Parolee Rights at a Parole Rescission Hearing

In 1998, Jeremy J. Foster was sentenced in Humboldt County Superior Court to an indeterminate term of 23 years to life in state prison.

The sentence arose from a 15-year-to-life sentence for forcible sexual penetration with a foreign object (Penal Code § 289(a)) and use of a deadly weapon, a knife, within the meaning of Penal Code § 667.61(b) and (e)(4) (the “One-Strike” law). He was then sentenced to a fully consecutive upper term of eight years on the second count for the same charge. The victims were two 14 year-old girls. At the time, Foster was 21 years old.

In 2019, the Board of Parole Hearings (the Board) found him suitable for parole and that he did not pose an unreasonable current risk of danger if released at that time. The Governor, however, had concerns about this, particularly in light of Mr. Foster’s continued substance abuse in prison and misconduct in prison. He then referred the decision under Penal Code § 3041.1 for en banc reconsideration to determine whether the grant of parole was improvident. The Board then ordered a rescission hearing to determine whether the grant of parole was proper.

As was his right under the regulations, Mr. Foster received a three-page form from the Board entitled “Notice of Hearing Rights – Parole Consideration Hearing / Recission Hearing.” Enumerated paragraph 5 of the notice bears the bold-faced heading “Witnesses,” and states: “You may not call witnesses at a parole consideration hearing,” followed by a citation. The paragraph continued, “At a rescission hearing you may call evidentiary witnesses and may request that witnesses (including adverse witnesses) be subpoenaed (15 C.F.R. § 2465).”

Mr. Foster’s signature appears on the form under a statement that he read and understood his rights, and the form is countersigned by a person identified as a “correctional counselor.”

Mr. Foster then asked the Board to subpoena for evidentiary witnesses to attend the hearing. Mr. Foster stated that all the witnesses “have information critical in my opportunity to present evidence,” and that each of them “has made clear and documented statements, either supportive or adverse to my previous grant of parole.”

A staff attorney for the Board responded to Mr. Foster’s request by denying it and explaining that “the Board does not subpoena witnesses for rescission hearings conducted as a result of referrals from the Governor under Penal Code § 3041.1. The focus of the rescission hearing will be evaluating the Governor’s concerns in light of the record available at the time of your February 12, 2019, grant of parole. The hearing panel will not be gathering new evidence during the hearing, such as from witness testimony or from asking you questions. . . . Evidentiary witnesses are not relevant for conducting the rescission hearing and making the necessary determination.”

The rescission hearing was held and Mr. Foster’s parole was rescinded.

Shortly thereafter, Mr. Foster filed a petition for a writ of habeas corpus in the First Appellate District Court, arguing that his due process rights were violated by the Board denying his request to subpoena witnesses for the rescission hearing.

The First Appellate District noted from the outset that the Board’s rationale for denying Mr. Foster’s request had been previously rejected in In re Johnson (1995) 35 Cal. App. 4th 160, 170-172.

The appellate court’s ruling then lays out the applicable law governing parole hearings under Penal Code § 3041 and California Code of Regulations, in title 15, section 2402.

Therefore, the appellate court found that the Board’s denial of Mr. Foster’s request to present witnesses violated the Board’s own procedural rules (Penal Code § 3041.5(a)(5) states that in a hearing for the purpose of rescinding parole, an inmate is afforded the rights set forth in California Code of Regulations, title 15 §§ 2675 – 2682) and that the denial of such procedural rights was not harmless beyond a reasonable doubt using the standard from Chapman v. California (1967) 386 U.S. 18.

The appellate court consequently vacated the Board’s decision to rescind its grant of parole and remanded the matter for the Board to conduct a new rescission hearing.

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