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California Supreme Court Ignores Statutory Language to Reduce Lifers' "Expectation" of Parole to Only a "Hope"

In a 4-3 decision, the California Supreme Court interpreted California's lifer parole statute (Penal Code § 3041) so as to ignore the Legislature's mandate to "normally set a parole release date" at the initial parole hearing. Instead, reversing its three-year-old stance in In re Rosenkrantz, 29 Cal.4th 616 (2002), which held that California lifers had a statutory "expectation" of parole, the court held that the "shall normally" formulation of § 3041(a) and the "shall unless [gravity of the offense consideration]" formulation of § 3041(b) gave rise at most to only a "hope" of parole.

The court thereby disapproved In re Ramirez, 94 Cal.App.4th 549 (2001), which had followed Rosenkrantz for the proposition that the "exception [§ 3041(b)] shall not operate so as to swallow the rule [§ 3041(a)]." Under the new interpretation, the "gravity of the offense" exception of § 3041(b) is now "the rule," and § 3041(a)'s command to "normally set a parole release date" has no meaning at all. The court went on to permit the Board of Prison Terms (BPT) unfettered discretion to deny parole without consideration of the degree or type of the conviction (e.g., murder or "three-strikes") or the comparative culpability to other like crimes. If one was convicted, he may be perennially denied parole on that basis alone. An acrid dissent confessed the political reality that the majority's opinion was grounded in its concern that a favorable ruling might allow the release of too many lifers.

Contributing PLN writer John Dannenberg was convicted in 1986 of 2nd degree murder in the death of his wife at their home. While Dannenberg was making minor plumbing repairs in a bathroom, his wife went into a rage, picked up a screwdriver and tried to stab him. After unsuccessfully trying to stop her, Dannenberg picked up an 8-inch wrench and struck her several times on the head, causing two bleeding scalp lacerations. There was no skull fracture or concussion. After they fell to the floor, she kicked him back against the door, knocking him out. When she struggled to get up, she drowned in 7" of water in the adjacent bathtub that Dannenberg had earlier drawn to bathe their bed-wet son. Her body was straddled on the edge of the tub; only her face was in the water.
Dannenberg, thinking he had seriously injured her when he regained consciousness and saw her and the blood on the floor, called 911, but emergency personnel did not suspect drowning and did not try to resuscitate her. There was no evidence of a forced drowning; Dannenberg claimed it was unforeseen.

After the trial, the jury told Dannenberg's lawyer that they "never figured out what happened." The prosecuting attorney told the court in a later bail hearing, "I don't know what happened, and we will probably never know what happened." The California Attorney General wrote to the California Court of Appeal on direct appeal that "Dannenberg's culpability lay in the fact that he set into motion the chain of events that led to the death," although "the death by drowning was unexpected."
The BPT denied Dannenberg parole in 1994, 1997 and 1999, citing the "need for therapy" and "the gravity of the offense." Dannenberg filed a habeas corpus petition in the Marin County Superior Court asserting that § 3041 entitled him to have his parole term fixed, absent an evidence-based showing of current factors demonstrating unsuitability. After an evidentiary hearing wherein the court determined that there was "no evidence" to support the BPT's reasons for denial ["needs therapy" and "gravity of the offense"], the court granted the writ, ordering the BPT to conduct a new hearing and fix a term. The BPT appealed and Dannenberg again prevailed. (In re Dannenberg, 125 Cal.Rptr. 2nd 458 (2002)) The California Supreme Court granted the BPT's petition for review to interpret the perceived tension between § 3041(a)'s requirement for "normally" fixing terms proportionate to culpability and § 3041(b)'s exception for especially grave offenses.

In 1977, when California adopted the Determinate Sentencing Law (DSL), it enacted the current § 3041 to reign in the unlimited discretion of the BPT. In its initial post-DSL regulations, the BPT followed the "shall normally" language and, in fact, fixed terms about 50% of the time. But by 1979, after two amendments to its regulations, the BPT eliminated the "shall normally" reference and instead replaced the presumption for parole with a requirement to find "suitability," which was couched in language placing the burden on the prisoner to show that he was not an "unreasonable risk of danger to society" if released. As a result, parole grant rates plummeted to 5%. When Governor Gray Davis (who received $3 million in contributions from CCPOA, the prison guards union) took over, he further reduced the rate to a fraction of 1%. Former Attorney General Dan Lungren, when running for Governor, boasted in a 1998 televised debate that the BPT Commissioners were selected by the Governor so as to engender a 60-fold reduction in the rate of parole grants, not on the merits of the prisoners' records but solely upon the skewed discretion of the BPT Commissioners. In sum, politics replaced the Legislature's intent to "normally" fix terms for life prisoners at their initial parole hearing.

Dannenberg, who had no prior run-in with the law and whose prison record the Attorney General told the California Supreme Court was "exemplary" and "admirable," had won superior court and appellate court rulings that the BPT's practice was inconsistent with § 3041's mandate. However, the Supreme Court determined that the Legislature's command in § 3041(a) to "normally" fix terms was trumped by § 3041's exception for purposes of "public safety." This left the conundrum that a crime could be sufficiently ordinary so as to require term-fixing per the punishment parameters fixed by the BPT's own regulatory "matrix" [i.e., "uniform" terms per § 3041(a)], while at the same time being so "grave" that no term could be fixed at all [§ 3041(b)]. Indeed, the Supreme Court ruled that § 3041(b) subsumed § 3041(a) and, in a veiled attempt at statutory construction, rendered statutory destruction by essentially throwing § 3041(a) out of the Penal Code.

Adding insult to injury, the Supreme Court held that the failure of the state Legislature to amend § 3041 in response to the complained-of abuses for two decades amounted to "legislative acquiescence," notwithstanding that that is a long-disfavored judicial theory.

In a bitter dissent authored by (former U.S. District Judge) Justice Carlos Moreno, it was noted that the majority's ruling violated basic due process protections and, because it "did not articulate a workable standard of judicial review," required California courts to "rubber stamp" any abuse of discretion by the BPT. The majority had countered that a lifer could claim some entitlement to a parole date if he could show that his offense "barely exceeded the minimum elements [of the offense]," but Justice Moreno retorted that this was "meaningless language" because there are no such "minimum elements" defined in statutes or case law. Rather, Justice Moreno found the BPT's denial "reasons," parroted from language taken routinely from their standard parole denial Form 1000(a), to be "boilerplate ... to justify the denial of a parole release date." Perhaps most telling was Justice Moreno's confession of the internal discord within the Court: "It is perhaps possible that the majority endorses the Board's way of conducting parole release because it seeks to avoid the undesirable result of the mass release of convicted murderers." In other words, the decision was political - a feat of judicial activism that in one stroke both disapproved Ramirez and inverted the Court's own earlier ruling in Rosenkrantz that California lifers had an "expectation" of parole grounded in Penal Code § 3041.

The Supreme Court reversed the Court of Appeal below. Dannenberg petitioned for rehearing on grounds that the new interpretation of § 3041 was an "unforeseen judicial expansion" of § 3041, retrospectively applied, in violation of principles set forth in Bouie v. City of Columbia, 378 U.S. 374 (1964), but was denied by the same 4-3 vote.

Federal pleadings on this case (in 42 U.S.C. § 1983 civil rights and in 28 U.S.C. § 2254 habeas corpus) will be based upon injunctive protection against prospective use of the "unforeseen judicial expansion" and upon the denial of due process because of the now-sanctioned arbitrary determination of lifer paroles in California. For example, if every parole is denied because of the "gravity of the offense" (an unchanging factor), parole can never be granted later unless the BPT admits it erred earlier (i.e., the offense wasn't so grave). Decisions are arbitrary as well because the lodestone for suitability is the non-existent "minimum elements of the offense." Additionally, the California Supreme Court permitted the BPT to base its administrative "weighing" process on the standard of "some evidence ... of an inference," a transmogrification of the standard set by Superintendent v. Hill, 472 U.S. 445 (1985) for judicial review of prison disciplinary hearings.

See: In re Dannenberg, 34 Cal.4th 1061, 104 P.3d 783 (Cal., 2005), cert. denied, 126 S.Ct. 92 (2005).

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Related legal case

In re Dannenberg