Skip navigation
× You have 2 more free articles available this month. Subscribe today.

California Parole Violators' Due Process Rights Upheld in Settlement

California Parole Violators' Due Process Rights
Upheld in Settlement

In a November 17, 2003 Stipulated Or-der for Permanent Injunctive Relief (PI), defendant California prison officials settled a nine-year old federal class action suit brought by parolees whose due process rights in parole violation proceedings had been consistently unconstitutionally abused. The PI, which commences on July 1, 2004 and becomes fully effective by July 1, 2005, will provide for probable cause hearings within 13 business days after placement of a parole hold, final revocation hearings within 35 calendar days of the hold, and appointed counsel at all hearings with subpoena power for witnesses and evidence. Most significantly, for minor parole violations not affecting public safety, alternative remedial sanctions other than prison will be offered beginning in January, 2004, with a stated goal of reducing returns-to-custody by up 10% in 2004 and 30% by 2006.

In 1994, prisoner Jerry Valdivia began what became a class action suit on behalf of parolees at large and those back in custody, alleging that California's unitary parole revocation procedure (i.e., having no pre-revocation probable cause step), coupled with re-incarceration of up to six months with no hearing at all, violated Constitutional rights announced in Morrissey v. Brewer, 408 U.S. 481 (1972) and Gagnon v. Scarpelli, 411 U.S. 778 (1973). Chief Judge Emeritus Lawrence K. Karlton ruled in 2002 that California's procedure was unconstitutional and must be revised. (See: Valdivia v. Davis, 206 F.Supp.2d 1068 (E.D. CA 2002); PLN, Jan. '03, p.16.)

The PI (signed by plaintiffs' attorneys Michael Bien of San Francisco and Donald Specter of the Prison Law Office) was finalized by the court after a March 8, 2004 fairness hearing. Operating prospectively only, it will serve both to provide due process of law as well as contain costs during California's budget crisis by reducing the prison population. (See PLN, Nov. `03, p.1 "Bloated Prison Budget Fuels California's Degenerative Incarceration Spiral.") Although no money damages or retroactive relief were asked for and none will be awarded in this class action, the settlement does not affect one's right to sue for damages or to file a writ of habeas corpus.

Central to the PI is the Valdivia Remedial Plan (Plan). Under this plan, upon the event of an alleged parole violation, the parole agent will screen out eligible candidates for an alternative disposition to the usual no-hearing "cuff `em and bus `em" return to a California Department of Corrections (CDC) Reception Center. Such alternatives, available for what are deemed "administrative" violations, include diversion to a substance abuse program, electronic monitoring, self-help outpatient/aftercare programs and alternative placement in structured and supervised environments. Very importantly, an alternative sanction does not count as a parole violation and therefore does not make the parolee presumptively ineligible for discharge after 13 months.

If alternative sanctions are not initially granted, they may yet be after a probable cause analysis (completed within 3 business days) is reviewed by the Parole Administrator (done within 4 more days), or by mutual agreement prior to the probable cause hearing. Otherwise, the probable cause hearing must be held within 6 more business days, wherein an attorney [state trained for this work] is appointed and evidence presented. If probable cause is found and the parolee rejects the proposed initial violation term or alternative sanction, a full revocation hearing must be held within 35 calendar days after the hold placement, again with attorney representation.

The main objective of the Plan is to reduce returns to custody for parole violations which in and of themselves present no imminent threat to public safety. This includes substance abuse violations and technical violations, e.g., being late for a parole appointment. Failure to complete the alternative sanction could result in a return to custody. At all phases of the Plan, ADA accommodations per Armstrong v. Davis, 295 F.3d 895 (9th Cir. 2001) shall be provided, including the availability of all forms in Spanish. Whenever needed, foreign language translators shall be provided.

Michael Brady, Deputy Secretary of the Youth and Adult Correctional Agency [which oversees CDC and the parole board] refuted victims' rights groups and prison guards union suggestions that the Plan was "soft on crime." Instead, Brady said "We are taking people whose underlying problem is substance abuse and making sure they get help and get the tools they need to become law-abiding citizens."

This underlying problem was also found central in a November 13, 2003 report by the California Legislature's watchdog Little Hoover Commission which criticized the current parole system for "recycling" rather than rehabilitating parolees. Separately, California's Inspector General found that 81% of present violators did not get a revocation hearing within the 45 days specified by Morrissey.

The PI also provides for monitoring every 90 days, with the court retaining jurisdiction for enforcement. Importantly, it was stipulated that this is not a "civil case with respect to prison conditions" and that the PI is not governed by the Prison Litigation Reform Act (PLRA) (18 U.S.C. § 3626). Two remaining unresolved claims left for informal resolution are Due Process and Equal Protection claims as to defendants' administrative appeals process and prisoners' revocation extension hearing rights. See: Valdivia v. Schwarzenegger, No. CIV-S-94-0670 (USDC E.D. CA), Stipulated Order For Permanent Injunctive Relief, Nov. 17, 2003.

Although attorney Donald Specter hailed the settlement as a "radical" improvement over the unconstitutional and costly ways of the past [indeed, it could serve as a model for other states], it isn't clear that the Fat Lady has finished singing. Proof that the Plan is helping both parolees and taxpayers will come only when imprisoned violator body-counts decline by the hoped-for 10% and 30% goals. But if the allure of empty prison beds serves only to foment more frequent prison-job-protecting parole sweeps, overall expenditures will increase when alternative remediation costs simply become additive to unremitting prison costs.

Indeed, California could take a page from the book of the United States, which frugally eliminated the concept of federal parole. This writer believes that the path to reduced recidivism is to be found in increasing the incentives to keep released prisoners out _ rather than rewarding their return to custody. Instead of fostering the current Les Miserables model of hounding a parolee until he fails, California should pay a fat bounty to post-release counselors whose wards successfully avoid committing a new crime for the one and three year benchmarks commonly cited in recidivism studies. By investing a fraction of the billions currently spent on blindly recycling parolees to instead aid them in staying out, the degenerative repression that prisons bring _ especially to poor people _ could be abated.

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Valdivia v. Schwarzenegger