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California Lifer Hearing Backlog Increases Despite Court Order To Catch Up

The Marin County Superior Court, which had directed the California Board of Parole Hearings (Board) to take the necessary steps to cut its lifer hearing backlog in 2001 when it was 2,058 hearings behind (and would take 21 months to abate), was distressed to learn in February 2006 that the backlog had increased 55 % to 3,200 overdue hearings. The Honorable Verna Adams further ordered the Board not to ?remedy? lifer hearing untimeliness by arbitrarily issuing multi-year parole denials.

Judge Adams accepted the untimely-hearing plight of California?s lifers as a state-wide habeas corpus class action in In Re Rutherford.
Originally, in 2001, this writer had assisted Jerry Rutherford in his habeas petition protesting that his overdue hearing was long past the statutory limit of two years. After giving him a belated hearing (parole denied), the Board was again way late for his subsequent hearing. Upon Rutherford?s renewed complaint, Judge Adams re-opened the case and appointed the Prison Law Office (PLO) as class counsel.

On February 15, 2006, the court defined the class as ?all prisoners serving indeterminate terms of life with the possibility of parole, and who have approached or exceeded their MEPDs [minimum eligible parole date] without receiving their parole hearings within the time required by Penal Code §§ 3041 and 3041.5.? Reviewing the evidence, ?the court found] inescapable the conclusion that Respondents are failing to furnish timely parole eligibility hearings ... and that the backlog is increasing at an alarming rate.? Retaining jurisdiction, the court ordered the parties to enter into a stipulation to resolve the problem, and awarded the PLO attorney fees.

On March 23, 2006, the court approved stipulated procedures outlined in a Remedial Plan which included 90-day reports on reduction of the hearing backlog. This process would continue until the backlog was less than five percent and remained so continuously for twelve months -- to be achieved within 18 months.

On May 5, 2006, not satisfied with progress and disturbed by new reports of a rash of multi-year denials, the court ordered, inter alia, that ?[respondents] may not deny further parole consideration for more than one year in the case of prisoners who have formerly been denied for one year, in the absence of a significant change in circumstances, which must be stated on the record.? The court also ordered the Board to stop coercing lifers into off-the-record ?deals? to forgo hearings (i.e., waive their rights) to gain the ?benefit? of a shorter denial, rather than assuredly be given a longer denial if they entered the hearing room. Judge Adams bluntly called this Board practice ?illegal and certainly immoral.?

While the Board agreed to the long-term reduction of its hearing backlog, it rejected and appealed the order to not give out multi-year denials following either a previous grant of parole or a one-year denial, absent new cause. Lifers have lately reported suffering two-year denials following prior grants of parole, and even longer denials following one-year denials -- all absent new cause. Showing judicial restraint, Judge Adams termed this practice ?baffling.? The court cited a 1994 statute that required the Board to promulgate regulations setting forth criteria for such multi-year denials, lamenting, ?They haven?t done that and 12 years have elapsed.? An appellate ruling favoring the class would seriously crunch the ?breathing room? the Board has created by this illicit practice.

Class counsel Keith Wattley of the PLO asked the court in August 2006 to put a stop to the Board?s plan to hire 17 forensic psychologists to conduct lifer psychological exams beginning October 1, 2006. When Wattley pointed out that this personnel switch would necessarily cause hearing postponements due to delays in preparing psychological reports, the court put a stop to it. Additionally, the court is considering a request to order a survey to find out how many prisoners have been impacted by the unlawful ?take-a-deal? hearing postponement tactic. In August 2006, Wattley announced that he will be leaving the PLO to go into private practice, but that the PLO will continue to represent the class.

On a sad note, our brother Jerry Rutherford passed away recently from Hepatitis-C. The class action has been recaptioned In re Lugo, but retains the same case number. See: In re Lugo, Marin Superior Court No. SC135399A.

Other source: Sacramento Bee.

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Related legal case

In re Lugo