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California's No Parole Board

With no change in the statutory standards for lifer parole hearings, the CA Board of Prison Terms (BPT) has reduced its rate of parole grants from 50% in 1978 to 0.2% in 1998. In April, 1999, newly elected Governor Davis (who has the constitutional power to recommend BPT en banc review of any lifer parole hearing decision, and to personally overrule any murder-lifer parole decision) told the Los Angeles Times that he would not release any murderer, not even of the 2nd degree with extenuating circumstances, under his newly announced personal credo that if you take a life, you do "life". In so doing, he and his hand picked (no)parole board have dissolved the distinction between all degrees of murder, and have unilaterally retrospectively resentenced all such prisoners to life without the possibility of parole (LWOP). Of California's 166,000 state prisoners, the BPT has discretionary parole authority over the approximately 20,000 indeterminately sentenced "lifers". (All other California prisoners have determinate terms and are automatically released thereafter onto three years of parole, unless they are instead civilly committed as "sexual predators" or "mentally disordered offenders").

It is no secret that the shut-down in paroles is not due to any change in the law or regulations governing paroles, but solely to political posturing by candidates for public office and by the special interest groups that support them, including the largest election campaign funds donor in California, the prison guards' union. The knee-jerk reaction to some highly publicized murders has spawned not only the 7 fold increase in prison population in the 1978-1998 period, but has fomented the expanded application of life top sentences and new laws such as "3 strikes" - which allow the politicos to lock up for 25 years to life such menaces to society as pizza thieves and ex-offenders failing to timely reregister their new domicile.

The governing statutes, CA Penal Code §3041 et seq., have for those same 20 years required the Board to "normally" fix terms at a lifer's first hearing. In 1978, the Board did so: The parole grant rate was about 50%. Even then, recently commuted death row prisoners were paroled. After Republican Governor Deukmejian took office, the rate dropped sharply to about 5% by 1985. Later, Republican Governor Wilson put his imprimatur on the Board by guiding them to a precipitous drop in parole grants from 5% in 1990 to 0.2% in 1998. But the hidden story is worse. That same Wilson Board between 1992 and 1995 rescinded 85 grants of parole while granting only 46. (BPT Lifer Hearing and Decision Information, Oct. 1, 1998.) In other words, the Board was playing a shell game with their "parole" statistics. While they purported to be "granting" parole dates, they were in fact setting long dates and rescinding them quietly in subsequent years, almost always under the guise that the earlier panel had "improvidently granted" parole. The actual lifer release statistics are more sobering: fewer than 10 prisoners for each of the years in the early 90's. One second degree murderer, Billy Jo McIlvain, an ex-cop, was ordered released by the Governor at the minimum term, over the objections of the BPT and the prosecuting district attorney. All other governor's decisions have been to overrule the few BPT grants of parole. But even these sparse releases are no longer available under Gov. Davis.

Numerous sub-groups of affected lifers have cried foul. The oldest group (numbering 700+), sentenced to 7 to life for first degree murders before November 8, 1978, has now served well over 20 years. Their lucky counterparts who paroled in earlier years served from 10-13 years, in accordance with the Board's published "matrix". When these "old law" lifers were sentenced, the statutory purpose of incarceration was "rehabilitation". That purpose was subsequently amended to "punishment". (CA Penal Code §1170(a)(1).) Although these lifers have been both rehabilitated and punished by now, they are still being denied parole. The Board today ignores the fact that they have exceeded their own (unchanged) "matrix" terms for these crimes and routinely finds them unsuitable. The "reasons" for unsuitability range from "the gravity of the offense," to "get therapy," to "upgrade vocationally and educationally," to failure to confess to degrees of offense or ancillary acts they were not convicted of - in blatant violation of CA Penal Code §5011(b), which expressly exhorts, "The Board ... when setting parole dates, shall not require an admission of guilt to any crime for which the inmate was not committed."

The next most numerous group of eligible lifers is the post-1978 second degree murderers (numbering over 5000), sentenced under the "new" 15 to life law. While some of these were paroled in the early 90's (fewer than 10/yr. According to California Prisoners and Parolees, CDC, 1992-1996), they too are now being stonewalled by the above-mentioned rescissions, boilerplate unsuitability findings and/or Gov. Davis' stranglehold on releases.

Finally, there is the identifiable group of those sentenced to 7 life for kidnap/robbery. Even when their crime resulted in no one being physically hurt, the Board is simply passing them over.

What has caused this shutdown of lifer paroles in California? Certainly not any change in the parole laws, CA Penal Code §3041 et seq.'s standards remain the same. The most telling clues come from insiders.

For example, ex-Attorney General Dan Lungren, in his final TV debate on Oct. 15, 1998 while running for Governor, reminded the electorate that the candidate they pick for governor, in turn, has the power to pick key state officials. He gave as his example the Board of Prison Terms appointees, and bragged that the previous two Republican governors had culled the nominees for biased, loyal henchmen: "The current board ... releases on average 0.5%. One half of one percent. In other words, the difference in appointments is the difference between sixty times as many people going out there in the first year." So the "fair and impartial" hearings supposedly given all lifers have been admitted by the top law enforcement official in California to have been prejudicially predetermined by "rigging the jury."

An ex-Commissioner of the BPT, Mr. Albert Leddy, testified on April 29, 1999 at an Informational Hearing on Board abuses before the CA Joint Legislative Committee on Prison Construction and Operations that "it finally got down to where the then-chairman Gillis told two of the commissioners, `Stop giving these dates. You're giving too many dates.'" So, it was a gradual build-up of pressure to deny.

Even ex-California Supreme Court Justice Cruz Reynoso, after representing a lifer at a hearing, testified to the same Committee that "the derisive attitude of the panelists who were there, a predetermination, it seems to me, of the case before they heard anything from the prisoner or from counsel. They clearly in my view, did not listen to what the prisoner was saying or what the counsel was saying."

What is being done to challenge this travesty of justice? The CA Legislature is trying to pass SB-128, a bill that would require the Board to do its job. In the face of a presumed veto by Gov. Davis, the Legislature is posturing for sufficient support to override the veto. Gov. Davis, on the other hand, is crippling the parole process on both ends. On the one hand, he has overridden or remanded for board review every date granted during his regime (13, according to a San Jose Mercury News editorial). On the other hand, he has left unfilled 4 of the 9 commissioner positions, cutting the Board's annual schedule of about 2100 hearings in half. Two commissioners he has appointed are male ex-law enforcement officers, versus the cross-section of the community requirement of CA Penal Code §5075. Reacting to this obvious flaunting of state law, State Senator John Vasconcellos, Chairman of the Senate Public Safety Committee, vowed "I won't vote to approve another man on this Board until half of them are women. You can tell the Governor or tell the world."

This leaves the courts seemingly as the only available avenue for recourse. But, stacked with 16 years of Republican governors' appointees, the courts have been loathe to get involved. Recently, there has been some whittling away at the malevolent obfuscation of the Board that prevented prisoners from getting to court to challenge their parole denials. The Board had the nasty habit of withholding the needed record of the hearings, the transcripts, for up to a year. Recent pro-per litigated court actions have required the Board to produce the transcripts within 30 days. See, e.g., In Re Pratt, (1999) Marin County No. SC105058A. Another ruse was to simply not answer the administrative appeals of lifer parole decisions, leaving the prisoners unable to exhaust the requisite remedies to be able to go to court. The Marin County, CA Superior Court, responding to a pro-per writ complaining of no administrative appeal answer after four years, crafted a 120 day time limit for such answers when the BPT did not commit to any limit on its own. In re O'Connell (1999), Marin No. SC 103339A.

Gov. Davis' obstructionist policies are now being challenged in court as well, where prisoners are complaining that the delays in their (now long overdue) hearings violate the maximum denial periods specified in CA Penal Code §3041.5(b)(2), and thus amount to a denial of due process of law. That is, since the law (PC §3041 et seq.) presumes suitability, but one cannot gain the minimal process due of a hearing, one should be statutorily released if he has served his "matrix" term. Although the BPT has argued back to the courts that the law does not presume suitability, BPT Chairman Nielsen admitted that it does, upon questioning by Senator Vasconcellos in the April 29, 1999 hearing.

The daunting task of challenging the BPT in court falls largely to the unrepresented prisoners. State appointed hearing attorneys can ill afford to litigate appeals for their clients, when the BPT pays them only $23.75 per hour, for a maximum of six hours, for each prisoner. With BPT commissioners comfortably compensated at over $92,000/yr. plus benefits and per diem (not counting their retirement benefits from earlier government service), the Governor, backed by $2 million in campaign fund donations from the guards' union plus the proceeds of a recent $3000/head fundraising golf tourney hosted in his honor by the union (whose membership, in turn, recently benefited from $240 million in annual compensation package improvements), and selected legislative candidates sharing in another $1.9 million of the union's donations, the playing field is hardly what one would call level.

The end game of the CA lifers' retrospective executive branch resentencing to LWOP is far from clear. The Democrat controlled CA Legislature is stymied by the vetoes of a campaign fund driven rogue "Democrat" Governor; the state courts are stacked with largely conservative appointees from the previous 16 years of Republican governors; and Gov. Davis is reportedly appointing only affirmatively pro death penalty jurists today.

The statutory standards for lifer parole releases have not changed in the past twenty years - only the politics have. Until candidates for public office find a richer source of political capital than the aging lifer population, they will continue to feed off of the lifers' state law created parole rights via their loyal hand picked (no)parole board in shameful disregard for the very laws these candidates seek public office to allegedly uphold.

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