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California: Multi-Year Lifer Parole Denial Is Permissible Following One-Year Denial, Even In Absence of Significant Changes

The California Court of Appeal reversed the Marin County Superior Court’s ruling that had constrained the Board of Parole Hearings (Board), when conducting lifer parole consideration hearings, to give no more than a one-year denial of parole if the previous denial was for one year, unless it found significantly changed circumstances. The essence of the appellate ruling was that each parole consideration panel operates in a vacuum and owes no deference to any prior panel’s findings - even on the same record. The appellate court further held that the Marin court erred when it ordered the Board to provide timely copies of parole hearing transcripts to the prisoners, or suffer a $10/day/transcript penalty.

Jerry Rutherford, a convicted kidnapper sentenced to 7-years-to-life, filed a habeas petition in the Marin Superior Court complaining that after having received a one-year denial of parole in 2003, he had not been given his next hearing within one year. Noting a multitude of such cases, the court consolidated them by making In re Rutherford a class action case representing all California life prisoners whose subsequent parole consideration hearings were untimely. The Prison Law Office was appointed to represent the prisoners. [During the pendency of the proceedings, Rutherford died, and the case was renamed In re Lugo for a similarly situated life prisoner.]

The case evolved to now include a related complaint, the Board’s practice of issuing multi-year denials following one-year denials absent new cause. But after examining the controlling statutes, the appellate court found no authority for so limiting the discretion of the Board. Moreover, it held that any such judicial limitation on the Board’s inherent discretion, absent statutory or regulatory authority, violated the California Constitution’s separation of powers doctrine. After observing that “nothing in the statute requires the Board to issue a multi-year denial if justified by the evidence,” the court deduced that “a one-year denial does not necessarily reflect an affirmative finding by the Board that it is reasonable to believe parole will be granted in one year.” Stated differently, a multi-year denial might be justified following a one-year denial where the Board believes the earlier panel was mistaken. “Different decision-makers may exercise their discretion in different ways, but that does not mean their decisions are necessarily arbitrary or lacking in evidentiary support. A panel’s discretion cannot be tethered to the discretionary decision of a prior panel.”

The consequence of this conclusion is that even after one “wins” a one-year denial (or, arguably, even a grant of parole [which has a 90+ % chance of being reversed by the Governor]), the “win” is subject to being vetoed by a later panel. And this may occur in spite of the new panel not having had the objective benefit of judging the demeanor of all witnesses at the earlier hearing, but merely re-ruling sua sponte on the cold transcript. Worse yet, this inequitable arrangement is inherently and irrevocably biased against the prisoner, in that no panel can ever retrospectively restore the time incarcerated caused by a prior panel’s flawed multi-year denial.

As to timely gaining hearing transcripts so that one has a record from which to mount a habeas corpus attack upon a denial of parole, the appellate court followed In re Bode, 74 Cal.App.4th 1002 (1999), which found that the statutory requirement to make parole hearing transcripts available to “members of the public” within 30 days after a lifer hearing did not apply equally to the lifer himself, because a prisoner is not a “member of the public”. See: In re Lugo, 164 Cal.App.4th 1522 (1St DCA, 2008).

Of course, a practical remedy for any lifer wanting his transcript in 30 days is simply to have a “member of the public” procure a copy from the Board and mail it to the prisoner. [An unofficial form for such a request is available on PLN’s website.]

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Related legal case

In re Lugo