Prompted by a petition filed by this PLN writer in May 2010 that alleged the psychological instruments used by the BPH’s Forensic Assessment Division are unreliable because they have never been validated for use in a population similar to that of California’s life-term prisoners, the OAL was asked to determine whether a memorandum announcing the BPH’s use of those instruments beginning in January 2009 contained so-called “underground regulations.” Underground regulations are defined as standards of general application that should have been, but were not, formally adopted as regulations pursuant to California’s Administrative Procedures Act.
Included among the public comments received by the OAL in connection with its regulatory determination regarding the BPH’s psychological evaluation process for lifers was a July 2010 special report by David Shaw, California’s Inspector General (IG), titled “The Board of Parole Hearings: Psychological Evaluations and Mandatory Training Requirements.”
The special report was prepared in response to concerns expressed by the Senate Rules Committee relative to (1) the extent of factual errors contained in BPH-commissioned psychological evaluations, and (2) whether (and, if so, why) risk assessment conclusions prepared utilizing the BPH’s newly-adopted instruments are elevated when compared to conclusions made in prior evaluations. BPH Executive Officer Martin Hoshino, who authored the memorandum announcing the use of the psychological instruments, also requested that the IG examine the Board’s new commissioner training program.
The IG correctly noted that “the parole board made changes to its process” in January 2009 and specifically that it then “began preparing psychological evaluations by adopting standardized risk assessment instruments and reporting formats.” The IG was not asked, however, to assess the validity of those standardized instruments, which are presumed to be valid in the special report. Nor did the IG have cause to question why, before January 2009, the BPH did not require a psychological evaluation for every life-term prisoner being considered for parole. Rather, prior to that date, BPH policy dictated that a psychological evaluation be prepared only when deemed necessary, whether by a prior BPH panel or by corrections officials, or by virtue of the fact that a prisoner was receiving mental health treatment.
The IG did note that “psychological evaluations prepared before [January 1, 2009] do not always follow the same approaches and therefore do not lend themselves to simple comparisons with the newer evaluations.” For that reason, the IG could not address the Senate’s concern – motivated no doubt by complaints from prisoners, their families and advocates – that the newer psychological evaluations employ instruments that place heavy emphasis on static factors (such as a prisoner’s criminal history, which does not change) and correspondingly less emphasis on dynamic factors (such as the passage of time and rehabilitative changes in a prisoner’s attitude and behavior). Consequently, the more recent psychological evaluations have led, seemingly, to higher assessments for risk of future violence than was formerly the case.
Unable to address the Senate’s principal concern, the IG shifted its focus instead to the question of whether the BPH collected sufficient data to allow it to identify patterns or trends in the types of conclusions provided by psychologists. The special report found that the data collected by the Board was not reliable enough to be used for analytical purposes. The IG also determined that the BPH failed to provide most of its commissioners with the requisite number of annual training hours mandated by law.
Following a six-month review, on November 19, 2010 the OAL issued a determination in this writer’s petition challenging the procedure for psychological instruments used by the BPH’s Forensic Assessment Division. The OAL’s review was “limited to the sole issue of whether the challenged rule meets the definition of ‘regulation’ as defined in Government Code section 11342.600 and is subject to the Administrative Procedure Act (APA).”
The OAL concluded that “the challenged Psychological Report Process contains provisions that meet the definition of a ‘regulation’ as defined in Government Code section 11342.600 and that those provisions should have been adopted pursuant to the APA.” As the BPH process related to psychological evaluations for lifers was not adopted pursuant to the APA, it was deemed an underground regulation. The OAL also concluded that the challenged regulation did not fall within an express statutory exemption from the APA, as it does not only directly affect BPH employees but also affects life-sentenced prisoners.
The impact of the OAL’s determination that the BPH process for psychological evaluations for life- sentenced prisoners should have been adopted pursuant to the APA remains to be seen.
Sources: Inspector General Special Report (July 2010); California Regulatory Notice Register 2010, Vol. No. 28-Z, pp.1064-67 and Vol. No. 47-Z, pp.1952-1959
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