California: OAL Disapproves Proposed Parole Board Regulation Formalizing Lifer Risk Assessments
In January 2009, the Board circulated a document which adopted a mandatory, standardized process for psychologists to use in preparing Comprehensive Risk Assessments for lifer parole hearings. In May 2010 this writer petitioned the OAL for a determination that the Board’s “Psychological Report Process” consisted of “underground regulations” – i.e., rules of sufficiently general application that were invalid unless formally adopted pursuant to the state’s Administrative Procedure Act (APA). [See: PLN, Jan. 2011, p.28].
In November 2010, the OAL issued a determination holding that the challenged Psychological Report Process should have been adopted pursuant to the APA. Within a month of the OAL’s decision, the Board responded by proposing to add section 2240 to Title 15 of the California Code of Regulations. It was that proposed regulation which the OAL disapproved.
In its decision of disapproval, the OAL explained that the proposed regulation failed to meet the necessity and clarity standards of Government Code § 11349.1, subd. (a); that it failed to adequately summarize and respond to public comments; and that it failed to submit a satisfactory fiscal impact statement.
The OAL noted that, unlike the underground regulation which preceded it, the Board’s proposed section 2240 did not specify the risk assessment instruments to be used in the Comprehensive Risk Assessments. That discrepancy made the proposed regulation “unclear.”
Also unclear is how the Board will respond to the OAL’s decision. Presumably it will go back to the proverbial drawing board and draft a different proposed regulation that attempts to address the deficiencies cited by the OAL.
The greatest deficiency, however, is one apparently beyond OAL’s purview – namely that the risk assessment instruments which the Board’s Forensic Assessment Division continues to utilize have never been validated or deemed reliable for use in a population even remotely similar to California’s life-term prisoners.
The battle over that “deficiency” looms large ahead.
Source: Office of Administrative Law, Decision of Disapproval of Regulatory Action, OAL File No. 2011-0316-01 S (May 5, 2011)