New report says California’s parole process could lead to inequitable outcomes

In California, when an inmate seeks parole, the current system puts a lot of the power to approve or deny their request in the hands of parole commissioners — individuals who assess inmates on criteria that are not easy to quantify, such as if they feel a person is likely to commit another crime. 

But a new report by the Legislative Analyst’s Office (LAO) suggests the state’s parole process could lead to bias in how parole is granted. 

“In a lot of ways, this discretionary parole process is one of the biggest contributors of mass incarceration that no one talks about, because so many people who went to prison remain stuck there,” said Keith Wattley, the executive director of UnCommon Law, an organization that helps connect people seeking parole with lawyers.

According to the LAO’s report, there is a “level of discretion” among parole commissioners that may result in bias in a variety of ways. There’s implicit bias, for instance, which means the board members may “tend to unconsciously associate certain groups of people with specific attributes,” writes the Legislative Analyst. Parole Board Commissioners could, for example, associate Black applicants with being more likely to commit a crime later.

“Candidates who are subject to negative implicit biases would be disproportionately disadvantaged in the process,” the report continued.

It also found that there were no safeguards in place to counteract potential bias. The Board of Parole Hearings does not regularly publish specific data about the race or ethnicity of parole candidates. 

Wattley says that, according to UnCommon Law, Black inmates were almost three times less likely to be granted parole than white inmates who had committed the same crime. 

“What we're seeing is that this parole process involves the same kinds of biases that we see in every other stage of the criminal legal process,” Whatley said. 

Specifically, he says that his organization consistently sees that “the board is denying parole to people who are different, not necessarily those who are dangerous. And that's what's so problematic about this process and what this report helps to highlight.”

The LAO’s report also found disparities in who was granted parole, not just because of personal bias, but as a result of the types of resources applicants had access to before entering a hearing. 

“This would mean that two candidates who are otherwise identical might have different hearing outcomes based on their ability to access a private attorney as opposed to relying on a state appointed attorney,” said Caitlin O’Neill, principal analyst at the Legislative Analyst’s Office. 

O’Neill says this is concerning “from an equity perspective in terms of people's disparate ability to pay, but also because candidates who already may be at a disadvantage for various reasons could be at a further disadvantage if they are not able to have the assistance of an attorney.”

The Board of Parole Hearings said they disagree with the report’s findings. Jennifer Shaffer, executive officer for the Board said she felt that the LAO’s assessment was released without data to back up its claims. Shaffer added the Board is already actively working to safeguard against bias by having two parole commissioners at each hearing. 

“One of our biggest issues is consistency in decision making, so I think it’s really important to note that every hearing takes at least two people to vote, and they have to agree,” Shaffer said. “So the idea of different biases gets a little muted by that.” 

She also disagreed with the claim that there could be racial disparities in parole hearing outcomes, citing a report done by the California Commission on Revision of the Penal Code, which stated “parole grant rates across racial groups showed little disparities,” with 36% of white people granted parole from 2019-2020, 34% of Black people and 34% of Latinos. 

“When people make recommendations to change our discretion, and the law governing our hearings, I think what they’re really asking is for us to exercise discretion in a way that they subjectively think we should exercise it,” Shaffer said. She acknowledged that the Board is continuously looking at ways to improve its systems for granting parole to ensure bias doesn’t come into play in decision making.

The LAO’s report is recommending the state create additional standards that must be met for a commissioner to deny parole. It is also recommending greater transparency in reporting the race and ethnicity of parole grantees. Lastly, the report recommends programs be put in place to help all applicants find an attorney.

Correction: A previous version of this story misspelled the name of Keith Wattley. It has been corrected.