Today I attended the
2013 Lifer School at USC, a conference focused on sharing tips on how to represent people serving life sentences ("lifers") at parole hearings. I was a panelist for a session on client preparation and building a record. My experience in this area is limited to my work with USC's Post-Conviction Justice Project from 2010-2012. During that time I represented several lifers at the California Institution for Women. Based on that experience, these are my informal, unofficial, unsolicited, and--except for a handful of cases--untested thoughts on parole preparation. Nonetheless, some may find them helpful.
1. Focus on the record.
The ultimate goal is a parole date, but you don't control that decision as much as you control the record created during the hearing. Whatever the outcome of the hearing, the record is going to matter. If the board grants parole, the record will go on to the governor for review. If the board denies parole, the record will be your best chance for a successful habeas petition in the California state courts. As one of the lifers said, "I got a date by generating good paper." That's because "good paper" becomes part of a good record that ultimately goes to the board, the governor, and possibly the courts on the path to getting a date.
Parole applicants are entitled to parole unless the board finds
some evidence that the applicant poses an unreasonable risk of
current dangerousness to society. The "some evidence" standard is an especially low burden. The California Supreme Court often calls it a "modicum" of evidence. That really places the burden on the applicant to show that
no evidence in the record connects to current dangerousness. Any evidence to support this conclusion is "good paper."
2. Read the Title 15 factors but also the Serenity Prayer.
The board's parole determination is governed by Section 2281 of
Title 15 (of the California Code of Regulations) and associated state court decisions interpreting that provision. The Title 15 lists factors tending to show
unsuitability as well as suitability. You will want to focus preparation (and to some extent the hearing itself) on the factors that the parole applicant controls. Ideally, she should enter the hearing with a certain confidence
to accept the things I cannot change; courage to change the things I can; and wisdom to know the difference.
A quick reading of the six
unsuitability factors, would almost give the impression that a parole applicant controls just one of these factors (serious misconduct in prison):
- commitment offense (no control -- but "insight" is important);
- prior record (no control);
- unstable social history (no control -- but a positive social history can be developed even while incarcerated);
- a "sadistic sexual offense" (no control);
- psychological factors, such as "a lengthy history of severe mental problems related to the offense" (no control -- but you should explain how any such problems will be treated);
- any "serious misconduct in prison" (some control).
In practice, this means the best way to generate "good paper" will be to focus on 1) insight into the the commitment offense; 2) that any mental health issues are now treatable or unrelated to the offense; and 3) that any disciplinary violations are unrelated to
current dangerousness. A word of caution: avoid letting the hearing devolve into an adjudication of the facts surrounding a single disciplinary violation. There are other administrative avenues in place for appealing rule violations, and the parole hearing is not that place, nor will it help generate "good paper."
Of the nine suitability factors, the parole applicant again controls only a few, but you will want to put on record as many as apply whether she controls them or not. These include:
- lack of a juvenile record;
- lack of adult criminal history;
- the client's stable social history within or outside of prison;
- remorse;
- that the crime was motivated by a "significant stress . . . especially if the stress has built over a long period of time;"
- intimate partner battering, if it applies (i.e., the crime was related to abuse by an intimate partner);
- age, which naturally reduces recidivism over time
- realistic parole plans;
- positive institutional behavior, "indicat[ing] an enhanced ability to function within the law."
On these factors, generating good paper means focusing on remorse, parole plans, and positive institutional behavior. A fourth major area would be intimate partner battering, if it applies.
3. Mooting is the highest form of preparation.
A successful moot should help the parole applicant feel the pressure of a real hearing in a safe environment. You may find it helpful to separate your role as attorney from that of mock-commissioner, e.g., "I understand what you mean (as your attorney), but
as a commissioner on the board, I'm probably interpreting that as . . . ."
If the client is going to change (or amplify) testimony about the crime, it should be addressed in the moots. Better to clear the air at one hearing than incrementally add details across a number of hearings. In other words, minimize the number of hearings at which significant changes in testimony are necessary, not the degree of the changes. Help the client contrast thoughts at the time of the crime with thoughts today, and to speak using transitional phrases ("at the time . . .") to make this distinction clear. It's easier than you might think for the board to confuse these descriptions in a parole decision.
In California, both you and the deputy district attorney will have the chance to ask your client questions. These must also be part of your moots. Generally, it's best to never ask the client a question at the hearing that you haven't heard the answer to. Use your questions to build and clarify the record on your client's insight, remorse, mental health treatment, disciplinary violations, parole plans, and programming as needed. Object to any questions from the deputy district attorney unrelated to current dangerousness or which appear to be based on speculation (as many of them will no doubt be).
4. This is the lesson: never give in, never give in, never, never, never, never-in nothing, great or small, large or petty . . . .
Even for a parole applicant who does everything right, the path to getting a date is not easy; it may take several rounds of hearings and habeas petitions fighting the board (or the governor). The challenges make it all the more important to stay committed to generating a good record. The individual decisions denying parole, reversing parole grants, denying habeas petitions do not continue to matter indefinitely, particularly under a legal standard of
current dangerousness. It's important to remember that the record follows the person seeking parole, not the decisionmakers who review it. It's
hers, not theirs. She must own it, build upon it, and protect it, so that it becomes increasingly representative of her best self. As the improved record comes before new commissioners, governors, and possibly judges, one of them, someday, may decide differently. That process begins with an unwavering focus on the few factors she controls and on preserving those factors in "good paper."
