CHANGES IN CALIFORNIA PAROLE

Recently California Courts have taken some steps towards correcting a situation in which parolees with indeterminate sentences were rarely if ever released from prison. Prior to the California Supreme Court’s August 2008 decision in In re Lawrence the Board of Parole Hearings and the governors had a free hand in dealing with parolees. Rarely did the courts set standards governing the release of parolees. As a result the chances of a prisoner with an indeterminate sentences getting parole was practically nil.

In 1977 California adopted a sentencing scheme in which most prisoners were sentenced to determinate terms. Most prisoners upon sentencing knew when they would be released. But some prisoners, usually those with more severe sentences would receive an in determinate sentence where they might be sentenced, for example, to fifteen or twenty-five years to life.

The Board of Parole Hearings could deny parole by merely saying that the original crime, often occurring 20 years before the parole hearing, was heinous. The governor would then agree that it was heinous and the courts would not touch the decision. This would be repeated at annual parole hearing and the defendant would die in prison. In 2006, for example, according to an article in the Yale law and Policy Review the Board of Prison Hearings rejected 99.5 per cent of the applicants for parole. During the four years that former Governor Gray Davis was governor only five inmates sentenced to indeterminate sentences were paroled. It has improved somewhat under the current governor, Arnold Schwarzenegger. Forty paroles were granted in his first five years. But the number is still minuscule, with approximately 34,000 inmates sentenced to indeterminate terms in California.

In In re Lawrence the California Supreme Court held that the primary factor in deciding whether to release an eligible lifer on parole is the danger that the inmate presents to society. It is no longer possible to say that an inmate committed a heinous crime twenty years ago and throw away the key. The courts are beginning to recognize that the norm must be that the Board of Parole Hearings should set dates for the release of parolees unless their is a reason to believe that they will be a danger to society upon release. The sole reason for denying parole cannot be the egregious nature of the committing offense. Each factor used in denying parole must be considered in light of its effect upon the dangerousness to the public of the inmate if he/she is released.

Within the past week writs of habeas corpus citing Lawence have been decided in the Court of Appeal. In In re Palermo the Third Appellate District granted the inmate’s writ of habeas corpus and ordered a new hearing for him. Palermo had been convicted of the 1987 murder of his ex girlfriend. He shot her with what he thought was an unloaded gun through an open bathroom door. He was sentenced to fifteen years to life. At his third parole hearing in 2006 the Board of Prison hearings denied his parole. The hearing officers gave three reasons: 1) the nature of the committing offense, 2) his disciplinary history, and 3) a lack of insight. The San Joaquin superior Court denied his writ of habeas corpus but the Court of Appeal granted the writ. It found that the Board wrongly considered the committing offense to be the major reason to deny parole. As to his disciplinary history, he had only three disciplinary actions in nearly 20 years of incarceration and they were for non-violent acts. As to the degree of insight it is true that he feels that he committed manslaughter and not second degree murder but the facts are arguable and he has consistently showed signs of remorse.

On the other hand the First District Court of Appeal denied a writ of habeas corpus in In re Gregory Dwayne Reed. The Court denied the writ of habeas corpus finding the inmate to be a danger to society. Reed was sentenced to twenty=-six years to life for the 1984 felony-murder of a john during a robbery. Reed and his brother observed a prostitute flag down a john. While the couple were having sex in the john’s car, Reed’s brother opened up the door, pointed a gun at the victim and ordered him to give him money. When the victim claimed he did not have any money the prostitute offered Reed the twenty dollars she had received from the victim. He was unable to grab it and his brother shot the victim in the heart, killing him. While in prison he received 11 form CDC 115 disciplinary reports, the most recent in 1995. Form 115 reports are for events that are believed to be violation of law or in any case are not minor. He also received 19 form CDC 128-A reports for minor misconduct. At his first parole hearing in 2001 the Board found him unsuitable for parole and gave him a three year denial. At the second hearing in 2005 the Board gave him a one year denial and he was told by one of the hearing officers to “remain disciplinary free, not even a 128.” But in April 2005 he received a 128-A for leaving work early. At his June 2006 hearing he admitted he should have gotten approval from his supervisor before leaving work early.He was again found unsuitable and the current writ followed. The Court noted that he was no longer that he had a favorable psychological review and that he had completed a number of classes while incarcerated. But the appellate court found that Reed’s inability to remain discipline free, after he had been warned, reflected poorly on his ability to comply with the terms of parole and the law if he was released and therefore it denied his writ.

While there has been a change in the way the courts look at parole hearings in the past six months, it is unclear what the future holds. What is clear is that important decisions affecting the future of parole are being made in the Court of Appeals and that these decisions will affect the release of many people in the future as well as the crowded conditions in the prisons.