Assembly Budget Subcommittee No. 5 on Public Safety

You. Good afternoon. We will call to order the Assembly Budget Subcommitee number five on public safety on this March 27. Thank you. We were over visiting at the State of the judiciary, welcoming Patricia Guerrero, the first Chief Justice, Latina Chief Justice, and the 29th Chief Justice in the State of California. So was a wonderful moment for California. Today we will be doing a couple of informational items and budget proposals from the Department of Corrections and Rehabilitation.

I want to welcome Ms. Jennifer Schaefer, the Executive Officer of the Board of Parole Hearing, Mr. Keith Watley, the Executive Director of Uncommon Law and Don Spector, the Executive Director of Prison Law Office. Mr. Spector is joining us via Webex today on issue one, subpanel two. Thank you for participating in the hearing today.

We will not be taking any votes today and public comment will be available after all issues have been presented and discussed at the end of the hearing, we will now move to roll call. Please call [Roll Call] We will ask all panelists to introduce themselves prior to speaking. We will begin today with issue one, which has two subpaneels related to parole hearings.

I will pause after each subpanel for questions from the Subcommitee before I move on to the next subpanel. We will begin with subpanel one, promoting equity in the parole hearing process. The Leo has provided a handout summarizing their report to the Subcommitee. This handout is also posted on the Assembly budget website. Let's begin with Ms. O'Neill. Thank you so much. Caitlin O'Neill.

You start by providing some brief background on the process. Specifically, the Board of Parole hearings within the California Department of Corrections and Rehabilitation is composed of 21 commissioners who are appointed by the governor and subject to confirmation by the Senate. These commissioners typically conduct hearings working with one civil service staff member called the deputy commissioner. So, two individuals sitting on the hearing panel, I'll be referring to both of them today as commissioners.

For simplicity, there are a few different types of people who are eligible to receive parole hearings, and those are the largest group being all people with indeterminate sentences, that is, sentences that are a specific number of years to life. The second group, which is a relatively small group of people, is people sentenced to life without the possibility of parole for crimes they committed as minors as a result of some U.S. Supreme Court rulings, receive parole hearings after serving 25 years in prison.

And the third group is certain people with determinate sentences, and determinate sentences are sentences to a specific number of years. And some people who have particularly long determinate sentences are eligible to receive parole hearings for the possibility of being released earlier than otherwise. Specifically, people who were under the age of 26 when they committed their crime and have served at least 15 years in prison, or people who are aged 50 and over and have served at least 20 years can generally receive parole hearings.

Turning to page two, there are two key decisions made in parole hearings. The first is, would the candidate pose an unreasonable risk of danger to the public if released? And that's because the California Supreme Court has ruled that that is the central question in a parole hearing, and that the court has also ruled that denials of parole must be based on some evidence that the candidate currently poses a risk of dangerousness to the public.

And if the candidate is not released, then the question becomes, when should the individual's next hearing occur? How many years in the future? And that period is referred to as the denial period. Typically, I'm going to highlight next a few key steps in the process. So the first is about five years prior to the person's first parole hearing. They have the chance to meet with a commissioner to discuss the process and factors relevant to suitability, determination, or determination that they're suitable for parole.

Then the hearing itself is scheduled about six months in advance. About four months in advance, BPH staff will assign an attorney to individuals who do not retain a private attorney. These attorneys work for the board on a contract basis at a rate of $750 per case and are required to provide certain basic legal services to their clients. Some individuals, as I mentioned, do retain private attorneys and private attorneys sometimes, or tend to, provide more extensive services.

Also, about four months before their hearing, candidates are generally interviewed by a BPH staff's psychologist to assess their risk of violence. And then, no later than 45 days before their parole hearing, candidates can waive their right to a hearing for one to five years or stipulate to unsuitability. And one might choose to take these actions as a strategic way to avoid going to a hearing and potentially receiving a longer denial period. Then, of course, there's the parole hearing itself.

During the hearing, commissioners ask candidates questions about their social history, mental state, attitude toward their crime and release plans. And in recent years, BPH has adopted a structured decision-making framework to guide commissioners as they walk through those topics during the hearing to guide them to focus on the factors that have been found to be most associated with risk of violence. And then, finally, after a decision is made in the hearing, the governor has an opportunity to review grants of parole.

Moving on to page four, I'll begin a discussion of our findings. Specifically, we found that two aspects of the parole hearing process could lead to inequitable outcomes. The first of those aspects is that overly broad discretion afforded to key actors in the process could allow bias to operate within decision-making. For example, as I mentioned, commissioners use a structured decision-making framework to guide their focus during the hearing.

However, they still retain significant discretion in that they can consider factors that are not included on the framework, and they retain full discretion in how to weight the various factors that they consider to produce a decision. The psychologists and the governor also maintain a substantial amount of discretion in the process. And we do acknowledge that some amount of discretion has benefits, but that overly broad discretion can allow for the possibility of cognitive biases and other types of institutional biases to impact decision-making.

For example, research has found that people can exhibit something called implicit bias, which is essentially that people sometimes unconsciously associate certain groups of people with certain attributes. One that has been found by the research, for example, is the Association between black men and violence. And so, to the extent some individuals are subject to these two negative implicit biases in the process, that could disadvantage them disproportionately relative to other groups, and vice versa for those subject to positive implicit biases.

We also found that the process lacks key safeguards on the use of discretion, such as regular data reporting by subgroup and external monitoring. Turning to page five, I'll move on to the second aspect of the process that we identified as potentially leading to inequitable outcomes, and that is that the process potentially affords inequitable access to effective legal and hearing preparation services.

Really quickly, we kind of came up with the term hearing preparation services to loosely encompass the services that tend to go beyond or a little bit different from what we would typically think of as legal services, but are nonetheless help people find helpful in preparing for their parole hearing. Like, help preparing reentry plans or relapse prevention plans, or simply doing the internal work to learn or practice how to communicate one's change in who they are since they committed their crime.

So when we looked at the data, we found that candidates represented by state appointed attorneys were granted parole at around half the rate of those represented by private attorneys. This could be for various reasons. For example, it's possible that people who think they have a stronger chance at release would be willing to more willing, or their family would be more willing to hire a private attorney, and vice versa.

However, there are two reasons why it is potentially of concern that we see these disparate outcomes between the two groups. One is that there is a survey of parole candidates that suggests that specifically, the candidates reported that in only 8 percent of cases, their state-appointed attorney had met all the minimum expectations for services that BPH requires. This is a very limited data source, but it is nonetheless the only data that we have on this topic.

And then second, it's simply possible that even if attorneys are meeting all of the requirements, it may be that private attorneys are just simply providing a higher level or more diverse types of services. So this raises a potential equity concern, in that it would mean that otherwise identical candidates could have different chances of being released from prison based on their ability to access a private attorney. To the extent that that is occurring, that could also reinforce other biases or equity issues in the process.

For example, it could be that the candidate who is more likely to experience a negative implicit bias or some other concern in the process may be the candidate that most needs or would most benefit from an attorney who is providing a higher level of service or very zealous advocacy. So, turning to page six, the state has taken two steps in this area in recent years to address concerns around legal services provided in the parole hearing process.

The first is that in 2019-20 BPH itself came to the legislature reporting concerns about its ability to attract and retain competent attorneys, and was given a budget increase in order to increase pay from $400 to $750 per case, as well as to contract with a nonprofit to increase training and mentorship opportunities for these attorneys. Also, in 1920, $4 million was provided to uncommon law to pilot a program to deliver hearing preparation services outside of the traditional attorney-client relationship.

The state has also been expanding, not necessarily under the guise of parole preparation, but various other insight focused or victim impact focused types of programs that could also be helping people out there in the prison system prepare for their hearings. So there have been these steps taken, but in short, we found that there hasn't been any evaluation or there isn't enough comprehensive data collected on these topics for us to be able to evaluate if these steps the state took have had an impact.

So moving to page seven, where I'll discuss our recommendations on the issue of discretion, we recommend the legislature consider limiting the discretion of parole commissioners. This is something that the sum evidence standard has been set through case law, so it's not something that the legislature has weighed in on at this point. So, we raise it as a possibility for you to think about weighing in on.

And then we do recommend also requiring that BPH release data to the public on risk assessment, parole hearing and governor review outcomes by subgroup, as well as support regular studies by independent researchers of the risk assessment and hearing processes.

And then finally on page eight, our recommendations to ensure consistent access to effective legal and hearing preparation services are at a high level, really to just assess the changes that have been implemented so far to understand what problems still exist and what seem to be the main barriers at this time to guide further legislative action in this area. Thank you.

Thank you, Ms. O'Neil. We'll move on to Ms. Shaffer now.

Good afternoon. Thank you for having me here today. So it's been my experience, after 11 years serving as the executive officer for the board of parole hearings, that discretionary parole, in general, especially for people convicted of the most serious crimes, generates significant interest from many people whose views and life experiences vary greatly.

And while the board respects those varying perspectives when it comes to decision making, determining when people who are serving lengthy sentences for crimes such as murder, kidnapping and rape can safely be released from state prison, the board focuses its decisions on the law and what we've learned from the science of risk assessment. It's from this perspective that I'd like to address the concerns raised by the LAO's report. Basically, I think the LAO's report can be distilled into two main issues.

One is a concern that the board's decisions might be susceptible to implicit bias. The other is a concern about the quality of legal representation provided to attorneys who are appointed to represent incarcerated people throughout the parole hearing process. Both of these issues are very important to the board. I'd like to share with you some of the ways in which the board has been addressing these important issues. So the board's approach to the issue of implicit bias has three main components, extensive training, hearing procedures and research.

With respect to training, the administrative office of the courts has provided the board with training similar to the training that superior court judges receive on judicial decorum and bias. We've had speakers providing training on the topic of implicit bias at our public Board Meetings, and all board staff are required to complete CDCR's implicit bias training course. The board's hearing officers have also received training on implicit bias, both online and in person at professional conferences that they attend, specifically for patrolling authorities, that they attend annually.

All new commissioners are required to attend an intensive eight-day course on how to conduct fair hearings conducted by the National Judicial College in Reno, Nevada. As for procedures in place to guard against bias in the parole hearing process, first was mentioned, structured decision making, I'd like to give you a little bit more information about that.

In 2019, the board implemented this evidencebased, structured decision making framework that was originally developed by the National Parole Board of Canada in conjunction with forensic psychologists. The framework focuses our parole hearings on specific issues that decades of research on risk assessment and crime desistance theory have shown to impact a person's overall risk of recidivism.

The National Institute of Corrections and the Association of Paroling Authorities International have adopted the structured decision making framework as an evidencebased best practice for discretionary parole decisions, and today it's used in at least 10 states in addition to the National Parole Board of Canada. Procedurally, every hearing is conducted by a panel of at least two people, one commissioner and one deputy commissioner. We rotate the composition of those panels weekly so that commissioners are working with a different commissioner almost every week.

Our deputy commissioners are civil service attorneys. Their classification is actually administrative law judge. They are administrative law judges. I think it's also important to note that the parole decisions do not become final for up to four months. During that time period, anyone can request that the decision be reviewed by the board's chief counsel, who can refer it for review by the full board at a public board meeting, and all parole decisions are subject to review by the Governor and the courts.

With respect to research, the most recent independent analysis of the board's parole hearing outcomes by race and ethnicity was conducted by UC Berkeley at the request of the committee on revision of the penal code. The study looked at outcomes of all parole hearings conducted in fiscal year 2019 and 2020. The report found, and I quote, unlike the other parts of the criminal legal system, in the one year sample of parole hearings reviewed, parole grant rates across racial groups showed little disparity.

White people were granted parole at a rate of 36 percent, black people at 34 percent, and Latinx people at 34 percent. When the research took into account disciplinary rules violations, they found that grant rates for black and Latinx people were actually higher than the grant rates for similarly situated white people.

While these findings might be useful, the board believes a more robust risk based analysis is warranted, which is why the board approached nationally recognized experts Dr. Stephen Raphael and Dr. Jennifer Skeem to see if they would be interested in conducting a more in-depth study. Specifically, we asked if they would be willing to look at all available risk-relevant factors, control for those factors, and determine whether race or ethnicity appears to be a relevant factor in our parole decisions.

They obtained independent funding for the project, and the project has been approved by UC Berkeley and CDCR's Research Oversight Committee. The board and CDCR are scheduled to confidentially turn over significant demographic, institutional, sentencing, risk assessment and parole hearing information to Drs. Raphael and scheme later this week. That has been in the works for quite some time. For those of you who don't know how research happens, it had to go through a lot of approvals for them to conduct this research.

So we're really pleased that it's come as far as it has and that the data is about to be turned over. The board is also working with Carlton University's Criminal Justice Decision-Making Laboratory on research to ensure we are using appropriate interview techniques to obtain the most accurate and relevant information from persons who have a variety of life experiences and in a manner that is sensitive to cultural differences, age, gender, historical trauma and other relevant factors.

I'm going to move on to the second issue raised by the LAO report, the concern about the quality of attorney representation in parole hearings, specifically attorneys appointed by the board. We refer to them as panel attorneys, so it's a little hard for me to make that distinction, so I'm going to call them panel attorneys. Hope that's okay. Okay, so in 2019, this issue, the quality of legal representation by panel attorneys, was the subject of litigation. It continues to be the subject of litigation.

Counsel for the person who sued the board on this is sitting right next to me. It's still pending. So with that, though, after three days of evidentiary testimony in that case, the court found that the level of representation was legally sufficient. The board, nevertheless, even with that finding, and at the time we thought the litigation was concluded, on our own initiative, took significant measures to improve the overall quality of panel attorney representation.

The panel attorney application process now includes an interview by the board's attorneys and reference checks. Minimum expectations for panel attorneys have been established. Mandated training has been greatly expanded and improved. The amount paid to panel attorneys was actually increased again from $750 to a case to $900 per a case that will expire in June. So we're a little concerned about what the ramifications of that will be, but that was a temporary adjustment to the budget made by the legislature.

In 2020, the board contracted with the nonprofit entity Parole Justice wWrks to oversee the training of panel attorneys and monitor the quality of their representation through hearing observations, reviewing hearing transcripts, and conducting surveys of the incarcerated population and the board's hearing officers. The president and founder of Parole Justice Works is attorney Heidi Rummel, who also serves as the Director of USC's Gould School of Laws Post-Conviction Justice Project, where she has taught students how to competently represent people at parole hearings for nearly 20 years.

Drawing on Heidi Rummel's extensive experience, Parole Justice Works has developed a mandatory panel attorney program consisting of 30 interactive educational videos for which participants receive minimum continuing legal education credit from the state bar. We call it PJW. I know we're horrible with acronyms, but it's hard for me to say Parole Justice Works all the time.

Parole Justice Works, or PJW, has also developed a web based portal for panel attorneys where they can access the training videos along with an extensive library of resources and documents, including documents for clients written in both English and Spanish. They host virtual panel attorney roundtable meetings every three weeks, and they coordinate a popular and active mentorship program that pairs new attorneys with experienced attorneys for guidance, advice and feedback.

Unlike the surveys referenced in the LAO's report, where I believe they were only sent to people who were denied parole and only over a couple of months worth of outcomes, PJW sends a client survey to every incarcerated person who appears at a parole hearing. Thus far, they have received and processed over 2000 client surveys.

63 percent of people responding report they were either satisfied or more than satisfied with their attorney's representation at their parole hearing, and 60 percent describe the attorney's prehearing preparation of them as either making a big difference in the hearing or important or helpful in the hearing. Last point, I promise. I'm sorry. It's a lot of information.

In conclusion, the board's focus on the law, the science of risk assessment, and improved attorney representation has enabled us to safely release more than 11,000 people serving terms of life with the possibility of parole and CDCR's recidivism reports consistently show that less than 1 percent are convicted of a new felony involving harm to another person. I look forward to your questions. Thank you again for having me here. I'd welcome the opportunity to provide you or your staff additional information anytime in the future. Thank you.

Thank you so much. We'll move on to Mr. Keith Wattley now.

Good afternoon. I want to start my remarks by pointing out that our laws in the state of California actually dictate that those convicted of the most serious and violent crimes in this state are supposed to be released. It's such an important starting point that somehow gets lost in this discussion, but it's an important starting point, I think, and frame through which to review the LAO report and the testimony here today.

So I'm Keith Wattley, the Director of UnCommon Law, where we provide what we consider trauma-informed counseling and legal representation and policy advocacy for people whose release from prison is dependent on the parole board. And I appreciate your leadership, Chairwoman Bonta, recently I saw that you were at the press conference at San Quentin, announcing alongside Governor Newsom, some major changes at that institution, potentially a model for some statewide implementation. I mention it now because there's a mismatch.

There's a mismatch between the types of programs that help incarcerated people, that help them fundamentally change their lives, and the parole board's approach to release decisions. There's a mismatch between the two. Some of the most effective programs are those that support people in processing and healing from the traumas that they've experienced and the traumas they've caused. This work is sometimes supplemented by private attorneys, counselors, therapists who fill the gaps in the available programs in the prison. That's most of what our organization does.

But here's the mismatch. At a place like San Quentin, touted as the centerpiece of the state's rehabilitative programming, only 18 percent of the scheduled parole hearings are currently resulting in parole grants. 18 percent, which is the lowest it's been at that prison in five years. And consider this irony. At that press conference, one person who was singled out was Juan Haines, who is the award-winning editor of San Quentin News.

They held him up as an example of the best the state has to offer in terms of rehabilitative programming within its prisons. Yet the parole board found Juan unsuitable for parole and denied him. He's going to be considered again in a couple of months. He's 65 years old, has been in prison for 27 years. There's a mismatch between the programs and what the parole board is looking for. I think we need to acknowledge that the parole process itself is inherently biased.

And here's some of the history. The California Supreme Court first struck down the parole process as unconstitutional back in 1975 because the decision making was arbitrary and biased. All the research at the time confirmed that parole commissioners, psychologists, sociologists are unable to reliably predict future violence. In other words, we were asking or expecting the parole board to do something that they aren't capable of doing. This was known in 1975.

Instead, without this ability to actually predict, they were simply making decisions based on their own biases. The legislature responded. They responded back then, and they've since responded many times over the years with a whole series of reforms intended to overcome the board's bias so that people would be released from prison at much higher rates. And we can think about some of those reforms.

One of the first ones is really set this statutory scheme in place, which was SB 42, which established really the constitutional right to be considered for parole, including mandatory language directing the parole board to normally grant people parole. They're trying to make clear, normally grant them parole. That's your job. We also added the right to appointment of counsel, the right to an actual hearing, the right to a transcript, the right to a written decision of why you were denied parole.

For a while, we even had a right to an appeal. You could appeal your parole decision if you were denied. In 2008, we had the Supreme Court ban the board's use of a person's crime as the reason to deny them parole. We've also required special consideration for people who are survivors of intimate partner battering and its effects. We've special consideration for people who are considered eligible for elderly parole. We've required them to give great weight to the youth factors in youth parole hearings them.

All of these reforms were put in place to counter the inherent bias in this process, and none of it has worked. The pro grant rate in 1981 was 10 percent. In 2022, it was 14 percent.

Remember, parole shall normally be granted. It has never been. Here's where the bias, I think, is most clear. There have been now, about, five different sets of researchers, have observed that Black parole candidates have the lowest parole grant rates. That includes the one study that Ms. Shaffer cited also found, 34 is lower than 36, by my very rough math. And even that year, to take one year out and say, well, we can't conclude that there's bias because they're only two percentage points lower.

That's in a 10 year span of time where every single one of those 10 years, Black parole candidates were the least likely to be granted parole except for two years. In each of those years, they were the second least likely to be granted parole. That same span of time, not a single year, were white parole candidates least likely to be granted parole not once. Chance would dictate there would be a very different outcome.

And more recent data is also telling us more about indicating more evidence of bias. For example, people receiving mental health treatment are about half as likely to be granted parole. People with disabilities are less likely to be granted parole. And what I've seen is that people who are older, people who are transgender, people for whom English is a second language and those who present in a way that the board perceives as different are the people who are least likely to be granted parole.

In other words, the same groups that experience discrimination in every other aspect of our society also experienced discrimination in the parole board. Shouldn't be a surprise. Also note that the Shaffer grant rate is lower now than when the attorney interventions that Ms. Shaffer referred to were implemented. The parole grant rate is lower than it was when they started.

That in addition to the numbers, and I can provide a lot more of the actual numbers in a letter I can follow up with this committee, but I also have a number of individual experiences of people who have been harmed by this process. And you may also hear from some of them during public comment today. One might perceive my comments today as an attack on parole commissioners themselves. It's not. I don't want them to be defensive. I want them to be humble and curious.

I don't think they're bad people, and they're probably doing what they think is right. But this is a condemnation of an arbitrary process that we've all been pretending is based on fairness and objectivity. We know now what we knew in 1975. Parole commissioners, psychologists, sociologists are unable to predict violence once 15 years or so have passed since a person's crime. That's the most inconvenient truth about this whole process.

It gets in the way of all the politics of what we want to do in these cases, especially when there's someone or some class of people that we don't like, regardless their age, their current condition, there's people who want to deny them parole for forever. The law doesn't allow it. And the more the board continues to act on its own biases. It's an unconstitutional process.

Absent, what we see absent, is any scientific or objective basis for making predictions of violence risk. All parole commissioners have left are the same biases that plague every other aspect of our society. We need to stop pretending otherwise. I'll conclude with a quote from Governor Newsom at San Quentin 10 days ago. He said, "this is about doing things differently and acknowledging with humility that we have failed for too long." I appreciate what the LAO has highlighted in this report because I think it's long overdue.

Thank you.

Thank you, Mr. Wattley. I will go ahead and ask a few questions before turning it over to my colleagues. I wanted to start with Ms. Shaffer. Can you remind us of what parole hearing-related data points are currently being collected and reported on?

So, annually, the board produces a report of significant events, and it's published on our website. It's not intended for people, that- So I used to be asked a lot about statistics, and I finally decided to just put them all down in writing and do them annually. It's not like an annual report with a lot of fluff to it. It starts with workload at a glance and it just starts listing statistics about our parole hearing process.

It's all of our hearings, the outcome of those hearings. One thing that you'll note is this difference, right. The study that I referenced said that people had a 34 percent chance of getting grants, right? Roughly. That's been our parole rate for a few years. It did go down last year for a variety of reasons that are risk-related, not race or ethnicity, I don't think. But we'll wait to hear from UC Berkeley as to whether that stands true or not. But, where was I going with that?

The grant rates. There are two ways, statistically, of giving grant rates. The one that Mr. Wattley uses quite often is grants as a percentage of scheduled hearings. So, we scheduled over 9000 hearings last year. But a hearing can result in a waiver or a postponement, somebody can stipulate to being unsuitable for parole. So the other grant rate is,of those who actually go to hearing, how many of them are granted parole?

So 34 percent of people who actually go to hearing consistently have been granted parole over the last three years. Three to four years. Last year that did go down to 26 percent, but since January 1 of this year, it's back to 34 percent. I can tell you why if you want to hear a little bit more about it. Last year, we had a very high number.

Roughly 1 percent more of the people that were scheduled for a hearing were convicted of sex crimes and were required to register as a sex offender. When the Legislature passed Assembly Bill 3234 which expanded elderly parole, they gave us a deadline, the end of 2022, to give everyone a hearing who was newly eligible under that law.

We have found that a very large number of people who were age 50 and had served 20 years of incarceration, a very high percentage, have been convicted of sex crimes, and they were not expecting to have a parole suitability hearing, and they did not do as well during the hearing process last year. Again, we want to wait to see what UC Berkeley has to say about the composition of the people that came before us before we make any concrete conclusions from that data.

But I think that those are the most notable. We also had fewer youth offenders come before us last year, so we think that's probably made a significant difference. Back to your question, there are a lot of statistics, I apologize, published in that report on an annual basis. Also in that report of significant events was the outcome. Last year was the first year that we were able to actually produce it based on race and ethnicity from the results of the committee on revision of the penal code.

Thank you. And you did mention a significant amount of available training materials and training opportunities for parole attorneys. Do you also track whether or not they are taking advantage of those opportunities?

That's all mandated training. So, yes, we do. We track who has actually attended the trainings.

And how many people have accessed the training videos and documentation?

Zero, for the panel attorneys, I apologize. I was confusing it with our hearing officers, who, most of them are attorneys as well. Tthe panel attorneys, I have not, but I do have a report from Parole Justice Works. I'd be happy to provide you and your staff.

Great. Thank you. And just for some comparison, because I know that Mr. Wattley, at UncCmmon law, you actually have engaged in a pilot and have some information forthcoming at some point to share. What is the typical amount of time, Shaffer, a court appointed attorney or parole attorney spends on the parole hearing?

So it really varies. One important thing about how we structure our fee arrangements with panel attorneys is that panel attorneys, first of all, they represent over 90 percent of the people that come before us. Only 10 percent of the people who have a scheduled hearing are represented by private counsel. So panel attorneys represent over 90 percent of the people who are scheduled for parole hearing. The panel attorneys. My goodness, I lost my train of thought. I apologize.

So the question was how much time do they spend on parole hearing, and then we can expand to just whether or not you have a sense of how much preparation time goes in and whether they meet the person prior to their parole hearing.

I apologize. So what they do, the way we structure it, is that they will be assigned an entire week's worth of hearings at a particular institution. So they usually will have 10 to 13 clients scheduled for a parole hearing five months later. So they accept that appointment, they represent 10 to 13 of those folks. They can do one panel a month for most of them. And so that's how many clients that they're going through.

We pay a flat fee of $900 per case, and what they will do is some of those folks, they'll waive their hearing, they'll request a postponement, and so it fluctuates as testimony during the litigation talked about, it kind of washes out in the end. There are some cases where they spend a lot more time with some clients and they spend less time with other clients, depending on when that person or the resolution of that person's hearing. I would say.

Be a little bit more specific, a lot more time. A little time ca be relative.

The minimum expectations that we have is that they will meet with their client one to two hours prior, within the first 30 days, and that they'll meet with them a second time prior to their comprehensive risk assessment interview, and that they'll meet with them one more time between the risk assessment or after the risk assessment is prepared and before their hearing.

So it would be roughly three to six hours of individual consultation, in addition to whatever time they are spending outside of that consultation time.

Thank you so much. That's very helpful. And, Mr. Wattley, just for comparative purposes, under your program, what's the amount of time of preparation that your attorneys provide or the broader legal services provide for a parolee, potential parolee?

Well, we don't really keep track of the hours, but we keep track of the progress that our clients make over. We work with clients minimum of about six or eight months, but more typically, it's a year, two years. I've worked with the clients 10 years in the past, and we'll see them on average, probably every month, every six weeks, maybe in that period of time for an hour or two each visit. Sometimes a lot more than that, depending on the client's needs.

We also have, in addition to our attorneys, we have legal assistants who work with our clients. We have a team of therapists that we send in to meet with some clients who need additional support, which is an increasing percentage of clients, frankly. It's a very different experience.

And I think what it is, what I was talking about earlier and the different ways that it seems that commissioners are perceiving our clients or perceiving the folks who are appearing before them. Those who seem different, strange, unusual, unfamiliar, are the ones that, seem to be the ones that commissioners are less likely to grant parole to.

A lot of our work is to get to know our clients well enough so that we can help them express themselves and we can individualize, humanize them in the parole board's eyes, so they can see the person beyond the conviction. They can see the individual and their transformation beyond the paper that they may have read about them. And if the client doesn't know how to really express themselves, to tell their own story, it's much more difficult to do that.

And it takes a while because we are regularly revisiting childhood and adolescent trauma that they may have not discussed with anyone else before. But they recognize the parole board is asking them these very deep, personal questions that require them to do that work, where most of the institutions don't really provide a lot of space to do that work. It takes a lot of hours. If I put a minimum on it, we're probably 20-25 hours minimum that we spend with an individual case.

And some, it's many times that amount, frankly. I also want to note the training that Ms. Shaffer mentioned, both the board's training and the training for panel attorneys. Some aspects of that, although it had been promised way back when there was some litigation and an evidentiary hearing, Ms. Shaffer referred to in 2019, things like the surveys of people appearing before the board and an observer to provide some oversight of the panel attorneys that happened after our litigation, probably in response to it.

And it's interesting to, always interesting to hear when, when there's like this discussion of trainings. Implicit bias is a real thing, I think we all have to recognize, and for certain systems, certain processes, no amount of implicit bias training is going to overcome the actual bias as it shows up.

We can look at all the many, many hours of training that police officers engage in and have engaged in over the last few years and still see the last year they set a record in the number of people that they killed. The training is not enough to overcome these biases. And I think the decades of efforts on this process tells us that the consistency with which these parole grant rates remain so low tells us a lot, and we should actually pay attention to it.

I think it's right that Ms. Shaffer mentioned. We talk about the parole grant rate out of the percentage of scheduled hearings. Our data comes from them. They've talked about it, too, until it became less convenient. My numbers are their numbers. I don't have the data until they give it to us. Their reports show that in 1981, their parole grant rate was 10 percent.

I didn't do that numbers, but their intention is to be able to say, we're doing a fine job, when our commissioners preside over a hearing. But they're acknowledging last year, the parole grant rate dipped down to 26 percent by their count. Choose whichever number you want. If they're here defending a parole grant rate that's below 30 percent, when this legislature has been telling them for 50 years to grant most people parole, they're having a very different conversation than they should be.

I first want to just quite frankly, the fact that there is data for us to be able to have a reasonable conversation around, is an aspect that has been lacking in a lot of other aspects of operations. So I appreciate that we have that available to us.

I did want to just also just move to that mismatch that you referenced a little bit, Mr. Wattley, earlier around the parole board's release decisions versus the programming, and get into a little bit some of the variability that we know exists across various prisons around programming. And get a sense from you, Ms. Shaffer, around how you take into account evaluating a person's participation in programs when there may or may not be availability to do so.

So it's a great question, and it's one that we had to really hit head on during COVID when much of the programming in-person came to a screeching halt. Surprisingly, our grant rate did not go down during that time period. What we have found is that risk and violence is a very fluid thing, and it happens. Somebody's propensity for violence can change for a variety of different reasons.

So, we have a lot of people that come before the board that have had fantastic cognitive behavioral intervention therapy through the ISUDT, which we'll talk about a little bit later, the Integrated Substance Use Disorder Treatment and the life skills courses that are under that umbrella. We have a lot of people who go to self-help groups. There are people who just literally wake up one day and have an epiphany that they don't want to live this way anymore. It just runs the spectrum.

So there's no formal programming requirement, necessarily, for a parole grant. We're just looking to see if the person's actually changed and addressed those issues and if the evidence supports that conclusion. So, I would say the one thing that has been really good has been the cognitive behavioral intervention programs that are now available at all prisons. I also think that there are a number of self-help groups now that there's actually hope and a meaningful opportunity for parole.

It has incentivized a really large portion of our prison population to actively program, either through correspondence courses, through self help groups, through formal education and training and through rehabilitative programs. There are more programs available now.

It's really hard for us to keep track of them all because each prison has a different variety based on local volunteers and people that come into the prisons. But for us, it's just a real matter. If you had to boil down a parole hearing, we want to know who the person was when they committed these crimes, we want to know who they are today, and we want to know the difference and how they get. How they got there doesn't really matter so much.

We just want to know who they are today and if they continue to pose an unreasonable risk.

And then my last question, I'll turn it over to my colleagues. Mr. Wattley, just in response to that, while there isn't a formal requirement for programs for folks who are seeking parole, do you believe that there's an informal or kind of common knowledge that they need to be able to participate in programs in order to be able to have a chance at a successful parole hearing?

Well, yeah. As Ms. Shaffer indicated, the expectations that people will be able to answer the why questions like, why you committed a crime when you were whatever age 15, 16, 18, 20. And then they can show that they've used their time in prison to address whatever the 'why' was. And that requires relevant programming. Some people have access to it, some people don't. Not enough people do.

Sometimes the programming, though, that people need, looks more like therapy, just counseling, an opportunity to explore those really difficult experiences from childhood and to understand how they impacted their decisions, their actions, their associations. And you need a safe space to do that.

In our experience, this is sort of why we've developed this model that we have that's now our in-prison programs, because we recognize that our clients had the best success in this process if they were housed at an institution that had programs where they can continue the same conversations we were having, but continue them outside of the confidential legal visiting room. They're having it on the yard or having it when they're meeting with their friends or walk in the yard.

That's where a lot of this work takes place. But if you're in a prison that doesn't have that kind of environment, that kind of supportive community, those conversations aren't happening. The conversations are, how do we survive today? And not everyone has the luxury of being able to engage in that kind of work.

So the more you have those opportunities, create those communities, whether you call them therapeutic communities or something close to that, that mutual support is key to people being able to succeed in this process, in life, in their family relationships, et cetera. So where we see that happening, we see people have much better success. That can happen even at the highest security level prisons that we have, we don't give up on them.

We do see sometimes at some institutions that the expectation on the prison yard is certain people are going to have a chance, other people aren't. Or there may be four facilities at one prison. They say, this is the place, this is the programming facility. The rest of them are not programming facilities. We're not going to grant parole there. We're not going to send programs there, et cetera. We've written them off. And we don't believe in that.

I think that if everyone has that opportunity to engage in that kind of work and to have it translate into I get to go home to my family when I've done this, then it creates a much safer environment for all of us inside the prisons and out of the prisons. But where people have done that work and have been to the parole board 10 and 12 and 15 and 20 times, and they're told, this commissioner thinks you lack insight. This one thinks you have insight.

The governor has his own opinion about insight into your crime. Your decision about whether or not you get released feels just as arbitrary as it ever has. And that's the most, not just frustrating part, but devastating part, devastating to families, to communities, to relationships. I've lost more people than I can count to this process because they gave up. Because their work was not translating into a parole grant, and they lost hope. Their family members disappeared, they died. Relationships fell apart.

This process is devastating on so many levels that really doesn't get the attention that it should.

Mr. Lackey, do you have questions?

Yeah, this is a really delicate discussion, truthfully. Prison complexities are very, very intense, and they have very intense outcomes, good, bad or indifferent. And so I think stereotyping how we interpret data is dangerous, also. And so I'm hoping that we can try to be balanced in our perspective because I think one thing that is completely forgotten too often when we're talking about parole is victim circumstances and how they are healing. I know they're somewhat considered in the parole process. There's a notification.

I think they got, like, 30 days notice if they want to be involved in the hearing, but I don't think that's irrelevant. I do think that the nature of the crime, and I'm sure the parole board actually considers that heavily because the risk assessment is a very delicate one. Everybody hopes for rehabilitation, but reoffense is tragic. So you have hope versus potential tragic outcomes. That's a very, very tough consideration. And so I think you have a thankless job. I really do.

I think that even when you grant parole, that there's a certain population that feels like they've been betrayed, and when you don't, there's another population that feels like they're betrayed. And I think it's a no win battle if you're going for popularity, and hopefully that's not what drives the decision. But political influences sometimes equate to popularity, and so I think it's dangerous, and I hope that that's not the driver.

And I do have a question to the LAO. I wondered if your review saw any kind of improvement, of any measurable action of improvement after the attorney pay increase took effect.

What we found is that there just isn't data on the level of services that attorneys provide. So there just wasn't any way for us to assess that. Ms. Shaffer indicated that the nonprofit that the state contracts with to provide services to these contract attorneys collects some client surveys. Those are not available to the Legislature or the public, so we weren't able to review them, unless they're something that came available only recently.

So that's ultimately why we recommended that the Legislature move in the direction of more data collection and evaluation in order to guide future legislative action.

That's fair. I think anytime you try to debate salaries, it's an impossible discussion because everybody thinks they're underpaid no matter what you do, and you can argue that you are, and so it's very delicate. So I just wondered if there was some kind of measure or metric or something that we could look to, to feel a little more confident about the increases.

I think one thing that the Legislature could think about is making a distinction or can be helpful in this discussion to make a distinction between what is the legal requirement for services to be provided. The Legislature did create this right to an attorney, and there's some, of course, different ways of interpreting what that means. And there is ongoing litigation, as you heard, surrounding what is the legally required level of services. That's not something that we looked at or weighed in on.

We were looking at this more from the perspective of what level of services might people need to ensure that people, given different circumstances, have equitable access to a chance at success in the process or that their likelihood of release isn't contingent on their or their family's ability to afford a private attorney, for example, I think you could think about kind of,

Does the Legislature, in implementing this requirement that it put into statute to give people the right to an attorney, what does it want that to look like? And there's different criteria to consider there one being equity. But then there's also the question of, what is the best way to provide those services? Is it through an attorney? Or maybe it's through therapists or other types of program models. And as you heard, there is an ongoing pilot to look at that.

But we, again, don't have the information or the results from that. So I think in terms of thinking about metrics, we're still almost at the phase of not only needing to collect data, but decide on what metrics we even want to be evaluating.

Thank you for that. I just want to close with the fact that I know that stereotypes are very hard to avoid for some people. I mean, all of us are guilty to some degree. We try not to be. And I'm just very sensitive to the fact that I believe that the prison population, just like the regular population, non-prison population, are complicated and complex, and there are many variables that are really hard to evaluate.

And when you're on a parole board, making the determination of whether you're to be granted your freedom and whether you're going to reoffend is a very delicate balance, and I respect it. And I hope that we can all collaboratively work together to be successful in making that, because if people have rehabilitated and have had a change of heart and have no inclination at all to reoffend, then we need to welcome them, and hopefully we're doing the best we can. Thank you.

Thank you, Mr. Lackey. Mr. Jones-Sawyer?

And actually, this is a really important discussion we have to have. As the chair of public safety, I get a lot of calls about people who feel that they should be paroled or their family members should be paroled. And what I've said at many of these meetings in the public, in the newspaper, especially when people say we've become a little lax in letting people out. I have to remind them, probably one of the hardest things you could ever do is get paroled in the state of California.

It is not easy. And the hoops you have to go through is quite a bit. If you are able to make it through the myriad of different things you need to do when you get paroled, you probably never want to go back to that system again. And I even remember trying to get someone out who believed that they were innocent. And part of what they were asked to do was to admit that they did wrong.

And this person wanted to bring in evidence that they did not commit the crime. And it was my understanding they were told by the parole board they couldn't bring those facts in. Because what it was about is, are you a different person now than when you came in? And it's really about your time in prison and what you've done to move forward. But we still have people who want to relitigate individuals that are in prison.

And I know for some family members and loved ones, they want to keep that person in because of that pain that they feel, which is a legitimate pain. It's an honest pain, and we have to really understand that. And that's why we try to get the two together, because they both are in pain and try to resolve it.

It hit me then that one of the missions of the parole board is to make sure that that individual is no longer that individual that came in, that they've made changes. And it's still real difficult to get that done. And the person I was trying to help still is in prison and still has trouble getting through the parole board because they have a philosophical understanding of how to get out.

And so this is important to me because we really do need to just kind of sit down and try to really figure out, I think, the main purpose, I think both of you have the same main purpose, but that person has changed, and we need to honor that. We need to figure out a way to re acclimate them into society so that obviously, we don't want them to recidivate. But most important, this whole concept of second chances, forgiveness.

I know church was yesterday, but this whole Christian belief of forgiveness sometimes get lost in the discussion, and sometimes it's a little bit about revenge, not necessarily about redemption. If we can start to figure out a way individuals can redeem themselves.

Especially. If they did something when they were a child. When I say child, I mean, you're 13, 14, 15 and you're now 40, 50 years old. That is not the same person as then. Or you may have cancer and you come to the end of your life. And we're not letting them out because we still want to punish them even though they may only have a month to live. That seems to be a little inhumane also.

And so we really do need to have a serious conversation with all of us about better ways that we can deal with people when they have an opportunity to be paroled. The system is, anybody can hear my voice, and I think one of the witnesses can tell you can attest to. It is very difficult to get paroled in the state of California. This is not an easy proposition. We're not trying to make it easier. We're just trying to make sure it's fair for everybody.

Obviously, we want to protect the public, but protecting the public doesn't always mean you got to lock everybody up forever and throw away the key. And that is the answer. That's a simple answer. It's a comforting answer. It's almost like comfort food, as long as they're locked up, in a way, we feel comfortable with that.

But let's get beyond our comfort level and figure out a way that we can assure the public that once someone's released and we can get that data, I think that's what we're trying to get to. Let's try to get that data that people who do get parole, their recidivism rate is really low from the data I've seen, and maybe because we don't let that many people out, but that's a whole other discussion.

But let's talk about how successful we are at letting people out and continue that so we can get more and more people out who can lead productive lives back into the society.

May I respond to that briefly?

Sure.

So I think one thing that many people would find surprising is that many years ago, only 5 percent of our grants were actually issued at a person's first parole hearing. It's now around 35 to 40 percent of our grants of parole are issued to people who have never had a parole hearing before. So their first time coming for the board, they're granted parole and released.

So the changes in the law that the Legislature has done over the last several years has greatly expanded who is eligible for a parole hearing and made them eligible earlier. I think, to be honest, we're at the beginning of significant changes because as people come into prison today, they're told you're going to have a parole hearing. You could go home, at this time. And that's their target when they come in.

Whereas a lot of the people that have come before us recently never had that opportunity, did not know that they were going to have a parole hearing, and for many years had no hope. A couple of other things I really want to address. I'd love to hear the case that you're actually speaking of. I'd like to have those decisions reviewed.

It's a very famous case. So I don't want to.

Okay, let me know, maybe outside of this hearing, but I'd like the opportunity to review what's going on in that particular case, because people do not, they have a right to not admit guilt, and there's a whole legal framework for determining how to handle that in a parole hearing. We look for whether their denial is plausible or not, and a variety of other things. But you're right, we're looking at who the person is today.

And I also think that there are a couple of things that would greatly help the process. One is greater transparency. Right now, what the procedures, what documents we're looking for, what information we're looking for is sort of this myriad of statutes, regulations, case law. It's complex. Litigation makes things complex sometimes, and very nuanced. And you add on to that what we've learned. It's not 1975 anymore.

For the last two decades, there have been significant changes, and people can predict with reasonable certainty what increases somebody's chance of recidivating violently and what reduces their chances. So I think the whole science of forensic psychology has developed significantly from 1975. And we actually have some evidence showing that people who have been released from state prison after they've been denied parole.

So the determinately sentenced elderly parole and youth offenders who have been released after being denied parole from the board, they actually recidivate at a much higher percentage.

I'll make this quick. So alcohol was the reason why that happened, in the murder case. And when the parole board asked him if that person had been in any classes for alcoholism, he said no, because it was never offered. There weren't enough classes. So it's like a catch-22. And then he told the people who came to me that he was no longer drinking. And I had to remind them, you probably can get more alcohol in prison than any other place, so we can't go by that.

But all this back and forth, back and forth, ended up with that person staying there. Mr. Wattley, if you want to just, I think your position is we could have more if we had better, we get better outcomes, if we did more, isn't that where you're going?

That's for sure. And I also think that if the factors for determining the outcomes were more objective, more predictable in terms of people being able to know what I need to do in order to get out of prison, to change my life, what do I need to do? What do they need to see? And what we've seen, though, is up until 2008, the parole board didn't really care that much what people were doing in prison. They focused on their crime.

We would sit in a hearing for 3 hours, and they would talk about the crime, how bad it was. I'll put it this way. Maybe it's the least healing space for survivors of crime to sit through that. It remains one of the least healing spaces imaginable. To relive that with no opportunity to actually see that the person has changed and hear the board recognize that this person's fundamentally changed. Instead, there's just sort of a focus on the gravity of the crime.

After 2008, when the Supreme Court said, well, you can't do that anymore. Then the parole board said, without that, what do we go with? Well, if we perceive that someone is still dangerous, then we're going to continue to deny them parole even without looking at their crime. But how do we do that? Well, let's use this idea of insight. If someone doesn't have insight into why they committed a crime 20, 30, 40, 50 years ago, that will be our basis for denying parole.

If they don't have enough remorse, that will be our basis for denying them parole. There is zero evidence that the presence or absence of insider remorse correlates to violence risk, period. They're the most subjective factors we could imagine for determining whether someone is suitable, and it's what the board uses regularly, all the time, in every hearing. And, it is this subjectivity that lends itself to the bias we're talking about.

If I can't understand how you present, if I don't understand your culture, your background, your language, then I'm going to perceive you in a way that I might not perceive someone I'm familiar with. That's how bias shows up. It's what it does. It's who we are in this country. We judge people based on this little bit of information. We run with it and assume we know everything we need to know about them. It's what we do.

And I think it's a mistake to pretend that doesn't live in the parole process. It's just being intentionally ignorant of what's obvious. It's inconvenient, but it's still true. And I think the more we provide an opportunity to see the people who are there beyond the paper, then we will get different outcomes. Thank you.

Thank you. For the sake of the time, the other two panels, I'm going to just remain cautiously optimistic, in Ms. Shaffer's words, that we are really at the beginning of significant changes. I think we did have the governor who just called for a paradigm shift, and I think we are moving in that direction.

I did want to just have you share, Ms. Shaffer, the UC Berkeley report that you mentioned, when you think those findings are going to be available so that we might have you back?

I do not know. As soon as they get the data and we start sort of going back and forth, we'll probably get a timeline for what that looks like and when it will be available. I'm really looking forward to information, meaningful information that's based not just on outcomes and some rather rudimentary metrics, but actually a very thoughtful, I think, and methodical approach to what's driving our parole hearing processes and our outcomes. So, yes, we will definitely share that with you.

Great. And I know that we'll have the outcomes and report back on the pilot that UnCommon Law is engaged in as well. So thank you so much for your time and for speaking here today.

Thank you.

We're going to move on to our next panel. We'll now be moving on to. Did you have some information?

I do. I have some information for you. Great. You and your staff, if you'd like it.

You're welcome.

Thank you so much.

We will be moving on now to subpanel two medical records for ISUDT and the parole hearing process. For this discussion, we will be focusing specifically on records related to the integrated substance use disorder treatment program, but Ms. Shaffer will provide us with a brief overview of how medical records are used in parole hearings. First, we are also being joined by Mr. Specter, who is the Executive Director of the Prison Law Office on Webex. We will begin with Ms. Shaffer.

Okay, once again, thank you for having me here. I want to begin. I heard not too long ago a little bit of your agenda, your meeting concerning ISUDT. You had some folks here from correctional healthcare talking about ISUDT integrated substance use disorder treatment program. I want to begin my comments today by expressing the board's unequivocal support of the ISUDT program. We see positive results from the program every day in our parole hearings. We believe it's saving lives and it's helping people to become suitable for parole.

The board has worked closely with the Isudt program and correctional health care staff to share information about our respective programs, and we have learned a lot from one another. Recently, ISUDT dedicated its monthly newsletter for the incarcerated population to this particular issue about confidentiality of records and the ISUDT program. I have copies of that here I can provide for you.

It included in that newsletter was a lengthy interview with me to highlight the fact that the board considers participation in ISUDT as a positive thing for people who come before the board. So the heart of the issue we're discussing today concerns two important competing interests, patient confidentiality and the board's responsibility to make informed, risk-based decisions about who can be safely released into our communities.

While we understand and respect the fact that this is sensitive information, and we want to encourage all incarcerated persons to seek help when needed, the information is also critical to making informed parole decisions. I think it's important to clarify that this is a policy question, not a legal one, for the established law in this area is clear.

Courts have held that incarcerated people do not have a protected right to privacy in treatment records when the state has a legitimate penological interest that requires use of the records. The board is responsible for determining who can safely be released from state prison, which is a legitimate penological interest. I do not know of any discretionary parole process in the country, or the world for that matter. I do work quite a bit with the Association of Paroling Authorities International.

I do not know of a single jurisdiction that elevates a patient's rights to privacy over the need of the paroling authority to make informed, risk-based decisions. This is because treatment records can be extremely relevant to assessing a person's risk at its core. As I explained before the prior panel, that parole consideration involves an analysis of who the person was when they committed their crime, who they are today, and the difference between the two.

Access to medical and mental health information is critical to evaluating a person's risk because one of the foundational principles of risk assessment is to identify the person's historical risks, those factors that contributed to their criminality, factors that may include things such as substance abuse or a mental health disorder. When looking at who the person is today, we're trying to figure out if those risk factors remain relevant to them today. Has the person addressed their substance abuse disorder? Where are they in their recovery?

For persons who have a mental health disorder, we're looking to see if they're compliant with their treatment program. For persons who have a. I mean, obviously, there are many people who manage their mental health issues successfully and without violence in our communities. We're looking to see if the person before us will be one of those people if released. Not only is access to this information legally permissible, some statutes actually require that the board consider this information. What example is elderly parole?

The penal code requires the board to give special consideration to the person's diminished physical condition, if any, when determining their suitability for parole. That requires medical information. And this issue, I just really want to caution folks. This issue goes well beyond the board's discretionary parole process. In California, there's also a sexually violent predator program and a program for offenders with mental health disorders.

These programs authorize incarcerated persons who meet specific criteria to be transferred to a state hospital for treatment instead of being released at the end of their term if they continue to pose a risk to the public. The statutes governing these programs require board staff and the Department of State Hospital staff to access and evaluate treatment records. If an incarcerated person's right to privacy is deemed to be more important than the state's legitimate penological interests, it will greatly impact those programs as well.

I want to conclude my comments with one final thought, and that is the board does not access treatment records for punitive purposes. I think that's really important. It's not for punitive purposes.

While in some cases, the information contained in treatment records may contribute to a finding that the person is not suitable for parole, in far more cases, the overwhelming majority of cases, that information contributes to a finding that they are suitable for parole because contained in those records is a lot of information supporting the fact that the person has engaged in positive cognitive behavior, cognitive based rehabilitative programming. Be happy to answer any questions you may have.

Thank you so much. I will move to Mr. Specter, the Executive Director of Prison Law Office.

Thank you very much. Can you hear me?

Yes.

Great. I'm Don Specter, the Director of the Prison Law Office, and I agree with Mitch Schaeffer and everyone who has looked at this matter in a reasonable way. And we all agree that the isudt program is a tremendous success. It has saved lives. It's reduced medical costs. It's aided in rehabilitation, which in turn will reduce the number of victims and hopefully will lower the recidivism rate as well.

Therefore, in my opinion, the state should be doing everything within reason to maximize the number of people who participate in this program. It's probably, in my experience and my tenure, tracking the Department of Corrections, it's probably one of the most important things and successful things that the Department has done in the last several decades. And part of the success of the program depends on the confidential relationship between the patient and those who provide the treatment.

Your staff, in the memo that was provided to us, pointed out that the analysis by the Federal Government, which says that protecting the confidentiality of patient information is critical. And it also says that without adequate protection, clients may avoid treatment when there is a lack of confidentiality. That is exactly the situation which we are concerned about today.

One can hardly expect all patients to be candid when that information may be used against them by a law enforcement official appointed by the parole, who is part of the parole board, to deny them an opportunity for freedom in the form of parole. The board, however, and you just heard Ms. Shaffer explain their position, does not respect the confidentiality of the treatment records, insisting that it has complete access to the parole applicant's medical and mental health file, including the ISUDT treatment records.

The board uses this information to deny parole in a couple of ways. First, it can use a relapse as a reason to deny parole, sometimes regardless of whether the patient has successfully maintained sobriety. Second, the board may use this information, and it does. And from what I understand, it's important to the board to be able to impeach the testimony of the parole applicant at the parole hearing if their testimony does not match the information contained in the medical records.

In short, I think the board's policy and practice inhibits people from participating in the isudt instead of encouraging that participation. On the other hand, the board's policy also means that applicants who do not participate in the isudt have a better chance of obtaining parole because the opportunity for impeachment of their testimony will not exist, and the board may be less aware of whether they have relapsed and used drugs while they're in prison.

So the board states that it needs access to this information to guard against a relapse in the community. And as a result of that relapse, the person would possibly commit another crime. But these patients are addicted to substances, and as such, they are always at risk of a relapse. The best thing the state can do for them, in my opinion, is to provide evidence based treatment and supportive housing in the community that reduces that risk, and that's the Isudt program.

The board's position is that as a matter of legality and policy, that it's entitled to this information and it needs access to all relevant information in order to make a decision, as you've just heard Ms. Shaffer describe that position. But it doesn't have to have the same access to relapse information about people who are not participating in the program.

In other words, the parole hearings for people who are addicted to substances but are not participating in the program provide less information than those who are participating in the program. And as Ms. Shaffer said, there are two competing interests here. One is the board's need for information, and the other is the interest of the state and the parole applicant to encourage participation in the ISUDT. In my opinion, right now the board isn't balancing those interests.

It is unyielding in its demand for access to all relevant information. And I agree with Ms. Shaffer that this is not a legal question, it's a policy question for you as legislators to address. And in my opinion, I believe that the Legislature should enact laws which promote and encourage people to participate in the ISUDT, even in the face of the fact that they have to go in front of the parole board where this information may be disclosed.

And I would argue that it shouldn't be disclosed, or at least not disclosed fully. So I have a proposal that I have yet to share with Ms. Shaffer, so I don't want to put her on too much of a spot. And the proposal is to balance the two competing interests instead of providing the actual treatment records to the commissioners and the rest of the board staff.

It seems to me to be one way to deal with this issue is, at least in the isUdt context, is to have the records summarized by the treating clinician at CDCR. In this way, the records will remain with those will remain confidential except for the summary. And the summary will be provided by the persons who are most knowledgeable about the effects of the addiction and the treatment and who can place the applicant's substance abuse history in its proper context.

And at the same time, the board will have access to the essential information it needs to decide whether someone should be granted parole. It seems to me that this is a workable solution will require some extra effort on the part of the CDCR clinicians.

But it seems to me to be a reasonable compromise between the two competing interests, and it will encourage, or at least less inhibit, less discourage people from not participating in the ISUDT, and also provide Ms. Shaffer with at least some of the information that she thinks the board needs in order to make a decision. Thank you.

Thank you so much. I almost want to just let you respond right away.

Okay. Just say it's Mr. Specter. And I have these conversations quite often, so it's as if we've just invited you all to one of our. So, yeah, I'm not going to say yes, but we'll go back and really consider this. I will give you some of my concerns. One is what I have found since I came to the board, is that the majority of the public, including clinicians within CDCR, no offense to those who are actually here, there is a fundamental lack of understanding about risk.

They are not forensic psychologists. They do not get the extensive training that we get on what actually impacts somebody's risk. So what you would be proposing, what you are proposing is that we would be delegating to somebody who hasn't all had all that training to determine what's relevant and what's not. And I think that creates a pretty significant disconnect.

I also think it would be very, very difficult to have consistency in how somebody summarizes that information, what they include and what they don't include, which, in this incredibly litigious arena that we happen to be in, I think would be really problematic, because now we're deferring to somebody else and making decisions based on that.

If I were an attorney who was representing a client before the board, I'd want to know who made that determination, what was left out, what wasn't left out, and whether that's an accurate portrayal or accurate summary of that information. So I think that that would be a little bit problematic. The other thing that I think, perhaps apart from this isn't just about a disclosure during an ISUDT clinician relationship. There is testing done by people who are not in ISUDT. Right.

People are randomly, they subjected to urinalysis tests throughout the prison population, and we get those results. In that respect, this is not much different from that. The other thing is, it sounds, and I appreciate Mr. Specter's perspective. It sounds as if there is a perspective that this information is only used for negative reasons. And one of the things that we have difficulty with is the reverse.

We ask people to come and be brutally honest with us when they come into a parole hearing, parole panel attorneys are constantly telling their clients to be honest with the board. So if they come in and say, yes, I had a relapse, it was documented. This was my response. My response to it was pro-social. Unlike when I was in the community, I sought help, I got help. This is what happened. I did not resort to violence. It didn't result in any sort of impulsive response.

We have no way, if we don't have access to those documents, there's not a way to confirm that unless somebody happened to have summarized that in the documentation, what would happen in that case could delay that person's grant. I just think that there are so. And we've gone down this path. We've gone down so many paths doing this dance, talking about this particular competing competition of interests. Every opportunity, every proposal that we've come up with that anybody has suggested has resulted in unintended consequences.

When we sit down and we try to apply it to every fact pattern that comes before us, there are negative unintended consequences. And so I would caution folks of stepping into this area without a lot more information. I'd like the opportunity to really test right and have an opportunity to make a more informed decision.

So if there is something that is a concrete proposal, which I personally do not support, but if there was, maybe there's an opportunity to look at that and see what the outcomes would be. The other aspect of this, which has not been addressed, is not only do we have access to this information, but this information is actually necessary for our forensic psychologists to accurately apply the risk assessment tool, the structured professional model that they use for determining risk in our parole hearings.

This information is very relevant to their assessments, so I'm not sure how it would affect the accuracy of those risk assessments if they did not have access to this information. So it's not just the pro board during a hearing, it's the risk assessment process leading up to that hearing that would be impacted by this as well.

Thank you for that. And I assume that you will be able to follow up with Mr. Specter. Yes. Great. So I just wanted to get a little bit at the implementation. Prior to the implementation of ISUDT program and medication-assisted treatment programming, at the scale that it is now, how did the parole board assess a person's substance use disorder for the purposes of making a parole determination?

So I don't know if this will be surprising to you or not, but usually there are a lot of indicators that somebody has an issue with substances in prison. So there might be some contraband that was found. There might be drug debts that are owed. There might be a variety of other ways. There's also the random testing that we've talked about, and again, we tell people what's most important is to be really honest with us. Lots of people admit to when they last used.

Sometimes they're impeached with other evidence that we have in the record that suggests otherwise, but a lot of times, they're not. So in that respect, things have not changed very much. One thing that has changed, which I want to add, is a little problematic here as well. I respect why it happened, but there are a lot of people that are in the mental health delivery system who receive their rehabilitative programming through the mental health delivery system.

So notes about the rehabilitative programming that they've taken is in their mental health record, and that's really important for us to have access to. So I think things have evolved over time that have made this a particularly complex issue. But I do not believe that the board is in any way discouraging people from seeking treatment.

To the contrary, what we tell people is that the sooner you go to isudt, the sooner that you seek treatment and show us that you actually can seek help for what you know you need help for. That is the first step to becoming suitable for parole. I think it is a fallacy to suggest that people were denied or previously approved for parole who still had active substance abuse issues. I have not seen evidence of that.

Thank you. I'm just trying to understand. So if a person first came into prison and was diagnosed with a substance use disorder, but never participated in treatment, but also never failed a drug test or got written up for anything related to drugs, based on this factor alone, would this person likely be denied because they never participated in a program, or would they likely be released because they never got in trouble?

So we would apply the structured decision making framework. That alone should not be the issue that gets them if they are denied. Denied? It is usually, in my experience, a myriad of factors, not just one. We have had cases where people have just abstained, and there's no evidence in the record that they continue to have a substance abuse issue. So it varies. It's a very individualized consideration.

Thank you. And I do think that given. I like and appreciate that both of you indicated that this is essentially a matter of policy. And I do think that there is some evidence to the effect of ensuring that when people have to step in and not have the safe space that may be created to them through the provision of iSUDP being used for the purpose of determining their parole.

I don't know how safe that space can be and whether or not people will actually be seeking the treatment that they need quite as frequently. So I think an area of further exploration, for sure. I appreciate your forthrightness and being willing to be incredibly responsive to the questions that we've outlined here and want to thank you for your testimony.

You're welcome. Thank you for having me.

Before we move on to the next item, I'd just like to make one comment. The opioid epidemic is raging in our country and in our prisons. The Administration has made critical investments in fentanyl related enforcement activities and IsUDTP. We heard from Ms. Hines about the incredible work that the health staff have been doing to implement ICDTP and the promising results so far.

The difficulty with this issue is that with most substance use disorder treatment programs, inside or outside of the prison, relapses are common, are a common occurrence, and if it was easy to cure, we wouldn't be in the current situation. If you get treatment on the outside, there are many privacy protections due to the stigma and discrimination.

While we may not be able to replicate that level of protection in prison, and there are other factors to consider, it seems reasonable that we want to encourage as many people as possible in prison to participate in getting treatment, not only to help them, but our public safety depends on the ability to break the nexus between substance use and crime and the use and the healing that can happen in our prison system.

And if there is a part of the parole process that could be safely modified in order to maximize participation, we should at the very least try it out. And if we can scale it. For decades, we've been releasing people from prison that have yet to completely manage their substance use disorder, and we still do. We have a tool now we're using it. Let's continue to use it. And I want to thank the panelists for this important conversation. And we look forward to the continued conversation.

We'll move on now to our next issue, which is issue two, class action litigation. For this item, I've asked the LAO to provide us with an overview of the major class action litigation cases against CDCR, and then we will hear from CDCR on their budget proposals, their litigation strategy, the progress they've made on the lawsuits, including challenges and the costs associated with these lawsuits. We'll begin with the LAO.

Thank you, Madam Chair, my name is Orlando Sanchez with the Legislative Analyst Office. I'll be starting off by providing an overview of some of the six sorry, some of the six major litigations affecting CDCR. And I'll start off with the Coleman case. Coleman is a federal class action lawsuit filed in 1990 on behalf of incarcerated people who receive mental health care in CDCR. In 1995, the Coleman court ruled that CDCR was not providing constitutionally adequate mental health care. The court identified various areas of improvement.

For example, the court found that the state had chronic understaffing of psychiatrists and led to significant delays and even denial of access to care for people with severe mental health needs. As a result, the court appointed a special master to monitor and report on CDCR's progress towards providing an adequate level of mental health care. To improve the care, the state has taken various actions including implementing staffing changes and mental health infrastructure such as the construction of psychiatric facilities.

Just wanted to note that the special master continues to monitor the and issue recommendations to the department. Another case is the Plata case filed in 2001. This contends that CDCR failed to provide adequate medical care. The plot of court found numerous problems such as lack of medical records and lack of qualified staff that eventually led to preventable deaths.

In 2006, after finding the level of care was unconstitutional, the plot of court appointed a federal receiver to take control over the direct management and operation of CDCR's medical care system. The receiver has initiated various projects such as implementing the electronic healthcare systems it project, increasing wages of medical staff and building additional medical capacity, for example, the California healthcare facility in Stockton, as well as numerous healthcare facility improvement projects and medication distribution projects across the state. Then, moving on.

In 2006, the plaintiffs in both the Plata case that I just spoke about and the Coleman case filed motions to the courts to convene a federal three judge panel that argued that persistent overcrowding was one of the main reasons preventing CDCR from providing adequate health care.

In 2011, the US Supreme Court upheld the ruling from the three judge panel that overcrowding was one of the major issues leading to health care being unconstitutional and therefore it ordered the state to reduce overcrowding in its facilities to 137% of its design capacity. At the time, the state prison system had about 145,000 people, which represents about 180% of design capacity.

Following this ruling, the state implemented a series of actions to reduce overcrowding, such as the 2011 realignment, the building of infill facilities, and the implementation of Prop 57. The state now has been below this cab since about 2015, and as of March, the state's prison population occupies about 110% of the prison system. The prison's design capacity.

Then I'll move on to the next set of court cases that are in relation to the American with Disabilities act, which provides civil rights protections and access to public and private services for those with disabilities. The Armstrong case in 1994, plaintiffs filed a federal class action lawsuit alleging that CDCR was not in compliance with ADA, that people with disabilities did not have equal access to the programs and services.

For example, people with hearing impediments were not provided the same level of access to rehabilitation programs, which affected their ability to be released by the Board of Parole hearings. 1999, CDCR negotiated a settlement. Within that settlement, developed the Armstrong Remedial plan, and as part of the remedial plan, the state hired qualified interpreters and provides necessary medical equipment and accommodations. The Armstrong court continues to monitor for compliance, and then a second one as part of the ADA has been the Clark litigation.

This is another federal class action lawsuit filed in 1996 on behalf of people with developmental disabilities. The case contends that the state violated ADA by discriminating against people in prison and denying them adequate accommodations. In 2001, the state agreed to take a series of actions to settle the case by complying and revising its policies and procedures, and this became known as the Clark Remedial Plan. As part of the remedial plan, the state now identifies people with developmental disabilities and places them at designated facilities.

There they can receive programming and access to treatment, and the Clark court continues to monitor the state for compliance with the remedial plan. The last major court case is known as Ashker. Ashker is a federal class action lawsuit that was originally filed in 2009 and amended again in 2012 on behalf of people who were in long term solitary confinement within CDCR's security housing unit, specifically at Pelican Bay State prison. In 2015, CDCR settled the lawsuit.

The terms of the settlement included significant changes to CDCR's security housing unit policies that limit its use and require the Department to transition people to general population more quickly than before. Courts have ordered additional monitoring due to ongoing violations, such as findings of retaliation against the plaintiffs, and that wraps up the six major ones affecting CDCR. Thank you. I'd be happy to take questions.

I will just note that and thank you for the very thorough overview. My calculation was that this is five major class action lawsuits that cumulatively add up to 104 years of litigation. We'll next hear from Connie Gipson, Director of Division of Adult Institutions.

Actually apologize, Madam Chair Members. Madelynn McClain I'm going to do the brief overview, and then I do have my colleagues here to answer any questions that you have great. I'm going to break this up into two parts. One is just to talk about the three proposals that we have before you, and the second piece is to talk about litigation costs. There are three proposals included in the Governor's Budget. The first is 3.7 million General Fund to support DOJ legal fees.

By statute, DOJ represents state and civil and criminal matters before the trial courts, appellate courts, and Supreme Courts of California and the United States. This request utilizes actual expenditures for 21-22 and a combination of actual and estimated expenditures for 22-23 is the basis for this request, and I realized I apologize, I did not introduce myself.

Madelynn McClain, Deputy Director, CDCR the second proposal on this item in the Governor's Budget is 500,000 ongoing General Fund for two ombudsmen to support court-mandated remedial measures associated with Armstrong the Office of the Ombudsman is a liaison between CDCR and internal and external stakeholders and as such, provides support to incarcerated population, advocacy groups and the public. The office also provides incarcerated individuals and their families a neutral and confidential platform to communicate concerns.

A new measure that was implemented as part of the Armstrong Remedial plan requires the office to participate in quarterly interviews of class Members at the six institutions identified in the Richard J. Donovan Armstrong Remedial Plan and then the five prison remedial plan. The last proposal will provide 2.8 million ongoing General Fund and 17 positions to support remedial measures associated with the Clark class action lawsuit and includes two components.

One is it resources to develop and implement an update to the strategic offender management system to support information and communications technology compliance for persons with disabilities, commonly referred to as Section 508 compliance, and 15 positions to be deployed at institutions with the highest number of Clark class members. These positions will perform tasks to address the needs of the developmentally disabled population and include completion and auditing of the adaptive log support logs, victimization interviews, and assistance with reading and writing activities.

Both of these proposals will increase the department's ability to meet the needs of the individuals with developmental disabilities. As noted in the agenda, CDCR submitted its annual report on class action lawsuit expenditures on January 31, 2023. CDCR has expended approximately 145.5 million on litigation over the past five fiscal years.

Of that, approximately 143.6 million was for the seven cases that are in the remedial phase, approximately 1 million for the four cases that have been certified by the court and are still in the litigation phase, and approximately 900,000 for the remaining seven cases that have not been certified by the courts. Specifically, 142.8 million is on Armstrong, Ashker, Coleman, and Plata.

As BLAO provided in their own overview, litigation costs include office of Attorney General legal fees, plaintiff's attorney fees, Coleman's special master fees, outside counsel charges, and court expert fees. In order to achieve sustainable compliance, the state must demonstrate its ability to provide services and care to all incarcerated. Therefore, it's important to note that the costs associated with implementing any court order or settlement will continue after the litigation is resolved, as the obligation to provide these services to meet the incarcerated needs must remain in perpetuity.

As such, these costs are now part of the state's ongoing overall expenditure plan. CDCR takes these matters very seriously and continues to work with the courts, plaintiffs Coleman, special master and plot a receiver as appropriate to resolve issues when raised. More importantly, we continue to prepare for a post litigation environment where the state provides the appropriate constitutional level of care, meets or exceeds community standards, and maintains a safe and secure environment for the incarcerated individuals and staff.

Additionally, CDCR is taking proactive steps to challenge correctional norms by creating a healthier and safer environment and preparing individuals for successful community reintegration. As mentioned by Secretary Macomber, CDCR is committed to the implementation of the California model, the foundation of which is based on two core pillars. The first is focused on the wellness of our staff and the second is based on supporting the unique needs of each incarcerated person within our care.

Additionally, CDCR is looking to leverage technology to improve the lives of incarcerated and staff operations while enhancing institutional safety. CDCR is focused on achievable it solutions as part of its comprehensive digital strategy to improve accountability, transparency, compliance, to reduce litigation grievances, increase staff morale, achieve community standards, and reduce paperwork processes. Both of these efforts are designed to complement existing operation and activities to assist with ending current litigation and avoiding future litigation. I will note that you did request an overview of our litigation strategy.

We do have our chief counsel in the audience. However, we do want to caution that we're in active litigation on these cases and the state's approach to litigation or any strategy to mitigate litigation cannot be discussed. However, the state has a right to defend itself and any decisions made in regards to this are done in consultation with the Attorney General's Office as the Attorney General represents the people in all matters before the courts.

With that, I have Director Connie Gipson here and Dr. Bick to answer any questions that you may have.

Thank you. I think we'll hear from Dr. Bick now or just for questions. Thank you, Ms. Hewitt.

Allison Hewitt, Department of Finance. No specific comments, but available for questions. Thank you.

Thank you and I'll just start off by saying I'm appreciative of the provision of some of the information related to the Subcommittee's request for costs related to litigation. I am a bit baffled, however, by the overall incompleteness of that information. One of the primary functions of this Subcommittee is to provide oversight, and in order to fulfill that duty, first and foremost, we actually need the information, and not just some of the information, but all of it.

And in the instance here, we had, I think, some challenges in being able to not only understand direct legal costs, cost of settlement, and cost of remediation over time. So I'm striving to make sure that we actually have a comprehensive view of the cost of litigation that has occurred with CDCR, and even if it was just these class action lawsuits over the past, cumulatively, 106 years of litigation. So my first question is for the Department of Finance.

You sent us a list of the bcps since 2016 to 2017 that you considered related to the class action lawsuits. Just looking at this year's proposed resources, for example, you only listed out the court compliance BCP. We have two other bcps. One of them is actually titled Clark litigation Compliance, and the other one is DOJ legal fees. Please help me understand from your perspective why those resources were not included in the table.

Thank you. Alison Hewitt. Again, so finance did not prepare this table. So at the risk of attribution, we worked with the department, who was able to provide more information. So I'll defer to my colleague.

So I will ask the question, or hopefully you heard the question, we'll be able to answer it.

Certainly, when we were preparing that list, we were trying to provide a list of examples that would highlight the need for the items that were specifically court ordered. For example, the Clark compliance is something that's not directly court ordered. It's to assist in our goal in meeting the remediation plan. DOJ legal fees component is a mix of both class action and other lawsuits. So it's a cumulative look at all of the hours that we spend in terms of litigation for Department of Justice. So it's not isolated to one specific class action component.

I'm just puzzled by there not being a chart of accounts that actually has attribution around particular remediation, legal costs and settlements associated with any particular class action lawsuit. Given the extent of the sad, to use this word, investment that we've made in litigating these cases, I think the bcps alone from 2016 to 2022, related, as we can see, just where I guess class action was mentioned were totaled $4.25 billion.

So at some point, I think we need a lot more visibility into actually what is happening here. And I just want to say that I've not participated in any prison class action litigation, but I do have a sense of what billing is, because I've had to do it myself. And I do know that some court orders specifically order what the state has to do.

Other court orders set a requirement that the state must meet, but provides flexibility as to the strategies it can employ to meet that requirement.

So I'm troubled by a response that essentially says, we can't figure it out or we don't know, or it's clouded, or it's just not available to us because it doesn't really provide us with the subjective information that we need or the objective information that we need to prevent, not over investing in particular litigation, having a better understanding of why it's costing us so much to litigate and relitigate these class action lawsuits.

And it's not giving this Committee, the Subcommittee, the information that we need to be able to do our job. Can you speak to whether any class action lawsuits, not just the major cases discussed today, have paid out settlements to class members?

I am not 100% certain. I would have to check with our legal counsel on that. I apologize.

Where would you like me to stay? Um.

Good afternoon. I'm Jennifer Neill, Assistant Secretary for Legal Affairs at CDCR. We have not paid out any class action monetary settlements except for one that I can think of, which I don't think payment has even happened yet. And that is for an employee class action from our employees, not from an incarcerated population.

Okay. Thank you. So there's only been one cash payment for settlement made?

To date that I can think of? Yes. That's for back wages.

Is that something that you have documented and that is actually tracked in any significant way?

Yes, we will have that. It's also with the CalHR. It's part of the paying of that, too. We're joint defendants.

Thank you. My next question is related to the department's litigation strategy. I still don't think it's clear to me what your strategy is beyond what a federal judge referred to as a costly, scorched earth litigation strategy.

Dr. Bick and Ms. Gipson, if you can, do you play a role in determining the litigation strategy?

Hi, I'm Connie Gipson. I serve as a Director for the Division of Adult Institutions within CDCR, and I am involved in meetings with our agency executive as well as our legal team, where we do discuss what will be our strategies. But I think, as Ms. McClain said, because we're in litigation with these cases, we're not able to say openly what our strategy is. I can tell you we take these cases very seriously.

Our agency secretary does monthly meetings on three of the lawsuits here, where he's got all the involved parties, and we're talking about what are our barriers to compliance and how do we get out of these lawsuits. So it is something that's constantly discussed with the agency about the challenges we're having and what are solutions so that we can come into compliance and have sustainable compliance to be able to come out of these lawsuits.

So the litigation strategy does employ folks beyond attorneys?

Yes.

Actual practitioners, people within CDCR who are seeking compliance?

Dr. Bick, would you concur?

Good afternoon, Madam Chair. My name is Joseph Bick. I'm the Director of Healthcare Services for California Correctional Health Care Services and CDCR. And, yes, I would agree with Director Gipson. We are actively involved in those conversations. And I would say that my experience has been very different from what you've characterized.

It's not a characterization. It's actually an indication of what the federal judge referenced the legal strategy to.

Thank you for that correction. My experience has been very different from what she has written there. What I have seen is intense efforts to collaborate with plaintiffs and with the court experts and the attorneys representing our patients, our clients, in a way to try to bring them the services that they need. So my experience has been different in that regard.

I'm going to ask my colleague if he has any questions before I continue.

I think, and I've been here for a little bit, been through a previous receiver. I think what the frustrating part is, this is the Budget Committee, which I used to chair. Obviously, we want some type of transparency because the public looks at us here on this Committee to give them information about what's going on in every department. And CDCR is no different. And so it would be helpful if we could get that information. So I'll use the word, help us move forward so we can make CDCR better.

I guess the frustrating thing is not being able to get that information. And I don't know if this Committee, I come from a small city called Los Angeles, and they used to go with the attorneys, with the city attorney into closed session so they could discuss sensitive material or things that, because of litigation, and then we were sworn to secrecy, whoever was in that meeting, that they could not obviously say what was going on.

I don't think this Committee has ever done anything even close to that. And I would imagine we would be amenable to that, because I think it's really important that we get as much information as possible. Otherwise, we'll do things like if we can't get the information or if we don't know why things are going on, or if we don't understand why we keep paying and paying more out.

You'll have elected officials like myself recommending that we pay these bills out of the department's budget so that you get a sense of how important this is to us, that you work hand in hand with us to ensure that whatever remedies that need to happen, that they will be done. And a lot of times, if you don't feel the pain, the pain is coming from another source. For example, in the City of Los Angeles, debts or lawsuits are not paid out of the city attorney's office.

And if LAPD does something, it's not paid out of their budget, it's paid out of the general fund. And actually, I think it's a special fund. So no one really ever feels the pain. And nobody really understands how the magnitude of a lot of the lawsuits that are going on. And so that's probably the frustration you're feeling right now, that we're not getting a sense that we're getting the full story of what's going on.

And so I would recommend that we try to figure out how we can get to that. And again, if it's a closed session or if you get enough attorneys around, somebody will figure out how to get this done. We all sit around and figure this out because I think it's really important right now, especially lawsuits, that we find out what's going on and ensure that we don't have a repetition.

It's so important that we don't have repetition right now, especially at this juncture as we move forward. And so my suggestion is there's a way that we can get the attorneys to come together to give us some advice on how we can be better informed on what's going on. Thanks.

I think the challenge is that given the fact that Coleman is literally 33 years old, started in 1990, and it's still going on for 20 now in 2023, the justification of we can't discuss because we are in active litigation feels like an excuse to actually take action. And we talk about this desire to move forward with the caliber, and I recognize it as a legal excuse. I fully understand that.

But at the end of the day, it is an excuse because these things should be disappearing, not just being allowed to continue year after year after year after a hundred years. We talk about the California model, and I don't think that the California model and this moment that we have right now, this opportunity that we have right now to transform our carceral system includes a legal strategy that apparently has an approach of opposition, not really being able to resolve the situation.

There are two types of clients. There are those kind of clients that want to be able to win the case, and there are those kinds of clients that want to actually do right and stop doing harm. And in these cases, which all involve remediation, if we are taking an obstructionist approach in our legal strategy, we're going to have the same cases, the same level of funding, $145.5 million in direct legal costs being spent over the last five years baked into our budget as a constant.

While we are not able to and don't have the resources to implement the programs and the support and the rehabilitation that we know actually creates a different reality for the people who are in our carceral system. So don't know if you have a particular response to that, but that is essentially the trade off that we're making. We're investing in litigation, not remediation or rehabilitation. And in tight budget years with an agenda and a desire to promote the California model, those things don't add up to me.

Thank you for your question and your statements. I think it's really important to note the cost to the Department and to the state is really in the litigation, and we have acknowledged that and highlighted that for you in the report. I think it's really important to note that when we have discussed these cases and we've worked with the court, we've agreed to either a settlement or a remedial measure, and the budget change proposals that followed are now part of the department's operations.

And we have done a lot of good things to move forward towards getting out of these litigation. For example, with Plata, we now have 20 institutions that have been delegated back to the state. We are making progress in these areas. With Coleman, we're doing several initiatives that have reduced the overall population. We've had some struggles, and we acknowledge that there is an additional contempt order. However, we have been working with the court to address those issues.

Some other things I just want to highlight is, you know, with Clark, in the Clark case, our developmentally disabled persons audit tool is nearly complete. We're doing joint audits at institutions annually. So for all of these cases, we are making progress. And those were captured in the budget change proposals and those are now part of our operating budget. So really the cost now for class action and for litigation is just the litigation costs.

Because we have either agreed to a remediation plan, we settled, or we were ordered by the court to do so.

While not sharing the specifics of any particular legal strategy in these five class action suits that are still ongoing, does legal counsel have the ability to provide an overall attitude and intention of how you approach litigation or intended remediation?

Again, as I indicated, any litigation strategy is done in conjunction with our Department of Justice because they are the ones, attorneys, as they are the ones who lead the action on behalf of the state. We generally have always had a cooperative attitude with the courts and the plaintiffs, and we do our best to work with them and address issues as the lawsuit comes up. So it's not a matter of us fighting for the sake of fighting.

We are always trying to implement what is the best strategy for the state. And again, that's part of our partnership with the Department of Justice in approaching this.

Just pull on the thread around, implement what is the best strategy for the state. What do you believe is the best strategy for the state in terms of addressing issues related to CDCR and the grievances that are the basis of these class action lawsuits?

Our approach is to eventually end the litigation.

And if I could speak. Connie Gipson again. I always think our approach is one to make sure that our prisons are safe and secure, and that the individuals in our care and custody have access to healthcare, mental health care, dental services, as well as programming opportunities, and then trying to provide those services that are required of us being responsible, fiscally responsible. And so I think that's always our goal, is to make sure that those in our care and custody we're providing services to.

And that's always at the forefront of what we're doing, as well as making sure the environment is safe and secure for the staff who work there and for those who live there.

I appreciate that response. Ashker, 24 years, 2009 lawsuit was initiated, and it's still ongoing. 2023. Clark.

Oh, sorry. My math is off on that one. Just relative urgency. That seems like an incredibly long time that we're taking to be able to achieve the stance of overall public safety.

If I can give a little context around the Ashker case, that case was settled with a settlement agreement, and we believe we've complied with the elements of that agreement. There are some things that are still on appeal, but as I believe this body is aware, we drastically changed on who is incorporated into our security housing units and our restrictive housing units.

And today we're sitting at around 3100 individuals who may be in some form of restrictive housing in our system, whereas 10 years ago, we were close to 10,000 people, probably. And so we've made big strides. And there aren't folks who are locked up in restrictive housing just because of their gang affiliation. We no longer do those practices.

In that case in particular, is apparently back in court due to retaliation against Mr. Ashker. That's part of court records, right?

Yes.

Madam Chair, I would just add, I've been working in corrections in this state and internationally for the last 30 years. And it may sound strange to say I've never been more optimistic with the future of health care for those who are incarcerated in this state, and by extension, the public health as well. The biggest change I've seen recently is an effort to move forward on things, not just because they're court ordered, but because they're what's best for our patients and for the state.

And you've heard about some of those things today. The ISUDT program, for example, where 98% of our patients are screened, coming into our system. About three quarters of those who are incarcerated in the state have some substance use disorder, and it's a major reason why they're incarcerated and why they fail when they're paroled. So identifying those patients and getting them on treatment and we have 21,000 are on some treatment for their substance use disorder now, and that number will increase, is a huge step forward.

And that wasn't court ordered. Similarly with HIV treatment, the international standard is that 90% of people who have HIV will know it, 90% of those who know it will be on treatment, and 90% of those who are treatment will have undetectable viral loads and be undetectable. And we're at that goal. So we're sending people back into the community knowing their HIV status and non contagious to their partners when they return.

Similarly with Hepatitis C, end stage liver disease used to be one of our most common causes of death. We now have the most aggressive treatment program for Hepatitis C in prisons in this nation, if not the world. We're on a path toward eradicating Hepatitis C within our patient population. We've treated over 26,000 patients. 95% of them have been cured. And so when they go back to their communities, they're not contagious, they're not taking Hepatitis C with them.

We could go on and on and on with initiatives like this that were not court ordered, and it's a basis for my enthusiasm. We work very closely with the monitors in each of these court cases, and I'm optimistic that we're going to continue to make progress. Our biggest challenge right now, I think, is staffing. We have significant vacancies, and that's hindering our abilities to comply with some of our court orders.

Thank you. Does anyone have any additional comments? All right, well, so overall, I think that for me, there's a huge disconnect.

I just don't understand why we have created a stance of being fine with years of litigation year after year after year, costly, incredibly costly legal resources being applied in your department and through the Department of Justice, and an inordinate amount of funds being put into resolution without actual resolution, because these cases still continue to be live, as opposed to being proactive in making sure that we're creating an opportunity where we don't need these lawsuits.

So in my opinion, a truly proactive approach would have been the Department making changes back in 2005 when concerns were first raised around one of these first cases. So we just have to have a difference of opinion about what I think a proactive, enlightened stance takes. And certainly, I think from the sense of our budget, we also need to think about where we should be investing our best resources moving forward. I'm clearly not one that believes in a stance of litigating to relitigate and defending positions or practices that create an opportunity for people who are in our carceral system to not be taken care of and treated with humanity and dignity.

So while I acknowledge where we are now, I am very hopeful that we will be able to move forward with the directive that we've received from our Administration.

I know the direction that I've heard from this Subcommitee about our focus on support of our people who are in our carceral system and that we are spending our dollars wisely moving forward. So thank you for your presentation of this information. I do want to just reiterate that we didn't receive this information from-- Well, a lot of this information came from, that you see in the report here, came from staff actually pulling it together. This staff pulling it together.

And I would definitely like to see a more proactive stance around being transparent in the information that we provide to the public around cost of litigation. First response was after this request was, well, it's all over the place and it's not tracking. That's not an acceptable, that's not an acceptable response for taxpayer dollars. We should know the cost of litigation. We should know settlement costs. We should know the cost of remediation related to these cases. That's our fiduciary responsibility. So thank you.

We'll move on. Before public comment, I just want to-- Well, we'll just move on to public comment. We'll begin with public comment. We will start with any public comment in the hearing room. Each person will have up to one minute for public comment. Next, we will turn to the phones. The phone number to connect is on the Committee website and should be also on the screen if you are streaming this hearing.

The number is for public toll free number (877) 692-8957. The public access code is 131-5437. We'll move to any public comment in the hearing room. You will have two minutes.

Two will be fine. Give me two.

You will get one.

A minute and a half?

I'm going to press the button. You talk and you'll hear me. How about that?

Okay. Hello, my name is Zaire. I was incarcerated for 30 years. I'm here to talk about my experience at the parole board, discrimination as a transgender survivor of abuse. I mean no disrespect to anyone in this room, but Ms. Jennifer Shaffer, I'm asking you to please come out the skybox and get into the playing field. What you're saying is not correct, and my heart is in a lot of pain, hurting listening to this.

It took me seven hearings before I got a Commissioner who wasn't transphobic. Even when I had a decade of write up free, I was write up free, low risk on a psych eval, positive programming and I programmed in your program for IDST, it was called LTOP at the time. I was a mentor. And if you do disclose anything, it is put against you. Because it was put against me as a mentor, I was found unsuitable. I experienced constant transphobia at the board.

My little sister saved her lunch money and her job to hire Mr. Keith Watley to represent me. And it is true, he took his time. He humanized me. But when I went to the board, I was victimized by saying that my transphobia and my trauma, I was blaming others. They refused to listen and believe what I had to say. They said, you're making excuses. I don't want to hear that.

They wouldn't even talk to me about being trans, yet they were trying to keep me in prison because of transphobic myths. They victim blamed me and attacked me for crying in my hearing because they said I was on testosterone, I shouldn't be crying. They said if I was to be released, I will likely commit a crime for access for hormone treatments.

I'm standing here in front of you for every trans who is suffering discrimination by the parole board and who cannot have their voices here today to be heard. The board is wrong. And I'm saying that that report is not just words. That's part of me. It represents me. And if the process was fair, we wouldn't be here today.

Thank you.

Hi. Thank you so much. My name is Dr. Alisa Bierria. I'm an assistant professor of Gender Violence at UCLA. I've been leading research initiatives for survivors of rape and domestic violence for over 20 years. I really appreciate the LAO report on parole. I'm very concerned that BPH practices both implicit and explicit bias against survivors of domestic and sexual violence and, frankly, sometimes outright hostility against survivors in those hearings.

For example, one woman was repeatedly denied parole for over two decades because she refused the board's demand to retract her statement that she was raped, and she defended herself to save her own life. The BPH often decides that statements of fact about gender based violence is evidence of lack of insight. I can't tell you how profound the trauma is that this particular erasure of survivor experience causes. Also, the penal code requires that the board give great weight to abuse.

But the board of parole hearings can just circumvent that law. I've seen them do it. Another survivor had one, a report from the board's own IPB investigator substantiating her abuse, two, an additional report from an expert witness, three, eyewitness testimony, all affirming that she was in fact abused, and four, a low risk assessment, a low CRA assessment, and the board denied her parole. Why? Because they said they didn't believe that she--

You can wrap up.

They believed that they said she hadn't been abused. So despite submitting a decision review request to Chief Shaffer, the board simply didn't have to defend their choice to ignore all of the expert reports. There is systematic bias against survivors. I think it's a big, big problem, and I want that on the record. Thank you so much.

Thank you.

Hi, my name is Colby Lenz, and I'm here on behalf of the California Coalition for Women Prisoners, a mostly volunteer run, community based organization working with people in California women's prisons for over 25 years. The majority of our members inside prisons and who've come home have had direct experience with the parole board process.

Briefly, some of the patterns we've seen over the past decades include bias and discrimination against people with labeled mental health issues, particularly those housed in mental health units. One of which, the biggest and lowest level mental health unit at the women's prison, CIW, had no parole grants in over 20 years. Our members have also experienced blatant transphobia, as well as ageism, racism and sexism.

They have experienced parole denials based on assertions of being victims of violence, even as they express remorse and take responsibility for harm they caused in those contexts. There's so much more to say on each of these topics, but I'll close by touching on one other specific concern. The governor's power to reverse parole grants further opens the door for inequitable parole decisions in California based on politics, including electoral chances.

One of our members, an elderly woman and domestic violence victim who was criminalized in the context of trying to survive that violence, died this past year at CCWF after almost 30 years and multiple parole grants because two governors chose fear based politics over parole equity, reversing her parole grants, which, of course, were hard to achieve in the first place. She died sick and hopeless, treated essentially as a political pawn. This is not equity, and her case is, unfortunately, not an exception.

The system needs an overhaul, including external oversight. Thank you.

Thank you. We'll move to the phone lines.

Ladies and gentlemen. For public comment, please press one, then zero on your phone. You'll receive a line number and then be put back in queue. If you're using a speaker phone, please pick up the handset before pressing the number. Once again, for public comment, it is one, then zero. And we will start with line number 42. Please go ahead.

Hello?

Yes, please go ahead.

Okay, sorry, I was not expecting with the number 42 to go first, but my name is Susan Champion. I'm an attorney handling post conviction matters, and we're talking a lot at this hearing about risk, and I just want to describe a recent experience I had with my client who has an adult basic education score of four, meaning he reads, at best, a fourth grade level. Functionally, he can barely read and cannot write. He's almost 60 years old.

He has such severe COPD that he cannot walk for more than 10 yards without going out of breath. He uses two inhalers and wears a tube around his neck so that if he has a breathing crisis, the doctors can immediately plug him into a breathing machine. He's incontinent and must wear a diaper. He's in prison for stealing two cans of oil at a gas station 25 years ago and has never, ever committed a crime in which a victim was physically injured.

He's been in prison for over 25 years and was denied parole a second time last week because he had a recent write up. His write up was for refusing to go live in a dorm situation. He was told he had to go to a dorm. He said, I'm elderly, I'm frail, I'm incontinent. It's dangerous for me to be in a dorm. They said, you have to go to a dorm. He said, please talk to the sergeant.

The sergeant knows my paperwork says I shouldn't be in a dorm. The sergeant says, oh, I don't see what the paperwork is. He refused to go. He didn't create violence. He didn't yell at anybody. He just said, look, this puts my life at risk. All the commissioners did was scold him like a child for not having used his tools, which I'm not sure what he was supposed to do to address the problem. It took them two weeks to straighten out the issue.

So for two weeks, he was waiting for them to figure out that an incontinent 60 year old man can't be housed in a dorm with hundreds of other young people at risk of being preyed upon.

Thank you. We need you to wrap up.

Again, he's at a fourth grade level. I'm not sure when he will actually be able to articulate the kind of insight that the board is looking for. He can barely read. It's not right. Thank you.

Next we will go to line number 54. Please go ahead.

Good evening. My name is Lilli Paratore, and I'm the managing attorney at Uncommon Law. I'm commenting on the LAO report and the current inequities in the parole process. I have represented countless individuals before the parole board, and I've witnessed the discrimination and bias the LAO report describes firsthand. I want to draw the Committee's attention, in particular to discrimination and bias faced by elderly people and people with physical and cognitive disabilities.

For this group of people, the board has failed to both adequately consider the statistically indisputable impact of advanced age on risk, as well as how, as people age, they become less able to participate in the process the board currently requires. I represented one client who was in her late 60s, uses a wheelchair, formability, survived cancer, and has Parkinson's and early stages of dementia.

The board repeatedly denied her parole, claiming that her memory lapses evidenced manipulation and that the pauses in her speech as a result of her Parkinson's indicated she was not credible and that she was trying to keep her lies straight. Nothing could be farther from the truth. Until the board reckons with the need to actually treat elderly people and people with cognitive impairments differently, these inequities will continue. I thank the Chair and the Committee for your time.

Thank you. Next we will go to line number 57. Please go ahead. Line number 57?

Hello. My name is Alissa Moore, with Legal Services for Prisoners with Children. I myself served 23 years in the California state prison system and was subject to the cruel and unusual process of BPH. I was repeatedly denied for refusing to speak on childhood traumas. I was discriminated against for having memory lapse and loss. That was also documented.

I think that the very fact doctors that deal with these types of issues have to take an oath to do no harm. And the fact that people without a medical degree are asking these types of questions and continuing to do more harm than good is serious risk.

And I would like to also take time to give credence to everyone that spoke before me, that I have witnessed all of those things and all of those tragedies purposely done upon my peers for decades while incarcerated in the California Department of Corrections. I think it's due past time that these draconian ways are brought to an end.

I think that major oversight reforms are needed, and I think that incarcerated folks need to be a voice at the base of that work, because this is absolutely insane, that people like myself will go through these prolonged hearings and talk about significant traumas that are not recommended by medical professionals.

And then at the end of the hearing, when I was found suitable and I requested to speak with medical professionals, I was denied psychiatric help at that time and sent back to my room and told I should be happy that I was found suitable while the trauma that I lived through was laid at the wayside.

Thank you.

Thank you. Next we will go to line number 59. Please go ahead. Line number 59, your line is open.

Can you hear me?

Yes.

All right. Hello. My name is Philippe Kelly. I'm the outside fellow with the Ella Baker Center. I'm a return citizen who did 23 and a half years in prison since the age of 15. I was released on February 7, 2023 after three parole hearings. Governor Brown committed my sentence in 2018, which means he thought I was ready to be released, but the commissioners he appointed disagreed with him. My experience with the parole board was adversarial, prejudiced, biased, and adverse.

Commissioners are supposed to make decisions based on someone's current public safety risk and to be impartial, but those things really happen, if at all. I and thousands of other parole applicants have been denied based on these factors: the box, clean time, criminal thinking, next to a crime, lack of self awareness, commitment, office and Commissioner's bias, lack of programming, a person's history of criminal behavior both inside and outside of prison, full transparency and accountability.

Thank you for considering my comments today, and in my email, you could find an in depth breakdown of these terms. Thank you.

Thank you.

Thank you. And we do not have any more comments in queue.

Thank you. This will conclude our Public Safety 5 Subcommitee meeting.