regs., tit. 15, § 2235.)
18. Provides for the use of comprehensive risk assessments by the BPH hearing panel when making parole consideration decisions. Outlines the process by which an inmate or the inmate’s attorney may object to a factual error believed to be contained in the risk assessment and the process by which BPH evaluates the allegation. (Cal. Code Regs., tit. 15, § 2240.)

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author, “Incarcerated people are currently deprived of their due process rights when uncorroborated information about them is entered into their confidential prison files. Under the state’s existing system, an in-custody confidential informant can make an unsubstantiated allegation against another inmate, and that allegation can then be entered into the accused’s inmate’s confidential prison file — without the accused person’s knowledge. This information is often inaccurate or lacking physical evidence to prove the accusation, yet can negatively impact parole hearings & justify discipline by CDCR.

“In 2011, California barred the conviction of criminal defendants based on uncorroborated testimony from in-custody informants (SB 687, Leno), because of the inherent unreliability of that information. However, such uncorroborated allegations are still used to deny parole to people in state prisons.

“SB 1064 protects the basic due process rights of incarcerated people in the collection and use of information from in-custody confidential informants by California’s Department of Corrections and Rehabilitation (CDCR). Specifically, the bill prevents CDCR and the Board of Parole Hearings (BPH) from making findings or decisions that rely in whole or in part on allegations that are uncorroborated and come from an in-custody confidential informant. Information from a confidential informant can be used only if it is substantiated with evidence that supports the allegation. Additionally, if CDCR or BPH are going to meet and consider information regarding an incarcerated person, the person accused shall receive a summary notice of any information provided by an in-custody confidential informant that may be used in the decision making process. This allows the accused inmate an opportunity to offer evidence proving the claim is false or appeal, while the confidential informant’s identity remains undisclosed.”

1. Uncorroborated Information in a Person’s Confidential File Poses a Substantial Barrier to the Grant of Parole: This bill sets forth due process procedures for a person who is detained in a state prison, granting them the right to know and contest uncorroborated allegations and statements made by an in-custody informant which are contained in the confidential portion of a person’s file.
   
   When a person confined in state prison receives an indeterminate sentence, e.g. 15 years to life, the person must appear before the BPH prior to eligibility for parole. The BPH considers the person’s file, including the confidential portion which contains information potentially including allegations by in-custody informant. The BPH considers various other topics including the inmate’s rehabilitative efforts, disciplinary history, and psychological evaluations that discuss likelihood of future violence.

California law provides that parole shall “normally” be granted, unless the BPH determines that a person poses “an unreasonable risk of danger to society if released from prison.” In making that determination, the BPH may consider all relevant and reliable information to determine a person’s suitability for parole. The BPH is limited in denying parole based on information that the person is unaware of, unless that information has been designated “confidential.”

Advocates for this bill assert that often the BPH often relys on information contained in the confidential portions of a person’s file that is uncorroborated, not reliable, and which the person does not have full knowledge of, and thus is unable to properly address.

Here are a few examples provided to this committee:

“In June 2012, Parole Applicant #1 was denied parole based solely on a confidential memo that was included in his central file. The Board gave no guidance about what information this memo contained, who created it, or whether it had been corroborated, verified, or investigated in any way. Months later, in response to PA #1’s administrative appeal (CDCR Form 602), prison officials revealed that the confidential information actually involved a different person altogether but was erroneously placed in PA #1’s file. The Board’s decision was vacated, a new hearing was conducted, and PA #1 was found suitable in February 2013. These unproven allegations cost PA #1 eight additional months in prison.”

“Parole Applicant #2 received a CDC-115 (rule violation report) in 2002. Between 2002 and 2004, four confidential memoranda were generated about the 115. When an investigation by prison officials cleared PA #2 of the initial charge, the 115 was dismissed, and all references to it were supposed to be removed from his file. However, the memos in his confidential folder remained. It took many years of administrative appeals, court orders, and parole hearings before PA #2 was finally released. During those years, at least one set of parole commissioners found that PA #2’s insistence on having the unlawful information removed from his file actually worked against a finding of parole suitability. Similarly, the Board’s psychologist used the presence of the confidential information to elevate the prediction of PA #2’s risk to public safety, and the Governor reversed one of PA #2’s parole grants based on the existence of the confidential information. His release was delayed roughly eight years due to this unproven information.”

“Improper reliance on unproven allegations extended Parole Applicant #3’s time in prison by

fifteen years. In fact, both the Board of Parole Hearings and the Governor cited those false

allegations in blocking his release – and they included allegations for which PA #3 had been

acquitted decades earlier. It took multiple court orders and numerous parole hearings before

PA #3 was finally released in 2018, after nearly 40 years in prison and some 15 years after

the first time he was granted parole.”

“After 15 years in prison, Parole Applicant #7 made the choice to turn her life around. She

received her last 115 (write-up) in 2008; however, unproven statements in her confidential

file allege that she acted violently as recently as 2017. Despite the fact that she has not

received any documented rule violations in the past twelve years, PA #7’s former gang

activity has made her a target for malicious and uncorroborated allegations regarding her

conduct, and her name is frequently used by others who wish to be transferred to other

institutions. In her last psychological evaluation (Comprehensive Risk Assessment) in

February 2020, a Board psychologist wrote that despite ‘receiving no violations since 2008

[…] she appears to have engaged in undetected rule breaking’ due to the information in her

confidential file. Based on the allegations of undetected rule breaking, the psychologist then

determined that, if released on parole, PA #7 would have a high-risk of violence.”

“Parole Applicant #9 was denied parole for three years in December 2019. She has received

no rule violation reports since 1998 (22 years ago). Although she has been incarcerated for

nearly 30 years, the Board denied parole in part based on a “credibility” finding related to

unproven allegations from four years ago. Even worse, the Board used that credibility

finding to discredit PA #9’s extensive testimony about physical and sexual abuse by the

victim in her crime.”

1. Arguments in Support:
   
   1. According to Uncommon Law, “During the course of most parole hearings (more than 6,000 were scheduled in 2019), parole commissioners discuss the possibility of relying on confidential information in making their parole decision. Until recently, the Board did not consider itself obligated to disclose any of the substance of the allegations contained in the confidential material. Even now, their disclosure is so limited as to leave parole applicants and counsel guessing about what the specific allegation is, where the conduct occurred, who might have been involved, and what the applicant’s role was. Unfortunately, I have seen too many parole commissioners and their psychologists decide that a person is dangerous or not credible based on confidential information that has not been subjected to any standard of proof. They were mere allegations that might have been made by someone with their own motives for falsely implicating the parole applicant in misconduct. Fundamental due process requires much more, particularly when someone’s future hangs in the balance after decades in prison and extensive positive programming. In just the last few weeks, we have reviewed nearly two dozen cases of individuals who were denied parole based at least in part on unproven allegations. In some of those cases, further investigation – after the Board had already denied parole – proved that the allegations were completely false.”
      
   2. According to the California Public Defenders Association, “SB 1064 provides prisoners with basic due process. Specifically, Senate Bill 1064 requires that any rules violation, which is alleged against a prisoner by a Department of Corrections and Rehabilitation employee, be supported by more than the report of a confidential informant. Going a step further, Senate Bill 1064 prohibits the Board of Parole hearings from considering allegations against a prisoner unless the prisoner: 1) was found to have committed the violation after a disciplinary hearing for which the prisoner was properly noticed; 2) had an opportunity to confront non-confidential witness at a hearing; 3) was found in violation, which was documented in a written statement of evidence that was relied upon; 4) was found in violation, which was supported by a written statement of reasons for the adverse finding; and 5) had an opportunity to appeal the finding. Lastly, Senate Bill 1064 lists the information that must be included in the notice of violation that is provided to a prisoner prior to any disciplinary hearing.

“Confidential informants are unreliable. SB 1064 acknowledges this unreliability, and the unfairness that results from punishment that is solely based on the word of a confidential informant. By requiring independent corroboration, Senate Bill 1064 gives prisoners much needed protection from arbitrary punishment. Further, Senate Bill 1064 prohibits the Parole Board from delaying an individual’s release because of a violation that was determined by an unfair process. By carefully articulating the requirements of any adverse finding, and particularly laying out the content of any notice that is provided to a prisoner, Senate Bill 1064 will provide prisoners with fundamental protection from arbitrary punishment.”

1. Argument in Opposition: According to the California District Attorneys Association, “This bill would deprive the California Department of Corrections and Rehabilitation (CDCR) from using reliable evidence of inmate criminal activity to hold them accountable in disciplinary hearings, thwart criminal prosecutions, prohibit the Board of Parole Hearings (BPH) from considering relevant criminal misconduct at lifer parole hearings, deprive forensic psychologists from considering relevant information in determining an inmate’s risk for future violence, and jeopardize the safety of inmates and correctional staff.

“Currently, when an inmate is alleged to have committed a serious rules violation (115), they are given notice of the proposed disciplinary hearing, including a written rights advisement and circumstances of the violation. The names of the confidential informant(s) or non-confidential informant(s) are not provided to the inmate and correctional staff takes great care to avoid giving the inmate facts that would unmask informants to ensure the safety of the informant(s), their friends and family, and correctional staff. Inmates have the choice of proceeding with the 115 hearing or postponing it until the District Attorney’s Office has made a decision whether or not to prosecute. Most inmates postpone the 115 hearing. Currently, at a parole suitability hearing BPH can consider ‘all relevant and reliable information,’ including the conduct behind the 115 hearings that have been dismissed for technical issues such as timeliness. BPH give the information the weight it should be given just as a court would determine weight and admissibility of evidence. Under current law, life inmates are given notice of the use of confidential information (Form 1030) in advance of their parole suitability hearing pursuant to California Code of Regulations, Title 15, section 3321. The notice includes the date of confidential source items and a summary of the confidential information. The notice does not name confidential or non-confidential informants or provide facts that would unmask their identity and jeopardize their safety and the security of the institution. During a parole suitability hearing, BPH commissioners may ask the inmate about confidential information if they choose to. If they determine they will use confidential information to reach a decision, they must make a confidential tape for that part of the decision. That tape, the entire inmate central file, including the confidential section, are provided to a reviewing court if an appeal is filed. This process mirrors the criminal justice process regarding the use of confidential informants. Currently, forensic psychologists have access to all relevant information necessary for them to reach an accurate assessment of an inmate’s risk for future violence prepared in advance of a parole suitability hearing, which can be relied upon by BPH.

[…]

“SB 1064 will upend the parole suitability hearing process. Forensic psychologists would be deprived of relevant information necessary to make a thorough examination and determination of an inmate’s risk for future violence. That means that the commissioners would be relying upon risk assessments that are incomplete and inaccurate when making parole suitability decisions. AB 1064 would prevent BPH from relying upon relevant confidential information introduced at 115 hearings where inmates were found not guilty, unfairly and dangerously tilting the scales towards parole suitability. The proposal would also likely prevent the use by BPH of CDCR Forms 128(a) and (b), which contain valuable information regarding an inmate’s minor rules violations and other relevant information, in determining parole suitability. This only serves to protect the criminal actor, not hold them accountable for their misconduct.

“Lastly, SB 1064 is unnecessary. Existing law already affords inmates facing disciplinary hearings a summary of the evidence substantiated the charges against them. At the hearing, inmates can call witnesses or introduce evidence on their behalf. Likewise, under current law, at a lifer suitability hearing, inmates are given notice, including a summary of any confidential information that may be considered by BPH at the hearing. If confidential information is used by the commissioners in reaching their decision, that information is preserved and available for review by the court on appeal.”

1. Prior Legislation: SB 687 (Leno), Chapter 153, Statutes of 2011, established that a defendant cannot be convicted based on the uncorroborated testimony of an in-custody informant.
   

REGISTERED SUPPORT / OPPOSITION:

Support

American Civil Liberties Union/northern California/southern California/san Diego and Imperial Counties

American Friends Service Committee (AFSC)

Asian Americans Advancing Justice - California

Asian Solidarity Collective

California Attorneys for Criminal Justice

California Public Defenders Association

Center for Constitutional Rights

Community Legal Services in East Palo Alto

Community Works

Drug Policy Alliance

Ella Baker Center for Human Rights

End Solitary Santa Cruz County

Friends Committee on Legislation of California

Haiti Action Committee

Initiate Justice

Legal Services for Prisoners With Children

Pillars of The Community

San Francisco Public Defender

Silicon Valley De-bug

Team Justice

Temple Beth El, Aptos, CA

Think Dignity

Tides Advocacy

Uncommon Law

We the People - San Diego

Oppose

California District Attorneys Association

Analysis Prepared by: Nikki Moore / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 1064

Author: Skinner (D)

Amended: 6/18/20

Vote: 21

SENATE PUBLIC SAFETY COMMITTEE: 6-1, 5/20/20

AYES: Skinner, Moorlach, Bradford, Jackson, Mitchell, Wiener

NOES: Morrell

SENATE APPROPRIATIONS COMMITTEE: 5-2, 6/18/20

AYES: Portantino, Bradford, Hill, Leyva, Wieckowski

NOES: Bates, Jones

SUBJECT: Prisons: confidential informants

SOURCE: American Friends Services Committee

DIGEST:

This bill prohibits the use of uncorroborated information from in-custody confidential informants by the California Department of Corrections and Rehabilitation (CDCR) when making decisions and findings related to rules violations; prohibits the Board of Parole Hearings (BPH) from making a decision or finding based on an allegation not found to be true following a disciplinary hearing subject to specified notice and due process requirements; and requires summary notice of specified information to be provided to an inmate if information from an in-custody confidential informant may be used by CDCR or BPH to make a decision or finding 10 days prior to the proceeding.

ANALYSIS:

Existing law:

1. Establishes a system of state prisons under the jurisdiction of the California Department of Corrections and Rehabilitation (CDCR). (Pen. Code, § 2000 et seq.)
2. Authorizes CDCR to develop and amend regulations and rules for the administration of the state’s prisons. (Pen. Code, § 5058.)
3. Establishes the Board of Parole Hearings (BPH) and delineates its duties, including conducting parole consideration hearings. (Pen. Code, §§ 5075, 5075.1.)
4. Delineates the process by which the department handles inmate misconduct, including the structure of the investigation and hearing of a serious rule violation. (Cal. Code Regs., tit. 15, §§ 3312, 3314, 3315.)
5. Requires certain types of information to be classified as confidential, including information, which if known to the inmate, would endanger any person and information which could jeopardize the safety of a prison. (Cal. Code Regs., tit. 15, § 3321, subd. (a).)
6. Prohibits a decision from being based upon information from a confidential source, unless other documentation corroborates information from the source, or unless other circumstantial evidence surrounding the event and the documented reliability of the source satisfies the decision maker that the information is true. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(1).)
7. Requires that any document containing information from a confidential source include an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of the reason why the information or source is not disclosed. Requires the documentation to include specified information. Delineates the criteria which may be used to establish a confidential source’s reliability. (Cal. Code Regs., tit. 15, §§ 3321, subds. (b)(2), (b)(3), (c).)
8. Prohibits a parole consideration decision from being based upon information that is not available to the inmate unless the information has been designated confidential under the rules of the department and is necessary to the decision. Requires that the reliability of confidential information to be used be established to the satisfaction of the hearing panel. Requires a finding of reliability to be documented by the hearing panel. Provides that a hearing may be continued to establish the reliability of the information or to request the department to designate the information as nonconfidential. Requires the inmate to be notified of reports on which the panel relied if confidential information affected a decision. (Cal. Code Regs., tit. 15, § 2235.)
9. Provides for the use of comprehensive risk assessments by the BPH hearing panel when making parole consideration decisions. Outlines the process by which an inmate or the inmate’s attorney may object to a factual error believed to be contained in the risk assessment and the process by which BPH evaluates the allegation. (Cal. Code Regs., tit. 15, § 2240.)

This bill:

1. Prohibits an employee of, or private entity under contract with, CDCR from finding any state prison inmate to be guilty of a rules violation, if the finding or decision is based on, or relies on, in whole or in part, any uncorroborated information from an in-custody confidential informant.
2. Prohibits an employee of, or private entity under contract with, BPH from making a finding or decision about any state prison inmate that is based on, or relies on, in whole or in part, allegations that have not been found true following a disciplinary hearing at which the subject was provided notice, an opportunity to confront nonconfidential witnesses before an impartial hearing body, a written statement of the evidence relied upon, a written statement of the reasons for the decision, and an opportunity for appeal.
3. Requires that an inmate and the inmate’s attorney receive a summary notice of any information provided by an in-custody confidential informant at least 10 days prior to any proceeding regarding a rules violation. Applies the 10-day summary notice requirement to BPH findings and decisions described above, including any interview on which a risk rating is based.
4. Requires the summary notice to include all of the following:
5. A detailed description of the information provided by the confidential informant.
6. The date the information was provided to the department.
7. The date of the events or actions referred to in the informant’s report.
8. The location where the information was provided by the informant.
9. The name of the officer who obtained and recorded the informant’s report.
10. The source and nature of the informant’s personal knowledge of the events or actions.
11. The investigative steps taken by the receiving officer or other department official to confirm the facts reported and the informant’s personal knowledge.
12. The informant’s previous record of confidential information, including instances of information not meeting standards of reliability.
13. The evidence used to corroborate the information. Requires a summary notice, as described, to be provided if the information is corroborated by another in-custody confidential informant. Requires that if corroboration is provided by a nonconfidential informant, or by physical evidence, that information be fully disclosed in the notice.
14. A signed statement by the decisionmaker that the decisionmaker has made a determination regarding the corroboration of the confidential information, as defined.
15. Defines a “state prisoner” as any person under the jurisdiction of the department who is not on parole.
16. Provides that confidential information is “corroborated” if information about the same person, act, time, and place has been separately and independently provided by another confidential informant, nonconfidential informant, or physical evidence. Provides that information is provided independently if the decisionmaker determines there has been no contact or communication between the in-custody confidential informant and the corroborating source, and there has been no prior knowledge of any supporting physical evidence.
17. Defines an “in-custody confidential informant” as a person in custody in any local, state, or federal jail, penal institution, or correctional institution, whose name and full statement has not been disclosed to the prisoner who is the subject of the decision by the department or board.

Background

Disciplinary Actions

Regulations establish the protocols for the imposition of disciplinary actions by CDCR. CDCR regulations require misconduct that is not minor in nature to be reported as a Rules Violation Report (RVR). (Cal. Code of Regs, tit. 15, § 3312.) The RVR is required to include specified information, including the circumstances surrounding the misconduct and whether or not the charge will be referred for prosecution. (Id.) A summary of disciplinary procedures and the inmate’s rights is to be provided to the inmate explaining the administrative hearing time frames as well as the roles of both the staff assistant and the investigative employee. (Id.) Finally, the referral for prosecution and the inmate’s appeal rights are to be explained to the inmate. (Id.)

Department regulations further establish the structure of the investigation and hearing for a serious RVR. (Cal. Code Regs., tit. 15, § 3315.) Specifically, the regulations provide the circumstances under which a CDCR employee must be assigned to assist an inmate in investigating matters pertaining to a disciplinary action, the right of an inmate to request witnesses for the disciplinary hearing and the reasons for which the request for a specific witness may be denied, the various dispositions that may result upon completion of the fact-finding portion of the disciplinary hearing as well as the penalties that may be imposed if the inmate is found guilty, among other things. (Id.)

Confidential Informants

CDCR regulations require the following types of information to be classified as confidential:

• Information which, if known to the inmate, would endanger the safety of any person.
• Information which would jeopardize the security of the institution.
• Specific medical or psychological information which, if known to the inmate, would be medically or psychologically detrimental to the inmate.
• Information provided and classified confidential by another governmental agency.
• A Security Threat Group debrief report, reviewed and approved by the debriefing subject, for placement in the confidential section of the central file.

(Cal. Code Regs., tit. 15, § 3321, subd. (a).)

A decision is prohibited from being based upon information from a confidential source, unless other documentation corroborates information from the source, or unless other circumstantial evidence surrounding the event and the documented reliability of the source satisfies the decision maker that the information is true. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(1).) Any document containing information from a confidential source is required to include an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd (b)(2).) The documentation given to the inmate must include the fact that the information came from a confidential source and as much of the information as can be disclosed without identifying its source, including an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(3).)

A confidential source’s reliability may be established by one or more of the following criteria:

• The confidential source has previously provided information which proved to be true.
• Other confidential source have independently provided the same information.
• The information provided by the confidential source is self-incriminating.
• Part of the information provided is corroborated through investigation or by information provided by non-confidential sources.
• The confidential source is the victim.
• This source successfully completed a polygraph examination.

(Cal. Code Regs., tit. 15, § 3321, subd. (c).)

Board of Parole Hearings

Some state prison inmates must be approved for release by the Board of Parole Hearings (BPH). These inmates must appear before a panel of BPH Commissioners at a parole suitability hearing during which time a variety of topics are discussed, including the inmate’s commitment offense, rehabilitative efforts, disciplinary history and misconduct, psychological evaluations that include risk ratings correlated with likelihood of future violence, and parole plans, among other things. The BPH panel has access to an inmate’s entire central file, including the inmate’s confidential file. An inmate and the inmate’s attorney have the right to review the inmate’s central file, except for the confidential file, prior to the inmate’s parole suitability hearing. The ultimate determination that the panel must make is whether the person poses “an unreasonable risk of danger to society if released from prison.” (Cal. Code of Regs., tit. 15, §§ 2281, subd. (a), 2404, subd. (a).)

Regulations provide that the BPH panel may consider all relevant and reliable information when making a parole suitability determination. (Cal. Code of Regs., tit. 15, §§ 2281, subd. (b), 2404, subd. (b).) BPH is prohibited from basing a parole suitability decision upon information that is not available to the inmate unless the information has been designated confidential under the rules of the department and is necessary to the decision. (Cal. Code Regs., tit. 15, § 2235.) The reliability of confidential information to be used is required to be established to the satisfaction of the hearing panel, and a finding of reliability must be documented by the hearing panel. (Id.) Regulations provide that a hearing may be continued to establish the reliability of the information or to request the department to designate the information as nonconfidential. (Id.) The inmate is required to be notified of reports on which the panel relied if confidential information affected a decision. (Id.)

Regulations provide for the use of comprehensive risk assessments by the BPH hearing panel when making parole suitability determinations and outline the process by which an inmate or the inmate’s attorney may object to a factual error believed to be contained in the risk assessment as well as the process by which BPH evaluates the allegation. (Cal. Code Regs., tit. 15, § 2240.)

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

According to the Senate Appropriations Committee:

• CDCR: The CDCR anticipates minimal fiscal impact related to additional training for select headquarters staff who assist prison staff with specific rules violation reports that involve confidential sources. (General Fund)
• Incarceration savings: Unknown, potentially-major out-year savings if some inmates are incarcerated in prison for shorter lengths of time because (1) rule violations for which information obtained from an in-custody confidential informant and (2) parole denials based on allegations not found true as specified in this measure, that otherwise would be outcome determinative, would be proscribed. The proposed FY 2020-2021 per capita cost to detain a person in a state prison is $91,100 annually, with an annual marginal rate per inmate of over $12,000. Actual savings would be dependent on how many individuals would be subject to longer terms of incarceration absent this bill. (General Fund)

SUPPORT: (Verified 6/18/20)

American Friends Services Committee (source)

American Civil Liberties Union of California

California Attorneys for Criminal Justice

California Coalition for Women Prisoners

California Families Against Solitary Confinement

California Innocence Project

California Public Defenders Association

Center for Constitutional Rights

Ella Baker Center for Human Rights

Friends Committee on Legislation of California

Haiti Action Committee

Initiate Justice

Innocence Project

Insight Garden Program

International Longshore and Warehouse Union

Legal Services for Prisoners with Children

Loyola Law School Project for the Innocent

Northern California Innocence Project

Prison Activist Resource Center

Prison From-the Inside-Out

Prison Law Office

Prisoner Hunger Strike Solidarity Coalition

Re:Store Justice

San Francisco Bay Area News and Letters Committees

San Francisco Public Defender’s Office

Smart Justice California

Starting Over, Inc.

UnCommon Law

OPPOSITION: (Verified 6/18/20)

California District Attorneys Association

Prepared by: Stephanie Jordan / PUB. S. /

6/23/20 17:13:46

**** END ****

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 1064 (Skinner) - Prisons: confidential informants

Bill Summary:

SB 1064 would prohibit the use of uncorroborated information from in-custody confidential informants by the Department of Corrections and Rehabilitation to find an inmate guilty of a rules violation. It also would prohibit the Board of Parole Hearings from making a decision or finding about an inmate based on allegations that have not been found true following a disciplinary hearing during which specified criteria are met.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on June 18, 2020

Fiscal Impact:

• Department of Corrections and Rehabilitation: The department anticipates minimal fiscal impact related to additional training for select headquarters staff who assist prison staff with specific rules violation reports that involve confidential sources. (General Fund)
• Incarceration savings: Unknown, potentially-major out-year savings if some inmates are incarcerated in prison for shorter lengths of time because (1) rule violations for which information obtained from an in-custody confidential informant and (2) parole denials based on allegations not found true as specified in this measure, that otherwise would be outcome determinative, would be proscribed. The proposed FY 2020-2021 per capita cost to detain a person in a state prison is $91,100 annually, with an annual marginal rate per inmate of over $12,000. Actual savings would be dependent on how many individuals would be subject to longer terms of incarceration absent this bill. (General Fund)

Author Amendments:

Strike the annual audits by the Office of the Inspector General.

-- END --

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

SB 1064 (Skinner) - Prisons: confidential informants

Bill Summary:

SB 1064 would prohibit the use of uncorroborated information from in-custody confidential informants by the Department of Corrections and Rehabilitation (CDCR) to find an inmate guilty of a rules violation. It also would prohibit the Board of Parole Hearings (BPH) from making a decision or finding about an inmate based on allegations that have not been found true following a disciplinary hearing during which specified criteria are met.

Fiscal Impact:

• Office of the Inspector General (OIG): Ongoing costs of $3.933 million annually for 19.0 additional positions to conduct the yearly audits required by this measure. (General Fund)
• Department of Corrections and Rehabilitation: The department anticipates minimal fiscal impact related to additional training for select headquarters staff who assist prison staff with specific rules violation reports that involve confidential sources. (General Fund)
• Incarceration savings: Unknown, potentially-major out-year savings if some inmates are incarcerated in prison for shorter lengths of time because (1) rule violations for which information obtained from an in-custody confidential informant and (2) parole denials based on allegations not found true as specified in this measure, that otherwise would be outcome determinative, would be proscribed. The proposed FY 2020-2021 per capita cost to detain a person in a state prison is $91,100 annually, with an annual marginal rate per inmate of over $12,000. Actual savings would be dependent on how many individuals would be subject to longer terms of incarceration absent this bill. (General Fund)

Background:

The Department of Corrections and Rehabilitation requires that inmate misconduct be reported on a rules violation report (RVR) if the misconduct is believed to be a violation of the law or is not minor in nature. (Cal. Code Regs., tit. 15, § 3312, subd. (a)(3).) Department regulations prescribe the process and parameters of the investigation, hearing, and disposition of an RVR. (Cal. Code Regs., tit. 15, § 3315.) Specifically, among other things, they outline when a CDCR employee must be assigned to assist an inmate in investigating matters related to a disciplinary action, the right of an inmate to request witnesses for the disciplinary hearing and the reasons for which the request for a specific witness may be denied, the dispositions that may result upon completion of the fact-finding portion of the disciplinary hearing, and the penalties that may be imposed if the inmate is found guilty (including the forfeiture of custody credits or the referral for criminal prosecution). (Ibid.)

According to the analysis of this bill by the Senate Committee on Public Safety:

CDCR regulations require the following types of information to be classified as confidential:

• Information which, if known to the inmate, would endanger the safety of any person.

• Information which would jeopardize the security of the institution.

• Specific medical or psychological information which, if known to the inmate, would be medically or psychologically detrimental to the inmate.

• Information provided and classified confidential by another governmental agency.

• A Security Threat Group debrief report, reviewed and approved by the debriefing subject, for placement in the confidential section of the central file.

(Cal. Code Regs., tit. 15, § 3321, subd. (a).)

A decision is prohibited from being based upon information from a confidential source, unless other documentation corroborates information from the source, or unless other circumstantial evidence surrounding the event and the documented reliability of the source satisfies the decision maker that the information is true. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(1).) Any document containing information from a confidential source is required to include an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd (b)(2).) The documentation given to the inmate must include the fact that the information came from a confidential source and as much of the information as can be disclosed without identifying its source, including an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(3).)

A confidential source’s reliability may be established by one or more of the following criteria:

• The confidential source has previously provided information which proved to be true.

• Other confidential source have independently provided the same information.

• The information provided by the confidential source is self-incriminating.

• Part of the information provided is corroborated through investigation or by information provided by non-confidential sources.

• The confidential source is the victim.

• This source successfully completed a polygraph examination.

(Cal. Code Regs., tit. 15, § 3321, subd. (c).)

Proposed Law:

This bill would:

• Prohibit an employee of, or private entity under contract with, CDCR from finding any prison inmate guilty of a rules violation if the finding or decision is based on, or relies on, in whole or in part, any uncorroborated information from an in-custody confidential informant.
• Prohibit an employee of, or private entity under contract with, BPH from making a finding or decision about any prison inmate that is based on, or relies on, in whole or in part, allegations that have not been found true following a disciplinary hearing at which the subject was provided notice, an opportunity to confront nonconfidential witnesses before an impartial hearing body, a written statement of the evidence relied upon, a written statement of the reasons for the decision, and an opportunity for appeal.
• Require that an inmate and the inmate’s attorney receive a summary notice of any information provided by an in-custody confidential informant at least 10 days prior to any proceeding regarding a rules violation. The 10-day summary notice requirement would be applied to BPH findings and decisions described above, including any interview on which a risk rating is based. The summary notice must include all of the following:
  • A detailed description of the information provided by the confidential informant.
  • The date the information was provided to the department.
  • The date of the events or actions referred to in the informant’s report.
  • The location where the information was provided by the informant.
  • The name of the officer who obtained and recorded the informant’s report.
  • The source and nature of the informant’s personal knowledge of the events or actions.
  • The investigative steps taken by the receiving officer or other department official to confirm the facts reported and the informant’s personal knowledge.
  • The informant’s previous record of confidential information, including instances of information not meeting standards of reliability.
  • The evidence used to corroborate the information.
  • A summary notice, as described, if the information is corroborated by another in-custody confidential informant. If corroboration is provided by a nonconfidential informant or by physical evidence, that information must be fully disclosed in the notice.
  • A signed statement by the decisionmaker that the decisionmaker has made a determination regarding the corroboration of the confidential information, as defined.
• Define “state prisoner” as any person under the jurisdiction of CDCR who is not on parole.
• Provide that confidential information is “corroborated” if information about the same person, act, time, and place has been separately and independently provided by another confidential informant, nonconfidential informant, or physical evidence.
• Provide that information is provided independently if the decisionmaker determines there has been no contact or communication between the in-custody confidential informant and the corroborating source and there has been no prior knowledge of any supporting physical evidence.
• Defines an “in-custody confidential informant” as a person in custody in any local, state, or federal jail, penal institution, or correctional institution whose name and full statement has not been disclosed to the prisoner who is the subject of the decision by CDCR or BPH.
• Require OIG to conduct an audit of CDCR’s compliance with the requirements of this measure annually and to submit a report of its findings to the Legislature, as specified.

Related Legislation:

SB 687 (Leno, Ch. 153, Stats. 2011) prohibited the conviction of a defendant, the finding of a special circumstance true, or the use of a factor in aggravation based on the uncorroborated testimony of an in-custody informant, as defined.

Staff Comments:

According to CDCR, there were 1,592 instances in which confidential information was used and inmates were found guilty of a rules violation. Consistent with the percentage of its discipline monitoring function, OIG anticipates that it would audit approximately 25 percent of, or roughly 400, RVRs annually to get an adequate and representative sampling of cases. Additionally, it would review each parole denial by BPH that relied, even in part, on a RVR in order to review each RVR referenced in the denials to determine if the rules violation process satisfied the requirements prescribed by this measure. It is unclear how many RVRs resulted in parole denials, but there were 2,257 denials in 2019.

To accomplish the audit function, OIG has indicated that it would need the following additional personnel:

• 13.0 Attorney III cross three regional offices
• 3.0 Assistant Chief Counsels positions to supervise attorneys
• 1.0 Chief Assistant Inspector General to manage the unit
• 1.0 IT Specialist II to stand up and maintain the electronic recordkeeping requirements associated with the audits
• 1.0 Personnel Specialist to perform the additional HR work associated with the new positions

-- END --

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2019 - 2020 Regular

Bill No: SB 1064 Hearing Date: May 20, 2020

Subject: Prisons: Confidential Informants

HISTORY

Source: American Friends Service Committee

Prior Legislation: SB 687 (Leno), Ch. 153, Stats. 2011

Support: American Civil Liberties Union; California Attorneys for Criminal Justice; California Coalition for Women Prisoners; California Families Against Solitary Confinement; California Innocence Project; California Public Defenders Association; Center for Constitutional Rights; Ella Baker Center for Human Rights; Friends Committee on Legislation of California; Haiti Action Committee; Initiate Justice; Innocence Project; Insight Garden Program; International Longshore and Warehouse Union; Legal Services for Prisoners with Children; Loyola Law School Project for the Innocent; Northern California Innocence Project; Prison Activist Resource Center; Prison Law Office; Prisoner Hunger Strike Solidarity Coalition; Re:Store Justice; San Francisco Bay Area News and Letters Committees; Smart Justice California; Starting Over, Inc.; UnCommon Law

Opposition: California District Attorneys Association

PURPOSE

The purpose of this bill is to: (1) prohibit the use of uncorroborated information from in-custody confidential informants by the California Department of Corrections and Rehabilitation (CDCR) when making decisions and findings related to rules violations; (2) prohibit the Board of Parole Hearings (BPH) from making a decision or finding based on an allegation not found to be true following a disciplinary hearing subject to specified notice and due process requirements; and (3) require summary notice of specified information to be provided to an inmate if information from an in-custody confidential informant may be used by CDCR or BPH to make a decision or finding 10 days prior to the proceeding.

Existing law establishes a system of state prisons under the jurisdiction of the California Department of Corrections and Rehabilitation (CDCR). (Pen. Code, § 2000 et seq.)

Existing law authorizes CDCR to develop and amend regulations and rules for the administration of the state’s prisons. (Pen. Code, § 5058.)

Existing law establishes the Board of Parole Hearings (BPH) and delineates its duties, including conducting parole consideration hearings. (Pen. Code, §§ 5075, 5075.1.)

Existing law provides that inmate misconduct shall be handled by verbal counseling, counseling only rules violation reports, or rules violation reports. (Cal. Code. Regs, tit. 15, § 3312, subd. (a).)

Existing law provides that when inmate misconduct is believed to be a violation of the law or is not minor in nature, it shall be reported on a Rules Violation Report (RVR). (Cal. Code. Regs, tit. 15, § 3312, subd. (a)(3).)

Existing law requires the RVR to contain the following: the charged inmate’s name, number, release date, facility, housing assignment; violation date and time; whether or not the misconduct was related to Security Threat Group activity; circumstances surrounding the misconduct; the reporting employee’s name and title; RVR log number; the violated CCR Title 15 rule number, specific act, level, division; whether or not the charge will be referred for prosecution; reviewing supervisor’s name and title; and the classifying official’s name and title. (Id.)

Existing law requires the RVR to include a section for the inmate to indicate whether or not they wish to postpone the RVR process if felony prosecution is likely and a section to indicate if they wish to request or waive an assignment of a Staff Assistant or Investigative Employee. Provides that a summary of disciplinary procedures and inmate rights is provided to the inmate explaining the administrative hearing time frames and the roles of both the staff assistant and the investigative employee. Provides that the referral for prosecution and the inmate’s appeal rights are explained. (Id.)

Existing law provides the circumstances under which an RVR be classified as administrative. (Cal. Code Regs., tit. 15, § 3314.)

Existing law provides the circumstances under which an RVR be classified as serious. Establishes the structure of the investigation and hearing for a serious RVR. (Cal. Code Regs., tit. 15, § 3315.)

Existing law requires the following types of information to be classified as confidential:

• Information which, if known to the inmate, would endanger the safety of any person.
• Information which would jeopardize the security of the institution.
• Specific medical or psychological information which, if known to the inmate, would be medically or psychologically detrimental to the inmate.
• Information provided and classified confidential by another governmental agency.
• A Security Threat Group debrief report, reviewed and approved by the debriefing subject, for placement in the confidential section of the central file.

(Cal. Code Regs., tit. 15, § 3321, subd. (a).)

Existing law prohibits a decision from being based upon information from a confidential source, unless other documentation corroborates information from the source, or unless other circumstantial evidence surrounding the event and the documented reliability of the source satisfies the decision maker that the information is true. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(1).)

Existing law requires that any document containing information from a confidential source include an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(2).)

Existing law requires that the documentation given to the inmate include:

• The fact that the information came from a confidential source.
• As much of the information as can be disclosed without identifying its source including an evaluation of the source’s reliability; a brief statement of the reason for the conclusion reached; and a statement of reason why the information or source is not disclosed.

(Cal. Code Regs., tit. 15, § 3321, subd. (b)(3).)

Existing law provides that a confidential source’s reliability may be established by one or more of the following criteria:

• The confidential source has previously provided information which proved to be true.
• Other confidential source have independently provided the same information.
• The information provided by the confidential source is self-incriminating.
• Part of the information provided is corroborated through investigation or by information provided by non-confidential sources.
• The confidential source is the victim.
• This source successfully completed a polygraph examination.

(Cal. Code Regs., tit. 15, § 3321, subd. (c).)

Existing law prohibits a parole consideration decision from being based upon information that is not available to the inmate unless the information has been designated confidential under the rules of the department and is necessary to the decision. (Cal. Code Regs., tit. 15, § 2235.)

Existing law requires that the reliability of confidential information to be used be established to the satisfaction of the hearing panel. Requires a finding of reliability to be documented by the hearing panel. Provides that a hearing may be continued to establish the reliability of the information or to request the department to designate the information as nonconfidential. (Id.)

Existing law requires the inmate to be notified of reports on which the panel relied if confidential information affected a decision. (Id.)

Existing law provides for the use of comprehensive risk assessments by the BPH hearing panel when making parole consideration decisions. Outlines the process by which an inmate or the inmate’s attorney may object to a factual error believed to be contained in the risk assessment and the process by which BPH evaluates the allegation. (Cal. Code Regs., tit. 15, § 2240.)

This bill prohibits an employee of, or private entity under contract with, CDCR from finding any state prison inmate to be guilty of a rules violation, if the finding or decision is based on, or relies on, in whole or in part, any uncorroborated information from an in-custody confidential informant.

This bill prohibits an employee of, or private entity under contract with, BPH from making a finding or decision about any state prison inmate that is based on, or relies on, in whole or in part, allegations that have not been found true following a disciplinary hearing at which the subject was provided notice, an opportunity to confront nonconfidential witnesses before an impartial hearing body, a written statement of the evidence relied upon, a written statement of the reasons for the decision, and an opportunity for appeal.

This bill requires that an inmate and the inmate’s attorney receive a summary notice of any information provided by an in-custody confidential informant at least 10 days prior to any proceeding regarding a rules violation. Applies the 10-day summary notice requirement to BPH findings and decisions described above, including any interview on which a risk rating is based.

This bill requires the summary notice to include all of the following:

• A detailed description of the information provided by the confidential informant.
• The date the information was provided to the department.
• The date of the events or actions referred to in the informant’s report.
• The location where the information was provided by the informant.
• The name of the officer who obtained and recorded the informant’s report.
• The source and nature of the informant’s personal knowledge of the events or actions.
• The investigative steps taken by the receiving officer or other department official to confirm the facts reported and the informant’s personal knowledge.
• The informant’s previous record of confidential information, including instances of information not meeting standards of reliability.
• The evidence used to corroborate the information. Requires a summary notice, as described, to be provided if the information is corroborated by another in-custody confidential informant. Requires that if corroboration is provided by a nonconfidential informant, or by physical evidence, that information be fully disclosed in the notice.
• A signed statement by the decisionmaker that the decisionmaker has made a determination regarding the corroboration of the confidential information, as defined.

This bill defines a “state prisoner” as any person under the jurisdiction of the department who is not on parole.

This bill provides that confidential information is “corroborated” if information about the same person, act, time, and place has been separately and independently provided by another confidential informant, nonconfidential informant, or physical evidence. Provides that information is provided independently if the decisionmaker determines there has been no contact or communication between the in-custody confidential informant and the corroborating source, and there has been no prior knowledge of any supporting physical evidence.

This bill defines an “in-custody confidential informant” as a person in custody in any local, state, or federal jail, penal institution, or correctional institution, whose name and full statement has not been disclosed to the prisoner who is the subject of the decision by the department or board.

This bill requires the Office of the Inspector General (OIG) to conduct an audit of CDCR’s compliance with these requirements annually and to submit a report of its findings to the Legislature and to the Committees on Public Safety of the Senate and the Assembly. Requires that the OIG reports be submitted in compliance with Section 9795 of the Government Code.

COMMENTS

1. Need for This Bill

According to the author:

Incarcerated people are currently deprived of their due process rights when uncorroborated information about them is entered into their confidential prison files. This information – which they generally aren’t even aware has been added to their files – can work against them in parole hearings and other internal decisions about their treatment while incarcerated.

CDCR officials routinely gather information on incarcerated people from other in-custody sources. This information can influence internal decisions about custody levels, access to programs, and even consideration for parole.

This information collected is often inaccurate, outdated, or uncorroborated, lacking physical evidence or other sources proving the accusation. However, the same information is used as justification for action and discipline, even though the practice is absent any due process and contrary to the foundational doctrine of our justice system: innocent until proven guilty.

Informant testimony can serve as a valuable tool for law enforcement, but the use of uncorroborated information unreasonably results in misuse and unjust criminal justice outcomes.

…

SB 1064 protects the basic due process rights of incarcerated people in the collection and use of information from in-custody confidential informants. Specifically, the bill prevents CDCR and the Board of Parole Hearings (BPH) from making any findings or decisions that rely in whole or in part on allegations that are uncorroborated and come from an in-custody confidential informant. Information from a confidential informant can be used only if it is substantiated with evidence that supports the allegation. Additionally, if CDCR or BPH are going to meet and consider information regarding an incarcerated person, the person accused shall receive a summary notice of any information provided by an in-custody confidential informant that may be used in the decision making process.

1. Existing Process for Disciplinary Actions

Regulations establish the protocols for the imposition of disciplinary actions by CDCR. CDCR regulations require misconduct that is not minor in nature to be reported as a Rules Violation Report (RVR). (Cal. Code of Regs, tit. 15, § 3312.) The RVR is required to include specified information, including the circumstances surrounding the misconduct and whether or not the charge will be referred for prosecution. (Id.) A summary of disciplinary procedures and the inmate’s rights is to be provided to the inmate explaining the administrative hearing time frames as well as the roles of both the staff assistant and the investigative employee. (Id.) Finally, the referral for prosecution and the inmate’s appeal rights are to be explained to the inmate. (Id.)

Department regulations further establish the structure of the investigation and hearing for a serious RVR. (Cal. Code Regs., tit. 15, § 3315.) Specifically, the regulations provide the circumstances under which a CDCR employee must be assigned to assist an inmate in investigating matters pertaining to a disciplinary action, the right of an inmate to request witnesses for the disciplinary hearing and the reasons for which the request for a specific witness may be denied, the various dispositions that may result upon completion of the fact-finding portion of the disciplinary hearing as well as the penalties that may be imposed if the inmate is found guilty, among other things. (Id.)

1. Confidential Information

CDCR regulations require the following types of information to be classified as confidential:

• Information which, if known to the inmate, would endanger the safety of any person.
• Information which would jeopardize the security of the institution.
• Specific medical or psychological information which, if known to the inmate, would be medically or psychologically detrimental to the inmate.
• Information provided and classified confidential by another governmental agency.
• A Security Threat Group debrief report, reviewed and approved by the debriefing subject, for placement in the confidential section of the central file.

(Cal. Code Regs., tit. 15, § 3321, subd. (a).)

A decision is prohibited from being based upon information from a confidential source, unless other documentation corroborates information from the source, or unless other circumstantial evidence surrounding the event and the documented reliability of the source satisfies the decision maker that the information is true. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(1).) Any document containing information from a confidential source is required to include an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd (b)(2).) The documentation given to the inmate must include the fact that the information came from a confidential source and as much of the information as can be disclosed without identifying its source, including an evaluation of the source’s reliability, a brief statement of the reason for the conclusion reached, and a statement of reason why the information or source is not disclosed. (Cal. Code Regs., tit. 15, § 3321, subd. (b)(3).)

A confidential source’s reliability may be established by one or more of the following criteria:

• The confidential source has previously provided information which proved to be true.
• Other confidential source have independently provided the same information.
• The information provided by the confidential source is self-incriminating.
• Part of the information provided is corroborated through investigation or by information provided by non-confidential sources.
• The confidential source is the victim.
• This source successfully completed a polygraph examination.

(Cal. Code Regs., tit. 15, § 3321, subd. (c).)

1. Board of Parole Hearings

Some state prison inmates must be approved for release by the Board of Parole Hearings (BPH). These inmates must appear before a panel of BPH Commissioners at a parole suitability hearing during which time a variety of topics are discussed, including the inmate’s commitment offense, rehabilitative efforts, disciplinary history and misconduct, psychological evaluations that include risk ratings correlated with likelihood of future violence, and parole plans, among other things. The BPH panel has access to an inmate’s entire central file, including the inmate’s confidential file. An inmate and the inmate’s attorney have the right to review the inmate’s central file, except for the confidential file, prior to the inmate’s parole suitability hearing. The ultimate determination that the panel must make is whether the person poses “an unreasonable risk of danger to society if released from prison.” (Cal. Code of Regs., tit. 15, §§ 2281, subd. (a), 2404, subd. (a).)

Regulations provide that the BPH panel may consider all relevant and reliable information when making a parole suitability determination. (Cal. Code of Regs., tit. 15, §§ 2281, subd. (b), 2404, subd. (b).) BPH is prohibited from basing a parole suitability decision upon information that is not available to the inmate unless the information has been designated confidential under the rules of the department and is necessary to the decision. (Cal. Code Regs., tit. 15, § 2235.) The reliability of confidential information to be used is required to be established to the satisfaction of the hearing panel, and a finding of reliability must be documented by the hearing panel. (Id.) Regulations provide that a hearing may be continued to establish the reliability of the information or to request the department to designate the information as nonconfidential. (Id.) The inmate is required to be notified of reports on which the panel relied if confidential information affected a decision. (Id.)

Regulations provide for the use of comprehensive risk assessments by the BPH hearing panel when making parole suitability determinations and outline the process by which an inmate or the inmate’s attorney may object to a factual error believed to be contained in the risk assessment as well as the process by which BPH evaluates the allegation. (Cal. Code Regs., tit. 15, § 2240.)

1. Effect of This Bill

This bill prohibits CDCR from finding an inmate to be guilty of an RVR, if the finding or decision is based on, or relies on, in whole or in part, any uncorroborated information from an in-custody confidential informant. This bill additionally prohibits BPH from making a finding or decision about any inmate that is based on, or relies on, in whole or in part, allegations that have not been found true following a disciplinary hearing at which the subject was provided notice, an opportunity to confront nonconfidential witnesses before an impartial hearing body, a written statement of the evidence relied upon, a written statement of the reasons for the decision, and an opportunity for appeal.

This bill further requires that an inmate and the inmate’s attorney receive a summary notice of any information provided by an in-custody confidential informant at least 10 days prior to any RVR hearing, and applies the 10-day summary notice requirement to BPH findings and decisions, including any interview on which a risk rating is based (e.g., a comprehensive risk assessment interview). This bill requires the summary notice to include all of the following:

• A detailed description of the information provided by the confidential informant.
• The date the information was provided to the department.
• The date of the events or actions referred to in the informant’s report.
• The location where the information was provided by the informant.
• The name of the officer who obtained and recorded the informant’s report.
• The source and nature of the informant’s personal knowledge of the events or actions.
• The investigative steps taken by the receiving officer or other department official to confirm the facts reported and the informant’s personal knowledge.
• The informant’s previous record of confidential information, including instances of information not meeting standards of reliability.
• The evidence used to corroborate the information. Requires a summary notice, as described, to be provided if the information is corroborated by another in-custody confidential informant. Requires that if corroboration is provided by a nonconfidential informant, or by physical evidence, that information be fully disclosed in the notice.
• A signed statement by the decisionmaker that the decisionmaker has made a determination regarding the corroboration of the confidential information, as defined.

This bill provides that confidential information is “corroborated” if information about the same person, act, time, and place has been separately and independently provided by another confidential informant, nonconfidential informant, or physical evidence. This bill specifies that information is provided independently if the decisionmaker determines there has been no contact or communication between the in-custody confidential informant and the corroborating source, and there has been no prior knowledge of any supporting physical evidence.

1. Argument in Support

According to an attorney with the Prison Law Office:

I write in support of the incarcerated individuals whose transformative journeys out of prison have been knocked off course by unproven allegations, particularly those found in the confidential section of a prison file. Too often, parole commissioners and Board psychologists make decisions about an individual’s credibility, or determine that individual to be dangerous, based on confidential information that has not been subjected to any meaningful review. These unsubstantiated allegations are often made by other individuals with motives for falsely implicating the parole applicant in misconduct, and as such, ought to be subjected to additional verification.

Due process suffers when unsubstantiated allegations are used to determine the questions of credibility and threat to public safety, particularly when a person’s future hangs in the balance, often following decades in prison and extensive positive programming.

Senate Bill 1064 ultimately addresses a critical gap in the discretionary parole process by prohibiting the Board from making decisions that deprive people of their liberty based on allegations that have not been subjected to the equivalent of disciplinary proceedings, with their attendant due process protections.

1. Argument in Opposition

The California District Attorneys Association writes:

This bill would deprive the California Department of Corrections and Rehabilitation (CDCR) from using reliable evidence of inmate criminal activity to hold them accountable in disciplinary hearings, thwart criminal prosecutions, prohibit the Board of Parole Hearings (BPH) from considering relevant criminal misconduct at lifer parole hearings, deprive forensic psychologists from considering relevant information in determining an inmate’s risk for future violence, and jeopardize the safety of inmates and correctional staff.

Currently, when an inmate is alleged to have committed a serious rules violation (115), they are given notice of the proposed disciplinary hearing, including a written rights advisement and circumstances of the violation. The names of the confidential informant(s) or non-confidential informant(s) are not provided to the inmate and correctional staff takes great care to avoid giving the inmate facts that would unmask informants to ensure the safety of the informant(s), their friends and family, and correctional staff….

Currently, at a parole suitability hearing BPH can consider “all relevant and reliable information,” including the conduct behind the 115 hearings that have been dismissed for technical issues such as timeliness. BPH give the information the weight it should be given just as a court would determine weight and admissibility of evidence. Under current law, life inmates are given notice of the use of confidential information (Form 1030) in advance of their parole suitability hearing … During a parole suitability hearing, BPH commissioners may ask the inmate about confidential information if they choose to. If they determine they will use confidential information to reach a decision, they must make a confidential tape for that part of the decision. That tape, the entire inmate central file, including the confidential section, are provided to a reviewing court if an appeal is filed. This process mirrors the criminal justice process regarding the use of confidential informants. Currently, forensic psychologists have access to all relevant information necessary for them to reach an accurate assessment of an inmate’s risk for future violence prepared in advance of a parole suitability hearing, which can be relied upon by BPH.

…[SB 1064] will severely impede CDCR’s ability to investigate past prison crimes and prevent future criminal misconduct. It will also jeopardize long-term investigations involving CDCR’s most dangerous inmates….

SB 1064 would also detrimentally impact the ability to criminally prosecute crimes committed by inmates found not guilty at their 115 hearing, not because they were in truth and fact not guilty, but because they were successful in intimidating informants with relevant evidence against them from cooperating with law enforcement.

…

Lastly, SB 1064 is unnecessary. Existing law already affords inmates facing disciplinary hearings a summary of the evidence substantiated the charges against them. At the hearing, inmates can call witnesses or introduce evidence on their behalf. Likewise, under current law, at a lifer suitability hearing, inmates are given notice, including a summary of any confidential information that may be considered by BPH at the hearing. If confidential information is used by the commissioners in reaching their decision, that information is preserved and available for review by the court on appeal.

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