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Ninth Circuit Holds Prosecutors Immune for Parole Recommendations

The Ninth Circuit Court of Appeals has held that prosecutors are absolutely immune for making parole recom-mendations.

Liza Brown shot her husband to death and entered into an oral plea agreement. “During the plea colloquy, the prosecutor stated that, if Brown avoided disciplinary problems while in prison, she would be released on parole in ‘half of the 15 years’ that was her minimum sentence.” Despite that assurance, prosecutors attended Brown’s parole hearings and advocated for her continued imprisonment. As a result, she served beyond the promised half of her sentence.

In 2003, the Ninth Circuit granted Brown’s federal habeas corpus petition, holding that since she had served more than seven and one-half years without disciplinary problems she “was entitled to release pursuant to the prosecutor’s promise made during the plea colloquy,” citing Brown v. Poole, 337 F.3d 1155 (9th Cir. 2003).

After her release Brown sued in federal court, alleging that the prosecutors who participated in her parole hearings “intentionally interfered with a contractual relationship when they recommended during Brown’s parole hearings that she remain in prison.” She also sued various parole board members, prison officials and the agencies they worked for. The district court granted summary judgment to the defendants.

The Ninth Circuit noted it had “not specifically addressed ... a prosecutor’s immunity for parole recommendations,” but analyzed decisions of the Second, Fifth, Seventh and Eleventh Circuits that addressed the issue. Ultimately, the appellate court joined its “sister circuits in holding that prosecutors should be afforded absolute immunity for parole recommendations, because parole decisions are a continuation of the sentencing process.”

Citing Bermudez v. Duenas, 936 F.2d 1064 (9th Cir. 1991), the Ninth Circuit also found that “the district court properly granted summary judgment on Brown’s claim against the parole board members, as parole board members are entitled to absolute immunity for parole board decisions.”

Finally, the Court of Appeals held that Brown failed to raise a genuine issue of material fact regarding a prison war-den’s liability, and “the district court correctly held that the California Department of Corrections and the California Board of Prison Terms were entitled to Eleventh Amendment immunity.” The district court’s summary judgment order was there-fore affirmed. See: Brown v. California Dept. of Corrections, 554 F.3d 747 (9th Cir. 2009).

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Related legal case

Brown v. California Dept. of Corrections