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California Parole Board Agrees to Implement Policy to Fix Terms at Lifers’ Initial Hearings

by John E. Dannenberg

On December 16, 2013, the California Board of Parole Hearings (Board) and life-sentenced state prisoner Roy Butler entered into a settlement agreement wherein the Board agreed to fix base and adjusted base terms (guidelines for the minimum amount of time that should be served) for all lifers at their initial parole suitability hearings.

Butler, 46, filed a petition for writ of habeas corpus challenging his denial of parole by the Board; he had served 26 years and been denied parole five times. Butler raised two issues in a May 28, 2013 supplemental petition: 1) there was no evidence to support his denial of parole, and 2) the Board should have fixed his base term under the long-standing provisions of the old Indeterminate Sentence Law (ISL) rather than not fixing his term until he is found suitable for parole release.

On appeal, the First District Court of Appeal, Division 2 (1st DCA) took an aggressive stance when reviewing the ISL’s continuing viability in requiring the setting of minimum terms for all lifers at the outset of their incarceration, thereby reopening the “proportionality” issue (like time for like crimes) raised in that Court by this writer in 2001, which was approved in part by In re Dannenberg, 102 Cal.App.4th 95 (Cal.App. 1st Dist. 2002), but subsequently overruled by the California Supreme Court. See: In re Dannenberg 34 Cal.4th 1061 (Cal. 2005). The appellate court built upon the concerns expressed by Presiding Justice J. Anthony Kline in his recent concurring and dissenting opinion in In re Morganti, 204 Cal.App.4th 904 (Cal.App. 1st Dist. 2012), thereby reopening the “proportionality” argument.

The 1st DCA also took the unusual preemptive action of bifurcating Butler’s petition into two cases – one regarding his denial of parole and the other solely related to the legal question of term-fixing. The Court’s reasoning was this: If Butler was granted parole via the first portion of his combined-issue petition, then the second part arguably would become moot. But if the term-fixing matter were separated as a legal issue of statewide importance, it could be resolved irrespective of Butler’s individual parole status.

Butler and the Board entered into an agreement that will implement the terms of the settlement relative to term-fixing regardless of the outcome of Butler’s challenge to the denial of his parole. In the latter regard, the parties agreed to expedite the appellate court’s ruling by waiving oral argument. Further, if Butler prevails in his challenge, the Board agreed to conduct an expedited parole suitability hearing and fix his base term and adjusted base term at that hearing; to order an expedited transcript of the hearing; and to “shorten its internal period of decision review from 120 days to 30 calendar days.”

With respect to term-fixing for life-sentenced prisoners, the Board agreed to “announce a policy of calculating the base term and the adjusted base term for all life term inmates at the initial parole consideration hearing,” and to promulgate new regulations that ensure terms are fixed for all lifers at their initial parole hearings. For lifers who have already had their initial parole hearings and a term was not fixed, the regulations shall provide that a term will be fixed at their next hearing.

By agreeing to settle, the Board arguably dodged a bullet. The settlement says nothing about “proportionality” or the decision-making process to determine “suitability” for parole. Nonetheless, by having lifers’ terms fixed at their initial parole hearings, they could be released after serving less time than under the Board’s current procedures – provided they are found suitable prior to their fixed term, net of good conduct credits. Currently, by the time lifers have their base term set by the Board, they have often already exceeded that term.

Specifically as to the new term-fixing policy, the settlement agreement states: 1) as soon as practicable, the Board shall begin implementation of new policies and procedures that will result in the setting of base terms and adjusted base terms for life-sentenced prisoners at their initial parole hearings, or at the next scheduled parole hearing that results in a grant of parole, a denial of parole, a tie vote or a stipulated denial of parole; and 2) the Board will commence rulemaking proceedings designed to memorialize and embody such new policies and procedures within 90 days after the settlement goes into effect.

The settlement provisions related to term-fixing for lifers will not become effective until the Court of Appeal issues a ruling (whether favorable or unfavorable) on Butler’s bifurcated challenge to the denial of his parole. Upon such a ruling, “the terms of settlement ... will become effective immediately.” See: In re Roy Butler, First District Court of Appeal, Division 2 (CA), Case Nos. A139411 and A137273.

Although the settlement will result in base and adjusted base terms being fixed sooner for life-sentenced prisoners, the Board still must find that they do not pose a danger to public safety and are otherwise eligible before parole is granted.

“We’re talking a change that could have a beneficial effect for thousands of inmates who up to now have had no idea when, if ever, they might have a chance for parole,” stated Jon Streeter, one of Butler’s attorneys.

As a practical matter, the settlement will affect around 35,000 California lifers – about ¼ of the state’s prison population. The only lifers not affected are those serving life without parole and those whose initial parole eligibility dates exceed their life spans. The latter category is increasing, and the principal drivers of this increase are that whereas lifers whose older crimes involved the use of a gun only received a two-year sentence enhancement, today they receive an enhancement of a consecutive 25 years to life. Additionally, third-strike cases and multiple sex offenses are now often punished by consecutive life sentences totaling over 100 years.

Additional sources: Associated Press,

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