Analysis of the 2004-05 Budget Bill Legislative Analyst's Office February 2004

Valdivia Remedial Plan For Parole Revocation

In compliance with a federal judge's order in the case of Valdivia v. Schwarzenegger (previously Valdivia v. Davis), the state recently submitted a plan to reform the parole revocation process. The court found that the current system unfairly denied parole violators their rights to a probable cause hearing and a speedy trial. We believe that the implementation of this plan will generate significant costs for the state and possibly for local governments, as well. We recommend that the California Department of Corrections and the Board of Prison Terms report to the Legislature on the full fiscal impacts of this plan.

Background

Current Parole Revocation Process. The current parole revocation process begins when a parole agent or local law enforcement agency detains a parolee for a suspected violation of the law or conditions of parole. If the parole agent and his or her supervisor feel that parole should be revoked, the parolee is taken into custody and the case is referred to the Board of Prison Terms (BPT) for review. After an initial administrative review of the case, the BPT presents the parolee with a "screening offer" which is a proposal for a specific term of incarceration in exchange for the immediate conclusion of the case. If the parolee accepts the screening offer, he begins the sentence immediately. If the parolee rejects the offer, he must continue to wait in jail or at the state reception center where he is being confined until a revocation hearing can be held.

At the revocation hearing, a BPT deputy commissioner reviews the parolee's case and hears testimony from the parole agent, parolee, and witnesses. Based on the information provided at the hearing, the deputy commissioner decides whether there is sufficient evidence to revoke the parolee and, if so, what sentence would be most appropriate.

Parole agents referred approximately 90,000 revocation cases to BPT last year, and BPT held about 40,000 revocation hearings. The BPT spent over $14 million to administer the revocation process last year. This total does not include the costs to the California Department of Corrections (CDC) for parole agents' role in revocation or the costs to incarcerate revoked parolees.

Federal Court Requires Reforms. In 1994, a class action lawsuit was brought against the state, on behalf of parolees, alleging that the parole revocation process violates their rights to due process under the Fourteenth Amendment of the United States Constitution. Specifically, the plaintiffs argued that parolees had no opportunity to challenge the contents of the case against them, present their own evidence, or question witnesses prior to the revocation hearing. Plaintiffs also claimed that the length of time it takes to conduct the revocation process—over a month and sometimes longer than three months—was excessive. In June 2002, a federal district court ruled in favor of the plaintiffs and ordered the state to work with plaintiff's counsel to develop a remedial plan to rectify the identified problems.

Implementation Plan

In December 2003, the parties in the case jointly submitted to the court their plan which includes several significant reforms to the revocation system. These reforms are designed to ensure a timely and fair revocation process for parolees. The most significant of the reforms are as follows.

• Establishes Probable Cause Hearing. The plan creates a probable cause hearing to take place prior to the revocation hearing. The probable cause hearing must take place within ten business days of when CDC notifies the parolee that he is being charged with a violation. At the probable cause hearing parolees will be allowed to present evidence on their own behalf, and they will have an opportunity to accept or reject BPT's screening offer.
• Requires Revocation Hearing Within 35 Calendar Days. The plan also requires that every revocation hearing be held within 35 days of the parolee's arrest rather than the three months or longer it can take currently.
• Requires Attorneys for All Parole Violators. The plan requires that CDC provide attorneys to all parolees who are charged with a violation. These attorneys will prepare the parolee's case for both the probable cause hearing and the revocation hearing. Under current practice, only parolees with disabilities, such as a learning disability that would impair their ability to understand the proceedings, are provided an attorney for their revocation hearing.
• Permits Greater Use of Intermediate Sanctions. The implementation plan also allows deputy commissioners of BPT to assign nonviolent and nonserious parole violators to intermediate sanctions, such as electronic monitoring, in lieu of prison time. This provision builds on the reforms instituted by CDC in the current year that allow parole agents to utilize intermediate sanctions, thereby reducing the number of nonviolent parole violators returned to prison. The agreement assumes that the use of intermediate sanctions by parole agents and BPT will reduce the total caseload of parolees in the revocation process, thereby allowing BPT to conduct the remaining hearings within the shortened time limits established in the agreement.
• Establishes Implementation Deadlines. The remedial plan requires BPT and CDC to begin the implementation of all provisions except the probable cause hearing by July 2004. All provisions of the remedial plan must be fully implemented by July 2005.

Impact of Valdivia Plan on State and Local Governments

Neither CDC nor BPT have been able to provide a fiscal estimate of the impact of the Valdivia implementation plan on state and local governments. However, both agencies have suggested that an estimate will be produced as part of the May Revision. We believe that there are at least four significant fiscal impacts that will occur as a result of the Valdivia plan.

• State Costs for Implementation. The plan creates several new steps in the revocation process, including the provision of lawyers, creation of the probable cause hearing, an expedited 35-day revocation hearing requirement, and use of intermediate sanctions. The implementation of each of these provisions will likely require funding for additional staff to fulfill those functions. The CDC has also suggested that it will require one-time funding to convert some facilities to operate the revocation process in accordance with the remedial plan.
• Attorney's Fees and Court-Ordered Fines. The state may also face court-related costs from the Valdivia agreement. The remedial plan requires the state to pay for any fees to the plaintiff's attorney necessary to monitor and enforce the plan. Also, the court retains the authority to enforce this agreement, including the use of monetary fines against the state. If problems implementing the remedial plan occur, such as a delay in putting into place the probable cause hearing, the court may levy monetary sanctions against the state.
• Some Offsetting State Savings From Reduced Caseload. The use of intermediate sanctions by CDC parole agents should result in a reduction in the number of cases referred to BPT, and the use of those sanctions by BPT should further reduce the percent of cases reaching a revocation hearing. The diminished BPT caseload should reduce the staffing necessary for revocation hearings. In addition, the CDC inmate population should decline as BPT makes use of intermediate sanctions in lieu of prison for parole violators.
• Possible Local Law Enforcement Costs. The state use of intermediate sanctions may prompt some local law enforcement agencies to prosecute parolees more often in local courts. Under the current revocation process, local prosecutors have the discretion of whether to prosecute parolees who commit new crimes. Prosecutors often forgo the expense and uncertainty of these criminal trials, instead relying on the state-operated revocation process to put these offenders in prison. We believe the new revocation process may result in some local prosecutors bringing criminal cases against some criminal violators who parole agents choose to assign to intermediate sanctions. To the degree that increased criminal prosecutions occur, local governments would experience an increase in costs associated with conducting the criminal trial and the jailing of suspected and convicted parolees. In addition, the state would bear the cost of incarcerating some parolees convicted in local courts. According to local and state representatives, the CDC, BPT, and the Youth and Adult Correctional Agency are currently working with local law enforcement officials to coordinate state and local efforts to ensure public safety and minimize any adverse fiscal impacts on local governments.

Analyst's Recommendation

At the time this analysis was prepared, the agencies were unable to identify the fiscal impact of the Valdivia settlement, and no expenditures are proposed in the Governor's budget for the implementation of the remedial plan. Administration officials state that an implementation proposal will be part of the May Revision. However, we are concerned that submission of the proposal at that time will provide limited opportunity for review by the Legislature. For this reason, we recommend that BPT and CDC report to the Legislature at budget hearings on the fiscal impact of the Valdivia remedial plan. In particular, the departments should provide their estimates of the number of probable cause and revocation hearings that will occur, the staffing required to implement the plan, the amount of any offsetting savings, the projected impact on local governments, and any other expected costs.