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California Supreme Court Restricts Lifer Parole Challenges
In its second review in three years of a state prisoner’s habeas corpus petition seeking review of an adverse parole decision, on December 29, 2011 the California Supreme Court again reversed the Fourth District Court of Appeal, Div. 1, which had ordered a new hearing after finding that the Board of Parole’s decision to deny parole was not supported by “some evidence.”
Richard Shaputis was sentenced to 17 years to life for second-degree murder in the 1987 shooting death of his wife. He was found suitable for parole in 2006, after a state appellate court ordered a new parole hearing with restrictions on the Board of Paroles’ (Board) exercise of discretion. Former Governor Arnold Schwarzenegger reversed the Board, which was subsequently overturned by the appellate court. On the state’s petition for review, the California Supreme Court reversed, thus upholding the Governor’s decision. See: In re Shaputis, 44 Cal.4th 1241, 190 P.3d 573 (Cal. 2008) (Shaputis I) [PLN, April 2009, p.30].
Shaputis had a new Board hearing in 2009, wherein he was denied parole. The appellate court, finding no evidence in the record to support the Board’s decision, again granted his habeas petition and ordered the Board to conduct yet another hearing. The California Supreme Court granted the state’s petition for review of this latest appellate ruling and again reversed – leaving Shaputis, 75 years old and medically infirm, to wait three years for another parole hearing.
The unanimous Supreme Court made several significant holdings in its December 29, 2011 ruling. The Court asserted that while Shaputis’ decision to not speak to either the Board’s psychologist or the Board itself could not per se be held against him, the absence of such information and testimony could not be used as a shield to prevent the Board, in rendering an unsuitability decision, from relying on older evidence in the record.
The Supreme Court emphatically held that a candidate for parole can not evade the Board’s inquiry into his current dangerousness by hiring a private psychologist to prepare a favorable report, while refusing to cooperate with a Board psychologist who might issue adverse findings. Ironically, Shaputis hired a private expert only after he had asked the Board for a new psych evaluation and they responded that he didn’t need one. Thus, his use of a private psychologist was neither evasive nor manipulative. The Court clarified that the Board is not bound by the most recent evidence in the record (e.g., a current psych evaluation) and may, upon finding reason to discredit newer reports, rely on older ones.
The Supreme Court further settled an ongoing complaint in recent California lifer habeas petitions regarding the Board’s use of the parole denial factor “lack of insight” subsequent to the Court’s 2008 ruling in Shaputis I, which had crafted that language. Lifers thereafter found that their parole denials were routinely being grounded in the talismanic factor “lack of insight,” notwithstanding that the Board’s regulations do not mention that term.
The Court explained that the concept of “lack of insight” fits within the Board’s existing regulatory factors of “past and present attitude toward the crime” and “understands the nature and magnitude of the offense.” The Supreme Court stated that “the regulatory suitability and unsuitability factors are not intended to function as comprehensive objective standards.” Observing that “a finding on insight is no more subjective or conclusory than a finding on the inmate’s ‘past and present mental state,’” the Court wrote that “the inmate’s insight into not just the commitment offense, but also his or her other antisocial behavior, is a proper consideration.”
Reaffirming the “some evidence” standard of judicial review of lifer parole decisions that it established in In re Rosenkrantz, 29 Cal.4th 616, 59 P.3d 174 (Cal. 2002) [PLN, July 2003, p.30], and followed in In re Lawrence, 44 Cal.4th 1181, 190 P.3d 535 (Cal. 2008) [PLN, April 2009, p.30], the Supreme Court emphasized that the proper role of the judiciary in such matters was limited to reviewing whether the Board’s decision was arbitrary, capricious or procedurally defective. The question of which evidence the Board (or Governor) relied upon, or the credibility of that evidence, or the weight given to the evidence, was solely the function of the executive branch and beyond the scope of judicial reevaluation.
Thus, the existence of a mere “modicum” of evidence in the record is sufficient to bar the judiciary from reviewing the merits of parole decisions by the executive branch.
Moreover, the Court explained, judicial deference to the executive branch permitted such a “modicum” to be present anywhere within the entire record before the Board (or the Governor) – not just within the evidence expressly cited in the parole decision statement.
Reviewing the record that had been before the Board in Shaputis’ 2009 parole hearing, the Supreme Court found (as it did in Shaputis I) that the record still provided the requisite “some evidence” to support the Board’s finding of parole unsuitability. The Court held that the Board had acted well within its discretion to reject the conclusions of the private psychologist hired by Shaputis, where the Board found those conclusions to be inconsistent with the record. Likewise, the Court determined that the Board had acted within its discretion to give little credibility to Shaputis’ prepared written statement of remorse and insight after he declined to speak at his parole hearing.
To guide future judicial reviews of parole decisions, after noting that California Courts of Appeal had been “confused” about the proper scope of review, the Supreme Court set forth five “relevant considerations”:
1. The essential question in deciding whether to grant parole is whether the prisoner currently poses a threat to public safety.
2. That question is posed first to the Board and then to the Governor, who draw their answers from the entire record, including the facts of the offense, the prisoner’s progress during incarceration and the insight he or she has achieved into past behavior.
3. The prisoner has a right to decline to participate in psychological evaluation and in the parole hearing itself. That decision may not be held against the prisoner. Equally, however, it may not limit the Board or the Governor in their evaluation of all the evidence.
4. Judicial review is conducted under the highly deferential “some evidence” standard. The executive decision of the Board or the Governor is to be upheld unless it is arbitrary or procedurally flawed. The court must review the entire record to determine whether a modicum of evidence supports the parole suitability decision.
5. The reviewing court does not ask whether the prisoner is currently dangerous. That question is reserved for the executive branch. Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the evidence.
In summary, with this second decision in Shaputis’ case the California Supreme Court has elevated “lack of insight” into a central factor for the Board to consider when determining parole suitability. The Court also substantially reduced the “wiggle room” for California courts to review challenges to lifer parole denials, except those without a “modicum” of supporting evidence anywhere in the record.
Pending its resolution of this case, the Supreme Court had granted “review and hold” on four other appellate rulings in lifer parole challenges (In re Macias, S189107; In re Adamar, S190226; In re Loveless, S190625; and In re Russo, S193197). Following its decision, the Court remanded those cases for reconsideration consistent with this ruling. See: In re Shaputis, 53 Cal.4th 192, 265 P.3d 253 (Cal. 2011) (Shaputis II), rehearing denied.
Richard Shaputis was sentenced to 17 years to life for second-degree murder in the 1987 shooting death of his wife. He was found suitable for parole in 2006, after a state appellate court ordered a new parole hearing with restrictions on the Board of Paroles’ (Board) exercise of discretion. Former Governor Arnold Schwarzenegger reversed the Board, which was subsequently overturned by the appellate court. On the state’s petition for review, the California Supreme Court reversed, thus upholding the Governor’s decision. See: In re Shaputis, 44 Cal.4th 1241, 190 P.3d 573 (Cal. 2008) (Shaputis I) [PLN, April 2009, p.30].
Shaputis had a new Board hearing in 2009, wherein he was denied parole. The appellate court, finding no evidence in the record to support the Board’s decision, again granted his habeas petition and ordered the Board to conduct yet another hearing. The California Supreme Court granted the state’s petition for review of this latest appellate ruling and again reversed – leaving Shaputis, 75 years old and medically infirm, to wait three years for another parole hearing.
The unanimous Supreme Court made several significant holdings in its December 29, 2011 ruling. The Court asserted that while Shaputis’ decision to not speak to either the Board’s psychologist or the Board itself could not per se be held against him, the absence of such information and testimony could not be used as a shield to prevent the Board, in rendering an unsuitability decision, from relying on older evidence in the record.
The Supreme Court emphatically held that a candidate for parole can not evade the Board’s inquiry into his current dangerousness by hiring a private psychologist to prepare a favorable report, while refusing to cooperate with a Board psychologist who might issue adverse findings. Ironically, Shaputis hired a private expert only after he had asked the Board for a new psych evaluation and they responded that he didn’t need one. Thus, his use of a private psychologist was neither evasive nor manipulative. The Court clarified that the Board is not bound by the most recent evidence in the record (e.g., a current psych evaluation) and may, upon finding reason to discredit newer reports, rely on older ones.
The Supreme Court further settled an ongoing complaint in recent California lifer habeas petitions regarding the Board’s use of the parole denial factor “lack of insight” subsequent to the Court’s 2008 ruling in Shaputis I, which had crafted that language. Lifers thereafter found that their parole denials were routinely being grounded in the talismanic factor “lack of insight,” notwithstanding that the Board’s regulations do not mention that term.
The Court explained that the concept of “lack of insight” fits within the Board’s existing regulatory factors of “past and present attitude toward the crime” and “understands the nature and magnitude of the offense.” The Supreme Court stated that “the regulatory suitability and unsuitability factors are not intended to function as comprehensive objective standards.” Observing that “a finding on insight is no more subjective or conclusory than a finding on the inmate’s ‘past and present mental state,’” the Court wrote that “the inmate’s insight into not just the commitment offense, but also his or her other antisocial behavior, is a proper consideration.”
Reaffirming the “some evidence” standard of judicial review of lifer parole decisions that it established in In re Rosenkrantz, 29 Cal.4th 616, 59 P.3d 174 (Cal. 2002) [PLN, July 2003, p.30], and followed in In re Lawrence, 44 Cal.4th 1181, 190 P.3d 535 (Cal. 2008) [PLN, April 2009, p.30], the Supreme Court emphasized that the proper role of the judiciary in such matters was limited to reviewing whether the Board’s decision was arbitrary, capricious or procedurally defective. The question of which evidence the Board (or Governor) relied upon, or the credibility of that evidence, or the weight given to the evidence, was solely the function of the executive branch and beyond the scope of judicial reevaluation.
Thus, the existence of a mere “modicum” of evidence in the record is sufficient to bar the judiciary from reviewing the merits of parole decisions by the executive branch.
Moreover, the Court explained, judicial deference to the executive branch permitted such a “modicum” to be present anywhere within the entire record before the Board (or the Governor) – not just within the evidence expressly cited in the parole decision statement.
Reviewing the record that had been before the Board in Shaputis’ 2009 parole hearing, the Supreme Court found (as it did in Shaputis I) that the record still provided the requisite “some evidence” to support the Board’s finding of parole unsuitability. The Court held that the Board had acted well within its discretion to reject the conclusions of the private psychologist hired by Shaputis, where the Board found those conclusions to be inconsistent with the record. Likewise, the Court determined that the Board had acted within its discretion to give little credibility to Shaputis’ prepared written statement of remorse and insight after he declined to speak at his parole hearing.
To guide future judicial reviews of parole decisions, after noting that California Courts of Appeal had been “confused” about the proper scope of review, the Supreme Court set forth five “relevant considerations”:
1. The essential question in deciding whether to grant parole is whether the prisoner currently poses a threat to public safety.
2. That question is posed first to the Board and then to the Governor, who draw their answers from the entire record, including the facts of the offense, the prisoner’s progress during incarceration and the insight he or she has achieved into past behavior.
3. The prisoner has a right to decline to participate in psychological evaluation and in the parole hearing itself. That decision may not be held against the prisoner. Equally, however, it may not limit the Board or the Governor in their evaluation of all the evidence.
4. Judicial review is conducted under the highly deferential “some evidence” standard. The executive decision of the Board or the Governor is to be upheld unless it is arbitrary or procedurally flawed. The court must review the entire record to determine whether a modicum of evidence supports the parole suitability decision.
5. The reviewing court does not ask whether the prisoner is currently dangerous. That question is reserved for the executive branch. Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness. The court is not empowered to reweigh the evidence.
In summary, with this second decision in Shaputis’ case the California Supreme Court has elevated “lack of insight” into a central factor for the Board to consider when determining parole suitability. The Court also substantially reduced the “wiggle room” for California courts to review challenges to lifer parole denials, except those without a “modicum” of supporting evidence anywhere in the record.
Pending its resolution of this case, the Supreme Court had granted “review and hold” on four other appellate rulings in lifer parole challenges (In re Macias, S189107; In re Adamar, S190226; In re Loveless, S190625; and In re Russo, S193197). Following its decision, the Court remanded those cases for reconsideration consistent with this ruling. See: In re Shaputis, 53 Cal.4th 192, 265 P.3d 253 (Cal. 2011) (Shaputis II), rehearing denied.
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Related legal case
In re Shaputis
| Year | 2011 |
|---|---|
| Cite | 53 Cal.4th 192, 265 P.3d 253 (Cal. 2011) |
| Level | State Court of Appeals |
| Conclusion | Bench Verdict |
| Injunction Status | N/A |