CALIFORNIA FIFTH DISTRICT COURT OF APPEAL REMAND PAROLE DENIAL FOR RECONSIDERATION

The California Fifth Circuit Court of Appeal in, In re McGraw ordered a new parole hearing for David H. McGraw who is serving a seventeen year to life sentence for the 1980 murder of his twenty-two year old stepson after they both were drinking at a bar.

Last year in In re Lawrence and In re Shaputis the California Supreme Court held the primary factor that the Parole Board and the governor must consider is the “continuing risk to public safety”

In California, in a case where a defendant is sentenced to an indeterminate sentence, the Board of Parole Hearings holds a hearing and if it decides that the inmate in ready for parole it recommends his/her release. The governor then reviews the decision and make a determination whether or not the inmate will be released.

However, very few individuals get released. Former Governor Gray Davis ordered the release of only three individuals. Governor Schwarzenegger has released approximately 200 people. But this is still a very small percentage of those eligible . Of the thousands of hearings held each year, the Parole Board generally recommends the release in three to seven percent of the cases and the governor only orders the release of about one per cent of the individuals that the Parole Board recommends for release

All too often, the Parole Board or the Governor simply states that the original crime committed by the inmate was heinous and use that as an excuse to deny parole. Of course a murder is heinous but the law calls for parole at some point. Using the claim that a murder was heinous merely requires the vast majority of inmates sentenced to indeterminate sentences to be spend life in prison without parole.

In 2007 David McGraw was found unsuitable for parole by the Board of Prison Hearings. The focus of the Board’s decision was the nature of the crime and not any future claims of danger to the public safety. In McGraw,/em> the Court of Appeal, following up on the Supreme Court decisions, ordered the Board to reconsider the release of McGraw based upon the “core statutory determination” of “whether the inmate poses a current threat to public safety.” The Court held that issues such as the nature of the crime can only be considered in light of its effect on the current danger to public safety if McGraw is released.