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A Stone of Hope:
Legal and Empirical Analysis of California
Juvenile Lifer Parole Decisions
Kristen Bell1
“With this faith, we will be able to hew out of the mountain of
despair a stone of hope.”
—Dr. Martin Luther King, Jr.
In a recent line of cases, the Supreme Court held that sentencing juveniles
to life in prison without the possibility of release on parole violates the Eighth
Amendment in all but the rarest cases. Many states have responded by extending
the possibility of release on parole to individuals serving juvenile life sentences.
Whether the possibility of parole can render juvenile life sentences constitutional is a topic of ongoing debate among courts, litigants, and scholars. Thus
far, that debate has not engaged with one of the most longstanding critiques of
parole systems: that parole-release decision-making can be arbitrary and capricious. This Article develops this critique as applied to an original empirical
study of 426 California parole decisions among people sentenced to life with the
possibility of parole for crimes committed as juveniles. The study uses regression
analysis and other quantitative techniques to assess the extent to which parole is
consistently granted to those who demonstrate comparable levels of rehabilitation. When combined with qualitative analysis of decision-making procedures,
the evidence suggests that parole decisions are as arbitrary and capricious with
respect to a measure of rehabilitation as death penalty decisions were to a measure of culpability when the Supreme Court struck down the death penalty as
arbitrary and capricious in 1972. The Article argues that, as applied during the
time period of this study, California’s system of parole-release decision-making
for people sentenced to life as juveniles may be unconstitutional on three
grounds: it may violate the Eighth Amendment’s prohibition against arbitrary
and capricious punishment, it may be void for vagueness, or it may deny ade-

1
Kristen Bell, J.D., Ph.D., Assistant Professor at University of Oregon Law School. This
article was made possible through a Soros Justice Fellowship, hosted by the Post-Conviction
Justice Project at the Gould School of Law (2014–2016), and by a Senior Liman Fellowship at
Yale Law School (2016–2018). Heidi Rummel and Elizabeth Calvin were instrumental in conceiving of this study and supporting its development. I am indebted to the following people for
expertise in study design, statistical analysis, and feedback: Gregory Bell, Andrea Bell, Miguel
de Figueiredo, Barry Feld, Catherine Grosso, Paul Labys, Thomas Lyon, Tracey Meares,
Daniel Markovits, Debbie Mukamal, Mark Miller, Joan Petersilia, Kelly McWilliams, Judith
Resnik, Simon Singer, Anna VanCleave, and the Yale StatLab. I am also grateful for feedback
provided at the ACS Junior Scholar Workshop (2018), the American Society of Criminology
Conference (2018), the Conference on Empirical Legal Studies (2017), the Justice Collaboratory at Yale Law School, and at Hofstra Law School, SMU Law School, the University
of Idaho, and the University of Oregon. Special thanks to Mana Rostami-Mouripour who managed collection of transcripts, and to those who coded transcripts: Karen Acros, Ama AmoafoYeboah, Marie Bell, Sarah Cohen, Shana Emile, Cameron Gomez, Nikhil Goyal, Catherine
McCarthy, Clayton Michael, Rachel Rothberg, and Ling Tsui. I thank Larry Rosser, Robert
Garcia, Ryan Lo, and the members of the Y.O.U.N.G. group (Youth Offenders United ’N
Growth) at California State Prison-Lancaster for challenging my understanding of justice from
the inside out.

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quate procedural due process. The Article proposes reforms that are designed to
improve fairness and equity in parole decision-making by restricting the parole
board’s discretion, improving the exercise of that discretion, and providing effective oversight and accountability over parole-release decisions.

LIST OF TABLES AND FIGURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. JUVENILE SENTENCING, PAROLE, AND THE PROMISE OF A
MEANINGFUL OPPORTUNITY FOR RELEASE . . . . . . . . . . . . . . . . .
II. CASE STUDY OF CALIFORNIA PAROLE HEARINGS:
DESCRIPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Design of California Youth Offender Parole Hearings . .
B. Juvenile Lifer Parole Decisions in Practice: Description
of Case Study . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
III. CASE STUDY OF CALIFORNIA PAROLE HEARINGS:
EVALUATION OF OUTCOMES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Distribution of Decisions Along an Index of
“Demonstrated Rehabilitation” . . . . . . . . . . . . . . . . . . . . . . .
B. Grant Rate Comparisons among Legitimate and
Illegitimate Variables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Regression Analysis . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D. Time-served before being granted parole . . . . . . . . . . . . . .
IV. CASE STUDY OF CALIFORNIA PAROLE HEARINGS: PROCESS OF
DECISION-MAKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Traditional Due Process Protections . . . . . . . . . . . . . . . . . .
B. Decision-Making Body . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Substantive Legal Standard. . . . . . . . . . . . . . . . . . . . . . . . . . .
V. CONSTITUTIONAL QUESTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Cruel and Unusual Punishment, as Applied . . . . . . . . . . .
B. Void for Vagueness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C. Procedural Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VI. A STONE OF HOPE: REFORMING THE PAROLE PROCESS . . . . . .
A. Cabin Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. Improve the Exercise of Discretion . . . . . . . . . . . . . . . . . . .
C. Establish Oversight and Accountability Over the
Exercise of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
VII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
LIST

OF

TABLES

AND

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506

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531

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535

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FIGURES

TABLES
TABLE 1: PAROLE GRANT RATE BY RACE AND CLEAN TIME . . . . . . . .
TABLE 2: PAROLE GRANT RATE BY RACE AND PROGRAM
PARTICIPATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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TABLE 3: PAROLE GRANT RATE BY RACE AND EDUCATION LEVEL . .
TABLE 4: PAROLE GRANT RATE BY ATTORNEY TYPE . . . . . . . . . . . . . .
TABLE 5: PAROLE GRANT RATE BY PRIOR EXPERIENCE WITH THE
PAROLE BOARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TABLE 6: PAROLE GRANT RATE AMONG CANDIDATES WITH 3+
YEARS CLEAN TIME, MODERATE OR EXTENSIVE
PROGRAMMING, AND A GED OR HIGHER (N=286) . . . . . . . . . .
TABLE 7: PAROLE GRANT RATE BY RACE, ATTORNEY, AND BOARD
EXPERIENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TABLE 8: CRA MODEL AND HEARING RESULT MODEL . . . . . . . . . . . . .
TABLE 9: RELATIVE IMPACT OF VARIABLES SIGNIFICANT TO PAROLE
DECISION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
TABLE 10: SPREAD IN TIME-SERVED AMONG CANDIDATES GRANTED
PAROLE BY CONVICTION-TYPE . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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FIGURES
FIGURE 1: HYPOTHETICAL “PERFECT” DISTRIBUTION OF DECISIONS
ALONG REHABILITATION INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . .
FIGURE 2: HYPOTHETICAL RANDOM DISTRIBUTION OF DECISIONS
ALONG REHABILITATION INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . .
FIGURE 3: ACTUAL DISTRIBUTION OF DECISIONS ALONG
REHABILITATION INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
FIGURE 4: INFLUENCE OF RACE ON LIKELIHOOD OF PAROLE BY
REHABILITATION LEVEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
FIGURE 5: INFLUENCE OF RETAINED ATTORNEY ON LIKELIHOOD OF
PAROLE BY REHABILITATION LEVEL . . . . . . . . . . . . . . . . . . . . . . .
FIGURE 6: LIKELIHOOD OF PAROLE AT INITIAL VS. SUBSEQUENT
HEARING BY REHABILITATION LEVEL . . . . . . . . . . . . . . . . . . . . . .
FIGURE 7: AVERAGE TIME-SERVED BY CONVICTION-TYPE AND
PAROLE DECISION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
APPENDIX
TABLE
TABLE
TABLE
TABLE
TABLE
TABLE
TABLE

A: DESCRIPTIVE STATISTICS WITH HEARING RESULTS . . . . . . .
B: REGRESSION FOR REHABILITATION INDEX . . . . . . . . . . . . . . . .
C: ODDS RATIOS FOR HEARING RESULT MODEL . . . . . . . . . . . .
D: ROBUSTNESS CHECKS WITH ADDED YOUTH VARIABLES . . .
E: ROBUSTNESS CHECKS WITH ADDED CRIME AND OTHER
VARIABLES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F: ROBUSTNESS CHECKS WITH CHANGES TO VARIABLE
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
G: ROBUSTNESS CHECKS WITH CHANGES TO SAMPLE . . . . . . . .

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INTRODUCTION
The United States Supreme Court has held that, except in rare cases, it
is cruel and unusual punishment to sentence a juvenile to life in prison unless the juvenile is afforded a “meaningful opportunity to obtain release
based on demonstrated maturity and rehabilitation.”2 Many states have responded to this holding by passing legislation that makes individuals who
are serving life sentences for juvenile convictions (“juvenile lifers”) eligible
to be reviewed for release by a state parole board.3 The task of providing the
constitutionally required “meaningful opportunity to obtain release” has
thus been passed into the hands of parole boards, state administrative agencies that traditionally act with nearly unfettered discretion.4 An estimated
6,000 juvenile lifers are incarcerated in ten states alone; half of those individuals are incarcerated in the state of California.5 Parole boards have been
charged with the discretion to choose whether these men and women will die
behind bars or will at some point live in society as adults.
Courts are currently facing the question of whether state parole boards
provide juvenile lifers with a constitutionally adequate opportunity to obtain
release. Litigation has occurred in multiple federal district courts,6 and state
courts in New York and Florida have held that juvenile lifer parole hearings
failed to comply with the Eighth Amendment.7 The Massachusetts Supreme
Judicial Court has held that heightened procedural protections are required at
juvenile lifer parole hearings in order for life with the possibility of parole
sentences to comply with the Massachusetts Constitution.8 The California
Supreme Court has held that providing juvenile lifers with parole hearings
renders their sentences constitutional under the Eighth Amendment, but only
if the parole hearings provide “a meaningful opportunity for release.”9 The
2
See Graham v. Florida, 560 U.S. 48, 75 (2010); accord Miller v. Alabama, 567 U.S. 460,
479–80 (2012); Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016).
3
See Sarah French Russell & Tracy L. Denholtz, Procedures for Proportionate Sentences:
The Next Wave of Eighth Amendment Noncapital Litigation, 48 CONN. L. REV. 1121, 1132
(2016).
4
See Greenholtz v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1,
13 (1979); Bd. of Pardons v. Allen, 482 U.S. 369, 384 (1987) (Scalia, J., dissenting); Kimberly
A. Thomas & Paul D. Reingold, From Grace to Grids: Rethinking Due Process Protections for
Parole, 107 CRIM. L. & CRIMINOLOGY 213, 218 (2017); Sarah French Russell, Review for
Release: Juvenile Offenders, State Parole Practices, and the Eighth Amendment, 89 IND. L.J.
373, 396 (2014).
5
See SARAH MEHTA, AMERICAN CIVIL LIBERTIES UNION, FALSE HOPE: HOW PAROLE SYSTEMS FAIL YOUTH SERVING EXTREME SENTENCES 35 (2016), www.aclu.org/feature/false-hopehow-parole-systems-fail-youth-serving-extreme-sentences, archived at https://perma.cc/5CF3BC3W.
6
See, e.g., Hayden v. Keller, 134 F. Supp. 3d 1000, 1009 (E.D.N.C. 2015); Greiman v.
Hodges, 79 F. Supp. 3d 933, 940, 944 (S.D. Iowa 2015); see also Russell & Denholtz, supra
note 3.
7
See Hawkins v. N.Y. State Dep’t of Corr. & Cmty. Supervision, 30 N.Y.S. 3d 397,
400–01 (N.Y. App. Div. 2016); Atwell v. State of Florida, 197 So. 3d 1040, 1050 (Fla. 2016).
8
See Diatchenko v. Dist. Attorney for Suffolk Dist., 27 N.E.3d 349, 361 (Mass. 2015).
9
See People v. Franklin, 370 P.3d 1053, 1066–67 (Cal. 2016).

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California court explicitly reserved the question of whether parole hearings
live up to that requirement in practice.10
The litigation and scholarship in this area has questioned the fairness of
procedural protections at parole hearings, but it has yet to engage with one
of the most longstanding critiques of parole boards: that their decision-making can be arbitrary and capricious in practice. Scholars, advocates, and politicians of the 1970s criticized the wide discretion that parole boards
exercised, and argued that idiosyncratic judgment and racial bias led to unjustifiable disparities in release decisions.11 This critique of parole-release
decisions as arbitrary exercises of discretion, alongside skepticism about the
effectiveness of rehabilitation and a rise in tough-on-crime rhetoric, led
many states and the federal government to abolish parole systems in the
1970s through the 1990s.12
This Article brings the critique of arbitrariness to bear in the context of
juvenile lifer parole decisions. It presents an original empirical study of 426
juvenile lifer parole decisions in California, which is designed to evaluate
the extent to which these decisions consistently grant release to individuals
who demonstrate comparable levels of rehabilitation. The analysis focuses
on California for several reasons. First, the relative transparency of California’s parole process and its large population of juvenile lifers make quantitative and qualitative analysis possible. More importantly, California is a
national leader in juvenile lifer parole reform.13 It was one of the first states
to pass legislation designed to reform the parole process specifically for juvenile lifers, and, according to the ACLU’s national survey of juvenile lifer
parole systems, California has done more than any other state to create a
meaningful opportunity for release among juvenile lifers.14 If California’s
juvenile parole system, which has been recognized as among the best in the

See id.
See, e.g., Jon O. Newman, Parole Release Decisionmaking and the Sentencing Process,
84 YALE L.J. 810, 816 n.14, 847 (1975) (citing such scholarship); Robert M. Garber and
Christina Maslach, The Parole Hearing: Decision or Justification?, 1 LAW & HUM. BEHAV. 3,
263 (1977); John A. Conley & Sherwood E. Zimmerman, Decision-Making by a Part-Time
Parole Board: An Observational and Empirical Study, 9 CRIM. JUST. AND BEHAV. 396, 396–97
(Dec. 1982); PIERCE O’DONNELL ET AL., TOWARD A JUST AND EFFECTIVE SENTENCING SYSTEM:
AGENDA FOR LEGISLATIVE REFORM 12 (1977); Anne M. Heinz, John P. Heinz, Stephen J.
Senderowitz, & Mary Anne Vance, Sentencing by Parole Board: An Evaluation, 67 J. OF
CRIM. L. AND CRIMINOLOGY 1 (1976).
12
See, e.g., Kate Stith & Steve Y. Koh, The Politics of Sentencing Reform: The Legislative
History of the Federal Sentencing Guidelines, 28 WAKE FOREST L. REV. 223, 227–29 (1993);
Edward E. Rhine, Alexis Watts, Kevin R. Reitz, Parole Boards within Indeterminate and Determinate Sentencing Structures, ROBINA INSTITUTE (Apr. 3, 2018), https://robinainstitute.umn
.edu/news-views/parole-boards-within-indeterminate-and-determinate-sentencing-structures
(listing sixteen states that abolished parole systems), archived at https://perma.cc/8Q6YK2DY.
13
See MEHTA, supra note 5, at 227–29.
14
Id. at 49–50.
10
11

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country, is arbitrary and capricious to some extent in practice, then it is
likely that other state parole systems are arbitrary and capricious as well.15
The Article is structured as follows. Part I describes the Supreme
Court’s developing Eighth Amendment jurisprudence on juvenile sentencing
in Roper v. Simmons,16 Graham v. Florida,17 Miller v. Alabama,18 and Montgomery v. Louisiana,19 and how this relates to jurisprudence on parole-release decision-making. Parts II, III, and IV set forth the empirical study of
California’s parole-release system for juvenile lifers. The study analyzes
transcripts from all contested juvenile lifer parole hearings conducted in the
eighteen-month period beginning January 1, 2014, the effective date of a
state statute designed to improve the parole process for juvenile offenders.
Part II provides an overview of the study and how California’s parole system
operates for juvenile lifers. Part III uses quantitative analysis to identify the
extent to which factors pertaining to rehabilitation explain why 176 parole
candidates in the sample were granted parole, and the remaining 250 parole
candidates were denied parole. The study finds that California juvenile lifer
parole decisions show a high degree of inconsistency with respect to a measure of rehabilitation. The study also finds that a considerable degree of variability in this set of decisions is explained by race and other factors that are
illegitimate criteria for these decisions. The quantitative evidence shows a
risk, but not conclusive proof, that the parole system is not treating relevantly like cases alike. Part IV provides a qualitative analysis of the structural process of decision-making in California juvenile lifer cases. The
analysis shows that the process of decision-making does not seem to abate,
but rather affirms, the risk that the parole board is failing to treat relevantly
like cases alike.
Based on the evidence of arbitrariness uncovered in the study, Part V
outlines the following three arguments that the California juvenile lifer parole system may be unconstitutional: the system may be arbitrary and capri15
The scope of this paper is focused on arbitrariness in parole decision-making, and it
does not include a review of all problematic features of juvenile life sentencing and parole
decision-making in California or elsewhere. That broader topic has been periodically covered
in scholarly literature as the applicable law has continued to develop. See, e.g., Megan Annitto,
Graham’s Gatekeeper and Beyond: Juvenile Sentencing and Release Reform in the Wake of
Graham and Miller, 80 BROOK. L. REV. 119 (2014); Brianna H. Boone, Treating Adults Like
Children: Re-Sentencing Adult Juvenile Lifers After Miller v. Alabama, 99 MINN. L. REV.
1159, 1161 (2015); Beth Caldwell, Creating Meaningful Opportunities for Release: Graham,
Miller, and California’s Youth Offender Parole Hearings, 40 N.Y.U. REV. L. & SOC. CHANGE
245 (2016); Laura Cohen, Freedom’s Road: Youth, Parole, and the Promise of Miller v. Alabama and Graham v. Florida, 35 CARDOZO L. REV. 1031, 1048–69 (2014); Marsha L. Levick
& Robert G. Schwartz, Practical Implications of Miller v. Jackson: Obtaining Relief in Court
and Before the Parole Board, 31 LAW & INFO. 369, 405 (2013); Russell, supra note 4; Sarah
Sloan, Why Parole Eligibility Isn’t Enough: What Roper, Graham, and Miller Mean for Juvenile Offenders and Parole, 47 COLUM. HUM. RTS. L. REV. 243 (2015).
16
543 U.S. 551 (2005).
17
560 U.S. 48 (2010).
18
567 U.S. 460 (2012).
19
136 S. Ct. 718 (2016).

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cious as applied under the Eighth Amendment, or void for vagueness, or
inadequate on procedural due process grounds. Part VI then proposes three
types of reforms to reduce the inconsistency of decision-making observed in
California’s system. The reforms include cabining discretion, improving the
exercise of discretion, and developing systematic oversight of parole-release
decision-making. Importantly, the policies and strategies suggested here are
designed to promote greater consistency in parole decision-making, but they
are not designed to address a number of other problems that the author observed in reviewing parole hearing transcripts, and which are beyond the
scope of this single Article. The reform to the parole system offered in Part
VI is thus proposed not as a comprehensive fix, but as what Dr. King referred to as a “stone of hope.”20
I. JUVENILE SENTENCING, PAROLE, AND THE PROMISE
OPPORTUNITY FOR RELEASE

OF A

MEANINGFUL

The Supreme Court’s developing jurisprudence on juvenile sentencing
is driven by the principle that children are “constitutionally different from
adults for purposes of sentencing.”21 The Court has explained that
juveniles—defined as individuals under eighteen years old—have diminished culpability compared to adults by virtue of several distinct features of
youth. Neuroscience shows that juvenile brains are underdeveloped, which
makes juveniles more susceptible to environmental and peer influence, increases their propensity for risk-taking, and diminishes their ability to consider the consequences of their actions.22 Juveniles have also had less
opportunity to distance themselves from negative influences and criminogenic environments, making it unfair to hold them wholly responsible for
actions that are influenced by those environmental factors.23 Further,
juveniles have enhanced capacity for rehabilitation; not only are their brains
still developing, but their habits of thought and action have had less time to
20
“I Have a Dream” speech by Rev. Martin Luther King, Jr. at Lincoln Memorial, Washington, D.C. (Aug. 28, 1963) (“With this faith we will be able to hew out of the mountain of
despair a stone of hope.”).
21
See Miller, 567 U.S. at 471–72.
22
See id. at n.5 (citing Brief for American Psychological Association et al. as Amici Curiae) (“It is increasingly clear that adolescent brains are not yet fully mature in regions and
systems related to higher-order executive functions such as impulse control, planning ahead,
and risk avoidance.”); Graham, 560 U.S. at 68 (citing Brief for American Medical Association
et al. 16–24; Brief for American Psychological Association et al. 22–27) (“[D]evelopments in
psychology and brain science continue to show fundamental differences between juvenile and
adult minds. For example, parts of the brain involved in behavior control continue to mature
through late adolescence.”).
23
See, e.g., Miller, 567 U.S. at 471; Roper v. Simmons, 543 U.S. 551 (2005) (citing
Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 AM. PSYCHOLOGIST 1009, 1014
(2003)) (“[A]s legal minors, [juveniles] lack the freedom that adults have to extricate themselves from a criminogenic setting.”).

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become fixed.24 These distinctive features of youth underlie the Court’s reasoning in its recent juvenile sentencing cases, summarized below.
In Roper v. Simmons, the Court held that the Eighth Amendment prohibits imposing the death penalty on a person for a crime committed as a
juvenile.25 The Court reasoned that children’s diminished culpability and increased impulsivity vitiated two of the legally accepted justifications for
punishment—retribution and deterrence—and left no sufficient justification
for the death penalty.26 The Court next held in Graham v. Florida that the
Eighth Amendment prohibits life imprisonment without the possibility of
parole as a punishment for juveniles convicted of non-homicide offenses.27
The Court reiterated that the rationales of retribution and deterrence were
vitiated with respect to juveniles, and that if incarceration until death could
be justified for juveniles, it had to be on the basis of some other rationale.28
The Court considered the rationales of incapacitation and rehabilitation, and
found that these rationales are similar in that their ability to justify punishment depends on whether an individual demonstrates change over time.29 If a
juvenile convicted of a non-homicide offense demonstrates maturity and rehabilitation as an adult, then incarceration can no longer be justified in the
name of incapacitation or rehabilitation.30 Continued incarceration lacks justification and becomes cruel and unusual punishment.31 If a juvenile never
demonstrates maturity and rehabilitation, however, the Eighth Amendment
does not prohibit incarceration until natural death.32 The Court therefore held
that in sentencing juveniles convicted of a non-homicide offense, the Eighth
Amendment requires that states provide a “meaningful opportunity to obtain
release based on demonstrated maturity and rehabilitation.”33 The Court was
silent on whether life with the possibility of parole sentences met this constitutional requirement, but it was explicit that life sentences with eligibility for
release through clemency did not meet the requirement.34 Clemency could
not provide a “meaningful opportunity to obtain release based on demon-

See Miller, 567 U.S. at 472; Roper, 543 U.S. at 570 (citing Steinberg, 58 AM. PSYCHOLat 1014 (“For most teens, [risky or antisocial] behaviors are fleeting; they cease with
maturity as individual identity becomes settled. Only a relatively small proportion of adolescents who experiment in risky or illegal activities develop entrenched patterns of problem
behavior that persist into adulthood.”).
25
See Roper v. Simmons, 543 U.S. 551, 570–71 (2005).
26
See id. at 571.
27
See Graham, 560 U.S. at 75.
28
See id. at 71–72.
29
See id. at 72–73.
30
See id.; accord Chad Flanders, The Supreme Court and the Rehabilitative Ideal, 49 GA.
L. REV. 383, 414 (2015)
31
See Graham, 560 U.S. at 75; accord Miller, 567 U.S. at 472–73; Martin Gardner,
Youthful Offenders and the Eighth Amendment Right to Rehabilitation: Limitations on the Punishment of Juveniles, 83 TENN. L. REV. 455, 527 (2016).
32
See Graham, 560 U.S. at 73–74.
33
Id. at 75.
34
See id. at 70 (citing Solem v. Helm, 463 U.S. 277, 301 (1983)).
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strated maturity and rehabilitation” because the prospects of release through
clemency were both too remote and ad hoc.35
In Miller v. Alabama, the Court considered juveniles convicted of
homicide offenses and held that mandatory sentencing of juveniles to life
without the possibility of parole violates the Eighth Amendment.36 A court
may sentence a juvenile convicted of a homicide offense to life without the
possibility of parole on a discretionary basis after considering the mitigating
factors of youth and finding that the juvenile shows “irreparable corruption.”37 The Court was clear that the irreparably corrupt juvenile was a rare
case, and that all other juveniles cannot be sentenced to life in prison unless
the sentence includes a “meaningful opportunity to obtain release based on
demonstrated maturity and rehabilitation.”38
Most recently, in Montgomery, the Court held that the rule it announced
in Miller applied retroactively because it imposed a substantive limit on punishment—specifically, that life without the possibility of parole for a conviction as a juvenile is excessive under the Eighth Amendment “for all but ‘the
rare juvenile offender whose crime reflects irreparable corruption.’” 39 As articulated in Graham, the penological justification for punishment collapses
if, by demonstrating rehabilitation over time, juveniles show that they are
not in fact irreparably corrupt. In Montgomery, however, the Court did not
use the phrase “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”40 It stated that “[a] State may remedy
a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.”41 The Court explained
that “[a]llowing those offenders to be considered for parole ensures that
juveniles whose crimes reflected only transient immaturity—and who have
since matured—will not be forced to serve a disproportionate sentence in
violation of the Eighth Amendment.”42
The statement that allowing a person to be considered for release “ensures” release to those who have since matured is in deep tension with the
Court’s decades-old jurisprudence on parole. In the 1979 case of Greenholtz
v. Inmates of the Nebraska Penal and Corrections Complex,43 the Court
made clear that eligibility for release on parole does not ensure release: the
“possibility of parole provides no more than a mere hope that the benefit

35
Graham, 560 U.S. at 75; see also Solem, 463 U.S. at 301 (“A Governor may commute a
sentence at any time for any reason without reference to any standards.”).
36
See Miller, 567 U.S. at 479.
37
Id. at 479–80.
38
See id.
39
See Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016) (applying Teague doctrine
and holding that Miller applied retroactively because it was a substantive limit on punishment).
40
Graham, 560 U.S. at 75.
41
See Montgomery, 136 S. Ct. at 736 (citing WYO. STAT. ANN. § 6–10–301(c) (2013)).
42
Id. (emphasis added).
43
442 U.S. 1 (1979).

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will be obtained.”44 States are free to operate systems in which parole boards
make release decisions on a wholly discretionary basis without any stated
standards and without any scrutiny under the Due Process Clause.45 In such
wholly discretionary systems, parole boards can grant or deny release in a
way that is no less ad hoc or remote than clemency.46
Not all states, however, opt for such a wholly discretionary system.47 If
a state statute requires that parole “shall” be granted unless the parole board
makes certain findings, then there is a presumption in favor of parole and the
Due Process Clause applies.48 The Court required only the minimal procedural protections of an in-person hearing at the initial consideration and a statement of reasons for the decision.49 In this way, presumptive parole systems
are distinct from clemency systems.50
Nevertheless, presumptive parole systems remain a far cry from providing legal assurance of release to those who demonstrate rehabilitation. Although presumptive systems direct parole boards to release parole candidates
unless the parole board finds some factor or set of factors, the factors can be
so broad and vague that they provide no functional restraint on discretion.51
As the Court made clear in Greenholtz, the Nebraska parole board retained
“very broad” discretion in finding factors that can defeat the presumption of
parole in a given case, and that their inquiry is “necessarily subjective.”52
Following Greenholtz, the Court held in Board of Pardons v. Allen that the
Montana parole statute created a presumption of parole, but notably one of
the factors that could defeat the presumption was whether parole was “in the
best interest of society.”53 As the dissent clearly stated, “[e]ven a cursory
examination of the Montana statute reveals that the [parole board] is subject

Id. at 11.
Id. at 7.
46
See id.; Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981) (holding that
Connecticut administrative agency’s (The Board of Pardons and Board of Parole) petitions for
release were “nothing more than an appeal for clemency” despite the agency’s operating system which released approximately seventy-five percent of prisoners serving life sentences,
because the system was not governed by a statute with written standards or mandatory
language).
47
See Greenholtz, 442 U.S. at 11; id. at 29 n.9 (Marshall, J., dissenting) (“[P]arole statutes of 47 States establish particular standards, criteria or factors to be applied in parole release
determinations.”); see also Steve Disharoon, California’s Broken Parole System: Flawed Standards and Insufficient Oversight Threaten the Rights of Prisoners, 44 U.S.F. L. REV. 177,
206–09 (2009) (listing state parole statutes that create a liberty interest in parole).
48
Greenholtz, 442 U.S. at 12.
49
Id. at 14–15.
50
See Conn. Bd. of Pardons, 452 U.S. at 466; Solem v. Helm, 463 U.S. 227, 300 (1983).
51
Bd. of Pardons v. Allen, 482 U.S. 369, 384 (1987) (O’Connor, J., dissenting).
52
Greenholtz, 442 U.S. at 13 (“[T]he Parole Board’s decision as defined by Nebraska’s
statue is necessarily subjective in part and predictive in part. Like most parole statutes, it vests
very broad discretion in the Board. No ideal, error-free way to make parole-release decisions
has been developed; the whole question has been and will continue to be the subject of experimentation involving analysis of psychological factors combined with fact evaluation guided by
the practical experience of the actual parole decisionmakers in predicting future behavior.”)
53
Bd. of Pardons v. Allen, 482 U.S. at 384 (O’Connor, J., dissenting).
44
45

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to no real restraint.”54 In such systems, when presented with two people who
demonstrate the same amount of rehabilitation, the board may grant release
to one and deny release to the other without any accountability for that decision under law.55
In the decade leading up to Greenholtz, research on a variety of different parole systems highlighted that parole boards often wielded their discretion in an arbitrary manner that was influenced, at best, by idiosyncratic
judgment and, at worst, by racial bias.56 In addition, some decisions relied on
patently erroneous facts;57 for example, a researcher reported having seen
parole files in which “black men [are] listed as white and Harvard graduates
[are] listed with borderline IQ’s.”58 In addition to research showing that parole boards were operating in an ad hoc manner, more recent research has
shown periods in which the prospect of release through a presumptive parole
system has been more remote than the prospect of release though a clemency
system. For example, no more than ten percent of people sentenced to life
with the possibility of parole in California were granted parole in any year
from 1981 to 2008 despite a presumption favoring parole, whereas seventyfive percent of people serving life without the possibility of parole were
granted release through a wholly discretionary clemency system in Connecticut in 1981.59 Under the Florida clemency system, the system at issue in
Graham, five people received commutations from 1999 to 2002, and, during
the same time period, only two people received release through California’s
presumptive parole system.60 It should come as no surprise that parole
boards can, and sometimes do, grant release in as arbitrary and sparse a
manner as clemency. The historic roots of parole-release systems lie in the

Id.
Id. at 384–85 (citing Susan N. Herman, The New Liberty: The Procedural Due Process
Rights of Prisoners and Others Under the Burger Court, 59 N.Y.U. L. REV. 482, 550 (1984))
(“A parole statute providing that parole shall be granted unless the prospective parolee ‘poses
a danger to society’ is not significantly different from one under which the parole board’s
decisions are nonreviewable, since a court would be unlikely to reverse a parole board decision
made under such a discretionary standard.”).
56
See Conley, supra note 11.
57
See Greenholtz, 442 U.S. at 33 n.15 (Marshall, J., dissenting), and cases cited.
58
Id. (citing Hearings on H.R. 13118 et al. before Subcommittee No. 3 of the House
Judiciary Committee, 92d Cong., 2d Sess., pt. VII-A, p. 451 (1972) (testimony of Dr. Willard
Gaylin)).
59
Compare Kathryne M. Young, Debbie A. Mukamal, & Thomas Favre-Bulle, Predicting
Parole Grants: An Analysis of Suitability Hearings for California’s Lifer Inmates, 28 FED.
SENT’G REP. 268, 271 (2016), with Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465
(1981).
60
Compare Commutation of Sentence Cases Granted 1980 through January 1, 2018, FLA.
COMM’N ON OFFENDER REVIEW, https://www.fcor.state.fl.us/docs/clemency/CommutationofSentences.pdf, archived at https://perma.cc/KM47-B8PS, with W. David Ball, Heinous, Atrocious, and Cruel: Apprendi, Indeterminate Sentencing, and the Meaning of Punishment, 109
COLUM. L. REV. 893, 918 (2009).
54
55

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executive clemency power, and state governors still exercise considerable
control over parole boards.61
Given the reality of the structure and practice of parole-release systems,
federal district courts and state supreme courts have held that several parole
systems fail to provide people convicted as juveniles with a “meaningful
opportunity for release based on maturity and rehabilitation.”62 The general
response to these holdings has been to require additional procedural protections at parole hearings for those who were convicted of crimes as juveniles,
and to explicitly require that parole boards consider an individual’s youth at
the time of the crime.63 Parole boards, however, have retained broad discretion to decide who leaves prison and who dies in prison, and courts have
been reluctant to impose a meaningful check on the substantive quality of
their decisions. This approach effectively trusts that the parole board will
make good enough decisions so long as modest procedural protections are in
place and they are required to give at least lip service to the features of
youth. Research in other contexts of administrative law has shown, however
that “procedural due process has failed miserably in its mission to rationalize frontline decisionmaking.”64 It would be naı̈ve to expect procedural protections to do better here, in the context of agencies with such a checkered
history of arbitrary decision-making.
When an administrative agency is determining whether a person will
ever step foot in society as an adult, we ought to do more than trust in
procedural protections and the good judgment of a parole board to release
those who demonstrate rehabilitation. The law should provide some substantive check on whether the parole board is getting it right, but this task is
easier said than done. How can the law provide such a check? Rehabilitation is a markedly amorphous concept; neither statutes nor common law set
forth an objective threshold of rehabilitation, such that if a juvenile were to
demonstrate rehabilitation above that threshold, a decision to withhold release would violate the Eighth Amendment.65 A central argument of this
Article is that lawmakers should decide upon and set forth an objective
threshold.66 Such a decision is undoubtedly difficult, but deciding not to
61
See, e.g., Sheldon L. Messinger et al., The Foundations of Parole in California, 19 LAW
& SOC’Y REV. 69, 100–01 (1985) (discussing how in California, governors moved for the
establishment of parole boards to relieve them of the work, and political risk, entailed in reviewing growing numbers of clemency petitions).
62
See, e.g., Hayden v. Keller, 134 F. Supp. 3d 1000, 1009 (E.D.N.C. 2015).
63
See Russell & Denholtz, supra note 3, at 1132–34.
64
See Daniel E. Ho, Does Peer Review Work? An Experiment of Experimentalism, 69
STAN. L. REV. 1, 81 (2017) (citing Jerry L. Mashaw, The Management Side of Due Process:
Some Theoretical and Litigation Notes on the Assurance of Accuracy, Fairness, and Timeliness
in the Adjudication of Social Welfare Claims, 59 CORNELL L. REV. 772, 776–91 (1974)).
65
See, e.g., Chad Flanders, The Supreme Court and the Rehabilitative Ideal, 49 GA. L.
REV. 383, 386 (2015) (citing FRANCIS A. ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL
2 (1981) (discussing inconsistency in how the Supreme Court has interpreted “rehabilitation”
and noting that it is “an inherently complex term, filled with ambiguities”)).
66
See infra at Part VI.A.

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decide and leaving the parole board to navigate the question on a discretionary case-by-case basis is potentially worse. Such a system can flout one of
the most basic principles of justice under law: that like cases be treated alike.
It gives the parole board freedom to adopt a sense of rehabilitation that is a
moving target from one case to the next, and leaves open the door to arbitrary and discriminatory decision-making.
The study below brings into focus the actual consequences of operating
a juvenile lifer parole system that lacks an objective standard for release.
The study evaluates the extent to which a parole board is actually treating
like cases alike on the basis of factors that should matter—factors that are
related to rehabilitation—and the extent to which decisions appear to be influenced by characteristics that should not matter—such as race/ethnicity,
poverty, and other factors that are orthogonal to rehabilitation or otherwise
illegitimate. In other words, the study seeks to assess the extent to which
parole candidates who demonstrate a comparable measure of rehabilitation
receive consistent decisions from the parole board.
To be clear, this Article argues simply that one of the ways for a parole
system to fail is for the system to render release decisions that are inconsistent with respect to levels of rehabilitation. The Article’s focus on evaluating
consistency in parole decisions with respect to rehabilitation should not be
understood as implying that this consistency is sufficient for a parole system
to provide the constitutionally required “meaningful opportunity to obtain
release” to people serving life sentences for juvenile convictions. Far from
it. Consistency is only one necessary, but not sufficient, condition in this
context. For example, a parole system that denies release to all (or almost
all) juvenile lifers who demonstrate rehabilitation renders consistent decisions, but does not provide a meaningful opportunity for release based on
rehabilitation.67 A system would also be constitutionally defective if the
prison fails to provide adequate rehabilitation programs and if the parole
board consistently denies parole to people who have not engaged in rehabilitation programs due to the lack of an adequate opportunity to do so.68 As
scholars and litigants have argued, juvenile lifers may rightfully be entitled
access to rehabilitation programs that are needed to demonstrate rehabilitation and gain parole.69

See generally MEHTA, supra note 5.
The U.S. Supreme Court has noted the possibility of this problem, recognizing that
“[i]n some prisons, moreover, the system itself becomes complicit in the lack of development
. . . . [I]t is the policy in some prisons to withhold counseling, education, and rehabilitation
programs.” Graham v. Florida, 560 U.S. 48, 79 (2010).
69
See, e.g., Russell & Denholtz, supra note 3, at 1146–47 (citing Greiman v. Hodges, 79
F. Supp. 3d 933, 938 (S.D. Iowa 2015)) (describing litigation in which juvenile serving life
sentence sought an order requiring the Department of Corrections to permit him to enroll in the
necessary prison programs to become parole eligible); Martin Gardner, Youthful Offenders and
the Eighth Amendment Right to Rehabilitation: Limitations on the Punishment of Juveniles, 83
TENN. L. REV. 455, 486 (2016) (“Various commentators have viewed Graham as establishing,
in some sense, a constitutional ‘right to rehabilitation.’”); Cara H. Drinan, Graham on the
67
68

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Additionally, the presence of a constitutionally adequate mechanism for
release is not sufficient in order for a life with the possibility of release
sentence to be just or constitutional. A system may be unjust or unconstitutional if it requires juvenile lifers to serve an excessive period of time before
becoming eligible for parole70 or before being released on parole.71 Further,
regardless of the quality of the release mechanism, a sentence that permits
incarceration until death for a juvenile may be disproportionate to that individual’s culpability and the circumstances of that particular case. For example, decades before the Miller decision, the California Supreme Court held
that under the California Constitution, a sentence of life with the possibility
of parole after seven years was disproportionate for a seventeen-year-old
convicted of first-degree felony murder and robbery.72 The constitutionality
of imposing a life with the possibility of parole sentence upon any given
juvenile in the first place is, however, beyond the scope of this Article.
II. CASE STUDY

OF

CALIFORNIA PAROLE HEARINGS: DESCRIPTION

This case study of California parole hearings for individuals serving life
with the possibility of parole sentences is organized into three parts. First,
Part II summarizes the design of these parole hearings, as well as the sources
and methods used to analyze how those hearings function in practice. The
study then follows a two-step process for evaluating consistency in decisions
with respect to rehabilitation.73 The first step, undertaken in Part III, quantitatively analyzes a set of decisions and measures (i) the extent to which
legitimate factors pertaining to rehabilitation explain differences in decisions, and (ii) the extent to which the remaining variability is attributable to
illegitimate factors, such as race/ethnicity or poverty. The second step, undertaken in Part IV, qualitatively analyzes the underlying process by which
decisions are made. Qualitative information obtained from the parole hearing transcripts is used to evaluate whether procedures are designed in a way
that sufficiently abates the risk that like cases are not being treated alike.

Ground, 87 WASH. L. REV. 51, 78 (2012) (Graham demands that states provide a “meaningful
opportunity to rehabilitate themselves prior to and in preparation for that parole hearing.”).
70
See, e.g., Kallee Spooner & Michael S. Vaughn, Sentencing Juvenile Homicide Offenders: A 50-State Survey, 5 VA. J. CRIM. L. 130, 165–66 (2017) (“The American Academy of
Child and Adolescent Psychiatry (AACAP) recommended juvenile offenders be eligible for
parole after five years or reaching the age of twenty-five, and subsequent reviews should not
exceed three years.”).
71
See In re Palmer, 245 Cal. Rptr. 3d 708, 712, 722 (Cal. Ct. App. 2019) (sentence of life
with possibility of parole imposed upon a juvenile for a kidnapping offense became constitutionally excessive after parole had been denied ten times and over thirty years of incarceration
had been served).
72
See People v. Dillon, 668 P.2d 697, 727 (Cal. 1983).
73
This two-step approach mirrors the basic framework that the Supreme Court has relied
upon in evaluating consistency in death penalty decisions. See infra Part V.A.

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A. Design of California Youth Offender Parole Hearings
In 2013, the California Legislature enacted Senate Bill 260 [the Youth
Offender Parole Law] which creates specialized “youth offender parole
hearings” for people serving adult sentences longer than fifteen years on the
basis of offenses committed before the age of eighteen.74 Passed in the wake
of Miller v. Alabama, the statute provides that these parole hearings shall
provide a “meaningful opportunity to obtain release.”75 People serving life
with the possibility of parole sentences76 as well as people serving determinate terms are potentially eligible77 for youth offender parole hearings in
their fifteenth, twentieth, or twenty-fifth year of incarceration.78 For some,
this means that the initial hearing will come several years or even several
decades earlier than they had anticipated based on the initial sentence.
Due to an amendment to the Youth Offender Parole Statute in 2017,
eligibility for youth offender parole hearings now extends to people serving
life with parole and long determinate terms for crimes committed while at
age twenty-five or under.79 This study considers only those parole hearings
for individuals serving life with the possibility of parole for crimes as
juveniles, and where relevant, refers to this subset of youth offender parole
hearings as “juvenile lifer parole hearings.”
Part V provides a full discussion of the decision-making process at juvenile lifer parole hearings, but a preliminary summary is provided here to
orient the reader. Throughout the remainder of the Article, the term “parole
74
2013 Cal. Legis. Serv. Ch. 312 (West) (amending CAL. PENAL CODE §§ 3041 (West
2017), 3046 (West 2017), 4801 (West 2017), and enacting § 3051 (West 2017)).
75
See Miller v. Alabama, 567 U.S. 460, 479 (2012); see also Montgomery v. Louisiana,
136 S. Ct. 718, 734 (2016); People v. Gutierrez, 324 P.3d 245, 270 (Cal. 2014).
76
After the legislature enacted penal code section 3051 in 2013, it amended the statute in
2015 and 2017. Under the initial version of section 3051 that was in effect during the time
period of the study (January 2014 to June 2015), juveniles sentenced to life without the possibility of parole were ineligible to receive parole hearings under section 3051. In 2017, however, the legislature amended section 3051 to extend eligibility to people who are serving life
sentences without the possibility of parole for convictions under the age of eighteen. See 2017
Cal. Legis. Serv. Ch. 684 (West).
77
A youth offender is ineligible under section 3051 if the controlling offense was a second- or third-strike offense or a one-strike sex offense. But see People v. Edwards, 246 Cal.
Rptr. 3d 40 (2019) (striking exclusion of one-strike sex offenders in 3051 as a facial violation
of the Equal Protection Clause). Further, a youth offender becomes disqualified under section
3051 if, after age twenty-five, he or she “commits an additional crime for which malice aforethought is a necessary element of the crime or for which the individual is sentenced to life in
prison.” See CAL. PENAL CODE § 3051(h) (West 2017).
78
See CAL. PENAL CODE § 3051 (a), (b) (West 2017). The date of the youth offender’s
initial parole hearing depends on the “controlling offense,” defined as the offense or enhancement for which a sentencing court imposed the longest period of incarceration. See CAL. PENAL CODE § 3051(b) (West 2017). If the controlling offense is a determinate term of years, the
youth offender is eligible for release during the fifteenth year of incarceration; if it is a life
term less than twenty-five-to-life, the youth offender is eligible for release during the twentieth
year; and if it is a life term of twenty-five-to-life or longer, the youth offender is eligible for
release during the twenty-fifth year. Id.
79
See 2015 Cal. Legis. Serv. Ch. 471 (West).

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candidate” is used to refer to a prisoner who is serving a life sentence and
has served enough time to be eligible for release at a parole hearing.
Aside from the following three provisions, youth offender parole hearings are conducted in the same fashion and are governed by the same statutes as parole hearings for adult offenders serving life sentences. First, at
youth offender parole hearings, the Board is required to give “great weight
to the diminished culpability of youth as compared to that of adults, the
hallmark features of youth, and any subsequent growth and increased maturity of the prisoner in accordance with relevant case law.”80 Second, if the
Board relies on psychological evaluations and risk assessment instruments,
these must also consider the diminished culpability of youth, the hallmark
features of youth, and subsequent growth and maturity.81 Third, the Youth
Offender Parole Law also directs the Board to review and revise its existing
regulations governing parole hearings to ensure that youth offender parole
hearings provide a “meaningful opportunity to obtain release.”82 As of May
2019, six years after the effective date of the Youth Offender Parole Law,
regulations have been proposed by the Board but not yet finalized by the
state Office of Administrative Law.83
1. Summary of Legal Standard and Procedural Rights
The California parole statute directs that the Board “shall normally”
find parole candidates suitable for release on parole, which creates a rebuttable presumption in favor of parole.84 The California Supreme Court has
made clear that the ultimate question for the Board is whether the parole
candidate poses “an unreasonable risk to public safety.”85 If the Board finds
that the candidate is not currently dangerous, parole must be granted.86 State
law provides the following procedural rights: the right to an in-person hearing,87 to notice of that hearing, to review the prison file prior to the hearing,88
to legal counsel,89 to appointment of legal counsel if a parole candidate is
indigent,90 and to judicial review of the parole decision.91
See CAL. PENAL CODE § 4801(c) (West 2017).
See CAL. PENAL CODE § 3051(f) (West 2017). Section 4801 requires the Board to give
“great weight” to the diminished culpability of youth, the hallmark features of youth, and
subsequent growth and maturity, while Section 3051 requires any psychological evaluation or
risk assessment that the Board relies upon to “consider” these same factors. Compare CAL.
PENAL CODE § 4801(c) (West 2017) with CAL. PENAL CODE § 3051(f) (West 2017).
82
See CAL. PENAL CODE § 3051(e) (West 2017).
83
See CAL. CODE REGS., tit. 15, §§ 2440–46 (filed with Office of Administrative Law
Dec. 24, 2018), https://www.cdcr.ca.gov/BOPH/reg_revisions.html, archived at https://perma
.cc/K52Z-EPTS.
84
See CAL. PENAL CODE § 3041 (a) (West 2017).
85
See In re Lawrence, 190 P.3d 535, 560 (Cal. 2008).
86
See id.; In re Shaputis, 190 P.3d 573, 585 (Cal. 2008).
87
See CAL. PENAL CODE § 3041.5 (West 2017).
88
See id.
89
See CAL. PENAL CODE § 3041.7 (West 2017).
90
See id.; CAL. CODE REGS., tit. 15, § 2256 (c).
80
81

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Both the public and the parole candidate have a right to transcripts of
hearings,92 and those transcripts are required to include everything that is
said in the hearing and a definitive statement of the reasons for the parole
decision.93 The transcripts are therefore a reliable source of both the underlying evidence the Board draws upon and the stated justification for its
decisions.
2. Record of Evidence
The Board considers all relevant and reliable information available in
determining parole suitability.94 Information includes, but is not limited to:
records from the underlying conviction; records of misconduct in prison;
records of participation in education, vocation, and self-help groups in
prison; any essays or self-help book reports that a parole candidate has written; transcripts from prior parole hearings; psychological evaluations (discussed further below); mental health records; written statements by the
candidate; letters of support from family, friends and community members;
written statements of commendation by prison staff (“laundry chromos”);
documentation of parole plans; letters of opposition; and statements by the
victim or the victim’s next-of-kin.95 In some cases, the Board also considers
information in the confidential portion of the prison file; this information is
not disclosed to anyone at the hearing other than the hearing panel.96
In addition, the Board considers a “Comprehensive Risk Assessment”
(CRA) report. Shortly before a prisoner’s initial parole hearing, a forensic
psychologist employed by the Board conducts an interview with the prisoner
and writes the CRA report.97 The psychologist reviews the prison file, which
includes, but is not limited to, all the information described above, except for
letters of opposition, statements from victims or the victim’s next-of-kin, and
parole plans if they have not yet been made.98 The psychologist reports a risk

See In re Lawrence, 190 P.3d 535 (Cal. 2008).
See CAL. PENAL CODE § 3041.5 (West 2018); In re Bode, 88 Cal. Rptr. 2d 536, 539
(Cal. Ct. App. 1999).
93
See In re Prather, 234 P.3d 541, 556 (Cal. Ct. App. 2010) (Moreno, J., concurring)
(“[T]he Board [is] required to issue a definitive written statement of reasons. The Board
cannot, after having its parole denial decision reversed, continue to deny parole based on
matters that could have been but were not raised in the original hearing.”).
94
See CAL. CODE REGS., tit. 15, § 2402 (2015).
95
See CAL. PENAL CODE § 3043 (West 2016) (referring only to “statements by the victim
or the victim’s next-of-kin”).
96
See CAL. PENAL CODE § 3042 (West 2017); CAL. CODE REGS., tit. 15, § 2235 (2015).
97
See CAL. CODE REGS., tit. 15, § 2240 (2015); Forensic Assessment Division, CAL. BD.
OF PAROLE HEARINGS, http://www.cdcr.ca.gov/BOPH/fad.html, archived at https://perma.cc/
2GNW-ST2T.
98
Review of anonymous sample of Comprehensive Risk Assessments [CRAs] from
youth offender parole hearings on file with author. See also Jeremy Isard, Under the Cloak of
Brain Science: Risk Assessments, Parole, and the Powerful Guise of Objectivity, 105 CAL. L.
REV. 1223, 1243 (2017).
91
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assessment score of low risk, low-moderate risk, moderate risk, moderatehigh risk, or high risk of future violence.99
3. Proceedings at Parole Hearings
The Board schedules a parole candidate’s first parole hearing approximately one year before the candidate has served the minimum amount of
time on the sentence.100 In many cases, the hearing does not occur on the
scheduled date due to waivers, continuances, and postponements.101 Further,
some candidates stipulate that they are not suitable for parole.102
Hearings are conducted in a room inside the prison where the parole
candidate is incarcerated. Generally, one commissioner from the Board and
one deputy commissioner (the “hearing panel”) are present to conduct the
hearing and make a finding about whether a person is suitable for release on
parole.103 The attorney representing the parole candidate is present,104 and a
district attorney from the office of the county of conviction may be present
in person or via video conference.105 Victims and victims’ next-of-kin are
notified about the hearing in advance; some do not participate, others contribute statements but do not attend, and some attend the hearings inperson.106
The vast majority of time at the hearing is devoted to questioning of the
parole candidate by the hearing panel. Questions are highly specific to the
facts of each case and generally fall into four categories: (i) the candidate’s
background prior to the conviction, (ii) the underlying offense, (iii) postconviction activities, and (iv) parole plans. After the questioning period, the
For discussion of risk assessments, see supra note 5 and accompanying text.
See CAL. PENAL CODE § 3041 (West, 2018).
101
See CAL. CODE REGS., tit. 15, § 2253 (2015).
102
See id.; see also ROBERT WEISBERG, DEBBIE MUKAMAL & JORDAN SEGALL, STANFORD
CRIMINAL JUSTICE CENTER, LIFE IN LIMBO: AN EXAMINATION OF PAROLE RELEASE FOR PRISONERS SERVING LIFE SENTENCES WITH THE POSSIBILITY OF PAROLE IN CALIFORNIA 11–12
(2011), https://law.stanford.edu/publications/life-in-limbo-an-examination-of-parole-releasefor-prisoners-serving-life-sentences-with-the-possibility-of-parole-in-california/, archived at
https://perma.cc/3WUL-SGCB. When a parole candidate waives a hearing, she decides to push
the hearing date back one, two, three, four, or five years later. CAL. CODE REGS., tit. 15,
§ 2253. A parole attorney may advise a client to waive a hearing if, for example, there is a
very recent disciplinary infraction and a strong probability that the Board will deny parole and
impose a long setback period before the next hearing occurs. A candidate may enter up to three
consecutive waivers, and must do so forty-five days prior to the hearing. CAL. CODE REGS., tit.
15, § 2253. A stipulation differs from a waiver in three ways: first, a candidate who stipulates
agrees that she is unsuitable for release on parole, second, a candidate may stipulate at any
time, and third, when a stipulation occurs, there will be a setback period of fifteen, ten, seven,
five, or three years until the next hearing. Id. When a waiver is available and a candidate has
received timely advice from counsel, it is unclear why a candidate would stipulate to a denial.
103
See generally California Board of Parole Hearings, Parole Consideration Transcripts
(2014-2015) (on file with author); see also CAL. PENAL CODE § 3041 (West 2018).
104
See CAL. PENAL CODE § 3041.7 (West 2016).
105
See generally California Board of Parole Hearings, Parole Consideration Transcripts
(2014-2015) (on file with author).
106
See CAL. PENAL CODE § 3043 (West 2016).
99

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district attorney and the parole-candidate’s attorney may ask clarifying questions and make closing statements. The parole candidate is then given the
opportunity for a closing statement, followed by the victim or the victim’s
next of kin.107
4. Hearing Decisions
At the end of the hearing, the Board deliberates and then announces its
decision and provides an exhaustive list of reasons for the decision. If parole
is denied, the panel determines when the next hearing will be scheduled.108
The presumptive period of time until the next hearing is fifteen years; the
Board may set the time for a shorter period of ten, seven, five, or three years
if it finds by clear and convincing evidence that considerations of public
safety do not require a longer period of time.109
5. Decision Review
After the hearing, the case is referred to the Board’s decision review
unit, which may recommend a modification to the decision. If so, the case is
reviewed by the full Board, which may rescind or overturn the decision.
After this internal review by the Board, the decision is referred to the Governor who is authorized to review and reverse parole decisions in only murder
cases.110 In non-murder cases, the Governor is not authorized to reverse parole decisions, but is authorized to review them and request that the Board
re-consider its decision. As discussed further infra in Part III.B, the Governor makes the decision without conducting a hearing, and is required to apply the same factors which the parole board must consider.
B. Juvenile Lifer Parole Decisions in Practice:
Description of Case Study
This study considers all contested111 parole hearings in California for all
individuals sentenced to life with the possibility of parole for juvenile convictions from the date the Youth Offender Parole Law took effect (January 1,
2014) until June 5, 2015.112 There were 465 such hearings.113 Thirty-eight
107
See generally California Board of Parole Hearings, Parole Consideration Transcripts
(2014-2015) (on file with author); see also Kathryne M. Young, Parole Hearings and Victims’
Rights: Implementation, Ambiguity, and Reform, 49 CONN. L. REV. 431, 445–46 (2016)
(describing general hearing procedures with attention to role of victims).
108
See CAL. PENAL CODE § 3041.5 (West 2016).
109
Id.
110
See CAL. CONST. art. V, § 8.
111
This study does not consider hearings during this period that were postponed, waived,
or in which the parole candidate stipulated to a denial of parole. Future research would be
beneficial in this regard.
112
Via public record requests, the author received transcripts from all youth offender parole hearings in this time period. This study does not analyze parole hearings for candidates

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percent of candidates at these hearings were granted parole; notably, the
grant-rate is significantly lower when the numbers include all youth offender
parole proceedings, including stipulations.114 For the purpose of the Article,
the term “granted” is used when the hearing panel found a candidate suitable for parole at the parole hearing. Being granted parole does not mean the
candidate was ultimately released. As discussed above, the hearing decision
may be rescinded or overturned by the Board en banc, and, in murder cases,
it may be reversed by the Governor. In this study-set, the full Board reversed
an estimated 5% of decisions to grant parole,115 and the Governor reversed
11% of decisions to grant parole.116
None of the candidates in this study set who were released have returned to prison, according to data received by the author from the California
Department of Corrections and Rehabilitation (CDCR) in October 2016. According to data obtained by Human Rights Watch, that has remained true as
of July 31, 2017.

who were convicted for crimes under the age of 18 and are serving a determinate term of years
(“juvenile long-termers”) rather than an indeterminate sentence of life with the possibility of
parole. Review of the full set of transcripts showed that the Board conducted 127 hearings for
juvenile long-termers during the time period of the study. Analysis of juvenile long-termer
parole hearings is reserved for future research. Long-termers are not further investigated here
because they are differently situated compared to juvenile lifers. Long-termers are serving
determinate sentences, meaning that they have a pre-determined release date, and they had no
expectation that they would ever appear before the Board until the Youth Offender Parole Law
was passed in 2013. See 2013 Cal. Legis. Serv. Ch. 312 (West) (amending CAL. PENAL CODE
§§ 3041 (West 2017), 3046 (West 2017), 4801 (West 2017), and enacting § 3051 (West 2017)).
Review of data in transcripts showed that the demographics of juvenile long-termers are substantially different than those of juvenile lifers. For example, during the time period of the
study, 11% of juvenile long-termers were granted parole (as compared to 38% of juvenile
lifers), 48% of youth offenders with determinate sentences were in maximum-security prisons
(as compared to 23% of juvenile lifers), and 56% were Latinx (as compared to 32% of juvenile
lifers). See Appendix, Table A.
113
Excluded from the sample are one decision in which no decision was made at the
hearing, and one decision for a parole candidate who was incarcerated in Ohio due to convictions in both Ohio and California.
114
From January 1, 2014 through December 31, 2016, the Board conducted 2,250 youth
offender parole hearings. See Defendant’s January 2017 Status Report filed in Coleman v.
Brown and Plata v. Brown, on file with author. The Board granted parole at 26% of these
hearings (585 hearings), and denied parole at the remaining 74% of the hearings (1,665 hearings, 280 of these were cases in which the youth offender stipulated to the denial). Id.
115
Calculation based on review of the Board’s en banc decisions in 2014 and 2015. See En
Banc Decisions, STATE OF CALIFORNIA, BOARD OF PAROLE HEARINGS, https://www.cdcr.ca
.gov/BOPH/enbanc.html, archived at https://perma.cc/MTP7-L8QP.
116
Calculation based on review of Governor’s decisions to reverse parole decisions in
2014 and 2015. See Governor Edmund G. Brown Jr., “Executive Report on Parole Review
Decisions; Decisions for the Period January 1, 2014 through December 31, 2014,” https://
www.ca.gov/archive/gov39/wp-content/uploads/2017/09/2014_Executive_Report_on_Parole_
Review_Decisions.pdf, archived at https://perma.cc/K4MU-2QXU; Governor Edmund G.
Brown Jr., “Executive Report on Parole Review Decisions; Decisions for the Period January 1,
2015 through December 31, 2015,” https://www.ca.gov/archive/gov39/wp-content/uploads/
2017/09/2015_Executive_Report_on_Parole_Review_Decisions.pdf, archived at https://perma
.cc/4TJU-LMQ2.

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1. Sources and Methods
The primary sources of information about these hearings are hearing
transcripts produced by the Board, which are public records. Transcripts
from these hearings averaged 116 pages; the shortest was less than fifty
pages (a seventy-five-minute hearing) and the longest exceeded 300 pages (a
hearing lasting over seven hours). The author requested data from CDCR
that was not consistently included in the transcripts: the race/ethnicity of
each parole candidate, the level of security at which each candidate was
incarcerated, and whether those released from prison subsequently returned.
The author also drew on personal experience providing legal assistance
and in-prison education to juvenile lifers in California from 2014 to 2017.
During this period, the author represented a juvenile lifer at a parole hearing
and the subsequent judicial review of that hearing. Knowledge about the
parole process was further informed by conversations and correspondence
with California attorneys who regularly represent candidates at lifer parole
hearings. The author also participated in workshops at five different state
prisons to educate prisoners about the youth offender parole process. Last,
the author regularly facilitated a group of twenty-five men serving life
sentences for juvenile convictions who wanted to support one another in
rehabilitation and prepare for parole hearings.
As described further below, the general method of the quantitative portion of the study was to obtain data about variables that were hypothesized to
impact the parole decision, and to apply statistical techniques, primarily regression analysis,117 to assess the extent to which parole decisions were consistent with a measure of rehabilitation.
The focus of the inquiry is on assessing consistency in decision-making,
which stands in contrast to other research on parole decision-making that
117
Regression analysis is a statistical technique used to understand the relationship between independent variables which are “thought to produce or be associated with changes in
[a] dependent variable.” For example, suppose one is trying to determine how a house’s price
is impacted by various factors such as the number of rooms in the house and the number of
windows. In such an example, the price of the house would be the dependent variable and the
number of rooms and the number of windows would be independent variables. A regression
analysis allows the relationship between these variables to be expressed as an equation of the
following form: price of house = (the effect-on-price due to the number of rooms) * (the
number of rooms) + (the effect-on-price due to the number of windows) * (the number of
windows) + a constant term. The regression analysis calculates the respective values for the
effect-on-price for each of the variables. The resulting equation is not a perfect predictor of
price, but it is the “best-fit” in statistical terms based on the number of rooms and number of
windows. In most of the regression analyses done in this paper, the parole decision is the
dependent variable, and the various variables that are hypothesized to influence the parole
decision are independent variables. Because the dependent variable here is not a continuous
measure but is instead a binary measure—that is, either granted or denied parole—the regression analysis is termed a logistic regression analysis. For a more detailed explanation of regression analysis, see Daniel L. Rubinfeld, Reference Guide on Multiple Regression, in FEDERAL
JUDICIAL CENTER, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 303–57 (3d ed. 2011); see
also ATA Airlines, Inc. v. Fed. Express Corp., 665 F.3d 882, 889 (7th Cir. 2011) (providing
explanation of regression analysis in “plain English”).

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focuses on recidivism. The basic normative assumption behind this approach
is that a decision to grant parole is “correct” if the person who is released
successfully completes parole and it is “incorrect” if the person violates
parole and/or commits a new crime. The approach is to essentially evaluate
parole board decisions in the same way one might assess the skill of a fortune-teller or a stockbroker; how frequently does the prediction of the future
match what actually happens? This method is problematic for several reasons, not least of which is that it scrutinizes decisions to grant parole but
essentially insulates from scrutiny decisions to deny parole. There is no way
to say a decision to deny parole is “correct” or “incorrect” because we do
not know whether people who were denied parole would have actually succeeded if they were released. This asymmetry means that a foolproof way to
get only “correct” decisions would be to release zero people on parole, and
thereby guarantee zero recidivism among parolees.
This method is furthermore ill-suited to the present context of juvenile
lifers because, for starters, none of the people released in this sample have
returned to prison. Most importantly, people serving life sentences for juvenile convictions are entitled to release if they demonstrate rehabilitation—
and demonstrated rehabilitation is distinct from, although related to, a prediction about what a person will do upon release from prison. A person who
clearly demonstrates rehabilitation—a “model inmate” who shows improvements in every way reasonably attainable within prison—may nevertheless
commit a crime when released from prison. However, the commission of
that crime would not change the conclusion that the person had demonstrated rehabilitation during their time in prison. One person may demonstrate more improvement than anyone else in a state’s prison system, and
return to an environment in which they commit another crime. Another person may have demonstrated very little rehabilitation in prison, but return to
an environment in which they never commit crime. The commission of the
crime may provide reason to improve the conditions of release into the community, or perhaps the quality of programs in the prison, but it does not
justify concluding that the judgment of rehabilitation at the time of the release decision was incorrect.
2. Coding Process
The author and nine research assistants coded transcripts according to a
detailed coding manual, answering forty-two questions for each transcript.118
To ensure reliability across coders, research assistants periodically coded the
same transcripts.119 To verify accuracy of coding, a second group of research
118
The coding manual drew heavily upon the manual used by the Stanford Criminal Justice Center’s study of lifer parole hearings. See Weisburg, et al., supra note 102; see also
Young et al., supra note 59.
119
The author checked samples of coding and met with researchers regularly to discuss
and refine coding. A standard measure of reliability, the Cohen’s Kappa, was used to determine

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assistants coded the same set of parole hearing transcripts for seventeen variables hypothesized to be significant after regression analysis on the initial
data set.120 The author checked any discrepancies found between the data
entered in the first- and second-rounds of coding, and made corrections
based on additional review of the transcripts.
3. Variable Selection
Two types of variables were collected: outcome measures and factors
hypothesized to influence whether parole is granted or denied. The outcome
measures included whether parole was denied, and if so, the length of the
setback period (the number of years until the next parole hearing) and the
types of reasons the Board used to justify the decision. Hypotheses about
what influenced decisions to grant or deny parole were drawn from three
sources: considerations identified by law (including those listed in the
Board’s regulations,121 as well as those given great weight under the Youth
Offender Parole Statute122), factors that attorneys hypothesize influence parole decisions, and factors that have been identified as significant to parole
decisions in prior studies.123 Appendix Table A details how these variables
were defined and measured.
reliability across coders. See generally Mary L. McHugh, Interrater Reliability: The Kappa
Statistic, 22 BIOCHEMIA MEDICA 3 (2012).
120
The variables that were double-coded include: Prog_gen, Prog_sub, Prog_gang, Edu,
Clean_time, Total_disc, Hx_mental_ill, Initial, Time_over, Initial, Da_opp, Vic_opp,
Youth_drugal, Youth_priorv, Crime_max, Crime_mur1, Crime_sex, and CRA. See Appendix,
Table A.
121
See CAL. CODE REGS., tit. 15, § 2402 (2015).
122
See CAL. PENAL CODE § 4801(c) (West 2018). The hallmark features of youth include
mitigating factors regarding youth that are identified in state and federal case law. Variables
that are indicators of the presence of such factors include (a) childhood trauma or acute disadvantage (other than victim of sexual abuse) (Youth_unstable), (b) childhood sexual abuse
(Youth_sex), (c) peer pressure or other influence involved in the commission of the crime
(Crime_peer), (d) age at the time of the crime (Agecrime), (e) drug or alcohol abuse as a youth
(Youth_drugal), (f) violent behavior as a youth prior to the crime (Youth_priorv), and (g) participation in a street gang as a youth (Youth_gang).
123
The most relevant studies are those done on parole hearings for candidates serving life
sentences with the possibility of parole in California. See Caldwell, supra note 15 (finding that
the following variables increase the likelihood of being granted parole: lower score on forensic
risk assessment, fewer total disciplinary infractions, more time since last disciplinary infraction, and younger age at time of crime); Young et al., supra note 59 (finding that the following
variables increase the likelihood of being granted parole: younger age at the time of the crime,
older age at hearing, only “low” risk scores, fewer disciplinary infractions, confirmed job
offer, participation in substance abuse program, and violent prior criminal history; and that the
following variables decrease the likelihood of being granted parole: failing to answer a question about the Twelve Steps of Alcoholics/Narcotics Anonymous, opposition from the district
attorney, and attempting to lie or evade law enforcement officers after the crime); David R.
Friedman & Jackie M. Robinson, Rebutting the Presumption: An Empirical Analysis of Parole
Deferrals Under Marsy’s Law, 66 STAN. L. REV. 173 (2014); see also Joel M. Caplan, What
Factors Affect Parole: A Review of Empirical Research, 71 FED. PROBATION 16 (2007) (reviewing literature to date and finding that institutional behavior, crime severity, criminal history, and mental illness are among the most influential factors affecting parole release

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Absent from Appendix Table A are several variables that are hypothesized to influence whether parole is granted, but which were not used in
regression analysis for a variety of reasons. First, several variables could not
be used because they applied to less than 5% of the population. These included gender, use of a translator at the hearing, reliance on an expert report
from a private psychologist, and assertion of factual innocence for the crime.
Second, “insight,” the lack of which may be the basis for denial of
parole, was not included due to the absence of a reliable operationalized
measure. Insight is a term the Board uses to refer to a candidate’s acceptance
of responsibility for the crime and understanding of the factors that causally
contributed to the crime.124 Despite repeated discussions among coders, an
evaluation of insight could not be reliably coded. For similar reasons, the
degree of remorse was not used as a variable in the regression. Evaluations
of insight and remorse are markedly subjective; if they track measurable
features that can be reliably identified by a diverse group of people, these
features were undiscoverable by the author. It would be easy to identify
cases in which the candidate was wholly devoid of insight or remorse—
cases in which, for example, a candidate stated that he continued to stand by
what he did or that the victim deserved to die. Such cases were extremely
rare. The difficulty instead lay in demarcating reliable gradations along a
spectrum of more or less insight or remorse. Coding of insight and remorse
were further complicated by a high degree of variability in the questions that
the Board asked to assess insight.125
Third, variables pertaining to the underlying crime are somewhat limited. Three variables related to the crime are used: whether the underlying
conviction included a first-degree murder, whether the underlying conviction
included a sexual offense, and whether the offense was committed with the
influence of peers or adults. The number of victims within a conviction-type
was considered, but there was insufficient variability in the sample to include this in the analysis.126 Subjective measures of heinousness listed in the
Board’s regulations, such as the extent to which the victim suffered or the
triviality of the motive, were not included due to difficulty in reliable coding. Notably, a prior study on lifer parole in California found that relative
degrees of heinousness of the crime did not have a statistically significant
impact on the parole decision.127
decisions; education, gender, and age may also have a significant influence on parole release
dispositions).
124
See In re Shaputis, 190 P.3d 573, 581 (Cal. 2008).
125
An indirect measure for insight might be the Psych_resid variable, which is the forensic psychologist’s judgment of a person holding all other case factors constant. This variable is
not a direct measure of insight, however, because the psychologist’s ultimate question is a
prediction about future conduct. Further research would be beneficial to test this hypothesis.
126
Fewer than 5% of candidates were convicted of more than one count of first-degree
murder.
127
See Young et al., supra note 59. A significant difference in the method of this Article
as compared to the prior study of California parole hearings is that all variables used in the
regression analysis in this Article were independently coded by two different individuals.

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A fourth variable which is not included in regression analysis, but
which was hypothesized to influence the parole decision, is whether a candidate is validated by the prison as an active member or associate of a prison
gang. The hypothesis—strongly supported by both attorney opinions and the
governing legal standard128—is that active gang validation essentially guarantees denial of parole. Indeed, active gang validation was the only dichotomous variable that was a perfect predictor of a denial of parole. Rather than
including this unique variable as one alongside many, the ten candidates
validated as active members of a prison gang were removed from the
sample.
Confidential information was a fifth variable that was hypothesized to
influence parole decisions but was not directly used as a variable in regression analysis. The Board is required to state when they rely on confidential
information to deny parole, and they did so in twenty-nine of the 465 hearings (6%). There is no way to know the scope of the variability in the content, type, or materiality of this evidence. Information could range, for
example, from credible evidence that the candidate perpetrated a recent serious assault, to a notation that the candidate was the victim of an assault, to
hearsay that a suspected gang member mentioned the person’s name decades
ago. Given the absence of any meaningful indication of similarity between
the “confidential information” used from one case to the next, it does not
make sense to treat “confidential information” as an independent variable in
a regression analysis. Instead, the twenty-nine cases where parole was denied on the basis of confidential information were removed from the sample.
After removal of validated, active gang members and those denied on
the basis of confidential information, the study sample includes parole hearings for 426 juvenile lifer parole candidates.129
4. Descriptive Statistics
Appendix Table A provides descriptive statistics from the 426 hearings
about all independent variables that were hypothesized to influence the decision to grant or deny parole (aside from those described above). For each
variable, reported information includes the frequency at which the variable is
observed, the rates at which parole is granted, and whether there are statistically significant differences in the frequency at which the Board granted
parole.130
128
Parole is denied if a candidate is currently dangerous, and when the prison validates a
person as an active gang member, it is labeling these individuals as currently dangerous. See
CAL. CODE REGS., tit. 15, § 3378.2 (2015); In re Efstathiou, 133 Cal. Rptr. 3d 34, 37–38 (Cal.
Ct. App. 2011).
129
Latinx candidates were significantly over-represented relative to other racial/ethnic
groups among the hearings removed from the sample due to denial based on gang validation or
confidential information. See infra Table 1.
130
None of the variables in Table A are collinear aside from current age (discussed among
interaction effects).

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III. CASE STUDY OF CALIFORNIA PAROLE HEARINGS:
EVALUATION OF OUTCOMES
This Part aims to assess the consistency of decisions with respect to
rehabilitation. That is, to what extent do candidates who demonstrate comparable levels of rehabilitation get the same decision outcomes? The first step
is to construct an operationalized measure of rehabilitation. To do so, the
study adopts the following basic, working definition of rehabilitation: substantial, pro-social,131 and reasonably attainable132 improvement in behavior
after the conviction.133 With this working definition, variables can be categorized into those which are legitimate in assessing demonstrated rehabilitation, and those which are illegitimate. Variables that are legitimate are those
that measure post-conviction behavior over which parole candidates have
reasonable control—for example, participation in programs that are offered
at the prison and a pattern of compliance with prison rules. Factors that are
clearly illegitimate include race/ethnicity and class, as well as factors that
are orthogonal to parole candidates’ behavior in prison—such as whether the
victim attends the parole hearing. Part III.A assesses the extent to which
variables that are legitimate measures of rehabilitation can explain the decision outcomes. Part III.B then considers the extent to which illegitimate variables can explain the decision outcomes when the legitimate variables are
held constant. Part III.C turns to create a model that best accounts for all
factors that are hypothesized to influence the parole decision, and assesses
the comparative weight that legitimate and illegitimate variables play in that
model.
A. Distribution of Decisions Along an Index of
“Demonstrated Rehabilitation”
The first technique aims to measure the extent to which parole decisions are explained by factors that are legitimate measures of rehabilitation.

131
Not every form of improvement in behavior is considered as rehabilitation; improvement must be directed toward living a law-abiding life in the community outside of prison
(thus, improving job skills would count as demonstrated rehabilitation but improving knifefighting skills would not).
132
Rehabilitation is generally considered as the type of improvement that should be
achievable if a person puts forth sincere effort and engagement toward pro-social development. For example, if a fifty-year-old incarcerated person has taken every education class that
the prison offers and is unable to pass a high-school equivalency exam due to a cognitive
deficit, it would be unreasonable to say that this person has failed to demonstrate
rehabilitation.
133
This definition roughly accords with the definition of rehabilitation as a kind of training designed to help a person become a more productive member of society. See generally
Flanders, supra note 65, at 396 (The goal of rehabilitation is to “become more fit to reenter
society as a productive and contributing member. [A rehabilitated person] would be prepared
to find a job upon release, or be able to enter and maintain a stable relationship, or simply be
more equipped to cope with day-to-day life.”).

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Based on the working definition of rehabilitation above, the factors considered at the parole hearing that most directly measure rehabilitation are those
that assess post-conviction behavior over which parole candidates have reasonable control. These variables include the number of years since the last
write-up for misconduct (Clean_time), the extent of participation in self-help
programs (Prog_all),134 and the degree of education attained in custody
(Edu).
Other factors provide important context for assessing these factors
(such as mental health history) and for establishing a baseline for improvement (such as marked instability in childhood), but they are not direct measures of post-conviction behavior. The risk score that is calculated by a
forensic psychologist in a Comprehensive Risk Assessment (CRA) is also
not a direct measure of post-conviction behavior. As discussed further, infra
Part IV.A, the score is derived from a risk assessment tool that purports to
predict the likelihood of future violent conduct based on factors correlated
with violence in studies that were conducted primarily on mental health patients and adult offenders.135 Many of the factors are static, meaning that they
cannot change over time and a parole candidate has no control over them
once in prison. For example, factors include whether a person engaged in
violent or other antisocial behavior under the age of twelve, whether a person engaged in violent or antisocial behavior from ages thirteen to seventeen, whether the person was a victim of crime or trauma, and whether the
person had adverse experiences as a child.136 Given reliance on these factors,
an individual with a stronger record of improvement in behavior since the
time of the crime may score no better, or perhaps worse, than an individual
with a weaker record of post-conviction behavior.
Programming, education, and clean time have been selected as legitimate measures because they are the best available measures for post-conviction behavior over which candidates have reasonable control—not because
they are perfect measures. With respect to participation in programs, transcripts documented many instances in which parole candidates actively
sought to participate in programs but could not do so for reasons outside of

134
Instead of using proggen, which does not include gang or substance abuse programs, I
created a variable (prog_all) which does count participation in these programs toward the
cumulative programming score.
135
The risk assessment tool used in California youth offender parole hearings is called the
Historical-Clinical-Risk Management-20, Version 3 (HCR-20-V3). See juvenile lifer CRA reports (on file with author); see also Kevin S. Douglas, et al., Historical-Clinical-Risk Management-20, Version 3 (HCR-20V3): Development and Overview, 13 INT’L JOURNAL OF FORENSIC
MENTAL HEALTH 93, 93–108 (2014); Kevin S. Douglas, et al., HCR-20 Violence Risk Assessment Scheme: Overview and Annotated Bibliography (Nov. 24, 2008), http://kdouglas.files
.wordpress.com/2006/04/annotate10-24nov2008.pdf, archived at https://perma.cc/XE8PEVQA; see also Isard, supra note 98, at 1243.
136
See Douglas et al., supra note 135, at 98; see also HCR-20-V3 Rating Sheet, Mental
Health Law and Policy Institute, Simon Fraser University (2013), http://hcr-20.com/materials/,
archived at https://perma.cc/C3LG-AFFP.

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their control,137 including unavailability of programs, ineligibility for programs, long waiting lists, or frequent transfers from one prison to another.138
For this reason, a measure of participation in general programming is used
rather than a measure of participation in any particular program. It is unreasonable to assume that every prisoner had access to specific programs like
vocational training or cognitive therapy, but it is reasonable to assume that
every prisoner had access to at least some programs over the course of many
years. Education is included here because it is the one program that appeared
to be available to all prisoners at some point during the course of their sentence. Notably, however, earning a GED or higher education is not reasonably attainable for every parole candidate; several transcripts indicated that a
person participated in education courses and took the GED test multiple
times but could not pass, perhaps due to cognitive deficits or learning disabilities. With respect to clean time, this variable is used rather than the total
number of disciplinary write-ups in order to measure improvement in conduct as an adult; many juvenile lifers incur a large number of their total
write-ups upon initial entry into adult prison as teenagers and emerging
young adults. While clean time is a better measure of rehabilitation than total
write-ups, it is also imperfect because write-ups are not fully within the control of a parole candidate; write-ups are sometimes a product of being in the
wrong place at the wrong time, rather than purposefully violating the
rules.139 Race has also been hypothesized as a factor that can make a candidate more likely to receive disciplinary write-ups.140
Despite these caveats, the variables of clean time, general programming, and education are the best available objective measures of behavior
that are reasonably within the control of the parole candidate. Using these
three factors, an index measuring “demonstrated rehabilitation” was constructed to assess the extent to which parole decisions were explained by

137
The difficulty in accessing programs has also been observed in other states. See
ASHLEY NELLIS, THE SENTENCING PROJECT, THE LIVES OF JUVENILE LIFERS: FINDINGS FROM A
NATIONAL SURVEY 4, 24 (2012) (62% of juvenile lifers are not engaged in programming in
prison; of those, 82% wanted to take a program but could not access it).
138
Statements in transcripts indicate that this phenomenon may be more likely among
parole candidates incarcerated in a Level IV setting or in solitary confinement (over 95% of
the sample was in solitary confinement at some point during their incarceration; several for
multiple decades). Tests of statistical significance show that candidates incarcerated on Level
IV prison yards are more likely to have lower rates of self-help programming than other
candidates.
139
For example, several transcripts discussed instances in which a person was attacked by
another person in prison and responded with self-defense. See generally California Board of
Parole Hearings, Parole Consideration Transcripts (2014-2015) (on file with author).
140
See, e.g., Andrea C. Armstrong, Race, Prison Discipline, and the Law, 5 U.C. IRVINE
L. REV. 759, 761 (2015); Eric D. Poole & Robert M. Regoli, Race, Institutional Rule Breaking,
and Disciplinary Response: A Study of Discretionary Decision Making in Prison, 14 LAW &
SOC’Y REV. 931, 933 (1980); Heinz et al., supra note 11, at 1, 17 (“The finding that black[ ]
[candidates] are more likely to have rule infractions on their records may be as much a result
of selective perception or discrimination on the part of prison officials as it is of actual differences in behavior.”).

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these factors. The index was constructed by running a logistic regression
with the hearing decision as the dependent variable and these three variables
as the independent variables.141 Next, for each candidate, the likelihood of
being granted parole was calculated based on these three variables. The likelihood was multiplied by ten, and this became the “rehabilitation level.” The
levels ranged from 0.1 (for a candidate with minimal programming, no
GED, and a write-up in the last three years) to 9.6 (for a candidate with
maximum programming, a college degree, and no write-ups in over eleven
years).
The graphs below visually depict the relationship between the rehabilitation level and the result of the parole hearing.142 First, Figure 1 depicts a
hypothetical system in which the decision to grant parole is perfectly responsive to the rehabilitation level. Those with high rehabilitation levels are
granted parole, those with low rehabilitation levels are denied, and there are
no instances in which candidates of the same rehabilitation level are both
granted and denied. In contrast, Figure 2 depicts another hypothetical system
which is entirely irresponsive to rehabilitation. To create Figure 2, a random
number generator was used to determine which candidates were granted or
denied. There is no correlation between the rehabilitation level and the decision to grant or deny parole, and there are many instances in which those
with the same rehabilitation level are given opposite decisions. Figure 3 depicts the actual hearing results in the sample of 426 hearings considered in
this study.
FIGURE 1: HYPOTHETICAL “PERFECT” DISTRIBUTION
REHABILITATION INDEX

OF

DECISIONS ALONG

See Appendix, Table B.
As discussed supra at Part V.A, the technique used here mirrors a technique that John
Baldus used to assess the extent to which death penalty decisions were consistent with respect
to an index of culpability. See DAVID BALDUS, GEORGE WOODWORK & CHARLES PULASKI,
EQUAL JUSTICE AND THE DEATH PENALTY: A LEGAL AND EMPIRICAL ANALYSIS 80–83 (1990).
141
142

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FIGURE 2: HYPOTHETICAL RANDOM DISTRIBUTION
REHABILITATION INDEX

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DECISIONS ALONG

FIGURE 3: ACTUAL DISTRIBUTION OF DECISIONS ALONG
REHABILITATION INDEX

As the figures show, the actual parole system falls somewhere between
a system that is irresponsive to rehabilitation and one that is highly responsive to rehabilitation. Parole candidates with rehabilitation levels at either
end of the spectrum can expect fairly consistent results: 95% (nineteen of
twenty) of candidates at the highest level of rehabilitation (level nine) were
granted parole, and 98% (ninety of ninety-two) of candidates with the lowest
rehabilitation level (level zero) were denied parole. Among candidates at
mid-range rehabilitation levels, however, decisions appear no more predictable than a coin-flip. Of those at rehabilitation level three, twenty-six were
granted and twenty-five were denied; of those at level four, six were granted
and ten denied; at level five, eighteen were granted and seventeen were denied; and at level six, thirty-two were granted and twenty-four were denied.
One way to quantify the degree of variability in decisions along the
rehabilitation index is to consider the proportion of denied candidates who
have rehabilitation levels that are comparable to “normal” grantees. There
are a number of ways to define statistical normalcy here, but suppose for
these purposes that “normal” grantees are defined as a subset of grantees
that excludes those with irregularly high rehabilitation levels (levels in the
top 5%, which is 9.43) and those with irregularly low rehabilitation levels

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(levels in the bottom 5%, which is 1.64). If a system were highly responsive
to rehabilitation levels, very few candidates who had a rehabilitation level
greater than or equal to that of normal grantees would be denied. In the
actual juvenile lifer parole system depicted in Figure 3, about half of the
denials—48% (119 out of 250)—have rehabilitation levels that fall within
the range of normal grantees. In other words, about half the candidates who
were denied were roughly comparable with respect to the rehabilitation measure as candidates who were granted.
The distribution of decisions in Figure 3 is skewed by the large concentration of candidates who have a rehabilitation level less than one (92 of 426
candidates). It is more informative, therefore, to consider the set of hearings
for those with a rehabilitation level of one or more. There were 334 candidates within this set; 174 were granted and 160 candidates were denied. Of
the 160 who were denied, 74% have a rehabilitation level that is within the
range of normal grantees. These data indicate that once a candidate has
demonstrated enough rehabilitation to have a “fighting chance,” the decision distribution more closely approximates a system that is irresponsive to
rehabilitation than it does a system which is highly responsive with respect
to rehabilitation. In essence, candidates must pay to play, but then they roll
the dice.
B. Grant Rate Comparisons Among Legitimate
and Illegitimate Variables
The analysis above shows that while the rehabilitation index explains
differences in parole decisions among candidates with rehabilitation levels
on the ends of the spectrum, it leaves largely unexplained the parole decisions for the majority of candidates who are in the mid-range of the rehabilitation spectrum. The mere existence of this unexplained variability is not
sufficient, however, to show that decisions are arbitrary and capricious. It is
possible that the variability is due to morally sensitive, individual tailoring in
each particular case. As Justice Brennan explained with respect to death penalty decisions, “[s]ince such decisions are not reducible to mathematical
formulae, we are willing to assume that a certain degree of variation reflects
the fact that no two defendants are completely alike.”143 This section therefore aims to identify whether illegitimate factors explain the variability in
decisions that is not attributable to the rehabilitation index. The analysis begins with tables listing the grant rates broken down by the most obviously
legitimate—and illegitimate—factors in the parole decision. In the next section, multivariate regression allows for investigation across a larger number
of variables.

143

McCleskey v. Kemp, 481 U.S. 279, 337 (1987) (Brennan, J., dissenting).

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1. Race/Ethnicity
Considered first are tables of descriptive statistics that consider how the
parole grant rate varies with respect to racial/ethnic groups when variables
measuring rehabilitation are held constant. Table 1 below shows significant
differences in the parole grant rate among different racial groups when clean
time is held constant.144 Table 2 shows significant differences in the parole
grant rate among different racial/ethnic groups when participation in programs is held constant, and Table 3 shows significant differences when education level is held constant. In the majority of categories, the grant rate
among Black candidates is lower than that of candidates of other racial/ethnic groups.
TABLE 1: PAROLE GRANT RATE

BY

RACE/ETHNICITY

AND

CLEAN TIME

Clean Time
0 to 2
3 to 5
6 to 11
12+
Total
years
years
years
years
Denied
36
32
27
9
104
Granted
2
12
15
18
47
Black
Grant rate
5%
27%
36%
67%
31%
Denied
23
23
16
8
70
Granted
3
5
35
22
65
Latinx*
Grant rate
12%
18%
69%
73%
48%
Denied
10
8
6
5
29
Granted
1
8
8
15
32
Other
Grant rate
9%
50%
57%
75%
52%
Denied
15
11
14
7
47
Granted
0
4
10
18
32
White
Grant rate
0%
27%
42%
72%
41%
*Latinx candidates were significantly over-represented relative to other
racial/ethnic groups among the hearings removed from the sample due to
denial based on gang validation or confidential information. When these
candidates are added back into the sample, the grant rate among Latinx
candidates changes significantly, from 48% to 40%. There is no significant
change in the grant rate among non-Latinx candidates.
144
Descriptive statistics reported in Table A show that black candidates tend to have less
clean time than other racial/ethnic groups. This finding is consistent with prior research showing racial disparities in prison disciplinary write-ups, see supra note 140, and with evidence of
explicitly racist attitudes among correctional officers in at least one California state prison, see
ROBERT A. BARTON & ROY W. WESLEY, OFFICE OF THE INSPECTOR GENERAL 2015 SPECIAL
REVIEW: HIGH DESERT STATE PRISON, SUSANVILLE CA 11 (2015), https://www.oig.ca.gov/
media/reports/Reports/Reviews/2015_Special_Review_-_High_Desert_State_Prison.pdf,
archived at https://perma.cc/SN6W-S7CL.

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TABLE 2: PAROLE GRANT RATE BY RACE/ETHNICITY
AND PROGRAM PARTICIPATION
Program Participation
Minimal
Moderate
Extensive
Denied
20
72
12
Granted
0
31
16
Black
Grant rate
0%
30%
57%
Denied
23
35
12
Granted
0
42
23
Latinx*
Grant rate
0%
55%
66%
Denied
3
24
2
Other
Granted
0
21
11
Grant rate
0%
47%
85%
Denied
7
36
4
Granted
0
24
8
White
Grant rate
0%
40%
67%
*See note regarding Latinx candidates in Table 1.

Total
104
47
31%
70
65
48%
29
32
52%
47
32
41%

TABLE 3: PAROLE GRANT RATE BY RACE/ETHNICITY
AND EDUCATION LEVEL
Education
No
Some
GED/HS
GED/HS
College
Denied
19
51
26
Granted
1
21
14
Black
Grant rate
5%
29%
35%
Denied
10
38
15
Latinx* Granted
7
25
25
Grant rate
41%
40%
63%
Denied
3
20
6
Other
Granted
1
12
11
Grant rate
25%
38%
65%
Denied
4
19
21
Granted
0
10
10
White
Grant rate
0%
34%
32%
*See note regarding Latinx candidates in Table 1.

College
Total
Degree
8
104
11
47
58%
31%
7
70
8
65
53%
48%
0
29
8
32
100% 52%
3
47
12
32
80%
41%

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2. Attorney
Another factor which is orthogonal to a measure of rehabilitation is
whether the candidate retains a private attorney, or is represented by a
Board-appointed attorney. Retaining a private attorney is the variable that
comes closest to acting as a proxy for social class, but it is an imperfect
one.145 Table 4 shows substantial differences in grant rates among candidates
who have retained an attorney and those who have a Board-appointed attorney, when clean time, programming, and education are held constant. The
most substantial differences in grant rates are observed in the mid-range of
clean time, as well as in the mid-range of programming. For example, among
candidates who have three to five years clean time, 53% of those represented
by a private attorney were granted parole whereas only 23% of those represented by an appointed attorney were granted parole. With respect to education, the difference in the grant rate is most substantial among those who do
not have a GED or other high school equivalency. This observation accords
with the experience of parole attorneys, who have described that candidates
with cognitive deficits often struggle more to navigate the parole process.
These candidates appear to gain more by retaining an attorney who can
spend considerably more time helping them understand and navigate the
process. For more discussion of the difference that attorneys can make at
parole hearings, see discussion infra at Part IV.A.

145
Retaining a private attorney is likely correlated with whether a parole candidate has
support from family members with funds to pay for the attorney (although some retained
attorneys were providing pro bono legal services). Prison wages are generally less than $1.00
per hour and candidates did not have a meaningful opportunity to work before their
incarceration.

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TABLE 4: PAROLE GRANT RATE
Appointed Attorney
Col. A Col. B
Col. C

Clean time
0 to 2 years
3 to 5 years
6 to 11 years
12+ years
Programming
Minimal
Moderate
Extensive
Education
No GED/HS
GED/HS
Some college
College Degree
Total

BY

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ATTORNEY TYPE

Retained Attorney
Col. D Col. E
Col. F

74
65
54
25

4
19
51
49

5%
23%
49%
66%

10
9
9
4

2
10
17
24

17%
53%
65%
86%

Diff. in
Grant Rate
(C-F)
-12
-30
-17
-19

49
146
23

0
84
39

0%
37%
63%

4
21
7

0
34
19

0%
62%
73%

0
-25
-10

35
115
54
14
218

8
54
39
22
123

19%
32%
42%
61%
36%

1
13
14
4
32

1
14
21
17
53

50%
52%
60%
81%
62%

-31
-20
-18
-20
-26

Denied Granted

Grant
Rate

Denied Granted

Grant
Rate

3. Prior Experience
The third variable considered here is whether a candidate is appearing
at an initial or subsequent hearing. Unlike the variables of race/ethnicity and
attorney type (which imperfectly tracks indigency), whether a candidate has
prior experience with parole hearings does not describe any protected or
suspect classification upon which it would be illicit to discriminate per se.
Prior experience is nevertheless an illegitimate factor in a juvenile lifer parole decision because it is orthogonal to a measure of rehabilitation. If parole
decisions are in fact based on a rubric of rehabilitation that is consistently
applied from one case to the next, then whether a candidate has had prior
experience at a parole hearing should not make a significant difference to
whether the candidate is granted parole or not. There is no good reason to
believe that someone appearing before the Board for the first time would,
solely on that basis, have demonstrated any more or less rehabilitation than
another parole candidate. Yet prior research and the experience of parole
attorneys strongly suggest that prior experience with the parole board significantly improves a candidate’s likelihood of being granted parole when other
variables are held constant. Several theories might explain this; perhaps prior
experience tends to help because it gives candidates a sense of what kinds of
words or phrases the Board likes to hear, or perhaps some Board members
simply prefer that candidates experience a denial before being granted parole. Although the mechanism for why prior experience makes a significant

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difference to the likelihood of parole is unclear, what is clear is that prior
experience should not be expected to make a difference if the system is
treating like cases alike with respect to rehabilitation.
As shown in Table 5, the grant rate among those with prior experience
with the Board exceeds the grant rate among those attending their initial
hearing in almost every category of clean time, programming, and education.
The most marked disparity is among candidates with clean time in the range
of six to eleven years, where 58% of those with prior experience are granted
as compared to 27% of those without prior experience.
TABLE 5: PAROLE GRANT RATE BY PRIOR EXPERIENCE
WITH THE PAROLE BOARD
Subsequent Hearing
Col. A Col. B
Col. C
Clean time
0 to 2 years
3 to 5 years
6 to 11 years
12+ years
Programming
Minimal
Moderate
Extensive
Education
No GED/HS
GED/HS
Some college
College Degree
Total

Initial Hearing
Col. D Col. E
Col. F

61
55
44
24

4
27
61
64

6%
33%
58%
73%

23
19
19
5

2
2
7
9

8%
10%
27%
64%

Diff. in
Grant Rate
(C-F)
-2
23
31
8

41
121
22

0
106
50

0%
47%
69%

12
46
8

0
12
8

0%
21%
50%

0
26
19

23
93
54
14
184

8
62
52
34
156

26%
40%
49%
71%
46%

13
35
14
4
66

1
6
8
5
20

7%
15%
36%
56%
23%

19
25
13
15
23

Denied Granted

Grant
Rate

Denied Granted

Grant
Rate

Finally, combinations of the three legitimate variables and the three illegitimate variables are considered together. Table 6 compares grant rates
among only the 286 candidates who were average or above average with
respect to clean time, programming, and education. These candidates have
not had a disciplinary write-up in at least three years, have moderate to extensive participation in programs, and have earned a GED or more. Within
this set of 286 candidates, numbers were too small to meaningfully compare
grant rates for each individual racial/ethnic group. Table 6 reports only the
rate for Black candidates as compared to non-Black candidates; this categorization was chosen because the largest racial disparities observed in Table 1
were among Black candidates, and Black candidates are also the largest
group in this sample. As shown below, among this set of 286 candidates, the

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grant rate for Black candidates is sixteen percentage points lower than nonBlack candidates; the grant rate for those with an appointed attorney is
twenty-two percentage points lower than those with a retained attorney; and
the grant rate is twenty-nine percentage points lower for those with no prior
experience appearing before the Board.
TABLE 6: PAROLE GRANT RATE AMONG CANDIDATES WITH 3+ YEARS
CLEAN TIME, MODERATE OR EXTENSIVE PROGRAMMING, AND A
GED OR HIGHER (N=286)
Black Non-Black
Denied
51
72
Granted
44
119
Total number 95
191
Grant rate
46%
62%
Diff. in
-16
Grant Rate

Denied
Granted
Total number
Grant rate
Diff. in
Grant Rate

Appointed Retained
105
18
113
50
218
68
52%
74%
-22

Initial Subsequent
Denied
34
89
Granted
17
146
Total number 51
235
Grant rate
33%
62%
Diff. in
-29
Grant Rate

Table 7 compares differences in grant rates when the illegitimate variables are considered together. Among Black parole candidates who have not
retained a private attorney and who have no prior experience with the board,
one of twenty-four candidates (4%) was granted parole.146 The grant rate was
eighteen times higher among non-Black parole candidates who have retained
an attorney and have prior experience with the board. Of those candidates,
thirty-four of forty-seven (72%) were granted parole. When clean time, programming, and education are held constant, the disparity in these grant rates
remains.
The racial disparities observed here call for more sustained research
that is beyond the scope of this single Article. The research is particularly
critical given that people of color make up 91% of all people serving parole-

146
Ten of forty-five candidates (22%) were granted parole among those who are not
Black, who have not hired a private attorney, and who have no prior experience with the
board.

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TABLE 7: PAROLE GRANT RATE BY RACE/ETHNICITY, ATTORNEY,
AND BOARD EXPERIENCE

Clean time
0 to 2 years
3 to 5 years
6 to 11 years
12+ years
Programming
Minimal
Moderate
Extensive
Education
No GED/HS
GED/HS
Some college
College degree
Total

Black Candidate,
Appointed Attorney, and
Initial Hearing
Col. A
Col. B Col. C

Non-Black Candidate,
Retained Attorney, and
Subsequent Hearing
Col. D Col. E Col. F
Grant
Rate
0%
58%
86%
88%

Diff. in
Grant Rate
(C-F)
11
-58
-86
-88

Denied
8
8
5
2

Granted
1
0
0
0

Grant
Rate
11%
0%
0%
0%

2
19
2

0
0
1

0%
0%
33%

2
8
3

0
23
11

0%
74%
79%

0
-74
-45

7
13
2
1
23

0
0
1
0
1

0%
0%
33%
0%
4%

0
7
4
2
13

1
9
15
9
34

100%
56%
79%
82%
72%

-100
-56
-46
-82
-68

Denied Granted
4
0
5
7
2
12
2
15

eligible life sentences for juvenile convictions in California prisons.147 The
racial disparities observed here are unlikely to be unique to California; national data shows that Black juveniles are disproportionately sentenced to
life without the possibility of parole as compared to their white counterparts.148 In Texas, for example, 100% of juveniles who were sentenced to life
without parole were either Black or Latinx.149

See MEHTA, supra note 5, at 175.
See John R. Mills et al., Juvenile Life Without Parole in Law and Practice: Chronicling
the Rapid Change Underway, 65 AM. U. L. REV. 535, 579–80 (2016) (finding Black juveniles
arrested for murder are about twice as likely to receive juvenile life without parole [JLWOP]
sentences as white juveniles arrested for murder).
149
See id. (reporting highly disparate rates of JLWOP sentences on non-white individuals
in other states, “including Illinois (81.7% of the JLWOP population; 37.7% of the total population), Louisiana (81.0% of the JLWOP population; 40.7% of the total population), Mississippi
(69.1% of the JLWOP population; 42.7% of the total population), North Carolina (88.5% of the
JLWOP population; 35.9% of the total population), Pennsylvania (79.5% of the JLWOP population; 22.1% of the total population), and South Carolina (70.3% of the JLWOP population;
36.1% of the total population)”).
147
148

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C. Regression Analysis
Thus far, the analysis has considered only the variables that are most
obviously legitimate or illegitimate with respect to a measure of rehabilitation. In this section, multivariate regression analysis is used to construct a
model that predicts whether parole is granted or denied on the basis of all
independent variables that that are hypothesized to have a significant influence on the parole decision. Presentation of the regression analysis proceeds
in three parts: explanation of interaction effects among independent variables, construction of the model and results of the regression, and discussion
of how the results inform arbitrary and capricious analysis.
Before presenting the analysis, it is important to clarify that its purpose
is to aid in assessing the fairness of decision-making, not to establish proof
that certain variables cause an outcome in any given case. In other contexts,
courts have accepted regression analysis as a powerful method for evaluating whether illegitimate factors are significant in explaining variability
alongside several different legitimate factors.150 For this purpose, the set of
independent variables used in the regression analysis should include all measurable variables hypothesized to have a substantial influence on outcomes,
but need not include every measurable variable that could conceivably influence a decision.151 For example, in a case concerning whether employment
decisions were unfairly influenced by race, the Court considered a regression
analysis that considered race, education, tenure, experience, sex, and job title.152 When a regression analysis has shown that an illegitimate factor is
significant in explaining variability in outcomes alongside these other variables, it has not established that an illegitimate factor caused an outcome in
any individual case. It has, however, established a risk that the illegitimate
factors play a causal role in influencing the decisions. The court’s inquiry is
then to consider other evidence and assess the degree of the risk, and decide
whether that degree of risk is acceptable in light of other reasons to trust (or
doubt) that decision-makers are exercising discretion fairly.
1. Interactions Among Variables
Psychologist’s Impression. A consistent finding in prior studies of California lifer parole hearings is that a low risk score on the Comprehensive
Risk Assessment (CRA) strongly increases the likelihood of being granted
parole.153 As discussed above, that risk score is determined by a forensic
psychologist after an in-person interview and in consideration of the information contained in the candidate’s file. At the parole hearing, the Board
150
See, e.g., Bazemore v. Friday, 478 U.S. 385, 400 (1986); ATA Airlines, Inc. v. Fed.
Express Corp., 665 F.3d 882, 889 (7th Cir. 2011).
151
See Bazemore, 478 U.S. at 400.
152
See id. at 398.
153
See Young, supra note 107, at 466; Caldwell, supra note 15, at 279.

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considers all the information that the psychologist had considered, as well as
information available only at the hearing (for example, whether the district
attorney or the victim opposes parole). A regression analysis on the parole
decision, which includes the CRA score as well as all the variables that went
into producing the CRA score, introduces multicollinearity154 with respect to
those variables that are considered by both the psychologist and the Board.
To avoid “double counting” information considered by both the psychologist and the Board, this study created “Psych_resid,” a variable intended to isolate the psychologist’s professional impression of the candidate
from the effect on the risk score due to the other variables considered by
both the psychologist and the Board. To do so, regression analysis was conducted to estimate the CRA score on the basis of known objective information. This regression is referred to as the “CRA model.” The dependent
variable in the CRA model is the CRA score, and the independent variables
are factors that are considered by, and hypothesized to be significant to, both
the psychologist and the Board. The difference between a candidate’s actual
CRA score and the estimated score from the CRA model is the Psych_resid
variable.155
A negative value for Psych_resid indicates that a candidate’s CRA
score was lower than one would expect based solely on the objective information; the psychologist’s impression was that the candidate was a lower
risk than the average candidate who presents similar case factors. A positive
value for Psych_resid indicates that a candidate’s CRA score was higher
than one would expect based solely on the objective information; the psychologist’s impression was that the candidate was a higher risk than the average candidate who presents similar case factors. The hypothesis is that a
higher positive value for Psych_resid would decrease the likelihood that the
Board would grant parole.
Substance Abuse Programming. More than three-quarters of the population participated in a program focused on substance abuse, and in most
cases the program was Alcoholics or Narcotics Anonymous. The Board
asked a question about the Twelve Steps of Alcoholics or Narcotics Anonymous in half of the hearings. For example, at one hearing a commissioner
asked a candidate, “How do you work Step 6?”156 and another asked, “So

154
Multicollinearity means that several variables are collinear as a group. Collinearity is a
statistical term used to measure the extent to which two variables move together. For example,
consider LSAT scores and the number of hours a student spends studying for the LSAT. If
these variables are collinear, then one would expect that additional hours of studying would be
associated with higher LSAT scores. If two (or more) different independent variables are collinear, then it becomes difficult for a regression analysis to determine how much each of the
variables is impacting the dependent variable. The result may be that the regression analysis
would determine both independent variables to be not significant.
155
The CRA score is a five-level categorical variable, but the regression analysis assumes
it to be continuous in order to determine Psych_resid.
156
California Board of Parole Hearings, Parole Consideration Transcripts (April 2015) (on
file with author).

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[step] seven is humbly asking God to remove your shortcomings. . . . How
is it that you – that you implement that step?”157 Failure to give an answer
that the Board deemed adequate was found in a prior study to significantly
reduce the likelihood of being granted parole.158 In this study, the variable
“ Prog_sub” was designed to account for an interaction effect between (i)
the variables for participation in substance abuse programming and (ii) failure to adequately answer a question about the Twelve Steps. Prog_sub
counts a candidate as having participated in substance abuse programming if
the candidate participated and did not fail to satisfactorily answer the Twelve
Steps question. The Twelve Steps question is thus built into the Prog_sub
variable and is not considered independently.
Crime, Age, and Time-Served. Given that each candidate in the sample
was fourteen to seventeen years old at the time of the crime, there is a strong
correlation between a candidate’s current age and the number of years the
candidate has served.
The number of years a candidate has served (and likewise a candidate’s
current age) also bears some relationship to the nature of the conviction due
to structural differences in sentences. The California Penal Code provides
that the minimum sentence for murder in the first degree is twenty-five years
to life,159 fifteen years to life for murder in the second degree,160 seven years
to life for attempted murder,161 and seven years to life for kidnapping for
robbery or rape.162 All else being equal, one would therefore expect that parole candidates convicted of first-degree murder would serve more time
before release than other parole candidates. This correlation between conviction and time-served makes it challenging to test two common hypotheses
about parole decisions: that candidates with convictions of increased gravity
are less likely to be granted parole, and that older candidates (who have
thereby served more time) are more likely to be granted parole.163 The hypotheses pull in opposing directions: a first-degree murder conviction would
be hypothesized to make a candidate less likely to be granted parole due to

157
California Board of Parole Hearings, Parole Consideration Transcripts (February 2015)
(on file with author).
158
See Young et al., supra note 59.
159
See CAL. PENAL CODE § 190(a) (West 2000).
160
Id.
161
See CAL. PENAL CODE § 664 (West 2011).
162
See CAL. PENAL CODE § 209(b) (West 2006). The minimum sentence for sexual offenses varies depending on the type of offense. See, e.g., CAL. PENAL CODE § 264 (West 2010)
(punishment for rape is three to eight years in prison); CAL. PENAL CODE § 209(b) (punishment for kidnapping for rape is seven years to life); CAL. PENAL CODE § 269 (West, 2019)
(punishment for aggravated sexual assault of a child is fifteen years to life). The punishment is
twenty-five years to life for a habitual sexual offender, but section 3051 of the youth offender
parole law does not apply to habitual sexual offenders. See CAL. PENAL CODE § 667.71(b)
(West 2019); CAL. PENAL CODE § 3051(h) (West 2018).
163
See, e.g., Caplan, supra note 123.

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the gravity of the crime, but also more likely to be granted parole because of
the correlative increase in age at the time of the first parole hearing.164
Given this issue, instead of considering age or time-served as variables,
descriptive statistics were calculated for the number of years that a candidate
has served by type of conviction. These data are discussed in detail in Part
III.D, infra. One important observation from these data is that candidates
who are granted parole tend to have served less time than candidates who are
denied. This observation led to a hypothesis that after a candidate has served
more time than the norm for the conviction, additional time served would
not improve the likelihood of parole and could even decrease the likelihood
of parole (if, for example, the Board sees older candidates as institutionalized to the prison environment). The variable “Time_over” was created to
test this hypothesis. The variable tracks whether a parole candidate who has
served less time than the norm for the conviction is more likely to be granted
parole than one who has served more time than the norm.165
Place of Incarceration. CDCR provided data to the author that specifies
the level of security in the part of the prison, or prison unit, where a candidate is incarcerated.166 The security levels of California prison facilities
range from minimum security at Level I to maximum security at Level IV.
The type of facility where a parole candidate is incarcerated depends largely
on their classification score assigned by CDCR; the higher the score, the
higher the level of security.167 Almost all the parole candidates considered in
the study began their sentences at maximum-security prisons because, at the
time they entered prison, the classification system mandatorily assigned high
classification scores on the basis of young age, a life sentence, and a violent
164
Where a candidate had multiple different convictions, the conviction-type was deemed
to be the conviction that carried the longest sentence, in accord with the structure of the Youth
Offender Parole Law. See Cal. CAL. PENAL CODE § 3051 (a). For the purpose of analysis, it
was assumed that first-degree murder carries the longest sentence, then second-degree murder,
then attempted murder, then sexual offenses, then non-sexual, non-murder offenses. There are
exceptions to this general trend, particularly among those convicted for sexual offenses, and
those convicted with gun enhancements and gang enhancements, some of which may carry the
same sentence as murder in the first degree.
165
For the purpose of constructing the variable, the norm for a given conviction was the
average number of years served among those who were granted parole.
166
California Department of Corrections and Rehabilitation [CDCR] provided data on
both the “housing level” and the “security level” of each candidate. Housing level is a label
that CDCR assigns to the prison (or the part of a prison) depending on the security conditions
in the facility; ranging from minimum at Level I to maximum at Level IV. Security level refers
to the level of security that CDCR assigns to each incarcerated person; security level also
ranges from minimum at Level I to maximum at Level IV. For the most part, a person’s security level and housing level are the same. That is, a person who has security Level IV is incarcerated in a part of the prison that is classified as Level IV. In some circumstances, such as a
need for particularized medical care or unavailability of bed space, however, a person may be
incarcerated at a prison with a housing level that differs from his or her security level. For the
purpose of constructing the variable, the housing level was used. There were some cases in
which the data from CDCR did not indicate the housing level. In these cases, a candidate was
deemed to be at Level IV if he was incarcerated in the Secure Housing Unit (SHU) and/or had
a security level of IV.
167
See CAL. CODE REGS., tit. 15, §§ 3375.1, 3377.

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conviction.168 After preliminary classification, a person’s classification score
increases with disciplinary write-ups and decreases with clean time.169 A person who accumulated a large number of points for write-ups early in the
period of incarceration could remain in a maximum-security prison setting
indefinitely, even after serving a decade of continuous clean time.170 In recent years, CDCR has overhauled its classification scheme for youth offenders, but those changes are not retroactive and did not affect the individuals
considered during the time period of this study.171
Prior studies of California lifer parole hearings have not considered
place of incarceration as an independent variable, but it was included here
because it was hypothesized that being incarcerated at a maximum-security
prison could have an independent effect on the parole decision. The hypothesis was based on other evidence suggesting that people who live in highcrime, highly policed neighborhoods tend to be perceived as more dangerous
due to where they live.172 Analogously, it was hypothesized that people incarcerated in maximum-security prisons are perceived as more dangerous
(relative to other prisoners) due to the environment in which they live.
Cognitive Deficit. Research suggests that people with cognitive deficits
are at a disadvantage at parole hearings for several reasons, especially because they may struggle to understand and articulate answers to the highly
specific questions asked in parole hearings.173 A variable “Cog_deficit” was
constructed that measures whether a person has any one of the following
indicators of cognitive deficit: history of special education, diagnosed learning disability, marked difficulty in comprehending questions at the hearing,
or a score of eighth grade or below on the test for adult basic education. This
variable is likely under-inclusive, given that learning disabilities often go
undiagnosed and the score on the test for adult basic education was not provided in 111 of the 426 transcripts. Further, there is overlap between cogni168
Until recent years, the points typically added to a youth lifer’s preliminary classification score included: fifty-four points for a life sentence and violent crime; two points for being
under age twenty-six; two points for never being married; two points for not having a high
school degree or equivalent; two points for not having more than six months of employment
history; two points for no military service; and additional points for prior juvenile adjudications. See classification sheets on file with author.
169
See CAL. CODE REGS., tit. 15, §§ 3375.1, 3377.
170
See id.
171
In 2014, the Legislature passed a statute requiring CDCR to adopt a new youth classification process in which an individualized determination is made as to whether a youth offender should be housed at a lower security institution that “permit[s] increased access to
programs and . . . encourage[s] the youth offender to commit to positive change and selfimprovement.” CAL. PENAL CODE §2905(b)(2). The law applies to youth offenders currently
under the age of twenty-five, and does not apply retroactively to those who are twenty-five or
older.
172
See, e.g., Carl Werthman & Irving Piliavin, Gang Members and the Police, in THE
POLICE: SIX SOCIOLOGICAL ESSAYS 56, 78–79 (D.J. Bordua ed., 1967); Jeffrey Fagan &
Amanda Geller, Following the Script: Narratives of Suspicion in Terry Stops in Street Policing,
82 U. CHI. L. REV. 51 (2015).
173
See Amber Heron, An Impossible Standard: The California Parole Board Process for
Inmates with Cognitive Impairments, 91 S. CAL. L. REV. 989, 999 (2018).

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tive deficit and education level; when Cog_deficit is included in models, it is
significant but renders “Edu” insignificant. Given that education level is a
more reliably measured variable, Cog_deficit is not included in the final regression models, but it is included among the robustness checks in Table E.
2. Regression Model
The regression results reported in this subsection show whether and
how independent variables influence the parole decision. Two regression
models were constructed: the CRA model to isolate the psychologist’s judgment, and the Hearing Result model to determine the variables that have a
significant influence on the parole decision. The CRA model is a linear regression with the dependent variable being the CRA score and the independent variables being all the variables that are significant in the Hearing
Result model and which could have been considered by the psychologist. It
was initially hypothesized that all variables in Appendix Table A would be
significant in the Hearing Result model. Construction of the CRA model
thus began by including all these variables,174 aside from those that could not
have been considered by the psychologist.175 Residuals generated from the
CRA model were calculated to produce the Psych_resid variable. A logistic
regression was then run with the hearing result as the dependent variable and
all Table A variables,176 as well as Psych_resid, as independent variables.
Sixteen variables were significant at the 10% level in either the Hearing
Result model or the CRA model. Variables that were not significant at the
10% level were removed, and the regressions were run again. Nine outliers
were removed from the sample: observations in which parole was granted
but the model predicted that the likelihood of being granted parole was less
than 5%, observations in which parole was denied but the model predicted
that the likelihood of being granted parole was greater than 95%, and one
observation in which Psych_resid was more than three standard deviations
beyond the mean.
Table 8 below reports the final CRA model and Hearing Result model.
Listed are the coefficients and standard errors for each variable, with indication of whether each variable was statistically significant at the 5% level or
the 10% level. In addition, Table C in the Appendix reports the odds ratios
for each variable in the Hearing Result model.

174
Three variables in Table A were omitted: CRA (because it is used to determine
Psych_resid), Age_current (because of interaction effect with time-served and conviction
type), and Crime_max (because of collinearity with Crime_mur1 and Crime_sex).
175
Opposition from the district attorney or victim, and whether or not the candidate retained an attorney, are facts that pertain only to the hearing and not to the psychologist, so
these were not considered in the CRA model. The CRA model also did not consider whether
the candidate had arranged for housing and employment if released because these plans are
often made after the CRA is conducted but before the parole hearing takes place.
176
As in note 174, CRA, Age_current, and Crime_max were omitted.

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TABLE 8: CRA MODEL

Race_Black
Prog_gen
Prog_sub
Prog_gang
Edu
Clean_time
Total_disc
Hx_mental_ill
Initial
Pris_max
Time_over
Crime_sex

AND

Retained
Da_opp
Vic_opp
Psych_resid
Constant
R-square
Adj. R-square
Pseudo R-square
*p<0.10,**p<0.05

2.088**
-0.19
0.4954
0.4804

499

HEARING RESULT MODEL

CRA_Model
(Coeff.)
0.180*
-0.1
-0.311**
-0.08
-0.535**
-0.12
-0.12
-0.09
-0.093*
-0.06
-0.302**
-0.05
0.292**
-0.05
0.178*
-0.11
0.414**
-0.12
0.320**
-0.13
-0.103
-0.1
0.199
-0.21

13:22

Hearing_Result Model
(Coeff.)
-0.988**
-0.41
1.841**
-0.4
3.711**
-0.79
0.730*
-0.39
0.322
-0.23
2.360**
-0.3
0.155
-0.19
-0.385
-0.49
-1.932**
-0.56
-1.561**
-0.59
-1.441**
-0.43
-2.393**
-1.13
1.237**
-0.45
-3.493**
-0.89
-1.713**
-0.52
-1.683**
-0.24
-6.393**
-1.41

0.633

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The regression models identify sixteen variables that are significant to
either the CRA score or the hearing result: six variables are significant to
both the CRA score and the hearing result (Race_Black, Clean_time,
Prog_gen, Prog_sub, Pris_max, and Initial), three variables are significant
only to the CRA score (Total_disc, Edu, and Hx_mental_ill), and seven are
significant only to the hearing result (Prog_gang, Time_over, Crime_sex,
Retained, DA_opp, Vic_opp, and Psych_resid). The relative weight of all
variables significant to the hearing result is summarized in Table 9 below,
using the odds ratios that are reported in Appendix Table C.
TABLE 9: RELATIVE IMPACT OF VARIABLES SIGNIFICANT
TO PAROLE DECISION
Increases Likelihood of
Decreases Likelihood of
Parole Grant
Parole Grant
Very Strong Impact: Each changes odds of parole by 20x or more
Rehabilitation program focused on
substance abuse (Prog_sub**)

Psychologist judges to be higher
risk (Psych_resid**)

More time since last disciplinary
write-up (Clean_time**)

District Attorney opposition
(DA_opp**)

Strong Impact: Each changes odds of parole by 6-15x
More general participation in
rehabilitation programming
(Prog_gen**)

Victim opposition (Vic_opp**)
Convicted of sexual offense
(Crime_sex**)
Initial hearing (Initial**)

Substantial Impact: Each changes odds of parole by 2-5x
Retained attorney (Retained**)
Rehabilitation program focused on
gangs (Prog_gang*)

Maximum-security prison
(Pris_max**)
Served more time than average for
conviction (Time_over**)
Race (Race_Black**)

Several tests were conducted to test the robustness of this model, and
results of these tests are included in Appendix Tables D, E, F, and G. Table
D and Table E show that adding a variety of variables to the model does not
substantially change the significance of the sixteen independent variables

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identified as significant in the CRA model or Hearing Result model.177 Table
F shows that the significance of those sixteen variables is also largely insensitive to changes in the way that various variables are constructed (for example, when Clean_time is constructed as a continuous rather than a discrete
variable). Table G shows that the model is robust when the sample includes
outliers, when the sample includes only candidates convicted of murder, and
when the sample includes a randomly selected sample of 75% of the
population.
Notably, notwithstanding the legal mandate that the parole board shall
give “great weight” to the hallmark features of youth, none of the variables
pertaining to a parole candidate’s history as a youth have a statistically significant impact on either the risk assessment score or the parole hearing result.178 As shown in Tables D and E, none of these variables is statistically
significant in the Hearing Result model when added to the model individually or collectively.
3. Implications of Regression Results
The regression models show two important findings for analysis of the
extent to which parole release decisions may be arbitrary with respect to a
measure of rehabilitation. First, the models indicate that variables which are
measures of rehabilitation do have a significant and substantial impact on
both the risk assessment score and the parole hearing result. As shown in
Table 9, two of the four variables with the strongest impact on the parole
decision are participation in a substance abuse program (Prog_sub) and time
since the last disciplinary write-up (Clean_time). Each of those variables can
increase the odds of parole for an average candidate by over 20 times, and
each is also significant in the CRA model. Participation in general rehabilitation programs also has a significant and substantial impact on the hearing
result and the CRA model, and participation in gang programs is significant
to the hearing result. Increased education level also increases the likelihood
of a lower CRA score. The significance and strength of these variables provide some evidence that parole decisions are responsive to a measure of
rehabilitation.

177
Added variables include factors related to youth history, whether the crime was committed with others, whether the conviction was murder in the first degree, current age, cognitive deficit, and a variable labeled Bump which indicates whether the Youth Offender Parole
Statute “bumped up” the expected date of the parole hearing by three years or more. The
hearing date had been bumped up in this way for 9% of the sample. The Bump variable overlapped considerably with whether it was a person’s initial or subsequent hearing (Initial);
Bump was significant in regressions that did not include the Initial variable, but it was not
significant in regressions that did include the Initial variable. The Initial variable was selected
for use in the final regression because it had more predictive power.
178
These variables include the candidate’s age at the time of the crime, and whether the
candidate, as a juvenile, used drugs or alcohol, committed prior acts of violence, was a member of a gang, was sexually abused, or experienced acute trauma or disadvantage.

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The second finding, however, is that a number of variables which appear orthogonal to rehabilitation also exert a very strong impact on the parole decision. The odds of being granted parole are thirty-three times lower
if the district attorney opposes, and six times lower if the victim opposes.
Being a Black parole candidate, being before the parole board for the first
time, and being incarcerated in a maximum-security prison each has a significant and substantial impact on reducing the odds of parole and increases the
likelihood of a higher risk score. Further, having been convicted of a sexual
offense, having served more time than the norm for the conviction, and not
retaining a private attorney have a significant and substantial impact on reducing the odds of parole. None of these variables appear to measure rehabilitation, and their combined impact can match or outweigh the impact of
variables that offer some measure of rehabilitation.
To demonstrate the relative impact of these variables, the CRA and
Hearing Result models were used to calculate and compare the probability of
parole for two hypothetical parole candidates who have comparably strong
records of rehabilitation. Call these hypothetical candidates Larry and Sam.
Both Larry and Sam have six disciplinary write-ups but none in over twelve
years, they have earned a GED and taken some college courses, and participated extensively in general self-help programs, a substance abuse program,
and a gang-focused program. They both have some history of mental illness
and received a low/moderate score on the CRA. Larry is a Black man incarcerated at a maximum-security prison who did not retain a private attorney
and who has served more time than average on his conviction. Sam is a
white man in a medium-security prison who retained a private attorney and
has served less time than average on his conviction. Both faced opposition
from the district attorney at the hearing, but only Larry faced opposition
from the victim. The CRA model was used to calculate Sam and Larry’s
respective Psych_resid values, and the Hearing Result model was used to
calculate the predicted likelihood of parole. The Hearing Result predicts that
the likelihood of parole being granted for Sam is 99% at either the initial or
subsequent hearing, but 13% for Larry at an initial hearing and 34% at a
subsequent hearing.
Figures 4, 5, and 6 below use the results of the Hearing Result model to
demonstrate variability in the decision outcomes when the level of rehabilitation on the rehabilitation index is held constant but the illegitimate variables of race, attorney, and prior experience differ. The figures were
generated by plotting each candidate’s likelihood of being granted parole on
the y-axis179 and the rehabilitation level on the x-axis.180 Linear best-fit trend
lines, shaded with a 95% confidence interval, were then respectively drawn
for Black candidates and non-Black candidates in Figure 4; for candidates
179
The likelihood of being granted parole was calculated on the basis of the final Hearing
Result model.
180
The rehabilitation level was calculated based on the rehabilitation regression.

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with retained attorneys and candidates with appointed attorneys in Figure 5;
and for candidates at initial parole hearings and candidates at subsequent
parole hearings in Figure 6. If the illegitimate variables had no impact on the
likelihood of parole among candidates with comparable levels on the rehabilitation index, the trend lines and associated confidence intervals would
overlap. The trend lines diverge in each figure.
FIGURE 4: INFLUENCE OF PRIOR EXPERIENCE APPEARING
BEFORE BOARD BY REHABILITATION LEVEL
(LINEAR TREND LINES WITH 95% CONFIDENCE INTERVAL)

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RETAINED ATTORNEY ON LIKELIHOOD OF PAROLE
REHABILITATION LEVEL
LINES WITH 95% CONFIDENCE INTERVAL)

BY

(LINEAR

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PAROLE AT INITIAL VS. SUBSEQUENT HEARING
REHABILITATION LEVEL
LINES WITH 95% CONFIDENCE INTERVAL)

OF
BY

(LINEAR

TREND

Figure 5 shows that retaining a private attorney tends to improve the
likelihood of parole among candidates with a rehabilitation level of 6.5 or
lower. Figure 6 shows that, at all rehabilitation levels over 1.5, having no
prior experience with the parole board tends to decrease the likelihood of
parole.
Figure 4 shows that the trend lines for Black and non-Black candidates
diverge among candidates in the mid-range of rehabilitation levels, but overlap among candidates with either low or high levels on the rehabilitation
index. A candidate with a rehabilitation level of 5.0 would be more likely
than not to be granted parole if he were non-Black, but more likely than not
to be denied parole if he were Black; candidates with rehabilitation levels of
8.0 or more, or 3.0 or less have comparable likelihoods of parole regardless
of race. This pattern is consistent with what has been called the “liberation”
effect; when a decision is not essentially determined by legitimate factors,
decision-makers are more “free” to exercise subjective judgment using race
or other impermissible factors.181
181
See BALDUS ET AL., supra note 142, at 142, 145, 151. A similar divergence pattern in
racial trend lines was found by the Baldus study relating race, culpability level, and the predicted probability of a death sentence. Racial disparities did not arise “when the crime was
either extremely aggravated or comparatively free from aggravating circumstances,” but did

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This study’s finding that Black candidates are less likely to be granted
parole is consistent with some prior studies of the impact of race on parole
hearings.182 This finding may support a claim that parole decisions are in
violation of the Equal Protection Clause of the Fourteenth Amendment. Further empirical and legal research is necessary here, and reserved for future
work because it is beyond the scope of this single Article.
D. Time-Served Before Being Granted Parole
Thus far, the analysis has considered parole decision outcomes during
the time period of this study, but it has not investigated how much time
candidates tend to serve before being granted parole. Among candidates
granted parole in this sample, the shortest period of time served was ten
years, and the longest period was forty-three years. The thirty-three year
difference here is remarkable. Thirty-three years far exceeds the statutory
minimum sentence for murder in the first-degree in California (twenty-five
years to life). Thirty-three years is also approximately double the amount of
time that any candidate had been alive before being incarcerated.
Some of the difference in this spread of time is attributable to the gravity of the conviction type. As explained above, candidates with graver convictions generally must serve a longer period of time before becoming
eligible for the initial parole hearing.183 Figure 7 illustrates the average timeserved by conviction-type among candidates granted and denied parole. Table 9 then reports respective differences between the longest period of timeserved and the shortest period of time-served within each conviction-type.

arise when the crime fell in the mid-aggravation range. See also HARRY KALVEN, JR. & HANS
ZEISEL, THE AMERICAN JURY 164–67 (1966); MICHAEL R. GOTTFREDSON & DON M. GOTTFREDSON, DECISION MAKING IN CRIMINAL JUSTICE: TOWARD THE RATIONAL EXERCISE OF DISCRETION 261 (2d ed. 1988).
182
See, e.g., Beth M. Huebner and Timothy S. Bynum, The Role of Race and Ethnicity in
Parole Decisions, 46 CRIMINOLOGY 907, 926 (2008); Renée Gobeil and Ralph C. Serin, Preliminary Evidence of Adaptive Decision Making Techniques Used by Parole Board Members,
8 INT’L J. OF FORENSIC MENTAL HEALTH 97; Heinz et al., supra note 11, at 16–17.
183
See supra note 163 and accompanying text.

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FIGURE 7: AVERAGE TIME-SERVED BY CONVICTION-TYPE
AND PAROLE DECISION

TABLE 10: SPREAD

IN TIME-SERVED AMONG CANDIDATES GRANTED
PAROLE BY CONVICTION-TYPE

Commitment Offense
First-degree murder
Second-degree murder
Attempted murder
Sexual offense
Non-homicide,
Non-sexual offense

Shortest
Time-Served
19 years
13 years
10 years
19 years

Longest
Time-Served
43 years
28 years
34 years
43 years

11 years

35 years

Difference
24 years
18 years
15 years
24 years
24 years

Figure 7 shows that average time-served does tend to increase with the
gravity of the conviction,184 but Table 10 shows that the spread of timeserved within each conviction-type (twenty-one to twenty-four years) exceeds the difference between the mean time-served across convictions. The
magnitude of the spread in time-served provides evidence that the cumulative impact of parole decisions over time is both grave and final. Parole
Board decisions can make a difference of decades in punishment, determin184
An inverse relationship is found between the gravity of the conviction and the amount
of time-served beyond the statutory minimum period for the conviction-type. Among those
granted parole, candidates convicted of first-degree murder serve, on average, 2.7 years over
the statutory minimum period of incarceration generally imposed for first-degree murder
(twenty-five years). Grantees convicted of second-degree murder serve, on average, 8.7 years
over the statutory minimum period of incarceration for second-degree murder (fifteen years).
Grantees convicted of kidnapping, sexual offenses, or attempted murder tend to serve the most
time over their respective statutory minimum periods of incarceration – approximately thirteen
to fourteen years over the minimum period (seven years).

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ing whether a juvenile will die in prison or have a chance to live as an adult
in society. Second, the comparisons across conviction type show that, in
practice, the Board is exercising more control over the number of years a
person spends in prison than the legislature and the court, which, respectively, set and impose the statutory minimum. In this sense, the back-end
release mechanism is more significant than the initial sentence determination; the “tail has begun to wag the dog.”185
IV. CASE STUDY OF CALIFORNIA PAROLE HEARINGS:
PROCESS OF DECISION-MAKING
The quantitative evidence presented above demonstrates a risk that parole-release decisions are inadequately responsive to legitimate variables
pertaining to rehabilitation and are unduly responsive to illegitimate variables. On its own, however, this risk is insufficient to conclude that decisionmaking is failing to treat like cases alike. A qualitative analysis is needed to
determine whether the process of decision-making provides sufficient reason
to trust that decision-makers are making decisions consistently despite quantitative evidence suggesting the contrary. This section describes the process
of parole-release decision-making and argues that the process does not provide a strong reason to trust that parole is consistently granted to those who
demonstrated rehabilitation.
A. Traditional Due Process Protections
Parole hearings do not fall under the legal category of criminal proceedings, but are rather categorized as administrative proceedings.186 California
law provides parole candidates with a number of procedural protections,187
but the set of procedural rights constitutionally guaranteed at criminal proceedings are not required at parole hearings. There is no right to a jury, to
call witnesses, or to cross-examine or confront adverse testimony. There is
no right to a hearing in public; hearings take place in prisons where media
185
In parole systems generally, this phenomenon has been observed, criticized, and cited
as a ground to reform term-to-life sentences. See Edward E. Rhine et al., The Future of Parole
Release: A Ten Point Plan, in MICHAEL TONRY, CRIME AND JUSTICE: REINVENTING AMERICAN
CRIMINAL JUSTICE (2017).
186
See LAURIE L. LEVENSON, CALIFORNIA CRIMINAL PROCEDURE, § 31:19 Parole hearings
for life prisoners—Conduct of hearing (“A parole suitability hearing is an administrative proceeding”); In re Rosenkrantz, 29 Cal. 4th 616, 653 (2002) (characterizing Board of Parole
hearings as “administrative agency within the executive branch”), citing Cal. Pen. Code
§§ 3040, 5075 et seq.; see also In re Sturm, 11 Cal. 3d 258, 267 (1974); Greenholtz v. Inmates
of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979) (characterizing parole-release decision as administrative decision).
187
See supra notes 87–93 (protections include the right to an in-person hearing, notice of
that hearing, review of prison file prior to hearing, legal counsel, appointment of legal counsel
if parole candidate is indigent, definitive statement of reasons for parole decision, and transcript of hearing).

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and members of the public may observe only if a request is approved by the
Board.188 Victims and victims’ next of kin have a right to be notified about
and attend hearings, but friends, family, or other supporters of the parole
candidate have no right to attend hearings and are prohibited from participating in the hearing.189
While parole candidates have a right to notice and an in-person hearing
before at least one member of the Board, there is no right to appear before
the full Board or before the Governor who may reverse the decision made at
the hearing.190 Parole candidates have a right to review evidence that is in
their prison file before the hearing,191 but that right is also limited because
the Board may rely on information in a confidential file that cannot be reviewed by either the parole candidate or the district attorney.192
The right to an attorney at the parole hearing, and to an appointed attorney if a candidate is indigent, is one of the few procedural rights shared by
criminal defendants and parole candidates. California established a statutory
entitlement to counsel in 1978193 as part of comprehensive changes to the
sentencing and parole system made after research showed significant arbitrariness in parole decisions.194 But the right to appointment of counsel is
less robust in practice than in theory. Eighty percent of the study sample was
represented by appointed counsel, and 20% were represented by retained
counsel.195
The appointment and payment of counsel is not done through the court,
as in criminal proceedings, but through the Board. The Board’s fee schedule
compensates attorneys at a rate of no more than $400 total per parole hearing, regardless of the travel distance to the prison, the complexity of the
case, or the length of the hearing (which may be over six hours long).196 No
additional funding is provided for communicating or meeting with the client,
collecting or investigating documents, contacting friends, family, or potenSee CAL. CODE REGS. tit. 15, §§ 2029.1, 2030.
See CAL. CODE REGS. tit. 15, § 2029.1
190
See In re Arafiles, 6 Cal. App. 4th 1467, 1480–81 (1992).
191
See CAL. PENAL CODE § 3041.5 (West); In re Olson, 37 Cal. App. 3d 783, 790 (Ct.
App. 1974).
192
See id.; supra note 96 and accompanying text.
193
See CAL. PENAL CODE § 3041.7 (West 2015).
194
See Garber and Maslach, The Parole Hearing: Decision or Justification?, 1 LAW &
HUMAN BEHAV. 3, 263 (1977); Phillip E. Johnson & Sheldon L. Messinger, California’s Determinate Sentencing Statute: History and Issues, in DETERMINATE SENTENCING: REFORM OR REGRESSION 261, 263 (1978), https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=
2883&context=facpubs, archived at https://perma.cc/6NQK-FZTN.
195
See Appendix, Table A.
196
See In re Poole, 2018 WL 3526684 at *12 (Cal. Ct. App. July 23, 2018) (unpublished)
(ordering an evidentiary hearing to consider whether counsel is inadequate based on declarations from parole hearings and information about the compensation rate); see also Attorney
Invoice, BPH Form 1076, http://www.cdcr.ca.gov/BOPH/docs/Invoicing/BPH-1076_Attorney
_Invoice-fillable.pdf, archived at https://perma.cc/DH4A-UB5H (showing that attorneys are
compensated $25 for an appointment, $50 for review of the packet of information compiled by
the Board, $75 for review of the Central-File, $75 for a client interview, and $175 for personal
appearance at the parole hearing).
188
189

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tial employers, or filing a writ petition to challenge the decision if parole is
denied.197 The attorney is also not compensated for supplementing the record
with mitigating evidence about a client’s background or for obtaining expert
opinions, such as an opinion from an independent expert in psychology or
adolescent development.198
Even the rudimentary task of obtaining and reviewing the trial transcript from the underlying conviction is not compensated199 and generally
goes uncompleted.200 One case provides an example of the value of obtaining
and reviewing the trial transcript. In this case, a parole candidate’s version of
the underlying offense was well supported by testimony at trial, but was
inconsistent with facts recorded in police investigation reports upon which
the Board relied.201 When the transcript was not in the record, the Board
denied parole on the ground that it found that the candidate’s version of the
offense was “against the face of reason,” and that he therefore lacked insight
and credibility.202 When the transcript was obtained and introduced at a hearing one year later, the Board did not take issue with the candidate’s credibility and granted parole.203
The quality of advocacy at parole hearings varies widely among both
appointed and retained attorneys. Examples of zealous advocacy observed in
some transcripts include attorneys raising objections to problematic hearing
procedures, giving a closing argument that brings to bear scientific evidence
about the juvenile brain and explains how each of the “hallmark features of
youth” applies to the client’s case, retaining an expert psychologist to evaluate the client and write an evaluation, and introducing trial transcripts which
demonstrate clear factual errors in the description of the offense relied upon
by the Board. In other cases, attorneys did none of these things. Some attorneys affirmatively argued that their clients should not be granted parole. In
one example, an attorney representing the parole candidate stated during
closing arguments, “I think it would be disingenuous of me as his attorney
to ask for parole.”204 In another case, an attorney stated in his closing argument, “Is he going to participate in antisocial behavior with theft and so

See In re Poole, 2018 WL 3526684 at *6.
See id.
199
See id.
200
Parole attorneys told the author that the trial transcript is generally not included in the
candidate’s prison file, and when the transcript is absent, the Board takes facts about the crime
from whatever other documents are in the prison file. These documents typically include police
investigation reports, probation reports, and the appellate opinion. See generally California
Board of Parole Hearings, Parole Consideration Transcripts (2014-2015) (on file with author).
201
Author provided legal representation in this case. See California Board of Parole Hearings, Parole Consideration Hearings (February 2016, August 2017) (transcripts on file with
author).
202
See id.
203
See id.
204
See California Board of Parole Hearings, Parole Consideration Hearings (May 2015)
(transcript on file with author).
197
198

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forth . . . Who knows . . . I don’t think he’s ready today.”205 In a third case,
the attorney not only argued that his client should not be granted parole but
“would be worth a look at [in] less than ten years.”206
The use of expert opinions is another area in which traditional procedural protections are curtailed for parole candidates. There is no qualification
procedure for introducing expert reports,207 and California courts have not
recognized a right for parole candidates to confront adverse expert reports
through cross-examination.208 The primary expert opinions used in parole
decisions are the CRA reports completed by the Board’s forensic psychologists prior to the hearing. In one case, the hearing panel relied on a CRA
report even after acknowledging that the parole candidate had correctly identified seven factual errors in the CRA—including a false assertion that he
had a prior sexual assault in his record, a statement that he had no GED
despite the presence of a GED certificate in his file, and the wrong name of
the victim.209
The lack of an opportunity to exclude evidence or depose forensic psychologists is also markedly limiting with respect to challenging the reliability and legality of the methods psychologists use in the CRAs. The CRAs
use a risk assessment instrument called the Historical-Clinical-Risk Management-20, Version 3 (HCR-20-V3)210 which purports to estimate the likelihood of future violence based on factors correlated with violence in studies
on mental health patients and adult offenders.211 The reliability of this instrument as applied to juvenile lifers is unknown; none of the studies used to
design or empirically validate this instrument were conducted on juvenile

205
See California Board of Parole Hearings, Parole Consideration Hearings (February
2015) (transcript on file with author).
206
See id.
207
See In re Buenrostro, No. B264275, 2017 WL 780877, at *12 (Cal. Ct. App. Feb. 28,
2017) (“In determining suitability for parole, the California Code of Regulations provides that
the Board, and therefore the Governor, must consider ‘[a]ll relevant, reliable information’
(§ 2402, subd. (b)) in evaluating whether ‘an inmate continues to pose an unreasonable risk to
public safety.’ (In re Lawrence, 190 P.3d 535, 560 (2008)). There is no statement in the Constitution or Penal Code curtailing the Governor’s and Board’s ability to determine what is ‘relevant’ and ‘reliable’ information.”). Cf. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597
(1993).
208
See In re Arafiles, 6 Cal. App. 4th 1467, 1480 (1992) (right to confront adverse witnesses applies to decisions to revoke parole after a prisoner has been released, but has not been
extended to decisions to grant or deny parole).
209
See California Board of Parole Hearings, Parole Consideration Hearings (April 2015)
(transcript on file with author). Since the time period of this study, litigation has led to changes
in the process for appealing errors in the CRA. See Johnson v. Shaffer, No.
212CV1059KJMACP, 2017 WL 4475915, at *10 (E.D. Cal. Oct. 6, 2017); Isard, supra note
98, at 1234.
210
See supra note 135.
211
See Douglas et al., Historical-Clinical-Risk Management-20, Version 3 (HCR-20V3):
Development and Overview, 13 INT’L J. OF FORENSIC MENTAL HEALTH 2, 93–108 (2014); see
also Douglas et al., HCR-20 Violence Risk Assessment Scheme: Overview and Annotated Bibliography (2008), http://kdouglas.files.wordpress.com/2006/04/annotate10-24nov2008.pdf,
archived at https://perma.cc/22E2-7JQX; Isard, supra note 98, at 1244.

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offenders or people who have served long periods of time in prison.212 The
instrument may actually put juvenile offenders at a disadvantage vis-à-vis
adult offenders because it uses young age at the time of the crime and a
limited history of employment as factors indicating a relatively higher risk of
future violence.213 These concerns may make the instrument inadmissible
under a state law which mandates that risk assessment instruments used at
youth offender parole hearings must take into account the diminished culpability of youth and the hallmark features of youth.214 Without the ability to
make motions challenging the admissibility of expert opinion, however,
these concerns go largely unheard.
Finally, California lifer parole decisions are subject to judicial review
under state law.215 A candidate who is denied parole may seek review by
filing a habeas corpus petition; however, there is no right to appointment of
counsel to do so,216 and the cost of hiring an attorney to file a petition is
prohibitive for the vast majority of juvenile lifers.217 Further, the court’s review is “extremely deferential” to the Board, and does not assess the substantive merits of the decision.218 The court may reverse a decision to deny
parole and send it back to the parole board for a new decision,219 but only if
there is nothing in the record which provides “some evidence,” which has
been interpreted as a “modicum of evidence” of current dangerousness.220
The gravity of the underlying crime cannot “in and of itself” provide some
evidence of current dangerousness.221 The gravity of the crime can, however,
provide evidence of current dangerousness if some other evidence in the
record indicates that the crime remains probative of whether a person is a

212
See Manchak et al., Utility of the Revised Level of Service Inventory (LSI-R) in Predicting Recidivism After Long-Term Incarceration, 32 LAW & HUM. BEHAV. 477, 478 (2008). The
author and research assistant investigated samples of all studies that the designers of the HCR20 have cited as providing empirical validation for the HCR-20. See Douglas et al., HCR-20
Violence Risk Assessment Scheme, supra note 135. The samples included people who committed crimes and/or acts of violence as adults. None explicitly included people whose only
crimes were committed as juveniles and who had served a decade or more in prison.
213
See Douglas et al., Historical-Clinical-Risk Management-20, supra note 135, at 98.
214
See CAL. PENAL CODE § 3051(f) (West 2017).
215
See In re Lawrence, 190 P.3d 535, 547 (2008).
216
See In re Poole, No. A154517, 2018 WL 3526684, at *8 (Cal. Ct. App. July 23, 2018),
reh’g denied (Aug. 21, 2018), review denied (Nov. 14, 2018).
217
Conversation with California parole attorney.
218
See In re Rosenkrantz, 59 P.3d 174, 210 (Cal. 2002) (judicial review of parole decisions is “extremely deferential and reasonably cannot be compared to the standard of review
involved in undertaking an independent assessment of the merits or in considering whether
substantial evidence supports the findings”).
219
See In re Prather, 234 P.3d 541, 544 (Cal. 2010) (when court grants petition for habeas
corpus and reverses Board decision to deny parole, remedy is for Board to conduct a new
parole hearing).
220
See In re Shaputis II 265 P.3d 253, 267 (Cal. 2011) (proper inquiry for court reviewing
decision to deny parole is to determine whether whole record “discloses some evidence—a
modicum of evidence—supporting the determination that the inmate would pose a danger to
the public if released on parole”).
221
See In re Lawrence, 190 P.3d 535, 555 (2008).

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continuing threat to public safety.222 For example, a finding that a parole
candidate lacks sufficient insight into the underlying crime can establish a
rational nexus between the crime and the candidate’s current mental state
which allows the crime to be considered as evidence of current dangerousness.223 Research indicates that, in practice, some appellate courts give the
Board more deference than others.224 But among the courts that hew closely
to the letter of the law stated in the “extremely deferential” standard, decisions to deny parole are reversed only in exceptional cases, where a parole
candidate has a spotless record and the resources to file a strong petition.225
B. Decision-Making Body
The Board’s organizational structure, particularly the fact that most parole decisions are made by one member of the Board, creates a risk of idiosyncratic decision-making. Aside from the small number of cases reversed
by the full Board or the Governor, the vast majority of the decisions were
made by a single commissioner in consultation with a deputy commissioner.226 The term “Board” is therefore somewhat misleading in describing
the decision-making body at individual parole-release hearings. This small
decision body stands in contrast to parole boards in other states, which have
five or six members making each decision together,227 and in even starker
contrast to a jury of twelve people in criminal cases. Part of the value of a
multi-member decision-making body, whether a jury or multi-member parole board, is that the deliberative process protects against any single individual’s opinion being decisive. Placing the decision primarily in one
person’s hands carries a greater risk that decisions will differ based on the

222
See id.; see also In re Shaputis I, 190 P.3d 573, 584 (2008) (aggravated nature of crime
constituted evidence of current dangerousness to uphold where parole candidate was found to
lack insight into a long history of violence).
223
See In re Shaputis I, 190 P.3d at 580.
224
See Charlie Sarosy, Parole Denial Habeas Corpus Petitions: Why the California Supreme Court Needs to Provide More Clarity on the Scope of Judicial Review, 61 UCLA L.
REV. 1134, 1171 (2014) (compiling appellate court opinions regarding challenges to parole
denials and finding thirty-six cases in which the court applied the extremely deferential standard; also finding twenty-one cases in which the court applied a less deferential standard).
225
See generally id. at Table 5 (finding that among the thirty-six cases in which the appellate court applied the extremely deferential standard, the court reversed the parole decision in
only four instances).
226
California’s parole statute indicates that the hearing panel is to consist of at least one
commissioner, but that it is the Legislature’s intent that, when there is “no backlog of inmates
awaiting hearings,” the hearings shall be conducted by a panel of three or more members, the
majority of which are commissioners. See CAL. PENAL CODE § 3041 (West 2017).
227
See, e.g., Alaska, http://www.correct.state.ak.us/Parole/pdf/handbook.pdf, archived at
https://perma.cc/DS2K-P6PR; Colorado, https://www.colorado.gov/pacific/paroleboard/faq-0,
archived at https://perma.cc/95K5-W6VC; Georgia, https://www.schr.org/files/parole_hand
book.pdf, archived at https://perma.cc/4W4L-DCG8; Mississippi Miss. Code. Ann. § 47-7-13
(West); Oklahoma, https://www.ok.gov/ppb/Parole_Process/index.html, archived at https://per
ma.cc/E45Z-WDAP.

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idiosyncrasies of one decision-maker to the next.228 Differences in commissioners’ respective grant rates reflect some of this variability: transcripts analyzed in this study showed that one commissioner granted parole in 14% of
the fourteen hearings she presided over, whereas another commissioner
granted parole in 74% of the twenty-three hearings she presided over. Another concern about having a sole member of the Board make these decisions is that this unilateral structure limits the extent to which the decisionmaker is representative of the community. Although the California statute
requires that commissioners reflect the racial, sexual, economic, and geographic diversity of California, this diversity is not reflected in any given
case because only one member makes the decision alone.229
These concerns could be mitigated by the Board’s decision-review process, but the operation of that process in practice is not particularly promising. After the panel present at the hearing makes a decision, the Board’s
internal Decision Review Unit reviews decisions and may recommend a
modification to the decision.230 If a modification is recommended, the matter
is referred to the full Board, which may rescind or overturn the decision en
banc.231 The matter is referred to the Governor who has the authority to reverse the decision in all and only murder cases.232 While the Board and Governor have authority to modify the decision in either direction, in this study
set they used this power only to reverse decisions granting parole. In this
study set, an estimated 5% of decisions to grant parole were reversed by the
Board en banc, and 11% of decisions to grant parole were reversed by the
Governor.233 The unidirectional nature of review by both the full Board and
the Governor suggests that the review process functions not as an impartial
check on fairness across decisions, but rather as an additional barrier to being granted parole.
An additional concern about the structure of the decision-making body
is its susceptibility to political influence. Lifer parole hearings are conducted
by Board commissioners who the Governor appoints for three-year terms,234
and due to the periodic nature of appointment, the Governor can change the
entire composition of the Board within the four-year gubernatorial term. In
addition to appointment power, the Governor can also exert power over the
Board by reversing its decisions to grant parole in murder cases. Governors
have varied considerably in the rate at which they reverse Board decisions;
for example, Governor Davis reversed 97% of the Board’s decisions to grant
228
See generally Spaziano v. Florida, 468 U.S. 447, 489 (1984) (sentencing decisions
made by a body of jurors are more reflective of community values than decisions made by a
single judge).
229
See CAL. PENAL CODE § 5075 (West 2018).
230
See CAL. CODE REGS., tit. 15, § 2041(h).
231
See id. The Board may reverse or rescind a decision on the basis of an error of law, an
error of fact, or new information. See CAL. CODE REGS., tit. 15, § 2042.
232
See Cal. Const. art. V, § 8.
233
See supra notes 115 and 116.
234
See CAL. PENAL CODE § 5075 (West 2018).

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parole, whereas in 2015, Governor Brown reversed 14% of the Board’s decisions to grant parole.235
The sensitivity to political pressure is heightened by the structural balance of risks in play at parole hearings. Given that public opinion is not
sympathetic to parole candidates (and that parole candidates are often disenfranchised), there is little to lose in the court of public opinion by denying
parole. On the other hand, politicians, as well as Board members, have a
great deal of political capital to lose by granting parole to a candidate; there
is always a risk that the person will later commit a crime, and if that happens, public opinion can turn against the decision-makers.236 As California
Supreme Court Justice Moreno has put the point, “The Board’s commissioners . . . have little to gain and potentially much to lose by granting parole,
and accordingly, the incentive to give only pro forma consideration to the
parole decision is strong.”237
C. Substantive Legal Standard
The legal standard at parole hearings is shaped primarily by statute and
is further informed by administrative regulations and case law. The parole
statute provides that the Board “shall normally” grant parole after a parole
candidate has served the minimum period of incarceration required by the
sentence,238 unless the Board determines that the candidate “continues to
pose an unreasonable risk to public safety.”239 The Board follows administrative regulations that set forth, among other things, lists of reasons that
generally support finding a candidate suitable or unsuitable for parole.240 In
interpreting the parole statute, the California Supreme Court has made clear
that while the administrative regulations provide guidance, the ultimate
question is whether the parole candidate poses a current danger to the community; if the Board finds that the candidate is not currently dangerous, parole must be granted.241 The facts of the crime and any pre-conviction history
prior to the crime cannot, on their own, support a denial of parole.242 Such

See Young et al., supra note 59, at 269.
See Alexander K. Mircheff, In Re Dannenberg: California Forgoes Meaningful Judicial Review of Parole Denials, 39 LOY. L.A. L. REV. 907, 939 n.222 (2006), citing Jean Arnold, California’s Secret Judges, S.F. CHRON., Aug. 20, 2000, at A1 (“Since 1988, when ads
featuring Willie Horton, a furloughed Massachusetts convict who wrought havoc on a young
couple, sabotaged the presidential prospects of Michael Dukakis, California governors have
feared that one wrongly paroled felon could wipe out a lifetime of strategic political
planning.”).
237
In re Dannenberg, 104 P.3d 783, 809 (Cal. 2005) (Moreno, J., dissenting) (internal
citations omitted).
238
See CAL. PENAL CODE § 3041 (a)(2) (West 2017).
239
See In re Lawrence, 190 P.3d 535, 560 (Cal. 2008).
240
See CAL. CODE REG., tit. 15, § 2402 (2001).
241
See In re Lawrence, 190 P.3d at 554 (current dangerousness is the “overriding” question for the Board).
242
See id. at 563–64.
235
236

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facts can, however, support a denial of parole if the parole candidate is found
to lack insight into the crime, or if there is another rational nexus between
the crime and current attitudes or recent conduct.243
Importantly, this legal standard is designed to focus the Board’s attention on current dangerousness. As an initial matter, this legal standard of
dangerousness is remarkably vague. As discussed infra at Part V.B, the lack
of specificity permits officials to interpret the standard in ways that lead to
inconsistent outcomes across cases.244 Discussion of disciplinary history in
parole hearing transcripts provides a concrete example of how the breadth
and ambiguity in the Board’s governing standard on dangerousness permits
commissioners to differ widely in their assessments. For example, one hearing panel in 2015 asked over ten questions regarding a disciplinary write-up
for possession of a cellphone in 2012.245 It was the candidate’s only disciplinary write-up since 1996, and there was no evidence of any write-ups for
violent conduct mentioned in the transcript. The candidate explained that he
used the cellphone to cope with disappointment after being denied parole at
the previous hearing. In the decision to deny parole, the commissioner cited
the disciplinary write-up as a reason for denial, stating: “[Y]ou know when
you can have something minor happen like that and you do what you did,
you become unpredictable. Because the rules and regulations in here, you’re
under 24/7. When you get into the community, it’s not 24/7.”246 In contrast, a
hearing panel in 2014 had a very different response to a person who had a
disciplinary write-up for possession of a cellphone in 2012, and who had a
prior disciplinary write-up in 2011.247 The hearing panel asked two questions
regarding the write-up for possession of a cellphone and granted parole.
In the reasons for decision, the commissioner stated: “You’ve remained disciplinary-free – it hasn’t been too long, so a little over a year, 2012 . . .
with the cell phone, but of note is that you’ve had no violence-related
violations.”248
A second problem posed by the overarching legal standard of “dangerousness” is that it tends to focus the Board on the aim of predicting future
conduct, and, as discussed supra at Part II.B.1, this predictive aim is distinct
from the aim of evaluating whether a candidate has demonstrated rehabilitation. This difference poses a problem with respect to juvenile lifers, but that

See In re Shaputis, 190 P.3d 573, 584–85 (Cal. 2008).
See Johnson v. United States, 135 S. Ct. 2551, 2556–57 (2015) (“The prohibition of
vagueness in criminal statutes ‘is a well-recognized requirement, consonant alike with ordinary
notions of fair play and the settled rules of law,’ . . . these principles apply not only to statutes
defining elements of crimes, but also to statutes fixing sentences.”); see also Furman v. Georgia, 408 U.S. 238, 256 (1972) (Douglas, J., concurring).
245
See California Board of Parole Hearings, Parole Consideration Hearing (March 2015)
(transcript on file with author).
246
Id.
247
See California Board of Parole Hearings, Parole Consideration Hearing (October 2014)
(transcript on file with author).
248
Id.
243
244

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problem could theoretically be addressed by the Youth Offender Parole
Law’s mandate that the Board shall “give great weight to” the diminished
culpability of youth, the hallmark features of youth, and to subsequent
growth and maturity.249 This mandate has a potential to act as a safeguard
that focuses the Board’s decision-making on evaluating improvement in behavior from childhood to adulthood; that is, on demonstrated rehabilitation.
As explained below, however, the “great weight” mandate does not appear
to be functioning this way in practice.
First, the phrase “great weight” is too vague to act as a reliable safeguard. When the California legislature used this phrase in a statute in a different context, the California Supreme Court held that the phrase was, on its
own, too vague to be applied consistently, and set forth a more specific interpretation.250 The Court has yet to specify the meaning of “great weight” in
the context of juvenile lifer parole, but it granted a petition for review that is
likely to address that question in 2019.251
Second, there is an underlying conceptual tension between the Board’s
existing regulations for granting parole and the “great weight” mandate.
Under the Board’s existing regulations, a history of being abused and living
in a criminogenic environment as a child are factors that tend to favor denying parole.252 The reasoning is that some research on adult offenders shows a
correlation between these factors and violent conduct. The Board treats these
factors as evidence to predict that a person is more likely to commit future
violence, and thus less suitable for parole. In contrast, the law flowing from
Miller is clear that a history of abuse, a criminogenic environment, and negative peer influence are mitigating factors in considering culpability and the
appropriate sentence for a juvenile.253 Under this law coupled with basic considerations of fairness, evidence of a horrific childhood should not be a reason to deny parole. A person can do nothing to change his childhood history;
it would be non sequitur to say that a person with a horrific childhood has, in
virtue of that childhood, failed to demonstrate rehabilitation as an adult.

See CAL. PENAL CODE § 4801(c) (2018).
See People v. Martin, 42 Cal. 3d 437 (1986); see also People v. Martin, 210 Cal. Rptr.
468, 477 (1985) (Kline, J., dissenting), vacated, 42 Cal. 3d 437 (1986) (explaining if left
unexplained by the court, the formulation of “great weight” is “too vague to be meaningfully
and consistently applied” and its ambiguity is destined to “devitalize . . . the basic concept of
equal justice”).
251
See In re Palmer, 238 Cal. Rptr. 3d 59, 71 (2019) (unpublished), review granted, In re
Palmer, 433 P.3d 1 (Cal. 2019). The Court of Appeals opinion in that case held that giving
“great weight” means granting parole unless there is substantial evidence of countervailing
considerations and the Board satisfactorily explains that evidence. See In re Palmer, 238 Cal.
Rptr. 3d 59, 74 (2018). Another appellate decision has clarified that giving “great weight” to
the mitigating facts of youth and subsequent growth and maturity means more than providing
“lip service” to these factors. See In re Poole, 24 Cal. App. 5th 965 (2018).
252
See CAL. CODE OF REGS., tit. 15, § 2402 (c).
253
See Miller v. Alabama, 567 U.S. 460, 471 (2012); see also People v. Gutierrez, 58 Cal.
4th 1354, 1389 (2014).
249
250

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This tension between the Board’s regulations and the Miller factors is
unresolved. The result in practice is that in any given case, a member of the
Board may unilaterally decide to use evidence of a horrific childhood as
favoring either a grant or a denial of parole. A history of abuse, trauma, or
other instability in childhood was cited as a reason supporting the denial of
parole in 59% of the Board’s decisions to deny parole. For example, in justifying a parole decision, a commissioner stated: “You were an individual per
Subsection C3 who possessed an unstable and tumultuous social history.
This is evidenced by your relationship with family members, your mother
subjecting you to physical and emotional abuse, [and] her drug and alcohol
addictions. You being subjected to group homes at an early age, foster
homes, you dropping out of school at the tenth grade, living a transient lifestyle [sic].” In another case, however, a commissioner used the same type of
evidence to support a decision to grant parole, stating: “[We saw] the instability you had in your social history. You had limited control over your environment. You could not remove yourself from that environment, obviously,
because you were only 16 years old.”254
In addition, the governing legal standard is vague in how it treats the
Board’s assessment of insight among juvenile lifers. As discussed supra, Part
II.B, insight is a term used by the Board to describe the degree to which a
person has taken responsibility for past criminal conduct and has understood
his own particular causative factors that led to that conduct.255 Insight has
been criticized as a vague and ambiguous concept in the general California
parole context, but its ambiguity is heightened in the juvenile lifer context.
The requirement that a candidate clearly understand and articulate his particular “causative factors” is in tension with recognition that juvenile’s brains
are not fully developed, so their behavior is more likely to be impulsive and
thus less explicable. In explaining why children do what they do, the explanation may be incomplete without saying that kids are kids—they are often
not thinking about what it is that they are doing.256 To put it simply: for a
child, a decent answer to the question, “What were you thinking?” is often,
“Clearly I wasn’t.”
In some cases, parole commissioners do not fault candidates if they say
there is no complete explanation for their conduct because they were a youth
at the time. In other cases, however, commissioners fault such candidates’
incomplete explanations for behavior as showing a lack of insight, or on

254
California Board of Parole Hearings, Parole Consideration Hearing (May 2015) (transcript on file with author).
255
See supra note 124 and accompanying text.
256
See Miller, 567 U.S. at 471–72 (“‘developments in psychology and brain science continue to show fundamental differences between juvenile and adult minds’—for example, in
‘parts of the brain involved in behavior control’ . . . [there are] findings of transient rashness,
proclivity for risk, and inability to assess consequences”) (citing Graham, 560 U.S. at 68
(2010)).

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grounds that their conduct was worse because their motives were trivial.257
For example, one commissioner stated: “we couldn’t say you’re still a current
unreasonable risk of danger today at 42, because you were unable to explain
to us at 13 why you decided to become a criminal street gang member.” In
contrast, another candidate was faulted for lacking insight into why, at age
38, he did not give a complete explanation for why he joined a gang at age
13. The candidate, who had grown up on the streets of South Central Los
Angeles, explained that gang members all around him pressured him to join
and that joining the gang was a foolish thing to do. In denying parole, the
commissioner reasoned that this explanation was insufficient, saying:
“Why? What were the causative factors? What got you to do that? . . .
frankly, sir, I was looking more towards, ‘I was self-centered. I was selfish. I
was only thinking about my own needs, nobody else’s. I was a monster in
my community.’” 258
Given the vagueness and inherent tensions underlying the Board’s guiding standards, they are ill equipped to help the Board make decisions that are
consistent with respect to a measure of rehabilitation. These inadequate standards, in conjunction with the relatively weak procedural protections and the
structure of the decision-making body, provide little reason to believe that
parole will be consistently granted to those who demonstrate comparable
rehabilitation.
V. CONSTITUTIONAL QUESTIONS
If the California juvenile lifer parole system continues to operate as it
did during this study period, it is arguably unconstitutional on the three
grounds described below. To be clear, these are all arguments that the system
as a whole is unconstitutional due to evidence of arbitrariness in decisionmaking. In addition to these arguments, individuals may have arguments
that their continued incarceration violates the Eighth Amendment on proportionality grounds.259 Omitted from discussion here is an argument under the
Equal Protection clause of the Fourteenth Amendment that could be based
on the evidence of racial disparity in parole decisions. As stated supra, this
argument is reserved for future research because its complexity demands
attention beyond the scope of this Article.

257
The Board’s administrative regulations state that the offense tends to favor denying
parole especially when the motive is “inexplicable or very trivial in relation to the offense.”
CAL. CODE OF REGS., tit. 15, § 2402(c)(1)(E). At some hearings, the lack of a motive for the
crime was not cited as a reason tending to favor a denial of parole, but rather as evidence that
the crime resulted from youthful impulsivity. But at other hearings, the same recklessness and
impulsivity at the time of the crime was cited as a reason to deny parole.
258
California Board of Parole Hearings, Parole Consideration Hearing (September 2014)
(transcript on file with author).
259
See, e.g., In re Palmer, 245 Cal. Rptr. 3d 708 (Cal. Ct. App. 2019).

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A. Cruel and Unusual Punishment, as Applied
The Supreme Court has only once held that a system of punishment
violates the Eighth Amendment if it is applied in an arbitrary and capricious
manner. This holding came in 1972, when the Supreme Court struck down
the death penalty as unconstitutional in Furman v. Georgia.260 After explaining the Furman line of cases below, this Part argues that the evidence provided in this study shows that juvenile lifer parole decisions are as arbitrary
and capricious as death penalty decisions were in Furman. Insofar as the
analogy between death penalty sentences and parole-release decisions is apt,
the California juvenile lifer parole system would violate the Eighth Amendment as applied.
Justice Douglas’s opinion in Furman explained why a punishment that
is applied in an arbitrary and capricious manner violates the Eighth Amendment.261 He showed that the Amendment has roots in English law that prohibited wide variation in fines for the same offenses.262 As Justice Douglas
explained, “The high service rendered by the cruel and unusual punishment
clause is to require legislatures to write penal laws that are evenhanded,
nonselective, and nonarbitrary, and to require judges to see to it that general
laws are not applied sparsely, selectively, and spottily to unpopular
groups.”263 Justice Douglas emphasized that the principle of equal treatment
under law is implicit in the Eighth Amendment; it is cruel and unusual to
apply a penalty to those “whom society is willing to see suffer though it
would not countenance general application of the same penalty across the
board.”264
In Furman, the court was presented with evidence that legitimate factors could not adequately explain why some defendants received the death
penalty whereas others received non-capital sentences. Justice White highlighted the lack of a “meaningful basis for distinguishing the few cases in
which [death] is imposed from the many cases in which it is not.”265 Justice
Brennan echoed this conclusion, stating that “[n]o one has yet suggested a
rational basis that could differentiate . . . the few who die from the many
who go to prison.”266 The Justices also relied on evidence that illegitimate
reasons like race and class appeared to influence capital sentencing outcomes. Justice Douglas discussed a Texas study which found that poor people with limited education were over-represented in the class of people who
260
Each of the five justices concurring in the Furman decision wrote a separate opinion;
three justices maintained that the death penalty violated the Eighth Amendment in its application, and two justices reasoned that the death penalty violated the Eighth Amendment both on
its face and as applied.
261
See Furman, 408 U.S. at 242–43 (Douglas, J., concurring).
262
See id.
263
Id. at 256.
264
Id. at 245.
265
Id. at 313 (White, J., concurring).
266
Id. at 294 (Brennan, J., concurring).

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were executed, and that, among pairs of co-defendants, there were several
instances in which Black co-defendants were sentenced to death whereas
white co-defendants were given non-capital sentences.267 Justice Marshall
cited the fact that of all people executed across the country since 1930, 1,751
were white and 2,066 were African-American.268
No member of the plurality claimed that empirical evidence offered
proof that death penalty decisions were motivated by illegitimate reasons
like race or class, but they each agreed that the evidence showed a risk that
decisions were arbitrary.269 The next question was whether the gravity of this
risk established an Eighth Amendment violation. The Justices considered the
gravity of the risk in light of the process by which death penalty decisions
were made. They relied on the fact that, at that time in Georgia, jurors were
“wholly unguided by standards” when deciding whether to impose death
sentences.270 Given this decision procedure, the justices reasoned that there
was an unacceptably high risk that death penalty decisions were made arbitrarily, and struck down the death penalty sentencing scheme as unconstitutional in application.
In the wake of Furman, Georgia and other states amended their death
penalty statutes to include a number of provisions designed to function as
safeguards against arbitrary decision-making. In Gregg, the Court held that
the safeguards in Georgia’s amended statute allowed the death penalty to be
reinstated at that time.271 The Court did not bestow “permanent approval on
the Georgia system. It simply held that the State’s statutory safeguards were
assumed sufficient to channel discretion without evidence otherwise.”272
That assumption was challenged in McCleskey, in which the defendant relied
upon an empirical study conducted by David Baldus which showed that a
defendant was 4.3 times more likely to receive the death penalty in Georgia
if the victim was white rather than Black.273 The majority and dissent agreed
that although the Baldus study did not prove that racial bias played a causal
role in any individual case, it did establish a risk that the race of the victim
influenced death penalty decisions.
The majority and dissent in McCleskey vehemently disagreed, however,
on whether the degree of risk shown by the study was acceptable when considered in light of existing statutory safeguards. In an opinion that several
scholars have criticized as the Court’s worst mistake since Plessy v. Ferguson,274 the majority held that the risk of racial bias shown by the study was
See id. at 251–52 (Douglas, J., concurring).
See id. at 364 (Marshall, J., concurring).
See id. at 368.
270
Id. at 295 (Brennan, J., concurring) (citing McGautha v. California, 402 U.S. 183,
196–208 (1971)).
271
See Gregg v. Georgia, 428 U.S. 153, 206–07 (1976).
272
McCleskey v. Kemp, 481 U.S. 279, 338 (1987).
273
See id. at 287.
274
See Plessy v. Ferguson, 163 U.S. 537 (1896). See, e.g., John H. Blume & Sheri Lynn
Johnson, Unholy Parallels Between McCleskey v. Kemp and Plessy v. Ferguson: Why Mc267
268
269

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not high enough to violate the Eighth Amendment.275 Emphasizing the robustness of the procedural protections instituted post-Furman, the majority
held that the Baldus study was not strong enough evidence to shake the
presumption that jurors exercised discretion in a non-biased manner.276 In
contrast, the dissent maintained that the presumption of fairness should be
rebuttable on the basis of the preponderance of the evidence, and that the
Baldus study met that standard.277
The court did not have any statistical evidence when it decided Furman,
but in EQUAL JUSTICE AND THE DEATH PENALTY (1990), David Baldus and
his co-authors provide statistical measures of the extent to which Georgia
death penalty decisions tracked (or failed to track) levels of culpability in the
pre-Furman era as compared to the years following Gregg and preceding
McCleskey [the post-Gregg era].278 The Baldus team coded information
from thousands of murder cases and death penalty decisions, and constructed
a culpability index that measured relative culpability among death penalty
defendants. Then they plotted the actual death penalty decisions along their
constructed index of culpability. Figure 3 in Part V.A, supra, used an analogous technique by constructing a rehabilitation index and plotting actual parole-release decisions along that index.
In the pre-Furman era, the Baldus team found that 61% of death-sentence cases had a lower culpability level than “normal” life-sentenced cases
(i.e. they had culpability levels lower than the ninety-fifth percentile of lifesentence cases).279 This finding means that the majority of the people who
were sent to death (specifically 61% of them) did not appear to be any more
culpable than people who normally received life sentences. Whatever was
making the difference between whether a person received life or death, it did
not appear to be culpability. In the post-Gregg era, however, the Baldus
study found that the majority of people sentenced to death did appear to be
more culpable than those who normally received life. Specifically, 29% of
people sentenced to death had culpability levels lower than the ninety-fifth
percentile of cases in which a life sentence was imposed.280
On this measure, the California juvenile lifer parole system more
closely resembles the pre-Furman Georgia death penalty system than it does
the post-Gregg system. The data in Figure 3 shows that among the full set of
Cleskey (Still) Matters, 10 OHIO ST. J. CRIM. L. 37, 63 (2012); Stephen B. Bright, Discrimination, Death, and Denial: The Tolerance of Racial Discrimination in Infliction of the Death
Penalty, in FROM LYNCH MOBS TO THE KILLING STATE 211, 236 (Charles J. Ogletree, Jr. &
Austin Sarat, eds., 2006); Bryan Stevenson, Keynote Address by Mr. Bryan Stevenson, 53
DEPAUL L. REV. 1699, 170 (2004).
275
See McCleskey, 481 U.S. at 313.
276
See id.
277
See id. at 337–38 (Brennan, J., dissenting).
278
See supra note 142.
279
See BALDUS ET AL., supra note 142, at 80–83. The calculation is based on a set of 292
cases, forty-four of which were given the death penalty.
280
See id. at 91. The calculation is based on a set of 483 cases, 112 of which were given
the death penalty.

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426 candidates, 48% of denied candidates had rehabilitation levels at or
above the rehabilitation levels of normal grantees. Among the more selective set of 334 candidates who had rehabilitation levels over 1.0, 74% of
denied candidates had rehabilitation levels at or above normal grantees.
To determine whether the evidence of inconsistency here rises to the
level of arbitrary and capricious decision-making under the Eighth Amendment, the process by which parole decisions are made needs to be evaluated
and compared to the process by which death penalty decisions are made.
Parole-release decisions at juvenile lifer parole hearings are made without
clear standards and without most of the procedural protections available at a
death penalty trial. As discussed supra, parole hearings are conducted behind closed doors, witnesses cannot be called, and decisions are made by
one commissioner and a deputy rather than a jury. The process for making
parole-release decisions does not—as it did in McCleskey—provide confidence that decisions are non-arbitrary in spite of the pattern of arbitrariness
observed in quantitative analysis of outcomes. On the contrary, as in
Furman, the process of decision-making here seems to confirm the pattern of
arbitrariness in outcomes. Accordingly, there is a strong argument that juvenile lifer parole decisions in California are arbitrary and capricious as applied under the Eighth Amendment. The remedy for such a violation would
be to establish clear standards to govern juvenile lifer parole decisions, as
well as to improve procedural protections. These remedies, discussed in Part
VI would also address the other constitutional deficiencies under the Fourteenth Amendment as described below.
B. Void for Vagueness
A criminal statute violates the Fifth Amendment guarantee of due process if it is written in so vague a manner that “it fails to give ordinary people
fair notice of the conduct it punishes, or [is] so standardless that it invites
arbitrary enforcement.”281 Courts have generally invoked this constitutional
protection, referred to as the void-for-vagueness doctrine, in striking statutes
that either define the elements of crimes or set sentences in vague terms.282
While the parole statute at issue in California is not technically a statute that
imposes a sentence, it functionally operates in that manner because it determines whether a person will serve less than twenty years in prison or more
than forty years in prison.283 A functional rather than formalistic reading of
the statute would therefore subject it to scrutiny under the Fifth Amendment
void for vagueness doctrine. Regardless of whether Fifth Amendment scru-

281
Johnson v. United States, 135 S. Ct. 2551, 2556–57 (2015) (citing Kolender v. Lawson,
461 U.S. 352, 357–58 (1983)).
282
Id. at 2557.
283
See supra Table 10: Spread in Time-Served Among Candidates Granted Parole by
Conviction-Type.

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tiny applies, the statute would be subject to scrutiny under the Fourteenth
Amendment’s due process clause.284
The Court has explained that a core value underlying the void for
vagueness doctrine, under either the Fifth or Fourteenth Amendment, is to
prevent arbitrary and discriminatory enforcement by ensuring that laws provide explicit standards to those who apply them. “A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for
resolution on an ad hoc and subjective basis, with the attendant dangers of
arbitrary and discriminatory application.”285 Given that parole board members effectively decide whether a person will serve under twenty years rather
than upwards of four decades in prison, “parole board members” should be
included in the list alongside police, judges, and juries.
The study above provides evidence that the length of time a person
spends in prison, or whether the person is ever released from prison, is not
determined by explicit standards that are applied in the same way across
cases. Rather, release is determined by individual Board member’s assessments under a vague “current dangerousness” standard, which is complicated by an equally vague requirement to give “great weight” to the
mitigating factors of youth. The breadth of the term “dangerousness” as
used by the Board stands in contrast to the more narrowly specified meaning
of dangerousness in other parts of California law. Other parts of California
law define dangerousness as a substantial risk of committing violence or
causing physical harm to one’s self or others; under that definition, uncertainty about whether a person will comply with rules is not “dangerousness.”286 As discussed supra at Part IV.C, one Board member may find a
parole candidate dangerous only if he poses a threat of violence to others,
284
See Grayned v. City of Rockford, 408 U.S. 104, 107 (1972) (anti-picketing ordinance
void for vagueness under Fourteenth Amendment).
285
Id. at 108–09.
286
In Conservatorship of Hofferber, 28 Cal. 3d 161, 176 (1980), the California Supreme
Court recognized a common thread in the meaning of “dangerousness” across various California statutes: that dangerousness involved a risk of harming others. The Court recognized this
meaning across a wide variety of statutes: Ҥ1800 [extended commitment of Youth Authority
inmate ‘physically dangerous to the public’ because of ‘mental or physical deficiency, disorder,
or abnormality’]; §5304 [90-day civil commitment of one who has attempted or inflicted physical harm ‘and who, as a result of mental disorder, presents an imminent threat of substantial
physical harm to others’]; §6300 [MDSO defined as one whose ‘mental defect, disease, or
disorder’ predisposes him to sexual offense ‘to such a degree that he is dangerous to the health
and safety of others’]; §6316.2 [extended commitment of MDSO whose mentally disordered
propensity for sex offenses presents a ‘substantial danger of bodily harm to others’]; §6500
[commitment of mentally retarded person who is a ‘danger to himself or others’].” Reviewing
these various specifications of dangerousness, the Court decided to adopt a definition of dangerousness in Hofferber that required finding that a person “represents a substantial danger of
physical harm to others.” Id. at 176–77. Further, while not using the term “danger,” Proposition 47 defines “an unreasonable risk to public safety” as an unreasonable risk of committing
“eight types of particularly serious or violent felonies, known colloquially as ‘super strikes.’”
But see People v. Valencia, 3 Cal. 5th 347, 354 (2017) (affirming “unreasonable risk to public
safety” as standard judges are to use in deciding petitions for resentencing under Proposition
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whereas in another hearing a Board member may find a candidate dangerous
because of a lack of predictability about whether a candidate will comply
with all the technical rules of parole.
As discussed supra at Part III, the study offers evidence that, in the
absence of clear standards, there is a substantial risk that officials are engaging in arbitrary and discriminatory decision-making. Of critical importance
here is the fact that Black candidates face significantly lower prospects of
parole when disciplinary history and participation in programs are held constant,287 and when a regression is run that accounts for fifteen other variables.288 In addition, candidates who lack funds to hire private attorneys face
lower prospects of parole, and there is reason to believe that this impact is
magnified among those with cognitive deficits or less than a high-school
level of education.289 And at a higher level of abstraction, the people who
are far more likely to have received life sentences as juveniles in the first
place, and therefore be subject to the discretion of the parole board, are people of color who were growing up as children in the country’s most deeply
impoverished neighborhoods.290
We would do well to remember here the words of Justice Douglas in
holding that vagrancy laws were void for vagueness: “[Vagrancy statutes]
are nets making easy the roundup of so-called undesirables. But the rule of
law implies equality and justice in its application . . . . The rule of law,
evenly applied to minorities as well as majorities, to the poor as well to the
rich, is the great mucilage that holds society together.”291 Here it appears
that law, unevenly applied, is not glue that is holding society together, but is
instead contributing to a barrier that keeps those deemed undesirable apart.
C. Procedural Due Process
Following its jurisprudence established in Greenholtz, the Supreme
Court has held that the due process clause of the Fourteenth Amendment
applies to California’s parole statute, but that it requires only minimal protections that are already offered at California parole hearings (an in-person
hearing and a statement of reasons).292 The amount of process that is constitutionally required in juvenile lifer parole decisions, however, should be
higher than the baseline articulated in Greenholtz.293

See supra Table 1, Table 2.
See supra Table 8.
289
See supra Table 4, Figure 5.
290
See MEHTA, supra note 5 at 21–24.
291
Papachristou v. City of Jacksonville, 405 U.S. 156, 171 (1972).
292
See Swarthout v. Cooke, 562 U.S. 216, 219 (2011).
293
See Matthew Drecun, Cruel and Unusual Parole, 95 TEX. L. REV. 707, 733 (2017)
(arguing that procedural protections should be more robust at parole hearings for people who
were juveniles at the time of the crime).
287
288

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To determine what procedural protections are needed under the due process clause, courts use the Mathews v. Eldridge three-part balancing test.294
The test looks to the nature of the private interest at stake, the extent to
which procedures can reduce the risk of error in decisions, and the public
interest at stake. On the basis of the first factor, the liberty interest among
juvenile lifers is more pressing than that of the petitioners in Greenholtz
because release for juvenile lifers entails not only liberty from prison, but
their very first and only opportunity to live as an adult in society—including
the opportunity to vote, to own property, to work for a living wage, to live
with a partner, and to have children. Further, in Greenholtz, prisoners before
the parole board were seeking early release from sentences that were valid
regardless of the availability or structure of parole-release. In contrast,
whether or not juvenile life sentences are constitutional depends directly
on the availability of release on parole. Juvenile lifers are not seeking the
privilege of early release, but are expecting fulfillment of the Eighth Amendment’s promise that they will be released if they demonstrate rehabilitation.295 In this sense, the private interest at stake at juvenile lifer hearings is
not only an interest in liberty, but an interest in not being subjected to prolonged unconstitutional punishment.296
In addition to considering the gravity of this liberty interest, the Mathews test also requires weighing the public’s interest and the likelihood that
procedures would reduce the risk of error in decision-making. A problem
arises, as it did in Greenholtz, in assessing the risk of error: how does a
court determine “error” in any given parole decision when the standards for
granting parole are so broad and amorphous?
First, the proposal for reform advanced below is not that parole decisions should remain ungoverned by clear standards but nevertheless be subject to robust procedural protections. Rather, the argument is that the study
shows a need for clear standards to be established at juvenile lifer parole

294
See Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (“[I]dentification of the specific
dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the Government’s interest, including
the function involved and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.”)
295
See Russell & Denholtz, supra note 3; Hawkins v. N.Y. State Dep’t of Corr. & Cmty.
Supervision, 30 N.Y.S. 3d 397, 400–01 (N.Y. App. Div. 2016); Atwell v. State of Florida, 197
So. 3d 1040, 1050 (Fla. 2016); Hayden v. Keller, 134 F. Supp. 3d 1000, 1009 (E.D.N.C.
2015); Greiman v. Hodges, 79 F. Supp. 3d 933, 940, 944 (S.D. Iowa 2015).
296
At stake in juvenile lifer parole hearings is also compliance with the Eighth Amendment. If a rehabilitated juvenile lifer is denied, the denial means both a loss of expected liberty
as well as continued incarceration that violates the Eighth Amendment. In this way, parole
decisions are subject not only to due process scrutiny under the Fourteenth Amendment, but
also to what has been called “super due process” scrutiny under the Eighth Amendment. See
Russell, supra note 4, at 416–17.

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hearings.297 When those standards are in place, more robust procedural protections will be called for under a traditional application of the Mathews
inquiry.298
Second, even without a particularized standard of rehabilitation, the
study above has certainly provided evidence of a risk of error in decisions.
The risk is that decisions are being influenced by factors such as race and
ability to hire a private attorney that are unrelated to rehabilitation. The risk
is also that decisions are based on false information. For example, candidates
who are denied based on confidential information have no idea whether the
information in the confidential file is true or false. Transcripts showed evidence of parole board members relying on statements in police reports that
were flatly contradicted by sworn trial testimony,299 on CRA reports that
contain multiple factual errors,300 and which rely on a risk assessment tool
that has not been validated on a population of people whose criminal history
is limited to crimes as juveniles.301 The procedural protections described below would reduce the risk of these types of errors.
VI. A STONE

OF

HOPE: REFORMING

THE

PAROLE PROCESS

This section outlines three types of reforms that the legislature or the
parole board itself could take to improve consistency in parole decisionmaking. Three basic types of reforms are proposed below: cabining discretion, improving the exercise of discretion, and establishing oversight over
discretion. These proposals draw upon the study presented above, the history
of parole reform in other jurisdictions, and scholarship on how other administrative agencies have improved consistency in decision-making. Notably,
the reforms are not mutually exclusive; a legislature, or the parole board,
could adopt one, some, or all of the reforms. Further, these reforms need not

297
A potential objection might be that rehabilitation is such an amorphous concept that it
is in fact impossible to establish particularized standards that a parole board could apply in an
objective way. The objection may be correct in that perfect standards are likely impossible, but
in Justice Brennan’s words, “[t]he impossibility of perfect standards [does not] justif[y] making no attempt whatsoever to control lawless action.” Legislatures and courts have constructed objective standards of correctness in areas where the underlying concepts are no less
complex than rehabilitation: culpability, causation, and intent, to name just a few. These standards are constructed not because the underlying concepts have a neatly discernable structure
that legislators and judges can aptly capture, but because standards are needed to assure evenhanded treatment from one party to the next.
298
See Kimberly Thomas & Paul Reingold, From Grace to Grids: Rethinking Due Process Protections for Parole, 107 CRIM. L. & CRIMINOLOGY 213 (2017) (arguing that the minimal procedural protections required in Greenholtz would be insufficient under the Due Process
Clause in jurisdictions that have since adopted more clearly objective standards for parolerelease decisions).
299
See supra note 201 and accompanying text.
300
See supra note 209 and accompanying text.
301
See generally California Board of Parole Hearings, Parole Consideration Transcripts
(2014-2015) (on file with author).

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be limited to juvenile lifer parole decisions, but could extend to parole-release decisions generally.
A. Cabin Discretion
The first and most expansive technique for reform is to cabin the sheer
amount of discretion that agency adjudicators wield. Cabining discretion
was the primary mode of reform that many parole boards took in response to
hard-hitting criticism in the 1970s.302 Evidence at the time indicated that parole board decisions were arbitrary in the sense that they were either irrational (based on no criteria), or were influenced by racial or class bias.303 The
federal Parole Board initially responded to this criticism by adopting a
Guideline Table which determined how much time a person should serve in
prison before being released on parole; the amount of time was based on the
seriousness of the offense and a “salient factor score” (which was in turn
based on the age, criminal history, and static data points about parole candidates that were statistically correlated with successful completion of parole).304 The parole board was required to release people from prison during
the timeframes set in the Guideline Table, and could depart from those
timeframes based on stated aggravating or mitigating factors which included
institutional misconduct, participation in rehabilitation programs, and the underlying offense.305 After several years, the federal parole system was abolished in favor of adopting a determinate sentencing scheme, but several
states continue to operate their parole systems with this type of guideline
structure.
Applying this approach in the context of juvenile lifer parole decisions,
however, is more challenging than it may appear. The federal parole guideline system operated in the context of a sentencing scheme in which judges
set a minimum and a maximum period of time and allowed parole to be
granted at any point within that range.306 In cases where the gravity of the
crime was at its peak and the sentence permitted incarceration for the duration of natural life, the Guidelines were notably silent; they stated no period

See supra note 11 and accompanying text.
See supra note 11; Rhine et al., supra note 12; Joan Petersilia, Parole and Prisoner
Reentry in the United States, 26 CRIM. & JUST. 479, 491 (1999); Johnson & Messinger, supra
note 194.
304
See Goldberger, et al., Parole Release Decisionmaking and the Sentencing Process, 84
YALE L.J. 810 (1975) (“[a] primary purpose of instituting the Guidelines was to structure
discretion and thereby reduce inequality of treatment”). Some states, such as New York, began
adopting similar guideline frameworks in the late 1970s. See, e.g., VERA INSTITUTE OF JUSTICE,
FINAL REPORT ON PAROLE DECISION-MAKING PROJECT SUBMITTED TO NYS DEPARTMENT OF
CORRECTIONAL SERVICES, Section VI (1978) (describing study of parole-release decisions in
context of newly adopted preliminary guideline framework).
305
Goldberger et al., supra note 304, at 837.
306
Id. at 887.
302
303

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of time at which release should be granted.307 The context of life with the
possibility of parole sentences present a different type of question for a parole board—because natural life until death is accepted as the maximum
justified sentence, the question is not just when to release, but whether to
release at all.
Three proposals follow for cabining parole-board discretion in the context of life with the possibility of parole sentences. The proposals all have a
similar structure in that they would all establish a presumptive-maximum
parole-release date. That is, a point in time at which the sentence does not
technically expire, but a very strong presumption of release from prison
takes hold. The parole board would retain broad discretion to grant or deny
parole prior to the presumptive-maximum date, but when a person reaches
the presumptive-maximum, the parole board would have extremely limited
discretion to deny release. For example, once a person has reached the presumptive maximum, the parole board would be required to grant release unless there is clear and convincing evidence that the person poses a threat of
grave physical injury to others that cannot be managed in a non-custodial
setting. Instituting a presumptive maximum would be particularly advantageous in addressing the problem observed in Part III.D, that the parole board
currently exercises more power over how much time is served than the legislature, the judge, or the jury. The three proposals below offer different methods for setting the presumptive maximum.
The first suggestion is to set the presumptive maximum based on an
individual’s completion of clear and measurable milestones for rehabilitation. For example, the presumptive maximum could be defined as the point
at which an individual has completed some defined number and type of rehabilitation programs. Or it could be defined as the point at which an individual has completed programs and has served some baseline number of
months without a disciplinary write-up. This suggestion seems most apt in
the context of juvenile lifer parole decisions where the law directs release
based upon a demonstration of rehabilitation.308 In setting presumptive release dates on the basis of rehabilitation milestones, care must be taken to
structure them in a way that does not favor any one racial group over another. For example, if Latinx candidates were found to be disproportionately
incarcerated in maximum-security facilities that tend to have less access to
rehabilitation programs, then to define milestones on the basis of program
completion would intentionally perpetuate racially disparate treatment. The
milestones would need to be altered to take those disparities into account,
unless or until the disparities are eliminated in the underlying prison
environment.309
See PIERCE O’DONNELL, MICHAEL J. CHURGIN & DENNIS E. CURTIS, TOWARD A JUST
EFFECTIVE SENTENCING SYSTEM: AGENDA FOR LEGISLATIVE REFORM 24 (1977).
308
See supra at Part I.
309
For example, in this study set, if rehabilitation milestones were defined as having a low
score on a risk assessment, Black candidates would be at a marked disadvantage. Whereas
307

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A concern with setting presumptive maximum dates based on rehabilitation milestones is that the method may not restrict discretion, but rather
relocate it from the parole board into the hands of correctional officers.
Given the control that these officers exercise over disciplinary reports and
access to rehabilitation programs, they may have substantial influence over
whether a given candidate is able to complete the milestones.310 To ensure
fairness at this level, heightened procedural protections would be needed at
disciplinary hearings, and in decisions about whether to allow or deny access
to programs. Further, constant monitoring of outcomes would be needed to
discern whether racial or other illegitimate disparities emerge over time.
A second proposal is to set the presumptive maximum based solely on
the minimum parole eligibility date. For example, the presumptive maximum
could be the point at which a person has served in excess of 110% of their
minimum time-served. Or, the presumptive maximum could be set as equal
to the minimum parole-release eligibility dates.311 An advantage of this approach is its uniformity, but a disadvantage is that in a state where minimum
eligibility dates are mandated by statute, the approach relies heavily on both
the quality of those statutes and prosecutors who have discretion to charge
different crimes that carry different mandatory minimum sentences. In some
cases, minimum parole eligibility dates may be exceedingly harsh given the
facts of a particular crime, the person’s culpability, or individual mitigating
factors. This concern is particularly acute among juveniles who have been
sentenced to long mandatory-minimum terms without any consideration to
their diminished culpability at sentencing. As described supra at Part VI
some of the cases observed in the set of transcripts underscored this concern.
A third proposal is to set the presumptive maximum at the sentencing
hearing based on an individualized proportionality judgment about the gravity of a crime in a given case.312 Trial judges are better situated than a parole
48% of non-Black candidates received a low score on the risk assessment, only 31% of Black
candidates received a low score on the risk assessment. If however, milestones were defined as
having the following combination of variables—at least three years without a disciplinary
write-up, participation in at least four different types of rehabilitation programing, and completion of a GED or other high school equivalency—then it is not apparent that any racial group
would be clearly disadvantaged. The racial distribution within the set of candidates who meet
these criteria (they are the 286 individuals considered in Table 6) mirrors the racial distribution
of the full sample; no one racial group is substantially over- or under-represented. If the Board
were to have granted parole to all candidates whose records of behavior met these “rehabilitation milestones,” the process would have been highly responsive to demonstrated rehabilitation and racial disparity would have been markedly reduced.
310
Cf. Heinz et al., supra note 11, at 18 (“One might well question whether it is desirable
for the Parole Board’s discretion to be delegated to quite junior employees of the Department
of Corrections, some of whom may be poorly qualified, and who make their decisions at a low
level of visibility without any sort of mandatory, regularized procedures.”)
311
Taking a different approach, the Sentencing Project’s Campaign to End Life Sentences
advocates for a twenty-year maximum across the board. See CAMPAIGN TO END LIFE IMPRISONMENT, https://endlifeimprisonment.org/, archived at https://perma.cc/Q4NG-US5L (last visited June 16, 2019).
312
Cf. In re Butler, 4 Cal. 5th 728, 732 (2018). Prior to legislative change in 2014 and
2015, the California Board of Parole Hearings set “base terms” that were intended to provide

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board (or the legislature) to make proportionality judgments about the crime
because judges have greater expertise in proportionality analysis and are
more proximate to the facts of the crime. David Ball has convincingly argued that if parole-release decisions have anything to do with proportionality
judgments about the crime, the Sixth Amendment requires the right to have a
jury find facts that are relied upon in making such judgments.313 Building on
this insight, a system could be devised in which juries or judges, with the
fact-finding help of juries, set presumptive-maximums. A principled approach would be to allow juries or judges to set the presumptive-maximum
parole date either above or beyond the legislated minimum period for paroleeligibility. If such an approach were adopted, considerable attention would
be needed to monitor and manage the use of discretion in this context; although judges and juries make decisions in the context of more robust procedural protections than parole boards, they are certainly not immune from
wielding discretion in an arbitrary fashion.
B. Improve the Exercise of Discretion
Almost all of the suggestions to cabin discretion described above would
leave the parole board with broad discretion for release decisions among
those who have not yet reached the presumptive maximum. The reforms
described below would improve the board’s ability to exercise discretion
fairly in such cases.
Perhaps the most immediate way to improve exercise of discretion is to
clarify the legal standard that the parole board is expected to apply. As discussed supra at Part IV.C, the current statutory standard is vague and the
administrative regulations listing suitability factors are in deep tension with
the statutory requirement to consider the hallmark features of youth as mitigating factors. Once the standard is clarified, the adoption of a structured
decision-making framework could also be useful. Such a framework would
require board members to proceed through a number of steps and rate candidates on the basis of various factors before coming to a decision.314

“uniform terms for offenses of similar gravity and magnitude.” The purpose of the base term
was to indicate a point in time when the prisoner had served his or her proportionate sentence,
and could on that ground petition a court to find that additional punishment would be disproportionate. In practice, the base terms did not function in this way because the Board did not
set the term until after a person had been found suitable for parole.
313
See Ball, supra note 60, at 934.
314
Research on parole boards in Kansas, Ohio, and Connecticut shows that frequent training and feedback would be needed to assist decision-makers in applying the framework in a
consistent fashion. See Ralph Serin and Renee Gobeil, Analysis of the Use of the Structured
Decisionmaking Framework in Three States, U.S. DEPARTMENT OF JUSTICE NATIONAL INSTITUTE OF CORRECTIONS (September 2014), https://info.nicic.gov/nicrp/system/files/028408.pdf,
archived at https://perma.cc/4NWK-4HS7.

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Increased procedural protections could also improve the quality of advocacy and the accuracy of information considered at parole hearings.315 The
examples of inadequate legal representation described supra at Part IV.A,
highlight the need to increase resources available for appointed counsel at
parole hearings. Additional procedural protections could include providing
funds for independent experts,316 allowing witnesses317 and cross-examination, recognizing a right to confrontation and a right to holding the hearing
in a public forum, conducting hearings annually, and precluding reliance on
confidential information. Several states already provide some of these
rights.318
Increasing the parole board’s independence from the Governor’s office
could help it exercise discretion in a way that is less swayed by the political
tide. Rescinding the Governor’s authority to reverse parole decisions would
be an important first step in this regard. In addition, a policy could require
that some parole board members be appointed by state entities other than the
Governor. For example, in South Dakota, the Governor appoints three parole
board members, the attorney general appoints three parole board members,
and the supreme court appoints three members.319 Further bi-partisanship
could be encouraged by a requirement that appointments be made by both
the majority leader and the minority leader in the state senate and state house
of representatives. Alternatively, the board could consist of administrative
law judges.
Additional reforms could reduce the influence of idiosyncratic decision-making. For example, a policy could require that three or more members of the Board be present at every hearing,320 and that they bring expertise
from a variety of different professional backgrounds. A different approach
would be to create a procedure akin to jury selection by which a different
board is formed in each case to reflect the community into which the candidate would potentially be entering. Another option might be to institute a
315
Some have argued that nothing short of the full panoply of criminal procedural protections are needed. Taking such an approach would essentially transform the parole process into
second-looking sentencing proceedings, which is what the Model Penal Code on sentencing
advises. See Russell, supra note 4, at 430; MODEL PENAL CODE: SENTENCING §§ 6.11A(h),
305.6.
316
In Massachusetts, for example, a Superior Court is authorized to allow payment for an
expert witness to assist juvenile lifer parole candidates where an expert is needed to “explain
the effects of the individual’s neurobiological immaturity and other personal circumstances at
the time of the crime, and how this information relates to the individual’s present capacity and
future risk of reoffending.” Diatchenko v. Dist. Attorney for Suffolk Dist., 471 Mass. 12
(2015)
317
In Wyoming, for example, prison staff can provide in-person testimony about a parole
candidate’s growth over time. See JORGE RENAUD, GRADING THE PAROLE RELEASE SYSTEMS OF
ALL 50 STATES (Feb. 26, 2019), https://www.prisonpolicy.org/reports/grading_parole.html,
archived at https://perma.cc/PA3M-GERN.
318
See Russell & Denholtz, supra note 3, at 1133–34.
319
See S.D. CODIFIED LAWS § 24-13-1.
320
For example, a three-member panel is required at juvenile lifer parole hearings in Louisiana. See Russell & Denholtz, supra note 3, at 1133.

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system of peer-to-peer evaluation, which has been shown to reduce inconsistency in other contexts of discretionary agency decision-making.321 For example, at the end of each month, the board could analyze its decisions and
find sets of cases in which candidates were similarly situated on a variety of
pertinent variables but received different decision-outcomes. The parole
board members who participated in those decisions could then compare differences in how they asked questions in the hearing, how they weighed various pieces of information in making their decision, and whether the
differences in decisions were justified or not.
C. Establish Oversight and Accountability
over the Exercise of Discretion
Research on decision-making in the context of the United States Social
Security Administration has shown that robust judicial review of agency adjudications can help to identify errors in individual cases, clarify legal standards, and also provide “problem-oriented” oversight that can identify
entrenched problems within agency administration.322 If judicial review is to
provide a meaningful check on parole board discretion, at least two reforms
would be needed. First, appointment of counsel to file for judicial review
would be needed in order to make review available to the majority of parole
candidates who are indigent and lack developed skills in self-representation.
Second, the standard of review would need to be less deferential to the parole board than the current standard, which requires the court to uphold a
denial of parole wherever the record contains “any modicum of evidence”
of current dangerousness.323 Changing this “any modicum of evidence” standard to the “substantial evidence” standard that is used in the Social Security context would be a step in the right direction.324 In January 2019, the
California Supreme Court granted review in a case that presents the question
of whether a heightened standard of judicial review is required in review of
juvenile lifer parole decisions.325
The conjunction of California law and the Eighth Amendment arguably
require de novo judicial review of juvenile lifer parole decisions. California
law requires that agency decisions which affect a fundamental and vested

321
See Daniel E. Ho, Does Peer Review Work? An Experiment of Experimentalism, 69
STAN. L. REV. 1, 13 (2017) (evidence from randomized controlled trial on food safety inspections shows that “peer review can reduce the arbitrariness of decisionmaking”).
322
See, e.g., Jonah B. Gelbach & David Marcus, Rethinking Judicial Review of High Volume Agency Adjudication, 96 TEX. L. REV. 1097, 1101 (2018).
323
Cf. Charlie Sarosy, Parole Denial Habeas Corpus Petitions: Why the California Supreme Court Needs to Provide More Clarity on the Scope of Judicial Review, 61 UCLA L.
REV. 1134, 1184 (2014) (arguing for a standard of review that is less deferential to the parole
board).
324
See, e.g., Morton Denlow, Substantial Evidence Review in Social Security Cases as an
Issue of Fact, 28 J. NAT’L ASS’N ADMIN. L. JUDICIARY 29, 35 (2008).
325
See In re Palmer, 433 P.3d 1 (Cal. 2019).

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right are reviewed by the court using a de novo standard.326 In 1988, the
California Supreme Court held that this de novo standard does not apply to
parole-release decisions because the interest in parole-release is not fundamental and vested.327 This holding, however, would not control in the context of juvenile lifer parole decisions given the recent development of Eighth
Amendment caselaw, discussed supra at Part I. Parole-release is a fundamental and vested right for a person who is serving a life sentence for a
juvenile crime and who has demonstrated rehabilitation as an adult. Where
such an individual has in fact demonstrated rehabilitation as an adult, the
decision to deny parole and subject her to continued incarceration violates
the Eighth Amendment. The decision about whether she has in fact demonstrated rehabilitation is therefore a decision that impacts a fundamental and
vested right, namely the constitutional right against cruel and unusual punishment. Under state law, the decision should therefore be reviewed by a
court de novo.328
Even under a de novo standard, however, judicial review is limited because it is not equipped to identify system-wide deficiencies that are not
apparent in any individual case, nor is it equipped to identify deficiencies in
processes that precede decisions. For example, if rehabilitation programs
were not reasonably available to some candidates throughout their period of
incarceration, or if members of one racial group were more likely to be written up for prison disciplinary violations, these issues would be unlikely to
appear on the face of a challenge to an individual parole decision. A holistic
review of the system, however, could bring such issues to light if they do
exist. Qualitative and quantitative review of decisions by an independent
agency could be useful in investigating these types of systemic issues.329 For
example, a policy could require the parole board to record specific data
points about each case (similar to the data points recorded by coding transcripts), and the California State Auditor330 or the Office of the Inspector
General331 could be charged with assessing patterns in the data, making qualitative observations at hearings, and issuing public reports with an eye to
See Bixby v. Pierno, 4 Cal. 3d 130, 143 (1971).
See In re Powell, 45 Cal. 3d 894, 903 (1988).
328
See also Russell, supra note 4, at 427 (“Allowing appellate review of a parole board’s
finding of unsuitability is critical to enforcing Graham’s meaningful opportunity requirement
because it would allow reversal of decisions that were not made in a meaningful or accurate
manner.”).
329
See, e.g., Mariano-Florentino Cuéllar, Auditing Executive Discretion, 82 NOTRE DAME
L. REV. 227, 240–49 (2006) (describing limits of judicial review of administrative agencies
and recommending oversight by independent agencies); Kathleen G. Noonan, Charles F. Sabel
& William H. Simon, Legal Accountability in the Service-Based Welfare State: Lessons from
Child Welfare Reform, 34 LAW & SOC. INQUIRY 523, 564 (2009) (describing how qualitative
review of a random sample of cases by teams of agency officials and outsiders has improved
quality of discretionary decision-making in child welfare context).
330
What Is the Audit Process?, CALIFORNIA STATE AUDITOR, https://www.auditor.ca.gov/
aboutus/audit_process, archived at https://perma.cc/Z3MQ-P7L5 (last visited Mar. 10, 2019).
331
Office of the Inspector General, OIG.CA.gov, https://www.oig.ca.gov/, archived at
https://perma.cc/P38Z-7XR4 (last visited Mar. 10, 2019).
326
327

R

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uncovering potential inequities and proposing reforms. An additional benefit would be that such an agency could also gather and analyze post-release
data to identify community resources and in-prison programs that are conducive to helping people become contributing members of society upon
release.
VII. CONCLUSION
Although the above measures are designed to improve the consistency
of decisions with respect to rehabilitation, they will not address all concerns
about the constitutionality of life sentences imposed on the basis of juvenile
convictions. The study here has focused on identifying and proposing a remedy to just one way in which these sentences may fail to be constitutional. In
concluding, I briefly summarize a few of the other pressing concerns about
these sentences which, although beyond the scope of this Article, call for
future research and potential litigation.
First, this study did not consider the question of whether a sentence of
life with the possibility of parole is disproportionate when imposed upon a
juvenile in the first place. Parole hearing transcripts revealed a number of
cases in which a parole candidate had received a mandatory sentence of life
with the possibility of parole on the basis of a conviction that would not
appear to warrant such a sentence, and which a judge likely would not have
imposed if the judge had been authorized to impose an alternative sentence
on the basis of the diminished culpability of juveniles. As an example, one
of the parole candidates in this sample was serving a life sentence for a
kidnapping conviction based on the following facts: while high on drugs at
age 16, the parole candidate had forced an elderly woman into a car, made
her drive down the street to a supermarket to cash a check, and then got
scared and ran away when the woman went into the supermarket.332 This
individual was denied parole primarily on the basis of his record of conduct
in prison, but there is a strong moral argument that serving time in an adult
prison, let alone a life sentence in adult prison, is disproportionate to his
culpability and offense.333 The Board, however, could not consider that argument because, unlike a judge at sentencing or re-sentencing, it does not have
the authority or expertise to make determinations of culpability or
proportionality.334
Cases such as these suggest that even if the parole process is reformed
to provide a meaningful opportunity for release, that opportunity should not
absolve the judiciary of its responsibility to review whether mandatory
sentences imposed on juveniles are disproportionate to a given individual’s
culpability. Some state court opinions have accordingly held that the oppor332
See California Board of Parole Hearings, Parole Consideration Hearing (January 2015)
(transcript on file with author).
333
Cf. People v. Dillon, 34 Cal. 3d 441, 489 (1983).
334
Cf. In re Palmer, 245 Cal. Rptr. 3d 708, 712, 722 (Cal. Ct. App. 2019)

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tunity for release on parole does not render moot a claim for re-sentencing
on the basis of a juvenile’s diminished culpability.335 The California Supreme
Court, however, has held that “a meaningful opportunity to obtain release”
renders moot a juvenile’s claim that a mandatory sentence of life with the
possibility of parole is necessarily unconstitutional.336 To be clear, however,
a California court may still vacate a sentence as unconstitutional if a person
is repeatedly denied parole and serves an excessive period of time that is
disproportionate to the severity of the offense and the individual’s
culpability.337
A second pressing concern which this study has not addressed is that
juvenile parole candidates may lack adequate access to quality rehabilitation
programs which are critical to demonstrating rehabilitation. Transcripts discussed numerous occasions in which critical programs did not exist in facilities; where programs did exist, they were often unavailable to candidates
who were frequently transferred from one prison to another and, with each
transfer, were placed at the bottom of long waitlists. Many programs discussed in transcripts were run via correspondence or by prisoners themselves; only 20% of candidates in this sample had participated in a program
with a professional therapist, despite the fact that most candidates had experienced trauma as children. Two-thirds of the candidates who reported sexual
abuse as children did not report having any therapy during their years of
incarceration. These facts simply scratch the surface, and more research is
needed to both assess the problem of inadequate rehabilitation programs and
to develop solutions.338
For this reason and others, the above proposal to reform parole-release
decision-making is offered not as a solution, but as a “stone of hope.” Part
of that hope is believing that creative solutions can be found, that further
research can help diagnose problems, and that law and policy will move
toward fairness in sentencing, prison programming, and parole.

335
The Mississippi Supreme Court considered the question of the proper remedy for de
facto life without parole cases in Parker v. State, 119 So. 3d 987, 999 (Miss. 2013). The state’s
attorney general, and the dissenting justices, urged that juveniles with de facto life without
parole should simply be made eligible for parole after serving 10 years in prison. Emphasizing
that the legislature has vested sentencing authority in the trial court, the majority refused the
proposal to “create a ten-year minimum mandatory sentence . . . [doing so] would be to
remove the consideration from the sentencing authority, circumventing the Miller mandate of
individualized sentencing for a minor convicted of murder.” Id. See also State v. Ragland, 836
N.W.2d 107, 119 (Iowa 2013) (executive commutation of the youth offender’s sentence “to a
term of years did not affect the mandatory nature of the sentence or cure the absence of a
process of individualized sentencing considerations mandated under Miller”); State v. Lyle,
854 N.W.2d 378, 404 (Iowa 2014) (holding mandatory minimum sentences as applied to
juveniles unconstitutional under the state constitution).
336
See People v. Franklin, 63 Cal. 4th 261, 286 (2016).
337
See In re Palmer, 245 Cal. Rptr. 3d 708, 717 (Cal. Ct. App. 2019).
338
One promising proposal is to make trauma-informed therapy available to all juvenile
lifers. The California legislature is currently considering a pilot program that would do so. See
Assembly Bill 620 “Prisoners: Trauma-Focused Programming” (introduced Feb. 14, 2017).

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APPENDIX

Appendix ................................................................................................................................................
Table A:
Descriptive Statistics with Hearing Results
Table B:
Regression for Rehabilitation Index
Table C:
Odds Ratios for Hearing Result Model
Table D:
Robustness Checks with Added Youth Variables
Table E:
Robustness Checks with Added Crime and Other Variables
Table F:
Robustness Checks with Changes to Variable Definitions
Table G:
Robustness Checks with Changes to Sample

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Table A: Descriptive Statistics with Hearing Results
Total
Total

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% of
Sample

Denied

Granted

%
Granted

100%

250

176

41%

Race/Ethnicity of parole candidate
Black [Race_black]
151
35%
104
47
31%
Latinx
135
32%
70
65
48%
Other
61
14%
29
32
52%
White
79
19%
47
32
41%
Pearson chi2(3) = 12.2114 Pr = 0.007
NOTE: California Department of Corrections and Rehabilitation categorizes each person into one
of the following racial/ethnic groups: Black, Hispanic, white, and other (“other” includes Chinese,
Vietnamese, Filipino, American Indian, and Laotian). “Latinx” is used here in lieu of “Hispanic.”
Current age [Age_current]
20-29
30-39
40-49
50-59
60+
Pearson chi2(4) = 4.1779 Pr = 0.382
Mean = 42.18; Stdev = 6.56; Median = 41

7
156
193
68
2

2%
37%
45%
16%
0%

5
82
120
42
1

2
74
73
26
1

29%
47%
38%
38%
50%

Comprehensive risk assessment score [Psych]
Low [0]
180
Low/moderate [1]
17
Moderate [2]
193
Moderate/high [3]
3
High [4]
33
Pearson chi2(4) = 147.1212 Pr = 0.000

42%
4%
45%
1%
8%

47
9
158
3
33

133
8
35
0
0

74%
47%
18%
0%
0%

Time since last disciplinary write-up [Clean_time]
0 to 2 years [0]
90
21%
84
6
7%
3 to 5 years [1]
103
24%
74
29
28%
6 to 11 years [2]
131
31%
63
68
52%
12 years or more [3]
102
24%
29
73
72%
Pearson chi2(3) = 96.4885 Pr = 0.000
NOTE: Difference between the hearing year and the year of the last write-up for a serious rules
violation (“115”). If there were zero write-ups, the total number of years served is used. The
distribution of the number of years is skewed right, and categorical variables (0, 1, 2, 3) were
calculated by dividing the sample into quartiles.

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Table A: Descriptive Statistics with Hearing Results
Total

% of
Sample

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539

Denied

Granted

%
Granted

Total disciplinary write-ups [Total_disc]
0 to 3 [0]
103
24%
38
65
63%
4 to 7 [1]
107
25%
57
50
47%
8 to 14 [2]
107
25%
73
34
32%
15 or more [3]
109
26%
82
27
25%
Pearson chi2(3) = 37.7887 Pr = 0.000
NOTE: Sum of all serious rules violation (“115”s) within the candidate’s entire period of
incarceration. The distribution of the total number of write-ups is skewed right, and categorical
variables (0, 1, 2, 3) were calculated by dividing the sample into quartiles.
General rehabilitation programming [Prog_gen]
Minimal [0]
50
12%
48
2
4%
Moderate [1]
266
62%
160
106
40%
Extensive [2]
110
26%
42
68
62%
Pearson chi2(2) = 48.0225 Pr = 0.000
NOTE: Calculated by taking the sum of extent of program participation in the following categories:
vocation, victim awareness, anger management, religious, philanthropic, youth-focused, cognitive
therapeutic, arts or sports, and general self-help. Within each category, a candidate’s extent of
participation was measured as 0 (none), 1 (minimum), 2 (modoreate), 3 (extensive). The sums for
extent of participation in programs across these categories was normally distributed. Categorical
variables were then assigned as follows: 0 (sum is one standard deviation below the mean); 1 (sum
within one standard deviation of the mean); 2 (sum is one standard deviation above the mean).
Rehabilitation program focused on substance abuse [Prog_sub]
No [0]
78
18%
74
4
5%
Yes [1]
348
82%
176
172
49%
Pearson chi2(1) = 51.5681 Pr = 0.000
NOTE: Participation in any program that focuses on substance abuse, such as Alcoholics/Narcotics
Anonymous, CDCR’s Substance Abuse Treatment program (SAP), Al-Anon, Celebrate Recovery,
and White Bison (designed for Native-Americans). Participation was counted as “No” if candidate
did a 12 Step program, and failed to answer a question about one of the 12 Steps.
Rehabilitation program focused on gangs [Prog_gang]
No [0]
231
54%
Yes [1]
195
46%
Pearson chi2(1) = 19.6356 Pr = 0.000

158
92

73
103

32%
53%

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Table A: Descriptive Statistics with Hearing Results
Total
Education level attained [Edu]
No GED or HS degree [0]
GED or HS degree [1]
GED/HS and college courses [2]
GED/HS and college degree [3]
Pearson chi2(3) = 30.8816 Pr = 0.000

45
196
128
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% of
Sample

Denied

Granted

%
Granted

11%
46%
30%
13%

36
128
68
18

9
68
60
39

20%
35%
47%
68%

Incarcerated in maximum security conditions [Prison_max]
No [0]
339
80%
178
161
Yes [1]
87
20%
72
15
Pearson chi2(1) = 26.1314 Pr = 0.000
NOTE: “Maximum security” indicates Level IV housing level. If housing level unknown,
designated as “maximum security” if security Level IV or SHU housing. See footnote 167.

47%
17%

History of mental illness [Hx_mental_ill]
No [0]
332
78%
181
151
45%
Yes [1]
94
22%
69
25
27%
Pearson chi2(1) = 10.7773 Pr = 0.001
NOTE: Includes past or present diagnosis of any of the following: schizophrenia, bipolar disorder,
depression, major mental disorder not otherwise specified, anxiety disorder, post-traumatic stress
disorder.
Initial or subsequent parole hearing [Initial]
Subsequent [0]
340
Initial [1]
86
Pearson chi2(1) = 14.4934 Pr = 0.000

80%
20%

184
66

156
20

46%
23%

Served more time than norm relative to crime [Time_over]
No [0]
203
48%
Yes, equal or more time [1]
223
52%
Pearson chi2(1) = 6.6927 Pr = 0.010

106
144

97
79

48%
35%

Retained attorney [Retained]
No [0]
341
80%
218
123
36%
Yes [1]
85
20%
32
53
62%
Pearson chi2(1) = 19.3850 Pr = 0.000
NOTE: Where retained is coded as “No,” parole candidates were represented by attorneys on list of
panel attorneys appointed by the Board during study period (and in one case parole candidate
proceeded pro se).

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Table A: Descriptive Statistics with Hearing Results
Total

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% of
Sample

Denied

Granted

%
Granted

11%
89%

6
244

40
136

87%
36%

Opposition from victim or victim next of kin [Vic_opp]
No [0]
356
84%
Yes [1]
70
16%
Pearson chi2(1) = 0.0822 Pr = 0.774

210
40

146
30

41%
43%

Confirmed job offer [Job_offer]
No [0]
Yes [1]
Pearson chi2(1) = 4.1370 Pr = 0.042

44%
56%

120
130

67
109

36%
46%

Arranged residence in transitional living facility [Res_trans]
No [0]
88
21%
Yes [1]
338
79%
Pearson chi2(1) = 15.8042 Pr = 0.000

68
182

20
156

23%
46%

Arranged residence with family or friends [Res_fam]
No [0]
115
Yes [1]
311
Pearson chi2(1) = 0.3099 Pr = 0.578

27%
73%

70
180

45
131

39%
42%

Age at time of crime [Agecrime]
14
15
16
17
Pearson chi2(3) = 5.9782 Pr = 0.113

1%
4%
44%
50%

0
13
106
131

3
6
83
84

100%
32%
44%
39%

Childhood history of drug or alcohol abuse [Youth_drugsalc]
No [0]
57
13%
Yes [1]
369
87%
Pearson chi2(1) = 3.4761 Pr = 0.062

27
223

30
146

53%
40%

Opposition from district attorney [Da_opp]
No [0]
Yes [1]
Pearson chi2(1) = 44.3077 Pr = 0.000

46
380

187
239

3
19
189
215

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Table A: Descriptive Statistics with Hearing Results
Total

% of
Sample

Denied

[Vol. 54

Granted

Childhood history of violence prior to offense [Youth_priorv]
No [0]
113
27%
59
54
Yes [1]
313
73%
191
122
Pearson chi2(1) = 2.6578 Pr = 0.103
NOTE: Includes any violent conduct regardless of whether there was an adjudication.
Childhood history of street gang activity or affiliation [Youth_gang]
No [0]
145
34%
87
Yes [1]
281
66%
163
Pearson chi2(1) = 0.1567 Pr = 0.692

13:22

58
118

%
Granted
48%
39%

40%
42%

Childhood history of acute trauma and/or disadvantage [Youth_unstable]
No [0]
180
42%
101
79
44%
Yes [1]
246
58%
149
97
39%
Pearson chi2(1) = 0.8520 Pr = 0.356
NOTE: Indicates whether three or more of the following applied: victim of physical abuse at home,
victim of verbal or emotional abuse at home, witness to violence at home, witness to violence in
community outside of home, direct victim of crime or violence outside home environment, family
or friends direct victims of crime or violence, substance abuse in home, homelessness, dropped out
of school, suicide attempts, foster care, neglected by caretakers, uncategorized disadvantage or
trauma.
Sexually abused as a child [Youth_sex]
No [0]
Yes [1]
Pearson chi2(1) = 1.6561 Pr = 0.198

360
66

85%
15%

216
34

144
32

40%
48%

Controlling offense [Crime_max]
Non-murder, non-sexual offense [0]
Sexual offense [1]
Attempted murder [2]
Murder in 2nd degree [3]
Murder in 1st degree [4]
Pearson chi2(4) = 7.3085 Pr = 0.120

19
15
41
174
177

4%
4%
10%
41%
42%

14
13
24
97
102

5
2
17
77
75

26%
13%
41%
44%
42%

Conviction included murder in first degree [Crime_mur1]
No [0]
249
58%
Yes [1]
177
42%
Pearson chi2(1) = 0.1399 Pr = 0.708

148
102

101
75

41%
42%

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Table A: Descriptive Statistics with Hearing Results
Total

% of
Sample

Conviction included some sexual offense [Crime_sex]
No [0]
405
95%
Yes [1]
21
5%
Pearson chi2(1) = 6.6557 Pr = 0.010

13:22

543

Denied

232
18

Granted

%
Granted

173
3

43%
14%

Offense committed with others [Crime_peer]
No [0]
107
25%
61
46
43%
Yes [1]
319
75%
189
130
41%
Pearson chi2(1) = 0.1656 Pr = 0.684
NOTE: Indicates whether candidate had co-defendant(s) or crime partner(s), committed the crime
on behalf of a gang, or was directly influenced by others in the commission of the crime.

Table B: Regression for Rehabilitation Index
Clean_time
Progscore
Edu
Constant
Pseudo R-square
N
**p<0.05

Coeff. (Std. Err.)
1.154**
-0.136
1.572**
0.2640124
.491**
0.154
-4.846**
0.510
0.297
426

NOTE: The Progscore variable differs from the Prog_gen variable in Table A. Progscore is
calculated by taking the sum of extent of participation in programs in all categories: substance
abuse, gang, vocation, victim awareness, anger management, religious, philanthropic, youthfocused, cognitive therapeutic, arts or sports, and general self- help.Within each category, a
candidate’s extent of participation was measured as 0 (none), 1 (minimum), 2 (moderate), 3
(extensive). The sums for extent of participation in programs across these categories were normally
distributed. Categorical variables were then assigned as follows: 0 (sum is one standard deviation
below the mean); 1 (sum within one standard deviation of the mean); 2 (sum is one standard
deviation above the mean).

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Table C: Odds Ratios for Hearing Result Model

Race_black
Prog_gen
Prog_sub
Prog_gang
Edu
Clean_time
Total_disc
Hx_mental_ill
Initial
Pris_max
Time_over
Crime_sex
Retained
Da_opp
Vic_opp
Psych_resid
Constant
Pseudo R-square
* p<0.10, ** p<0.05

Hearing_Result Model
(Odds Ratio; Std. Error)
0.372**
-0.154
6.304**
-2.498
40.88**
-32.25
2.075*
-0.811
1.379
-0.317
10.59**
-3.135
1.168
-0.22
0.68
-0.334
0.145**
-0.0805
0.210**
-0.125
0.237**
-0.101
0.0914**
-0.104
3.446**
-1.559
0.0304**
-0.027
0.180**
-0.0933
0.186**
-0.0454
0.002**
0.002
0.633

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Table D: Robustness Checks with Added Youth Variables
Youth_drugsalc Youth_Priorv Youth_gang Youth_unstable Youth_sex Age_crime Youth_all†
-0.989**
-0.883**
-0.973**
-0.994**
-0.981**
-0.982**
-0.901**
-0.41
-0.42
-0.42
-0.41
-0.41
-0.41
-0.43
Prog_gen
1.803**
1.853**
1.837**
1.833**
1.819**
1.871**
1.852**
-0.39
-0.4
-0.4
-0.4
-0.4
-0.4
-0.41
Prog_sub
3.727**
3.741**
3.714**
3.738**
3.711**
3.768**
3.881**
-0.79
-0.79
-0.79
-0.8
-0.79
-0.8
-0.81
Prog_gang
0.727*
0.838**
0.778*
0.728*
0.745*
0.744*
0.831*
-0.39
-0.4
-0.42
-0.39
-0.39
-0.39
-0.43
Edu
0.326
0.326
0.308
0.323
0.317
0.315
0.314
-0.23
-0.23
-0.24
-0.23
-0.23
-0.23
-0.24
Clean_time
2.338**
2.403**
2.355**
2.359**
2.344**
2.370**
2.394**
-0.29
-0.3
-0.3
-0.3
-0.29
-0.3
-0.31
Total_disc
0.159
0.164
0.155
0.153
0.157
0.149
0.18
-0.19
-0.19
-0.19
-0.19
-0.19
-0.19
-0.19
Hx_mental_ill
-0.378
-0.495
-0.401
-0.385
-0.427
-0.383
-0.491
-0.49
-0.5
-0.5
-0.49
-0.49
-0.49
-0.51
Initial
-1.877**
-1.964**
-1.937**
-1.914**
-1.917**
-1.937**
-1.965**
-0.55
-0.56
-0.56
-0.56
-0.56
-0.55
-0.56
Pris_max
-1.497**
-1.553**
-1.535**
-1.555**
-1.580**
-1.586**
-1.593**
-0.59
-0.59
-0.59
-0.59
-0.6
-0.59
-0.61
Time_over
-1.433**
-1.506**
-1.462**
-1.454**
-1.428**
-1.429**
-1.514**
-0.43
-0.44
-0.43
-0.43
-0.43
-0.43
-0.44
Crime_sex
-2.387**
-2.298**
-2.419**
-2.377**
-2.494**
-2.463**
-2.368**
-1.13
-1.11
-1.15
-1.12
-1.14
-1.15
-1.15
Retained
1.209**
1.224**
1.239**
1.242**
1.237**
1.256**
1.257**
-0.45
-0.46
-0.45
-0.45
-0.45
-0.45
-0.46
Da_opp
-3.468**
-3.574**
-3.497**
-3.498**
-3.492**
-3.411**
-3.520**
-0.88
-0.89
-0.89
-0.89
-0.89
-0.89
-0.9
Vic_opp
-1.667**
-1.757**
-1.709**
-1.716**
-1.713**
-1.730**
-1.768**
-0.52
-0.52
-0.52
-0.52
-0.52
-0.52
-0.53
Psych_resid
-1.661**
-1.703**
-1.683**
-1.685**
-1.683**
-1.691**
-1.716**
-0.24
-0.25
-0.24
-0.24
-0.24
-0.25
-0.25
Added variable
-0.278
-0.546
-0.120
-0.058
0.335
-0.111
NA
-0.58
-0.43
-0.450
-0.38
-0.49
-0.31
NA
Constant
-6.120**
-6.094**
-6.295**
-6.357**
-6.391**
-4.745
-3.851
-1.47
-1.42
-1.430
-1.43
-1.41
-5.06
-5.1
* p<0.10, ** p<0.05; N=417; †Youth_all includes all youth variables in this table as dependent variables
Race_black

\\jciprod01\productn\H\HLC\54-2\HLC202.txt

546

unknown

Seq: 92

28-JUN-19

Harvard Civil Rights-Civil Liberties Law Review

Table E: Robustness Checks with Added Crime and Other Variables
Crime_peer
Crime_mur1
Age_current
Race_black
-0.995**
-0.992**
-0.986**
-0.41
-0.41
-0.42
Prog_gen
1.834**
1.837**
1.903**
-0.4
-0.4
-0.41
Prog_sub
3.731**
3.704**
3.820**
-0.79
-0.79
-0.81
Prog_gang
0.743*
0.741*
0.702*
-0.39
-0.4
-0.4
Edu
0.321
0.321
0.336
-0.23
-0.23
-0.23
Clean_time
2.362**
2.357**
2.387**
-0.3
-0.3
-0.3
Total_disc
0.167
0.153
0.191
-0.2
-0.19
-0.2
Hx_mental_ill
-0.394
-0.381
-0.387
-0.49
-0.49
-0.49
Initial
-1.925**
-1.937**
-2.011**
-0.56
-0.56
-0.57
Pris_max
-1.569**
-1.559**
-1.601**
-0.6
-0.59
-0.6
Time_over
-1.450**
-1.438**
-1.249**
-0.43
-0.43
-0.54
Crime_sex
-2.407**
-2.378**
-2.369**
-1.14
-1.14
-1.16
Retained
1.236**
1.235**
1.283**
-0.45
-0.45
-0.46
Da_opp
-3.504**
-3.499**
-3.413**
-0.89
-0.89
-0.89
Vic_opp
-1.707**
-1.714**
-1.700**
-0.52
-0.52
-0.52
Psych_resid
-1.684**
-1.682**
-1.718**
-0.24
-0.24
-0.25
Added variable
-0.105
0.048
-0.026
-0.44
-0.38
-0.040
Constant
-6.329**
-6.390**
-5.772**
-1.43
-1.41
-1.910
* p<0.10, ** p<0.05; N=417

Bump
-0.973**
-0.41
1.817**
-0.4
3.688**
-0.79
0.724*
-0.39
0.328
-0.23
2.357**
-0.3
0.161
-0.19
-0.401
-0.49
-1.742**
-0.61
-1.576**
-0.59
-1.426**
-0.43
-2.239*
-1.18
1.259**
-0.46
-3.500**
-0.89
-1.707**
-0.52
-1.686**
-0.24
-0.694
1.23
-6.362**
-1.41

13:22

[Vol. 54

Cog_deficit
-1.003**
-0.42
1.882**
-0.4
3.645**
-0.79
0.734*
-0.39
0.237
-0.24
2.449**
-0.31
0.157
-0.19
-0.261
-0.5
-2.040**
-0.57
-1.661**
-0.6
-1.467**
-0.44
-2.591**
-1.16
1.202**
-0.45
-3.460**
-0.88
-1.819**
-0.53
-1.717**
-0.25
-1.256**
-0.51
-6.186**
-1.41

\\jciprod01\productn\H\HLC\54-2\HLC202.txt

2019]

unknown

Seq: 93

28-JUN-19

A Stone of Hope

13:22

547

Table F: Robustness Checks with Changes to Variable Definitions
Race_black
Prog_gen
Prog_sub
Prog_gang
Edu
Clean_time
Total_disc
Hx_mental_ill
Initial
Pris_max
Time_over
Crime_sex
Retained
Da_opp
Vic_opp
Psych_resid
Added variable
Constant

A (Prog)
-1.015**
-0.42
1.841**
-0.4
3.285**
-1
0.758*
-0.4
0.338
-0.23
2.368**
-0.3
0.176
-0.19
-0.354
-0.49
-1.968**
-0.56
-1.647**
-0.6
-1.424**
-0.43
-2.436**
-1.13
1.232**
-0.45
-3.514**
-0.89
-1.724**
-0.52
-1.700**
-0.25
-4.018**
-1.08
-6.024**
-1.52

B (Prog)
-1.065**
-0.4
0.408**
-0.07

C (Prog)
-0.889**
-0.38
2.185**
-0.41

0.390*
-0.23
2.275**
-0.28
0.29
-0.19
-0.465
-0.49
-1.893**
-0.54
-1.513**
-0.58
-1.473**
-0.42
-1.823
-1.15
1.093**
-0.43
-3.671**
-0.86
-1.350**
-0.49
-1.591**
-0.23

0.527**
-0.22
2.175**
-0.27
0.153
-0.18
-0.452
-0.47
-1.834**
-0.51
-1.568**
-0.57
-1.473**
-0.4
-2.219**
-1.05
1.014**
-0.42
-3.573**
-0.81
-1.365**
-0.47
-1.525**
-0.220

-5.562**
-1.26

-2.900**
-0.990

D (Disc)
-0.877**
-0.39
1.667**
-0.37
3.617**
-0.77
0.698*
-0.38
0.175
-0.23
1.970**
-0.26
0.24
-0.17
-0.523
-0.48
-1.872**
-0.55
-1.320**
-0.58
-1.274**
-0.41
-2.452**
-1.03
1.080**
-0.44
-2.924**
-0.79
-1.720**
-0.5
-1.510**
-0.23
-8.050**
-1.53

E (Disc)
-0.862**
-0.4
1.712**
-0.38
3.587**
-0.77
0.706*
-0.39
0.233
-0.24
2.876**
-0.38
0.192
-0.21
-0.546
-0.49
-1.898**
-0.55
-1.311**
-0.59
-1.318**
-0.43
-2.521**
-1.02
1.096**
-0.45
-3.162**
-0.85
-1.755**
-0.51
-1.547**
-0.23
-7.682**
-1.52

F (CRA)
-0.685*
-0.41
1.318**
-0.38
2.811**
-0.74
0.527
-0.39
0.166
-0.23
1.852**
-0.26
0.646**
-0.21
-0.086
-0.49
-1.235**
-0.54
-1.021*
-0.59
-1.614**
-0.43
-2.058*
-1.12
1.237**
-0.45
-3.493**
-0.89
-1.713**
-0.52

G (CRA)
-0.745**
-0.35
1.236**
-0.31
2.283**
-0.6
0.603*
-0.33
0.239
-0.2
1.683**
-0.21
0.091
-0.16
-0.291
-0.4
-1.586**
-0.45
-1.340**
-0.52
-1.032**
-0.36
-1.11
-0.98
0.962**
-0.4
-2.629**
-0.66
-0.629
-0.41

-1.683**
-0.24
-2.880**
-1.31

-4.057**
-1.1

* p<0.10, ** p<0.05
A: Prog_sub is measured as participation in any substance abuse program regardless of how 12 Step question is
answered. 12step_f is added as an independent variable measuring failure to answer the 12 Step question.
B: Prog_gen is measured as the raw sum of participation in all categories of rehabilitation programming
(including substance abuse and gang program). Prog_sub and prog_gang are not used as independent variables.
C: Similar to B, except Prog_gen is converted to a score based on whether a candidate’s raw sum is one stdev
below mean (0), within one stdev of mean (1), or one stdev above the mean (2).
D: Clean_time is measured as the square root of the number of years since the last write-up for a serious
disciplinary violation. Total_disc is measured as the square root of the total number of write-ups.
E: Clean_time is measured as the log of the number of years since the last write-up for a serious disciplinary
violation. Total_disc is measured as the log of the total number of write-ups.
F: Psych_resid is not used. The raw CRA score is added as an independent variable.
G: Neither the Psych_resid variable nor the CRA variable are used.

\\jciprod01\productn\H\HLC\54-2\HLC202.txt

548

unknown

Seq: 94

Harvard Civil Rights-Civil Liberties Law Review

Table G: Robustness Checks with Changes to Sample
A (Outliers
Included)
B (Murder)
C (Random)
Race_black
-0.503
-1.187**
-1.313**
-0.35
-0.48
-0.49
Prog_gen
1.161**
2.278**
1.689**
-0.31
-0.47
-0.45
Prog_sub
3.057**
3.722**
2.708**
-0.67
-0.85
-0.91
Prog_gang
0.581*
0.717
0.42
-0.33
-0.44
-0.45
Edu
0.355*
0.344
0.502*
-0.2
-0.26
-0.28
Clean_time
1.589**
2.451**
2.388**
-0.21
-0.34
-0.35
Total_disc
0.044
0.301
0.221
-0.17
-0.22
-0.22
Hx_mental_ill
-0.654
-0.401
-0.361
-0.42
-0.59
-0.54
Initial
-1.255**
-2.079**
-1.777**
-0.45
-0.69
-0.63
Pris_max
-1.048**
-1.492**
-1.978**
-0.51
-0.7
-0.68
Time_over
-0.925**
-1.690**
-1.348**
-0.36
-0.5
-0.49
Crime_sex
-1.925**
-0.939
-4.514**
-0.96
-1.68
-1.84
Retained
0.930**
1.205**
1.384**
-0.38
-0.52
-0.51
Da_opp
-2.657**
-3.606**
-4.365**
-0.74
-1.12
-1.11
Vic_opp
-1.280**
-1.627**
-1.743**
-0.44
-0.56
-0.58
-0.76
Psych_resid
-1.213**
-1.866**
-1.668**
-0.19
-0.29
-0.27
Constant
-4.567**
-7.025**
-4.774**
-1.19
-1.74
-1.600
Pseudo R-square
0.5332
0.6489
0.6285
N
426
342
313
* p<0.10, ** p<0.05

D (Random)
-1.174**
-0.52
2.675**
-0.56
4.432**
-0.98
0.322
-0.49
0.379
-0.28
2.736**
-0.41
-0.038
-0.22
-0.136
-0.66
-2.027**
-0.79
-2.009**
-0.79
-1.559**
-0.53
-3.020**
-1.31
1.709**
-0.63
-4.197**
-1.03
-2.892**
-0.59
-1.958**
-0.33
-7.760**
-1.75
0.6668
313

28-JUN-19

13:22

[Vol. 54

E (Random)
-0.622
-0.49
1.977**
-0.48
3.761**
-0.94
0.895**
-0.45
0.479*
-0.27
2.314**
-0.33
0.156
-0.23
-0.276
-0.58
-1.669**
-0.62
-1.526**
-0.74
-1.355**
-0.52
-4.100**
-1.81
1.098**
-0.51
-2.575**
-0.92
-1.429**
-1.648**
-0.28
-7.963**
-1.77
0.6307
313

A: All nine outliers included in sample. Outliers are observations in which parole was granted but
the model predicted that the likelihood of being granted parole was <5%, and observations in
which the parole was denied but the model predicted that the likelihood of being granted parole was
>95%.
B: Sample includes only observations where there was a conviction of first or second degree
murder.
C-E: Sample includes a random sample of 75% of the 426 observations. Three different random
samples were taken.