A Crime Like No Other
Elderly parole is intended to further reduce California's prison population by releasing older inmates no longer deemed to be a threat to public safety.
On the face of it, elderly parole seems reasonable. Many inmates do age out of their criminality and the idea that an elderly inmate using a wheelchair or a walker is a threat to public safety seems remote.
When the policy was first implemented in 2014, inmates had to be at least 60 years old having served 25 years consecutively to qualify. With a new law (Assembly Bill 3234) taking effect in 2021, it was reduced to 50 years old having served just 20 years. Consider that “elderly” Dwayne “The Rock” Johnson is 50 years old, Mark Wahlberg is 51, and Tom Cruise is 60.
Since then, the Board of Parole Hearings (BPH) have been busy as prisoner advocate attorneys have been advising their clients to seek release under the new, more favorable rules. From 1978 to 2013, it granted parole to a total of 4,844 inmates. From 2014 through 2021, that number jumped to 7,697 – with the biggest increase coming in 2021 when 1,424 were granted release.
Why so few in those early years? One answer is political and the other is criminal.
From 1982 to 2011, California had a succession of four governors who considered public safety a priority and parole was unlikely.
The other was a criminal strategy – in California, serving a determinate sentence for a violent crime means serving 80% of your sentence with automatic parole. Hardcore offenders decided it was better to serve 100% and avoid parole supervision when they were released. In addition, the Plata decision forced California to rapidly reduce its prison population.
In 2011, tens of thousands of so-called “triple-nons” – non-violent, non-serious, and non-sex-offender inmates – were released under Plata. So many were released that parole officers were overwhelmed. California's solution – create “non-revocable parole” or NRP, which is parole in name only. Free of any consequences beyond arrest for a new offense, parolees could do what they wanted. We have seen the results.
By law, sex offenders convicted of multiple counts serve their sentence consecutively, meaning they serve the full term for each count before serving the sentence for the next count. They are notorious recidivists and the long consecutive sentences are meant to prevent the possibility of parole. What the change in California law has done is circumvent an inmate's judicially-ordered sentence regardless of the seriousness. The only stop-gap is the appointed BPH Commissioners.
One example is Carl Ray Milton. Over a four-year period in the 1990s, Milton allegedly sexually abused a 5-year-old boy who he was fostering. He was ultimately convicted of 34 counts of forced sexual assault of a minor and sentenced to 204 years in prison. His conviction was also upheld on appeal. This summer, Milton became eligible for elderly early release where he denied any criminal wrongdoing. His parole was denied, but only for the minimum 3-year interval before he can reapply.
In the early 2000s, Hector Pete Sanchez allegedly raped five victims at knifepoint by posing as a customer, car buyer, and deliveryman. The victims ranged in age from 17 to 70. Convicted in 2002, he will become eligible for elderly release in 2023 despite a sentence of over 100 years.
In the five years from 2016 through 2020, 72,179 sexual assaults were reported in California; however, the number of victims is much higher. The National Crime Victimization Survey indicates an underreporting phenomenon amongst victims of sexual assault. As few as 10% of women will report being the victim of a sexual assault. For men, it's as low as 1%. Among their reasons are embarrassment, distrust, religion, and fear.
Because of the inclusion of sex offenders as elderly parolees in AB 3234, that fear has returned. Victims who trusted in the system did so, in part, because they were assured that under California's consecutive sentencing laws, convicted rapists like Milton and Sanchez would never be free again to victimize them, or anyone else. This is a promise that has now been broken.
Steve Smith is a former police officer and professor of criminal justice, and is currently a senior fellow in urban studies at the Pacific Research Institute.
