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Ninth Circuit: California Governor’s Reversal Of Lifer’s Parole Violates Due Process Absent Some Evidence Of Current Dangerousness
by John E. Dannenberg
In a major victory for California lifers, the Ninth Circuit U.S. Court of Appeals held that a second-degree murderer who had done 27 years on a 15-life sentence was denied federal due process when the Governor reversed the Board Of Prison Terms’ (Board) grant of parole. The court found that the prisoner’s 30-year-old commitment offense and his prior criminal record were now too attenuated to be valid predictors of current dangerousness his parole. The ruling was properly grounded in AEDPA standards and U.S. Supreme Court precedent.
Ronald Hayward, now 64, was convicted of the 1978 murder of a man who slapped and attempted to rape his girlfriend (now his wife). Hayward stabbed his victim twelve times.
Formerly a member of the Vagos motorcycle gang, and with a long juvenile record, Hayward turned himself around in prison. He earned his GED in 1981 and later completed numerous valuable vocational training courses. For 20 years, he led prison tours for university students studying criminal law. His last major disciplinary violation was in 1987 and his last minor one was in 1997. Although he had initially denied responsibility for the crime, he came clean in his 1993 parole hearing. He had a pre- prison history of substance abuse which carried over into prison, but he quit marijuana smoking in 1985 and had had no alcohol since a DUI in 1974. His Board psychological reports were supportive of parole, finding him a low-to-moderate risk of danger. Hayward was granted parole in 2002 and again in 2003 — both times reversed by then-Governor Gray Davis.
Davis’ reasons for reversal were that the crime was premeditated, very grave and taken against a defenseless drunk victim; that Hayward had refused to take responsibility for the murder; that he had a lifelong history of criminality and violence; that he had an unstable social history, including an extensive history of substance abuse; that he had been involved in gangs, both in and out of prison; and that prison psychologists “remained convinced that he poses a danger to society.” The Governor thus disagreed with the Board, as permitted under state law. But Hayward’s petition alleged that Davis did so absent any evidence that Hayward currently presented an unreasonable risk of danger to society, the regulatory standard under 15 California Code of Regulations 2401(a).
The ultimate question of law was whether a “life” prisoner could ever escape the record of his past danger -- as chronicled in his conviction -- by demonstrating through evidence that he was no longer a danger. This question has been answered lately both in state and federal venues. Recent California appellate court decisions have held that “the crime” cannot be the sole evidence for the governor to hold a lifer forever, unless, relying exclusively upon the record that was before the Board, he can demonstrate a nexus between the (typically decades-old) crime and the prisoner’s current propensity to be an “unreasonable risk of danger to society” if released. (See, e.g., In re Dannenberg, 156 Cal.App.4th 1387 (2007); In re Lee, 143 Cal.App.4th 1400 (2006); In re Scott, 133 Cal.App.4th 573; In re Elkins, 144 Cal.App.4th 475 (2006)). These state courts have held that the lack of such a nexus violates due process.
But federal courts are only able to rule on federal law or U.S. Constitutional questions, and under the AEDPA, are restricted to prior U.S. Supreme Court precedent. The Ninth Circuit has previously held, for a lifer yet seeking a parole suitability finding, that “the evidence of [his] prior offenses and the gravity of his convicted offenses constitute some evidence to support the Board’s decision.” (Sass v. Board of Prison Terms, 461 F.3d 1123, 1129 ( 9th Cir. 2006)). Sass was thus denied habeas relief. Nonetheless, that same court recognized that “continued reliance in the future on an unchanging factor, the circumstances of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation.” Ibid. The Ninth Circuit had previously applied Sass to deny habeas relief to a California second-degree murderer because at the time of his parole denial, he had not yet accumulated his minimum 15 years actual prison time (that is, the court disregarded his statutory good time credits). Irons v. Carey, No. 05-15275, (9th Cir. July 13, 2007) 2007 WL 2027359. The Ninth Circuit left open the adjudication of a petition for someone who had done in excess of his minimum “flat” time and whose recent record demonstrated the absence of current danger if released.
Carefully reviewing the record in Hayward’s case, the court found that the Governor’s assertions besmirching Hayward’s record were in large part wholly unsupported by any evidence in the record. For example, where the Governor had alleged that Hayward had admitted responsibility for 75-120 serious crimes for which he was never arrested, the court found the record totally silent on this “lifetime of criminality” accusation.
The court then focused on the three non-frivolous “reasons” used by the Governor: Hayward’s criminal history, his unstable social history and the nature of the murder.
The court dispensed with the criminal history concern, noting Hayward’s juvenile record was fifty years prior. His other arrests were at least 30 years old. As to Hayward’s gang history (“unstable social history”), he quit the Vagos gang in 1981 and his last prison gang activity was in 1989. Hayward maintained contact with his family throughout his incarceration and had good support upon release. Finally, dealing with the “gravity” of the offense, the court found that “Hayward’s rehabilitation by education and conduct while imprisoned [and the 25-year age of his offense] cannot demonstrate that Hayward’s release will pose an imminent danger to public safety.” The court found that continued reliance on the unchanging circumstances [i.e., the crime] after two decades of equable behavior “violates due process because petitioner’s commitment offense has become such an unreliable predictor of his present and future dangerousness that it does not satisfy the ‘some evidence’ standard.”
Next, the court tossed the “evidence” of the district attorney’s objection to parole on the grounds that “the district attorney’s opinion, without more, cannot be considered ‘some evidence’ under Hill [Superintendent v. Hill, 472 U.S. 445 (1985)] that supports the Governor’s reversal of parole” (citing Rosenkrantz v. Marshall, 444 F.Supp.2d 1063, 1080, fn.14 (C.D. Cal. 2006). This left only the California Superior Court’s initial rejection of Hayward’s state petition. The Ninth Circuit found the Superior Court’s analysis to be “an unreasonable interpretation of those [psychological and counselor] reports” and that this violated Hill.
Accordingly, the Ninth Circuit reversed the district court’s denial order below and remanded with instructions to grant the writ. It is anticipated that the state will appeal this ruling through the U.S. Supreme Court. See: Hayward v. Marshall, 512 F.3d 536, (9th Cir. 2008).
Importantly for all parole-eligible lifers, because the Ninth Circuit articulated that the Board and Governor are bound by and operate under an identical set of rules, its Hayward opinion as to Governor reversals should apply with equal force to protracted Board denials of parole.
In a major victory for California lifers, the Ninth Circuit U.S. Court of Appeals held that a second-degree murderer who had done 27 years on a 15-life sentence was denied federal due process when the Governor reversed the Board Of Prison Terms’ (Board) grant of parole. The court found that the prisoner’s 30-year-old commitment offense and his prior criminal record were now too attenuated to be valid predictors of current dangerousness his parole. The ruling was properly grounded in AEDPA standards and U.S. Supreme Court precedent.
Ronald Hayward, now 64, was convicted of the 1978 murder of a man who slapped and attempted to rape his girlfriend (now his wife). Hayward stabbed his victim twelve times.
Formerly a member of the Vagos motorcycle gang, and with a long juvenile record, Hayward turned himself around in prison. He earned his GED in 1981 and later completed numerous valuable vocational training courses. For 20 years, he led prison tours for university students studying criminal law. His last major disciplinary violation was in 1987 and his last minor one was in 1997. Although he had initially denied responsibility for the crime, he came clean in his 1993 parole hearing. He had a pre- prison history of substance abuse which carried over into prison, but he quit marijuana smoking in 1985 and had had no alcohol since a DUI in 1974. His Board psychological reports were supportive of parole, finding him a low-to-moderate risk of danger. Hayward was granted parole in 2002 and again in 2003 — both times reversed by then-Governor Gray Davis.
Davis’ reasons for reversal were that the crime was premeditated, very grave and taken against a defenseless drunk victim; that Hayward had refused to take responsibility for the murder; that he had a lifelong history of criminality and violence; that he had an unstable social history, including an extensive history of substance abuse; that he had been involved in gangs, both in and out of prison; and that prison psychologists “remained convinced that he poses a danger to society.” The Governor thus disagreed with the Board, as permitted under state law. But Hayward’s petition alleged that Davis did so absent any evidence that Hayward currently presented an unreasonable risk of danger to society, the regulatory standard under 15 California Code of Regulations 2401(a).
The ultimate question of law was whether a “life” prisoner could ever escape the record of his past danger -- as chronicled in his conviction -- by demonstrating through evidence that he was no longer a danger. This question has been answered lately both in state and federal venues. Recent California appellate court decisions have held that “the crime” cannot be the sole evidence for the governor to hold a lifer forever, unless, relying exclusively upon the record that was before the Board, he can demonstrate a nexus between the (typically decades-old) crime and the prisoner’s current propensity to be an “unreasonable risk of danger to society” if released. (See, e.g., In re Dannenberg, 156 Cal.App.4th 1387 (2007); In re Lee, 143 Cal.App.4th 1400 (2006); In re Scott, 133 Cal.App.4th 573; In re Elkins, 144 Cal.App.4th 475 (2006)). These state courts have held that the lack of such a nexus violates due process.
But federal courts are only able to rule on federal law or U.S. Constitutional questions, and under the AEDPA, are restricted to prior U.S. Supreme Court precedent. The Ninth Circuit has previously held, for a lifer yet seeking a parole suitability finding, that “the evidence of [his] prior offenses and the gravity of his convicted offenses constitute some evidence to support the Board’s decision.” (Sass v. Board of Prison Terms, 461 F.3d 1123, 1129 ( 9th Cir. 2006)). Sass was thus denied habeas relief. Nonetheless, that same court recognized that “continued reliance in the future on an unchanging factor, the circumstances of the offense and conduct prior to imprisonment, runs contrary to the rehabilitative goals espoused by the prison system and could result in a due process violation.” Ibid. The Ninth Circuit had previously applied Sass to deny habeas relief to a California second-degree murderer because at the time of his parole denial, he had not yet accumulated his minimum 15 years actual prison time (that is, the court disregarded his statutory good time credits). Irons v. Carey, No. 05-15275, (9th Cir. July 13, 2007) 2007 WL 2027359. The Ninth Circuit left open the adjudication of a petition for someone who had done in excess of his minimum “flat” time and whose recent record demonstrated the absence of current danger if released.
Carefully reviewing the record in Hayward’s case, the court found that the Governor’s assertions besmirching Hayward’s record were in large part wholly unsupported by any evidence in the record. For example, where the Governor had alleged that Hayward had admitted responsibility for 75-120 serious crimes for which he was never arrested, the court found the record totally silent on this “lifetime of criminality” accusation.
The court then focused on the three non-frivolous “reasons” used by the Governor: Hayward’s criminal history, his unstable social history and the nature of the murder.
The court dispensed with the criminal history concern, noting Hayward’s juvenile record was fifty years prior. His other arrests were at least 30 years old. As to Hayward’s gang history (“unstable social history”), he quit the Vagos gang in 1981 and his last prison gang activity was in 1989. Hayward maintained contact with his family throughout his incarceration and had good support upon release. Finally, dealing with the “gravity” of the offense, the court found that “Hayward’s rehabilitation by education and conduct while imprisoned [and the 25-year age of his offense] cannot demonstrate that Hayward’s release will pose an imminent danger to public safety.” The court found that continued reliance on the unchanging circumstances [i.e., the crime] after two decades of equable behavior “violates due process because petitioner’s commitment offense has become such an unreliable predictor of his present and future dangerousness that it does not satisfy the ‘some evidence’ standard.”
Next, the court tossed the “evidence” of the district attorney’s objection to parole on the grounds that “the district attorney’s opinion, without more, cannot be considered ‘some evidence’ under Hill [Superintendent v. Hill, 472 U.S. 445 (1985)] that supports the Governor’s reversal of parole” (citing Rosenkrantz v. Marshall, 444 F.Supp.2d 1063, 1080, fn.14 (C.D. Cal. 2006). This left only the California Superior Court’s initial rejection of Hayward’s state petition. The Ninth Circuit found the Superior Court’s analysis to be “an unreasonable interpretation of those [psychological and counselor] reports” and that this violated Hill.
Accordingly, the Ninth Circuit reversed the district court’s denial order below and remanded with instructions to grant the writ. It is anticipated that the state will appeal this ruling through the U.S. Supreme Court. See: Hayward v. Marshall, 512 F.3d 536, (9th Cir. 2008).
Importantly for all parole-eligible lifers, because the Ninth Circuit articulated that the Board and Governor are bound by and operate under an identical set of rules, its Hayward opinion as to Governor reversals should apply with equal force to protracted Board denials of parole.
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Related legal case
Hayward v. Marshall
| Year | 2008 |
|---|---|
| Cite | 512 F.3d 536, (9th Cir. 2008) |
| Level | Court of Appeals |
| Injunction Status | N/A |