New rule targets parole psychologists

A powerful, little-known unit that conducts psychological evaluations of prison inmates sentenced to life has operated for years in a bureaucratic gray area, with few formal restrictions or guidelines from the state prison system.

Critics of the parole system have long contended the unit acts in an arbitrary fashion that serves as a barrier to inmates legally entitled to a parole.

Now, state prison officials are writing a formal regulation to govern the entity, known as the Forensics Assessment Division, or FAD, and place the unit into a statute. The shift to a formal status is something that inmate-rights advocates have urged, as have psychologists within the prison system.

The proposed changes would put FAD, which works for the Board of Parole Hearings, in charge of performing risk assessments on life-sentenced prisoners who are eligible for parole. The mandatory assessments have been around for more than 25 years but were previously performed by psychologists on staff at the various prisons.

But as written, the proposed rule also gives FAD the authority to oversee itself – which is raising questions among those who have pushed for the statute.

The controversy over the evaluations erupted in 2006, when the state’s parole board was inundated with lifers awaiting parole hearings. Martin Hoshino, the board’s executive director, identified the existing psychological risk assessment process as part of the problem.

“The Board of Parole Hearings (BPH) is continuing aggressive efforts to reduce the backlog of life parole consideration hearings. Part of these efforts includes a new procedure for standardizing…psychological evaluations used in life parole suitability hearings…” Hoshino said in a notice to prisoners’ attorneys.

The notice went on to designate the use of new assessment tools to FAD, a semi-official group of 35 psychologists specializing in life parole assessments exclusively for use by the BPH.  

“For many years the psychological evaluations used as part of the lifer suitability process were actually conducted by psychologists employed within individual prisons,” Dr. Cliff Kusaj, chief psychologist of the FAD, said.

“Over time a couple problems arose with that. One is that the psychologists doing the evaluations were actually supposed to be providing mental health services…and because you had so many psychologists working in different institutions you had a lot of variability in the process. It had no administrative structure in place,” said Kusaj.

So the parole board hired Kusaj and four senior psychologists to work under him. Then, those four senior psychologists hired thirty psychologists to work under them. And the FAD was born.

Although the FAD was created by the BPH, which is housed within the California Department of Corrections and Rehabilitation, both the parole board and FAD hired its psychologists independent of CDCR oversight.

The money to hire the psychologists was already in the BPH’s budget, said Kusaj.

Now, the FAD is arguably the most influential voice in deciding whether or not lifers eligible for parole actually receive parole.

The FAD’s risk assessment reports are mandatory in every life parole hearing and are used as crucial evidence presented to the BPH regarding whether a prisoner can be safely released back into society.   

But four years after its formation, the FAD still has yet to be put into statute. In order to do so, the BPH is proposing administrative changes that would make the FAD the sole executor of psychological assessments used by the BPH. The proposed code changes can be found here:
http://www.cdcr.ca.gov/BOPH/CCR_section_2240(h).html

But they would also give the FAD the authority to oversee itself under the circumstance that a particular report is called into question.

“If a hearing panel identifies a substantial error in a psychological report, as defined by an error which could affect the basis for the ultimate assessment of an inmate’s potential for future violence, the Board’s chief psychologist or designee will review the report to determine if, at his or her discretion, a new report should be completed,” said the BPH’s official proposal.  

The changes may also grant the BPH power to make future changes to administrative law by voting amongst itself, said Vanessa Nelson, spokeswoman for the Life Support Alliance.

“What many people don’t know is that the government code gives directors of their departments and their representatives (here meaning the BPH commissioners) leave to change the wording in administrative law, such as Title 15, by vote of the body,” Nelson said.

“What they are supposed to do prior to doing this is undertake public comments and considerations, then make their determination. That’s what the BPH failed to do (originally); they simply instituted this process and made it a requirement without following procedure,” said Nelson.

The BPH has opened up a public comment period, allowing people to submit written statements, and will take written public comments until Jan. 31, when it will then hold a public hearing where comments can also be made about the proposed changes.  

“We are already receiving copies of some opposition statements from others, including some excellent, on point and very cogent packets from prisoners… We’re going to be interested to see how the BPH responds,” said Nelson.