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California Supreme Court Restricts Remedies in Remands for New Parole Board Hearings

by John E. Dannenberg

In a unanimous ruling on July 29, 2010, the California Supreme Court resolved a narrow question regarding lifer parole litigation; namely, what is the proper scope of the remedy ordered by a California court which concludes that a decision by the Board of Parole Hearings (BPH) to deny parole was not supported by “some evidence”?

Rejecting restrictive remedies that had been ordered by two lower courts, the Supreme Court held the proper remedy should be to conduct a new hearing, consistent with due process of law and factual findings by the lower court, that does not limit the type of evidence the Board is statutorily required to consider.

Michael Prather had been sentenced to 27 years-to-life for a 1982 first-degree murder-robbery. At his 2007 parole hearing, Prather was denied parole. He petitioned the Los Angeles County Superior Court, which denied relief. However, his subsequent petition to the Second District Court of Appeal resulted in the appellate court granting the writ and ordering the BPH “to find Mr. Prather suitable for parole unless, within 30 days of the finality of this decision, the Board holds a hearing and determines that new and different evidence on Mr. Prather’s conduct in prison subsequent to his 2007 parole hearing supports a determination that he currently poses an unreasonable risk of danger to society if released on parole.”

Separately, in a case involving Miguel Molina’s successful petition challenging a BPH denial of parole related to his 1984 second-degree murder conviction, the Court of Appeal had admonished the Board that “any further delay [of execution of his 2002 grant of parole] is unwarranted,” and ordered the trial court to “in turn remand to the Board with instructions to release Molina on parole in accordance with conditions set by the Board.”

The California Supreme Court granted review in both cases and consolidated them. The Court reviewed its earlier landmark lifer parole rulings in In re Rosenkrantz, 59 P.3d 174 (Cal. 2002) [PLN, July 2003, p.30]; In re Dannenberg, 104 P.3d 783 (Cal. 2005) [PLN, March 2009, p.44]; In re Lawrence, 190 P.3d 535 (Cal. 2008) [PLN, April 2009, p.30]; and In re Shaputis, 190 P.3d 573 (Cal. 2008). The Supreme Court admitted that its guidance in Rosenkrantz, “to proceed in accordance with due process of law,” was “ambiguous.”

In resolving how to remedy this issue, the Court was guided by the separation-of-powers argument raised by the BPH relative to judicial branch orders that constrain statutorily-authorized executive branch decisions; i.e., courts telling the Board how to do its job.

In Prather’s case, the Supreme Court rejected the confining language that restricted the Board’s reconsideration solely to new evidence of Prather’s conduct in prison. In Molina’s case the Court rejected the directive to release him with no further evaluation by the BPH.

The Supreme Court reasoned that the Board, in doing its statutory job to evaluate current dangerousness, should be allowed to consider the entire record as it applies on remand. But the Court announced limitations. If the remanding court had made express findings of fact (e.g., the lifer’s psychological reports prepared for the BPH did not demonstrate “some evidence” of danger, or the lifer’s disciplinary history did not show “some evidence” of danger), on remand the Board can not reconsider such adjudicated factors.
However, if there was “new evidence” since the last parole hearing, on remand the Board could consider not only that evidence standing on its own but also how that new evidence might be probative when combined with prior evidence in the record, to reach a current assessment of a prisoner’s dangerousness.

At first blush this might appear to provide a loophole for the BPH to synthesize allegations of “new evidence” thinly disguised to be relevant to prior evidence, so as to endlessly litigate parole denials. However, Justice Carlos R. Moreno wrote a clarifying concurring opinion addressing that point. Citing the principle of res judicata, Justice Moreno cautioned against remands that serve only to relitigate points already decided. He also noted that In re Sturm, 11 Cal.3d 258 (Cal. 1974) long ago required the Board to provide a “definitive written statement of reasons for denying parole” so as to ensure an adequate basis for judicial review.

“The Board cannot, after having its parole denial decision reversed, continue to deny parole based on matters that could have been but were not raised in the original hearing. Such piecemeal litigation would undermine the prisoner’s right to a fair hearing and the ability of the courts to judicially review and grant effective remedies for the wrongful denial of parole,” Justice Moreno wrote.

“In short, the Board, like other litigants ..., is not entitled to the proverbial second bite at the apple. At the parole hearing, it must state definitively its reasons for denying parole, i.e., all the arguments and evidence why the prisoner is currently dangerous. If the denial is challenged, the Board must defend its action on those reasons. If the challenge is overturned, it may not again deny parole based on the same reasons, or based on arguments and evidence that could have been, but were not, raised at these other proceedings.”

Justice Moreno added that an order expediting a remedy would not be improper. Further, if a court is faced with slapping the Board’s hands on a subsequent challenge to the remanded hearing, “then a more drastic intervention, such as an outright order that the Board grant parole, may well be warranted.”

While this new decision clarifies the specifics of judicial remedies in BPH parole denial remands for California lifers, it likely will have little effect on the ultimate success of such litigation. See: In re Michael Prather and Miguel Molina, 50 Cal.4th 238, 234 P.3d 541 (Cal. 2010).

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Related legal case

In re Michael Prather and Miguel Molina